<PAGE>
As filed with the Securities and Exchange Commission on November 5, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ADVANCED ENERGY INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 84-0846841
(State or other jurisdiction of (IRS Employer
incorporation or organization Identification Number)
1625 SHARP POINT DRIVE
FORT COLLINS, COLORADO 80525
(970) 221-4670
(Address, including zip code, and telephone number,
including area code, or registrant's principal
executive offices)
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)
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<TABLE>
WITH COPIES TO:
<S> <C>
JAY L. MARGULIES BARRY L. DASTIN
CARISSA C. W. COZE RUSS A. CASHDAN
THELEN REID & PRIEST LLP KAYE, SCHOLER, FIERMAN, HAYS & HANDLER, LLP
TWO EMBARCADERO CENTER, SUITE 2100 1999 AVENUE OF THE STARS, SUITE 1600
SAN FRANCISCO, CALIFORNIA 94111-3995 LOS ANGELES, CALIFORNIA 90067
</TABLE>
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Approximate date of commencement of proposed sale to the public: AS SOON
AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ X ] Registration
No. 333-87455
If this Form is a post-effective amendment pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If the delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE(1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
5 1/4% Convertible Subordinated
Notes due 2006................. $20,000,000 100% $20,000,000 $5,560
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Common Stock, $0.001
par value...................... (2) 0 0 (3)
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(a) under the Securities Act of 1933, as amended.
(2) Includes 403,796 shares of common stock initially issuable upon conversion
of the convertible notes at the rate of 20.1898 shares of common stock per
$1,000 principal amount of convertible notes. Pursuant to Rule 416 under
the Securities Act, such number of shares of common stock registered hereby
shall also include an indeterminate number of additional shares of common
stock that may be issued from time to time upon conversion of the
convertible notes by reason of adjustment of the conversion price in
certain circumstances.
(3) Pursuant to Rule 457(i) under the Securities Act, there is no filing fee
with respect to the shares of common stock issuable upon conversion of the
convertible notes, because no additional consideration will be received in
connection with the exercise of the conversion privilege.
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<PAGE>
INCORPORATION BY REFERENCE
This registration statement is being filed by Advanced Energy
Industries, Inc., a Delaware corporation (the "Company"), to register
$20 million principal amount of 5 1/4% convertible subordinated notes due
2006 ("Notes"), in accordance with Rule 462(b) under the Securities Act. The
Company filed an earlier registration statement on Form S-3 (File No. 333-87455)
relating to the offering by the Company of up to $115 million principal
amount of Notes, which registration statement was declared effective on
November 4, 1999. The contents of such earlier registration statement are
incorporated by reference in this registration statement.
EXHIBITS
<TABLE>
<CAPTION>
Exhibit Description
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<S> <C>
5.1 Opinion of Thelen Reid & Priest LLP re Legality of the Notes
8.1 Opinion of Thelen Reid & Priest LLP re Tax Matters
23.1 Consents of Thelen Reid & Priest LLP (included in Exhibits 5.1 and 8.1)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of KPMG LLP
24.1 Power of Attorney (previously filed as an exhibit to the Company's
Registration Statement on Form S-3 (File No. 333-87455))
</TABLE>
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1
<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-3 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 November 5, 1999.
Advanced Energy Industries, Inc.
