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As filed with the Securities and Exchange Commission on October 2, 2000
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
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 jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
1625 SHARP POINT DRIVE
FORT COLLINS, COLORADO 80525
(970) 221-4670
(Address, including postal or zip code, and telephone number, including
area code, of registrant's principal executive offices)
RICHARD P. BECK
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
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)
with copies to:
CARISSA C. W. COZE
J.J. ANDRE
THELEN REID & PRIEST LLP
101 SECOND STREET, SUITE 1800
SAN FRANCISCO, CALIFORNIA 94105-3601
Approximate date of commencement of proposed sale to the public:
FROM TIME TO TIME AFTER THIS REGISTRATION STATEMENT IS DECLARED
EFFECTIVE.
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 solely in connection with dividend or
interest reinvestment plans, check the following box. [X]
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. [ ]
If this Form is a post-effective amendment filed 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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================================
Title of Each Class of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Aggregate Registration
Per Unit (1) Offering Price (1) Fee
<S> <C> <C> <C> <C>
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Common Stock, $0.001 par value...... 2,100,000 shares $ 33.845 $71,074,500 $18,763.67
===============================================================================================================
</TABLE>
(1) Estimated solely for the purpose of determining the registration fee in
accordance with Rule 457(c) 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
September 29, 2000.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE> 2
SUBJECT TO COMPLETION DATED OCTOBER 2, 2000
PROSPECTUS
2,100,000 Shares
Advanced Energy Industries, Inc.
Common Stock
This prospectus relates to the public offering, which is not being
underwritten, of 2,100,000 shares of our common stock by the selling
stockholders identified in this prospectus. The prices at which the stockholders
may sell the shares will be determined by the prevailing market for the shares
or in negotiated transactions. We will not receive any proceeds from the sale of
shares offered under this prospectus.
Our common stock is traded on the Nasdaq National Market under the
symbol "AEIS." The last reported sale price on September 29, 2000 was $33.00.
SEE "RISK FACTORS" BEGINNING ON PAGE 4 OF THIS PROSPECTUS TO READ ABOUT
IMPORTANT FACTORS YOU SHOULD CONSIDER BEFORE PURCHASING SHARES OF THE COMMON
STOCK.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER REGULATORY
BODY HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The date of this prospectus is October 2, 2000
THE INFORMATION IN THIS PRELIMINARY PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. THESE SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION IS FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PRELIMINARY
PROSPECTUS IS NOT AN OFFER TO SELL NOR DOES IT SEEK AN OFFER TO BUY SECURITIES
IN ANY JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
Advanced Energy Industries, Inc. ................................ 3
Risk Factors ..................................................... 4
Cautionary Note on Forward-Looking Statements .................... 14
Use of Proceeds ................................................. 14
Selling Stockholders .............................................. 15
Plan of Distribution .............................................. 16
Where You Can Find More Information ............................. 18
Incorporation by Reference ...................................... 18
Legal Matters ................................................... 19
Experts ......................................................... 19
</TABLE>
We have not authorized any person to make a statement that differs from
what is in this prospectus. If any person does make a statement that differs
from what is in this prospectus, you should not rely on it. This prospectus is
not an offer to sell, nor is it seeking an offer to buy, these securities in any
state in which the offer or sale is not permitted. The information in this
prospectus is complete and accurate as of its date, but the information may
change after that date.
Advanced Energy Industries, Inc.
2,100,000 Shares
of Common Stock
--------------------
PROSPECTUS
--------------------
OCTOBER 2, 2000
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ADVANCED ENERGY INDUSTRIES, INC.
OVERVIEW
We design, manufacture and support power conversion and control systems.
These systems are important components of industrial manufacturing equipment
that modifies surfaces or deposits or etches thin film layers on computer chips,
CDs, flat panel displays such as computer screens, DVDs, windows, eyeglasses,
solar panels and other products. Our systems refine, modify and control the raw
electrical power from a utility and convert it into power that is uniform and
predictable. This allows manufacturing equipment to produce and deposit very
thin films at an even thickness on a mass scale.
