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As filed with the Securities and Exchange Commission on May 27, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
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 (I.R.S. Employer
incorporation or organization) Identification No.)
1625 SHARP POINT DRIVE, FORT COLLINS, COLORADO 80525
(Address, including zip code, of principal executive offices)
1995 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
(Full title of the plan)
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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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COPIES TO:
CARISSA C. W. COZE
THELEN REID & PRIEST LLP
TWO EMBARCADERO CENTER, SUITE 2100
SAN FRANCISCO, CALIFORNIA 94111-3995
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of securities to be Amount to be offering price aggregate offering Amount of
registered registered (1) per share (2) price (2) registration fee
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<S> <C> <C> <C> <C>
Common Stock, $0.001 par value....... 50,000 $25.25 $1,262,500.00 $350.98
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(1) The maximum number of additional shares of Common Stock to be offered
under the 1995 Non-Employee Directors' Stock Option Plan. Does not
include 50,000 previously registered shares offered or to be offered
under such 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 May 25, 1999.
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</TABLE>
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INCORPORATION OF EARLIER REGISTRATION STATEMENT BY REFERENCE
This registration statement is filed to register 50,000 shares of
common stock of Advanced Energy Industries, Inc. ("AE"), which shares are
authorized to be issued pursuant to AE's 1995 Non-Employee Directors' Stock
Option Plan, as amended (the "Plan"). A registration statement on Form S-8 (File
No. 333-46705) with respect to 50,000 shares of Common Stock authorized to be
issued pursuant to Plan was filed by AE on February 23, 1998. 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.
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 AE 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, 1998,
filed March 24, 1999 (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 document referred to
in (a) above; and
(c) The description of the common stock of AE contained in the
registration statement on Form 8-A, filed by AE 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 AE 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"), AE's
Restated Certificate of Incorporation, as amended ("Certificate"), provides that
no director shall be personally liable to AE 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 AE or its stockholders; (ii) for acts
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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 AE
only if they are directors of AE and are acting in their capacity as directors,
and does not apply to officers of AE who are not directors.
In addition, AE's By-laws provide that AE 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 AE's request, to the fullest extent permitted under and in
accordance with the GCL; provided, however, that AE may modify the extent of
such indemnification by individual contracts with its Executive Officers and
directors; and, provided further, that AE 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 AE; (iii) such indemnification is provided by AE, in its sole discretion,
pursuant to the powers vested in AE under the GCL; or (iv) such indemnification
is required to be made under Article XI, Section 43, Subsection (d) of AE's
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.
AE maintains a policy of directors' and officers' liability insurance
that insures AE's directors and officers against the cost of defense, settlement
or payment of a judgment under certain circumstances.
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ITEM 8. EXHIBITS
Exhibit
Number Description
------- -----------
4.1 AE's Restated Certificate of Incorporation, as amended
(incorporated by reference to AE's registration statement
on Form S-8, File No. 333- 79425, filed May 27, 1999)
4.2 AE's Bylaws (incorporated by reference to AE's
registration statement on Form S-1, File No. 33-97188,
filed September 20, 1995, as amended)
5 Opinion of Counsel
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of KPMG 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;
(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;
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(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 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 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.
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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 27th
day of May, 1999.
Advanced Energy Industries, Inc.
By: /s/ Douglas S. Schatz
--------------------------------
Douglas S. Schatz
Chairman of the Board, Chief
Executive
Officer and President
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: May 27, 1999 /s/ Douglas S. Schatz
______________________________________
Douglas S. Schatz
Chairman of the Board, Chief Executive
Officer and President
(Principal Executive Officer)
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Dated: May 27, 1999 /s/ Richard P. Beck
_______________________________________
Richard P. Beck
Senior Vice President and Chief
Financial Officer and Director
(Principal Financial and Accounting
Officer)
Dated: May 27, 1999
_______________________________________
G. Brent Backman
Director
Dated: May 27, 1999
_______________________________________
Hollis L. Caswell
Director
Dated: May 27, 1999 /s/ Arthur A. Noeth
_______________________________________
Arthur A. Noeth
Director
Dated: May 27, 1999 /s/ Elwood Spedden
_______________________________________
Elwood Spedden
Director
Dated: May 27, 1999 /s/ Gerald M. Starek
_______________________________________
Gerald M. Starek
Director
Dated: May 27, 1999 /s/ Arthur W. Zafiropoulo
_______________________________________
Arthur W. Zafiropoulo
Director
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EXHIBIT INDEX
Exhibit
Number Description
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4.1 AE's Restated Certificate of Incorporation, as amended
(incorporated by reference to AE's registration statement
on Form S-8, File No. 333- 79425, filed May 27, 1999)
4.2 AE's Bylaws (incorporated by reference to AE's
registration statement on Form S-1, File No. 33-97188,
filed September 20, 1995, as amended)
5 Opinion of Counsel
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of KPMG LLP
24 Power of Attorney (included on the signature pages to this
registration statement)
Exhibit 5
THELEN REID & PRIEST LLP
ATTORNEYS AT LAW
TWO EMBARCADERO CENTER
SAN FRANCISCO, CA 94111-3995
May 25, 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-8 relating to the issuance and sale of 50,000
shares of common stock, $0.001 par value, of the Company ("Common Stock"),
pursuant to the Company's 1995 Non-Employee Directors' Stock Option Plan, as
amended (the "Director Plan").
Please be advised that we are of the opinion that the Common Stock to be
offered and sold by the Company, when issued and paid for in the manner
contemplated by the Director Plan, will be legally issued, fully paid and
non-assessable.
We are members of the bar of the State of California 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 California and the corporate laws of
the State of Delaware.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement on Form S-8.
Very truly yours,
/s/ Thelen Reid & Priest LLP
THELEN REID & PRIEST LLP
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-8
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.
/s/ Arthur Andersen LLP
Denver, Colorado
May 24, 1999.
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-8 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 each of the years in the two-year period
ended November 30, 1997 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
May 24, 1999