By: /s/ Richard P. Beck
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Name: Richard P. Beck
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Title: Senior Vice President and Chief Financial Officer
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Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
*
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Date: November 5, 1999 Douglas S. Schatz
President and Chief
Executive Officer and
Chairman of the Board
(Principal Executive Officer)
/s/ Richard P. Beck
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Date: November 5, 1999 Richard P. Beck
Senior Vice President and
Chief Financial Officer and
Director
(Principal Financial and
Accounting Officer)
*
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Date: November 5, 1999 G. Brent Backman
Director
*
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Date: November 5, 1999 Hollis Caswell
Director
2
<PAGE>
*
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Date: November 5, 1999 Arthur A. Noeth
Director
*
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Date: November 5, 1999 Elwood Spedden
Director
*
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Date: November 5, 1999 Gerald Starek
Director
*
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Date: November 5, 1999 Arthur Zafiropoulo
Director
* By: /s/ Richard P. Beck
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Richard P. Beck
Attorney-in-Fact
3
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
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<S> <C>
5.1 Opinion of Thelen Reid & Priest LLP re Legality of the Notes
8.1 Opinion of Thelen Reid & Priest LLP re Tax Matters
23.1 Consents of Thelen Reid & Priest LLP (included in Exhibits 5.1 and 8.1)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of KPMG LLP
24.1 Power of Attorney (previously filed as an exhibit to the Company's
Registration Statement on Form S-3 (File No. 333-87455))
</TABLE>
<PAGE>
November 4, 1999
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-3 (as may be amended or supplemented,
the "Form S-3"), relating to the issuance and sale by the Company of up to
$20,000,000 of convertible subordinated notes (the "Notes") and the issuance
of common stock, $0.001 par value, of the Company ("Common Stock") on
conversion of the Notes. The Form S-3 was filed by the Company in reliance on
Rule 462(b) under the Securities Act of 1933, as amended, and incorporates by
reference the contents of the Registration Statement on Form S-3 (File No.
333-87455), as amended, previously filed by the Company.
In so acting, we have examined the Form S-3, the Company's
Certificate of Incorporation and Bylaws, as in effect as of the date hereof,
the form of underwriting agreement relating to the Notes (the "Underwriting
Agreement"), the form of Indenture relating to the Notes (the "Indenture"),
and such other documents, records, certificates of officers of the Company,
certificates of public officials and other instruments as we have deemed
necessary or appropriate under the circumstances for purpose of giving the
opinion expressed herein. In making such examinations, we have assumed (a)
the genuineness of all signatures; (b) the authenticity of all documents
submitted to us as originals; (c) the conformity to original documents of all
documents submitted to us as certified copies or photocopies; and (d) the
identity and capacity of all individuals acting or purporting to act as
public officials.
Based upon, subject to and limited by the foregoing, we are of the
opinion that:
(1) The Notes, when issued in accordance with the Underwriting
Agreement and executed and authenticated in accordance with the Indenture,
will be valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as may be limited
by (a) applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or affecting the enforcement of creditors' rights
generally, including without limitation laws relating to fraudulent transfers
or conveyances, preferences and
<PAGE>
Advanced Energy Industries, Inc.
November 4, 1999
Page 2
equitable subordination; (b) general principles of equity, including without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in equity or at
law); and (c) the unenforceability under certain circumstances of provisions
purporting to release or exculpate any party from liability for its acts or
omissions, or purporting to impose a duty upon any party to indemnify any
other party when any claimed damages result from the negligence, gross
negligence or willful misconduct of the party seeking such indemnity.
(2) The Common Stock issuable upon conversion of the Notes, when
issued upon such conversion in accordance with the terms of the Notes, will
be legally issued, fully paid and non-assessable.
In giving the foregoing opinions, we have assumed that (a) the Notes
are duly authenticated by the Trustee and duly executed and delivered on
behalf of the Company against payment therefor in accordance with the terms
approved by the Board of Directors of the Company and in accordance with the
terms of the Underwriting Agreement and the Indenture, (b) the Board of
Directors of the Company, or the duly authorized committee thereof does not
change its determination that tender of the Notes to be converted constitutes
adequate consideration for the issuance of the Common Stock, (c) the Board of
Directors of the Company duly authorizes the issuance of the Common Stock,
(d) the consideration for the issuance of the Common Stock is at least equal
to the aggregate par value of the Common Stock, (e) the Form S-3 is effective
as of the time of the sale, and (f) the Company actually receives the price
for the Notes and the consideration for the Common Stock that is approved by
the Board of Directors or duly authorized committee.
We are members of the bar of the State of New York and we express no
opinion as to the laws of any state or jurisdiction other than federal laws
of the United States, the laws of the State of New York and the corporate
laws of the State of Delaware.
<PAGE>
Advanced Energy Industries, Inc.
November 4, 1999
Page 3
We hereby consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Form S-3. We further consent to
the use of our name under the heading "Legal Matters" in the prospectus
incorporated by reference in the Form S-3.