The ongoing demand for improvements in the performance, capacity and
speed of computer chips, flat panel displays and other products drives
manufacturers to develop more advanced technology to produce thinner, more
consistent and more precise layers of film. Thin film production processes
enable manufacturers to control and alter the electrical, magnetic, optical and
mechanical characteristics of materials. Our systems are used primarily in
plasma-based thin film production processes. Plasma is commonly created by
applying enough electrical force to a gas at reduced pressure to separate
electrons from their parent atoms. Plasma-based process technology was developed
to address the limitations of wet chemistry and thermal process technologies and
to enable new applications. Plasma-based processes are inherently more
controllable and more accurate for many applications than other thin film
production processes because of the electrical characteristics of plasma.
We market and sell our systems primarily to large, global original
equipment manufacturers of semiconductor, flat panel display, data storage and
other industrial thin film manufacturing equipment. We have sold our systems
worldwide to more than 100 OEMs and directly to more than 500 end-users. Our
principal customers include Applied Materials, Balzers, Eaton, Lam Research,
Novellus, Singulus and ULVAC. The semiconductor capital equipment industry
accounted for approximately 61% of our total sales in 1997, 52% in 1998, 65% in
1999 and 69% in the first six months of 2000.
We incorporated in Colorado in 1981 and reincorporated in Delaware in
1995. Our main offices are located at 1625 Sharp Point Drive, Fort Collins,
Colorado 80525, and our telephone number is (970) 221-4670.
RECENT DEVELOPMENTS
This prospectus relates to the shares of Advanced Energy common stock
issued to the former shareholders of Sekidenko, Inc. in connection with our
acquisition of Sekidenko on August 18, 2000. We now operate Sekidenko, which
manufactures optical fiber temperature measurement and control solutions for the
semiconductor and related industries, as a wholly owned subsidiary.
In April 2000, we acquired Noah Holdings, Inc., a privately-held
manufacturer of solid state temperature control systems used to control process
temperatures during semiconductor manufacturing.
In July 2000, we entered into an agreement to acquire Engineering
Measurements Company, a publicly-held manufacturer of flowmeters. Completion of
the Engineering
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Measurements acquisition may not occur since the acquisition is
subject to several conditions, including approval by the shareholders of
Engineering Measurements.
RISK FACTORS
Investing in our common stock involves a high degree of risk. You should
carefully consider the risks and uncertainties described below and the other
information in this prospectus and in the documents incorporated by reference
before deciding whether to purchase our common stock.
RISKS RELATED TO OUR BUSINESS
OUR QUARTERLY OPERATING RESULTS ARE SUBJECT TO SIGNIFICANT FLUCTUATIONS, WHICH
COULD NEGATIVELY IMPACT OUR FINANCIAL CONDITION, RESULTS OF OPERATIONS AND STOCK
PRICE.
Our quarterly operating results have fluctuated significantly and we
expect them to continue to experience significant fluctuations. Downward
fluctuations in our quarterly results have historically resulted in decreases in
the price of our common stock. Quarterly operating results are affected by a
variety of factors, many of which are beyond our control. These factors include:
- changes or slowdowns in economic conditions in the semiconductor and
semiconductor capital equipment industries and other industries in which
our customers operate;
- the timing and nature of orders placed by major customers;
- customer cancellations of previously placed orders and shipment delays;
- pricing competition from our competitors;
- component shortages resulting in manufacturing delays;
- changes in customers' inventory management practices;
- the introduction of new products by us or our competitors; and
- costs incurred by responding to specific feature requests by customers.
In addition, companies in the semiconductor capital equipment industry
and other electronics companies experience pressure to reduce costs. Our
customers exert pressure on us to reduce our prices, shorten delivery times and
extend payment terms. These pressures could lead to significant changes in our
operating results from quarter to quarter.
In the past, we have incurred charges and costs related to events such
as acquisitions, restructuring and storm damages. The occurrence of similar
events in the future could adversely affect our operating results in the
applicable quarter.
Our operating results in one or more future quarters may fall below the
expectations of analysts and investors. In those circumstances, the trading
price of our securities would likely decrease.
