As filed with the Securities and Exchange Commission on June
19, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ADVANCED ENERGY INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 84-0846841
(State or other (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization)
1625 SHARP POINT DRIVE, FORT COLLINS, COLORADO 80525
(Address, including zip code, of principal executive offices)
1995 STOCK OPTION PLAN
(Full title of the plan)
RICHARD P. BECK
ADVANCED ENERGY INDUSTRIES, INC.
1625 SHARP POINT DRIVE
FORT COLLINS, COLORADO 80525
(970) 221-4670
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
CARISSA C. W. COZE
THELEN, MARRIN, JOHNSON & BRIDGES LLP
TWO EMBARCADERO CENTER, SUITE 2100
SAN FRANCISCO, CALIFORNIA 94111-3995
CALCULATION OF REGISTRATION FEE
Title of securities Amount to Proposed Proposed Amount of
to be be maximum maximum registration
registered registered offering aggregate fee
(1) price offering
per share price (2)
(2)
Common Stock, $0.001 1,125,000 $11.50 $12,937,500 $3,816.56
par value
(1) The maximum number of additional shares of Common Stock to
be offered under the 1995 Stock Option Plan.
(2) Estimated solely for the purpose of determining the
registration fee in accordance with Rule 457(h) under the
Securities Act of 1933, as amended. The above calculation
is based on the average of the reported high and low prices
of the Common Stock on the Nasdaq National Market on June
16, 1998.
<PAGE>
INCORPORATION OF EARLIER REGISTRATION STATEMENT BY REFERENCE
This Registration Statement is filed to register 1,125,000 shares
of Common Stock, $0.001 par value ("Common Shares") of Advanced
Energy Industries, Inc. (the "Registrant"), which shares are
authorized to be issued pursuant to the Registrant's 1995 Stock
Option Plan, as amended (the "Plan"). A registration statement
on Form S-8 (File No. 333-01616) with respect to 3,500,000 shares
of Common Stock authorized to be issued pursuant to Plan was
filed by the Registrant on February 23, 1996. Except for Part
II, Items 3, 6, 8 and 9, which are set forth below, the contents
of such earlier registration statement are hereby incorporated by
reference.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and
Exchange Commission (the "Commission") by the Registrant are
specifically incorporated by reference herein and form an
integral part of this Registration Statement:
(a) Annual Report on Form 10-K for the year ended
December 31, 1997, filed March 24, 1998 (File No. 000-
26966);
(b) All other reports filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") since the end of the
fiscal year covered by the Registrant document referred
to in (a) above; and
(c) The description of the Common Shares contained in
the Registrant's registration statement on Form 8-A,
filed under the Exchange Act on October 12, 1995,
including any amendment or report filed for the purpose
of updating such description.
All reports and other documents subsequently filed by the
Registrant with the Commission pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act shall be deemed to be
incorporated by reference herein and to be a part hereof from the
date of filing of such reports and other documents (except that
no document shall be deemed to be incorporated by reference if
filed after the filing of a post-effective amendment which
indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold).
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by the Delaware General Corporation Law
("GCL"), the Registrant's Certificate of Incorporation, as
amended ("Certificate"), provides that no Director shall be
personally liable to the Registrant or any stockholder for
monetary damages for breach of fiduciary duty as a Director,
except for liability: (i) for any breach of the duty of loyalty
to the Registrant or its stockholders; (ii) for acts or omissions
not in good faith or involving intentional misconduct or a
knowing violation of the law; (iii) arising from payment of
dividends or approval of a stock purchase in violation of Section
174 of the GCL; or (iv) for any action from which the Director
derived an improper personal benefit. While the Certificate
provides protection from awards for monetary damages for breaches
of the duty of care, it does not eliminate the Director's duty of
care. Accordingly, the Certificate will not affect the
availability of equitable remedies, such as an injunction, based
on a Director's breach of the duty of care. The provisions of
the Certificate described above apply to officers of the
Registrant only if they are Directors of the Registrant and are
acting in their capacity as Directors, and does not apply to
officers of the Registrant who are not Directors.
II-1
<PAGE>
In addition, the Registrant's By-laws provide that the
Registrant shall indemnify its Executive Officers (as defined in
Rule 3b-7 promulgated under the Exchange Act) and Directors, and
any employee who serves as an Executive Officer or Director of
any corporation at the Registrant's request, to the fullest
extent permitted under and in accordance with the GCL; provided,
however, that the Registrant may modify the extent of such
indemnification by individual contracts with its Executive
Officers and Directors; and, provided further, that the
Registrant shall not be required to indemnify any Executive
Officer or Director in connection with any proceeding (or part
thereof) initiated by such person unless: (i) such
indemnification is expressly required to be made by law; (ii) the
proceeding was authorized by the Directors of the Registrant;
(iii) such indemnification is provided by the Registrant, in its
sole discretion, pursuant to the powers vested in the Registrant
under the GCL; or (iv) such indemnification is required to be
made under Article XI, Section 43, Subsection (d) of the By-Laws.