Very truly yours,
/s/ Thelen Reid & Priest LLP
THELEN REID & PRIEST LLP
MLJ/DM/SHK/CCWC/TJM
<PAGE>
November 4, 1999
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-3 (as may be amended or supplemented,
the "Registration Statement"), relating to the issuance and sale by the
Company of up to $20,000,000 of convertible subordinated notes (the "Notes")
and the issuance of common stock, $0.001 par value, of the Company ("Common
Stock") on conversion of the Notes. The Registration Statement was filed by
the Company in reliance on Rule 462(b) under the Securities Act of 1933, as
amended, and incorporates by reference the contents of the Registration
Statement on Form S-3 (File No. 333-87455), as amended, filed by the Company.
You have requested our opinion with respect to the accuracy of the
discussions included or incorporated by reference in the Registration
Statement under the heading "Material United States Federal Income Tax
Consequences."
In our capacity as counsel for the Company, we have been furnished
with and have examined originals or copies, certified or otherwise identified
to our satisfaction, of such records of the Company, agreements and other
instruments, certificates of officers and representative of the Company,
certificates of public officials and other documents as we have deemed
necessary to require as a basis for the opinion hereinafter expressed. In
making such examinations, we have assumed (i) the genuineness of all
signatures; (ii) the authenticity of all documents submitted to us as
originals; (iii) the conformity to original documents of all documents
submitted to us as certified copies or photocopies; (iv) the identity and
capacity of all individuals acting or purporting to act as public officials;
(v) that all representations and statements set forth in the documents
submitted to us are true and correct; and (vi) that all obligations imposed
by any of the documents submitted to us are enforceable in accordance with
their terms.
We have also made such investigations and have reviewed such other
documents as we have deemed necessary or appropriate under the circumstances,
and have made such
<PAGE>
Advanced Energy Industries, Inc.
November 4, 1999
Page 2
examinations of law as we have deemed appropriate for purpose of giving the
opinions expressed herein.
Based on the foregoing, we are of the following opinion:
The statements concerning United States taxation set forth in the
Registration Statement under the heading "Material United States Federal
Income Tax Consequences," to the extent that such statements represent
matters of law or legal conclusions, describe the material United States
federal income tax consequences expected to result to a holder of Notes
and/or Common Stock, subject, however, to the limitations set forth in the
Registration Statement, including that the statements apply only to Notes
and/or Common Stock held as capital assets, and do not purport to address all
aspects of federal income taxation or all tax considerations that may be
relevant to all categories of potential purchasers.
Our opinion is based on the Internal Revenue Code of 1986, as
amended, applicable Treasury regulations thereunder, and judicial authority
and administrative rulings and practices now in effect. Changes to any of the
foregoing authorities after the date of the Registration Statement could
apply on a retroactive basis and affect the consequences described in the
Registration Statement.
We hereby consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. We
further consent to the use of our name under the heading "Legal Matters" in
the prospectus incorporated by reference in the Registration Statement.
Very truly yours,
/s/ Thelen Reid & Priest LLP
THELEN REID & PRIEST LLP
JRB/JMM
<PAGE>
Exhibit 23.2
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-3 of our report dated
February 5, 1999 included in Advanced Energy Industries, Inc's Form 10-K for the
year ended December 31, 1998 and to all references to our Firm included in this
Registration Statement (File No. 333- ).
/s/ Arthur Andersen LLP
Denver, Colorado
November 4, 1999
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Board of Directors
Advanced Energy Industries, Inc.:
We consent to the incorporation by reference in the Registration Statement on
Form S-3 of Advanced Energy Industries, Inc. of our report dated January 16,
1998 with respect to the consolidated balance sheets of RF Power Products, Inc.
as of November 30, 1997 and 1996 and the related consolidated statements of
income, changes in shareholders' equity and cash flows for the years then
ended and related schedule (not separately presented herein), which report
appears in the annual report on Form 10-K of Advanced Energy Industries, Inc.
for the year ended December 31, 1998.
/S/ KPMG LLP
Philadelphia, Pennsylvania
November 4, 1999