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THE MARKET PRICE OF OUR COMMON STOCK IS HIGHLY VOLATILE, WHICH COULD LEAD TO
LOSSES FOR INDIVIDUAL INVESTORS AND COSTLY SECURITIES CLASS ACTION LITIGATION.
The market for technology stocks, including our common stock, has
experienced significant price and volume fluctuations. These fluctuations often
have been unrelated or disproportionate to the operating performance of the
companies. From our IPO in November 1995 through September 29, 2000, the closing
prices of our common stock on the Nasdaq National Market have ranged from $3.50
to $73.25. The market for our common stock likely will continue to be subject to
fluctuations. Many factors could cause the trading price of our common stock to
fluctuate substantially, including the following:
- future announcements concerning our business, our technology, our
customers or competitors;
- variations in our operating results;
- introduction of new products or changes in product pricing policies by
us, its competitors or our customers;
- changes in earnings estimates by securities analysts or announcements of
operating results that are not aligned with the expectations of analysts
and investors;
- economic and competitive conditions in the industries in which our
customers operate; and
- general stock market trends.
In the past, following periods of volatility in the market price of a
particular company's securities, securities class action litigation has often
been brought against that company. Many technology companies have been subject
to this type of litigation. We may also become involved in this type of
litigation. Litigation is often expensive and diverts management's attention and
resources, which could significantly harm our business, financial condition and
results of operations.
THE SEMICONDUCTOR AND SEMICONDUCTOR CAPITAL EQUIPMENT INDUSTRIES ARE HIGHLY
VOLATILE AND OUR OPERATING RESULTS ARE AFFECTED TO A LARGE EXTENT BY EVENTS IN
THOSE INDUSTRIES.
The semiconductor industry historically has been highly volatile and has
experienced periods of oversupply resulting in significantly reduced demand for
semiconductor capital equipment. These reductions, in turn, have significantly
reduced demand for our systems. During downturns, some of our customers have
drastically reduced their orders to us and have implemented substantial cost
reduction programs. Sales to customers in the semiconductor capital equipment
industry accounted for 61% of our total sales in 1997, 52% in 1998, 65% in 1999
and 69% in the first six months of 2000. We expect that we will continue to
depend significantly on the semiconductor and semiconductor capital equipment
industries for the foreseeable future.
A rapid decrease in demand for our products can occur with limited
advance notice because we supply subsystems to equipment manufacturers and make
a substantial and increasing proportion of our shipments on a just-in-time
basis. This decrease in demand can
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adversely impact our business and financial results disproportionately because
of its unanticipated nature.
A SIGNIFICANT PORTION OF OUR SALES ARE CONCENTRATED AMONG A FEW CUSTOMERS.
Our four largest customers accounted for 50% of our total sales in 1997,
46% in 1998, 53% in 1999 and 58% in the first half of 2000. Our largest customer
accounted for 31% of our total sales in 1997, 24% in 1998, 34% in 1999 and 40%
in the first half of 2000. The loss of any of these customers or a material
reduction in any of their purchase orders would significantly harm our business,
financial condition and results of operations.
THE MARKETS IN WHICH WE OPERATE ARE HIGHLY COMPETITIVE.
We face substantial competition, primarily from established companies,
some of which have greater financial, marketing and technical resources than we
do. Our primary competitors are ENI, a subsidiary of Astec (BSR) plc, Applied
Science and Technology (ASTeX), Huettinger, Shindingen, Kyosan, Comdel and
Daihen. We expect that our competitors will continue to develop new products in
direct competition with ours, improve the design and performance of their
systems and introduce new systems with enhanced performance characteristics.
To remain competitive, we need to continue to improve and expand our
systems and system offerings. In addition, we need to maintain a high level of
investment in research and development and expand our sales and marketing
efforts, particularly outside of the United States. We may not be able to make
the technological advances and investments necessary to remain competitive.
New products developed by competitors or more efficient production of
their products could increase pressure on the pricing of our systems. In
addition, electronics companies, including companies in the semiconductor
capital equipment industry, have been facing pressure to reduce costs. Either of
these factors may require us to make significant price reductions to avoid
losing orders. Further, our current and prospective customers consistently exert
pressure on us to lower prices, shorten delivery times and improve the
capability of our systems. Failure to respond adequately to such pressures could
result in a loss of customers or orders.