Under the GCL, directors and officers as well as employees and
individuals may be indemnified against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
in connection with specified actions, suits or proceedings,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation as a
derivative action) if they acted in good faith and in a manner
they reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal
action or proceeding, had no reasonable cause to believe their
conduct was unlawful.
The Registrant maintains a policy of directors' and
officers' liability insurance that insures the Registrant's
directors and officers against the cost of defense, settlement or
payment of a judgment under certain circumstances.
ITEM 8. EXHIBITS
Exhibit
Number Description
5 Opinion of Counsel
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (included on the signature
pages to this Registration Statement)
EXHIBIT 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement;
II-2
<PAGE>
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933, as
amended (the "Securities Act");
(ii) To reflect in the prospectus any facts
or events arising after the effective date of this
registration statement (or the most recent post-
effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in this registration statement.
Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar
value of securities offered would not exceed that which
was registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in this registration statement or any
material change to such information in this
registration statement;
provided however, that paragraphs (a)(1)(i) and (a)(1)(ii)
shall not apply if the information required to be included
in a post-effective amendment by such paragraphs is
contained in one or more periodic reports filed with or
furnished to the Commission by the registrant pursuant to
Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof; and
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and where applicable,
each filing of an employee benefit plan's annual report pursuant
to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Commission
II-3
<PAGE>
such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection
with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Fort Collins, State of Colorado, on the 19th day of
June, 1998.
Advanced Energy Industries, Inc.
By: /s/ Douglas S. Schatz
Douglas S. Schatz
President, Chairman of the
Board and Chief Executive
Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints
Douglas S. Schatz, Hollis L. Caswell and Richard P. Beck, and
each of them severally, acting alone and without the other, his
true and lawful attorney-in-fact with authority to execute in the
name of each such person, and to file with the Securities and
Exchange Commission, together with any exhibits thereto and other
documents therewith, any and all amendments (including without
limitation post-effective amendments) to this Registration
Statement necessary or advisable to enable the registrant to
comply with the Securities Act of 1933, as amended, and any
rules, regulations and requirements of the Securities and
Exchange Commission in respect thereof, which amendments may make
such changes in this Registration Statement as the aforesaid
attorney-in-fact deems appropriate.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the
following persons on behalf of the registrant and in the
capacities and on the dates indicated.
Dated: June 19, 1998 /s/ Douglas S. Schatz
Douglas S. Schatz
President, Chairman of the Board
and Chief Executive Officer
(Principal Executive Officer)
II-5
<PAGE>
Dated: June 19, 1998 /s/ Richard P. Beck
Richard P. Beck
Senior Vice President and Chief
Financial Officer and Director
(Principal Financial and Accounting
Officer)
Dated: June 19, 1998 /s/ G. Brent Backman
G. Brent Backman
Director
Dated: June 19, 1998 /s/ Hollis L. Caswell
Hollis L. Caswell
Director
Dated: June 19, 1998 /s/ Elwood Spedden
Elwood Spedden
Director
Dated: June 19, 1998 /s/ Arthur A. Noeth
Arthur A. Noeth
Director
II-6
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
5 Opinion of Counsel
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (included on the signature
pages to this Registration Statement)
[LETTERHEAD OF THELEN, MARRIN, JOHNSON & BRIDGES LLP)
Exhibit 5
June 18, 1998
Advanced Energy Industries, Inc.
1625 Sharp Point Drive
Fort Collins, CO 80525
Ladies and Gentlemen:
We have acted as counsel for Advanced Energy
Industries, Inc., a Delaware corporation (the "Company"), in
connection with the preparation of the Registration Statement on
Form S-8 relating to the issuance and sale of 1,125,000
additional shares of common stock, $0.001 par value, of the
Company ("Common Stock"), pursuant to the Company's 1995 Stock
Option Plan, as amended (the "Plan").
Please be advised that we are of the opinion that the
Common Stock to be offered and sold by the Company, when issued
in the manner contemplated by the Plan, will be legally issued,
fully paid and non-assessable.
We hereby consent to the filing of this opinion with
the Commission as an exhibit to the Registration Statement on
Form S-8. Except as stated above, without our prior written
consent, this opinion may not be furnished or quoted to any other
person or entity for any purpose.
Very truly yours,
/s/ Thelen, Marrin, Johnson & Bridges LLP
THELEN, MARRIN, JOHNSON & BRIDGES LLP
JLM/MLJ
[LETTERHEAD OF ARTHUR ANDERSEN LLP]
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form
S-8 of our report dated February 6, 1998 included in Advanced
Energy Industries, Inc.'s Form 10-K for the year ended December
31, 1997 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
Denver, Colorado,
June 17, 1998