WE MAY NOT BE ABLE TO INTEGRATE OUR ACQUISITIONS.
We have experienced significant growth through acquisitions and continue
to actively pursue acquisition opportunities. Prior to 1997, we did not make any
significant acquisitions. In the three years from 1997 through 1999, we acquired
four companies. In the first nine months of 2000, we have acquired or entered
into agreements to acquire an additional three companies. Many of our
acquisitions to date have been in markets in which we have limited experience.
We might not be able to compete successfully in these markets or operate the
acquired businesses efficiently.
Our business and results of operations could be adversely affected if
integrating our acquisitions results in substantial costs, delays or other
operational or financial problems. Further, the increased pace of our
acquisitions has required us try to integrate multiple
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acquisitions simultaneously. This has exponentially increased the demands placed
on our management team and has decreased the time and effort that management can
give to integrating each acquisition, while continuing to manage our existing
business.
Future acquisitions could place additional strain on our operations and
management. Our ability to manage future acquisitions will depend on our success
in:
- evaluating new markets and investments;
- monitoring operations;
- controlling costs;
- integrating acquired operations and personnel;
- maintaining effective quality controls; and
- expanding our internal management, technical and accounting systems.
Also, in connection with future acquisitions we may issue equity
securities which could be dilutive, incur debt, recognize substantial one-time
expenses or create goodwill or other intangible assets that could result in
significant amortization expense.
WE ARE GROWING AND MAY BE UNABLE TO MANAGE OUR GROWTH EFFECTIVELY.
We have been experiencing a period of growth and expansion. This growth
and expansion is placing significant demands on our management and our operating
systems. We need to continue to improve and expand our management, operational
and financial systems, procedures and controls, including accounting and other
internal management systems, quality control, delivery and service capabilities.
In order to manage our growth, we may also need to spend significant
amounts of cash to:
- fund increases in expenses;
- acquire additional facilities and equipment;
- take advantage of unanticipated opportunities, such as major strategic
alliances or other special marketing opportunities, acquisitions of
complementary businesses or assets, or the development of new products;
or
- otherwise respond to unanticipated developments or competitive
pressures.
If we do not have enough cash on hand, cash generated from our
operations or cash available under our credit facility to meet these cash
requirements, we will need to seek alternative sources of financing to carry out
our growth and operating strategies. We may not be able to raise needed cash on
terms acceptable to us, or at all. Financings may be on terms that are dilutive
or potentially dilutive. If alternative sources of financing are required but
are insufficient or unavailable, we will be required to modify our growth and
operating plans to the extent of available funding.
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SHORTAGES OF COMPONENTS NECESSARY FOR OUR PRODUCT ASSEMBLY CAN DELAY OUR
SHIPMENTS.
Manufacturing our power conversion and control systems requires numerous
electronic components. Dramatic growth in the electronics industry has
significantly increased demand for these components, particularly in the second
and third quarters of 2000. This demand has resulted in periodic shortages and
allocations of needed components, and we expect to experience additional
shortages and allocations from time to time. Shortages and allocations could
cause shipping delays for our systems, adversely affecting our results of
operations. Shipping delays also could damage our relationships with current and
prospective customers.
OUR DEPENDENCE ON SOLE AND LIMITED SOURCE SUPPLIERS COULD AFFECT OUR ABILITY TO
MANUFACTURE PRODUCTS AND SYSTEMS.
We rely on sole and limited source suppliers for some of our components
and subassemblies that are critical to the manufacturing of our systems. This
reliance involves several risks, including the following:
- the potential inability to obtain an adequate supply of required
components;
- reduced control over pricing and timing of delivery of components; and
- the potential inability of our suppliers to develop technologically
advanced products to support our growth and development of new systems.
We believe that in time we could obtain and qualify alternative sources
for most sole and limited source parts or could manufacture the parts ourselves.
Seeking alternative sources or commencing internal manufacture of the parts
could require us to redesign our systems, resulting in increased costs and
likely shipping delays. We may be unable to manufacture the parts internally or
redesign our systems, which could result in further costs and shipping delays.
These increased costs would decrease our profit margins if we could not pass the
costs to our customers. Further, shipping delays could damage our relationships
with current and potential customers and have a material adverse effect on our
business and results of operations.
WE ARE HIGHLY DEPENDENT ON OUR INTELLECTUAL PROPERTY BUT MAY NOT BE ABLE TO
PROTECT IT ADEQUATELY.
Our success depends in part on our proprietary technology. We attempt to
protect our intellectual property rights through patents and non-disclosure
agreements. However, we might not be able to protect our technology, and
competitors might be able to develop similar technology independently. In
addition, the laws of certain foreign countries might not afford our
intellectual property the same protection as do the laws of the United States.
For example, our intellectual property is not protected by patents in several
countries in which we do business, and we have limited patent protection in
certain other countries. The costs of applying for patents in foreign countries
and translating the applications into foreign languages require us to select
carefully the inventions for which we apply for patent protection and the
countries in which we seek such protection. Generally, we have concentrated our
efforts to obtain international patents in the United Kingdom, Germany, France,
Italy and Japan because there are other manufacturers and developers of power
conversion and control systems in those countries, as well as customers
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for those systems. Our inability or failure to obtain adequate patent protection
in a particular country could have a material adverse effect on our ability to
compete effectively in that country.
Our patents also might not be sufficiently broad to protect our
technology, and any existing or future patents might be challenged, invalidated
or circumvented. Additionally, our rights under our patents may not provide
meaningful competitive advantages.
We do not believe that any of our products are infringing any patents or
proprietary rights of others, although infringements may exist or might occur in
the future. Litigation may be necessary to enforce patents issued to us, to
protect our trade secrets or know-how, to defend ourselves against claimed
infringement of the rights of others or to determine the scope and validity of
the proprietary rights of others. Litigation could result in substantial cost
and diversion of our efforts. Moreover, an adverse determination in any
litigation could cause us to lose proprietary rights, subject us to significant
liabilities to third parties, require us to seek licenses or alternative
technologies from others or prevent us from manufacturing or selling our
products. Any of these events could have a material adverse effect on our
business, financial condition and results of operations.
WE MUST CONSTANTLY DEVELOP AND SELL NEW SYSTEMS IN ORDER TO KEEP UP WITH RAPID
TECHNOLOGICAL CHANGES.
The markets for our systems and the markets in which our customers
compete are characterized by ongoing technological developments and changing
customer requirements. We must continue to improve existing systems and to
develop new systems that keep pace with technological advances and meet the
needs of our customers in order to succeed. We might not be able to continue to
improve our systems or develop new systems. The systems we do develop might not
be cost-effective or introduced in a timely manner. Developing and introducing
new systems may involve significant and uncertain costs. Our business, financial
condition and results of operations, as well as our customer relationships,
could be adversely affected if we fail to develop or introduce improved systems
and new systems in a timely manner.
WE MUST ACHIEVE DESIGN WINS TO RETAIN OUR EXISTING CUSTOMERS AND TO OBTAIN NEW
CUSTOMERS.
The constantly changing nature of semiconductor fabrication technology
causes equipment manufacturers to continually design new systems. We often must
work with these manufacturers early in their design cycles to modify our
equipment to meet the requirements of the new systems. Manufacturers typically
choose one or two vendors to provide the power conversion equipment for use with
the early system shipments. Selection as one of these vendors is called a design
win. It is critical that we achieve these design wins in order to retain
existing customers and to obtain new customers.
We typically must customize our systems for particular customers to use
in their equipment to achieve design wins. This customization increases our
research and development expenses and can strain our engineering and management
resources. These investments do not always result in design wins.
Once a manufacturer chooses a power conversion and control system for
use in a particular product, it is likely to retain that system for the life of
that product. Our sales and
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growth could experience material and prolonged adverse effects if we fail to
achieve design wins. In addition, design wins do not always result in
substantial sales or profits.
We believe that equipment manufacturers often select their suppliers
based on factors such as long-term relationships. Accordingly, we may have
difficulty achieving design wins from equipment manufacturers who are not
currently customers. In addition, we must compete for design wins for new
systems and products of our existing customers, including those with whom we
have had long-term relationships.
OUR EFFORTS TO BE RESPONSIVE TO CUSTOMERS MAY LEAD TO THE INCURRENCE OF COSTS
THAT ARE NOT READILY RECOVERABLE.
We may incur manufacturing overhead and other costs, many of which are
fixed, to meet anticipated customer demand. Accordingly, operating results could
be adversely affected if orders or revenues in a particular period or for a
particular system do not meet expectations.
We often require long lead times for development of our systems during
which times we must expend substantial funds and management effort. We may incur
significant development and other expenses as we develop our systems without
realizing corresponding revenue in the same period, or at all.
OUR SUCCESS DEPENDS UPON OUR ABILITY TO ATTRACT AND RETAIN KEY PERSONNEL.
Our success depends upon the continued efforts of our senior management
team and our technical, marketing and sales personnel. These employees may
voluntarily terminate their employment with us at any time. Our success also
depends on our ability to attract and retain additional highly qualified
management, technical, marketing and sales personnel. The process of hiring
employees with the combination of skills and attributes required to carry out
our strategy can be extremely competitive and time-consuming. We may not be able
to successfully retain existing personnel or identify, hire and integrate new
personnel. If we lose the services of key personnel for any reason, including
retirement, or are unable to attract additional qualified personnel, our
business, financial condition and results of operations could be materially and
adversely affected.
WE CONDUCT MANUFACTURING AT ONLY A FEW SITES AND OUR SITES ARE NOT GENERALLY
INTERCHANGEABLE.
We conduct the majority of our manufacturing at our facilities in Fort
Collins, Colorado and Voorhees, New Jersey. We also conduct manufacturing in
Austin, Texas, Fridley, Minnesota, San Jose, California and Vancouver,
Washington. Each facility generally manufactures different systems. In July
1997, a severe rainstorm in Fort Collins caused substantial damage to our Fort
Collins facilities and to some equipment and inventory. The damage caused us to
stop manufacturing at that facility temporarily and prevented us from resuming
full production there until September 1997. Our insurance policies did not cover
all of the costs that we incurred in connection with the rainstorm. Future
natural or other uncontrollable occurrences at any of our manufacturing
facilities that negatively impact our manufacturing processes may not be fully
covered by insurance and could cause significant harm to our operations and
results of operations.
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WE MIGHT NOT BE ABLE TO COMPETE SUCCESSFULLY IN INTERNATIONAL MARKETS OR TO MEET
THE SERVICE AND SUPPORT NEEDS OF OUR INTERNATIONAL CUSTOMERS.
Our customers increasingly require service and support on a worldwide
basis as the markets in which we compete become increasingly globalized. We
maintain sales and service offices in Germany, Japan, South Korea, the United
Kingdom, and Taiwan.
Sales to customers outside the United States accounted for 22% of our
total sales in 1997, 27% in 1998, 27% in 1999 and 28% in the first six months of
2000, and we expect international sales to continue to represent a significant
portion of our future sales. International sales are subject to various risks,
including:
- currency fluctuations;
- governmental controls;
- political and economic instability;
- barriers to entry;
- trade restrictions;
- changes in tariffs and taxes; and
- longer payment cycles.
In particular, the Japanese market has historically been difficult for
non-Japanese companies, including us, to penetrate.
Providing support services for our systems on a worldwide basis also is
subject to various risks, including:
- our ability to hire qualified support personnel;
- maintenance of our standard level of support; and
- differences in local customers and practices.
Our international activities are also subject to the difficulties of
managing overseas distributors and representatives and managing foreign
subsidiary operations.
We might not be successful in addressing any of these risks.
FLUCTUATIONS IN THE CURRENCY EXCHANGE RATE BETWEEN THE U.S. DOLLAR AND FOREIGN
CURRENCIES COULD ADVERSELY AFFECT OUR OPERATING RESULTS.
A portion of our sales is subject to currency exchange risks as a result
of our international operations. We have experienced fluctuations in foreign
currency exchange rates, particularly against the Japanese yen. Beginning in
1997, we entered into various forward foreign exchange contracts as a hedge
against currency fluctuations in the yen. We have not employed hedging
techniques with respect to any other currencies. Our current or any future
hedging techniques might not protect us adequately against sudden or substantial
currency fluctuations.
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WE MUST MAINTAIN MINIMUM LEVELS OF CUSTOMIZED INVENTORY TO SUPPORT CERTAIN
CUSTOMER DELIVERY REQUIREMENTS.
We must keep a relatively large number and variety of customized systems
in our inventory to meet client delivery requirements because a substantial
proportion of our business involves the just-in-time shipment of systems. Our
inventory may become obsolete as we develop new systems and as our customers
develop new systems. Inventory obsolescence could have a material adverse effect
on our financial condition and results of operations.
WE ARE SUBJECT TO NUMEROUS GOVERNMENTAL REGULATIONS.
We are subject to federal, state, local and foreign regulations,
including environmental regulations and regulations relating to the design and
operation of our power conversion and control systems. We must ensure that our
systems meet certain safety and emissions standards, many of which vary across
the states and countries in which our systems are used. For example, the
European Union has published directives specifically relating to power supplies.
We must comply with these directives in order to ship our systems into countries
that are members of the European Union. In the past, we have invested
significant resources to redesign our systems to comply with these directives.
We believe we are in compliance with current applicable regulations, directives
and standards and have obtained all necessary permits, approvals and
authorizations to conduct our business. However, compliance with future
regulations, directives and standards could require us to modify or redesign
certain systems, make capital expenditures or incur substantial costs. If we do
not comply with current or future regulations, directives and standards:
- we could be subject to fines;
- our production could be suspended; or
- we could be prohibited from offering particular systems in specified
markets.
WE INVEST IN START-UP COMPANIES AND COULD LOSE OUR ENTIRE INVESTMENT.
We have invested in start-up companies, and may invest in other start-up
companies, that develop products and technologies which we believe may provide
us with future benefits. These investments may not provide us with any benefit,
and we may not achieve any economic return on any of these investments. Our
investments in these start-up companies are subject to all of the risks inherent
in investing in companies that are not established. We could lose all or any
part of our investments in these companies.
WE LEASE OUR FORT COLLINS, COLORADO FACILITIES AND A CONDOMINIUM FROM ENTITIES
IN WHICH TWO INDIVIDUALS WHO ARE INSIDERS AND MAJOR STOCKHOLDERS HAVE FINANCIAL
INTERESTS.
We lease our executive offices and manufacturing facilities in Fort
Collins, Colorado from Prospect Park East Partnership and from Sharp Point
Properties, LLC. Douglas S. Schatz, our Chairman and Chief Executive Officer,
holds a 26.7% interest in each of the leasing entities. G. Brent Backman, a
member of our board of directors, holds a 6.6% interest in each of the leasing
entities. Aggregate rental payments under such leases for 1999 totaled
approximately
12
<PAGE> 14
$1.7 million. We also lease a condominium in Breckenridge, Colorado to provide
rewards and incentives to our customers, suppliers and employees. We lease the
condominium from AEI Properties, a partnership in which Mr. Schatz holds a 60%
interest and Mr. Backman holds a 40% interest. Aggregate rental payments under
the condominium lease for 1999 totaled approximately $36,000. As of September
29, 2000, Mr. Schatz owns approximately 34.2% of our common stock, and Mr.
Backman owns approximately 3.7% of our common stock.
RISKS RELATED TO OUR COMMON STOCK
THE MARKET PRICE OF OUR STOCK HAS BEEN AND WILL LIKELY CONTINUE TO BE HIGHLY
VOLATILE.
The stock market generally and the market for technology stocks in
particular have experienced significant price and volume fluctuations, which
often have been unrelated or disproportionate to the operating performance of
such companies. From our IPO in November 1995 through September 29, 2000, the
closing prices of our common stock on the Nasdaq National Market have ranged
from $3.50 to $73.25. The market for our common stock likely will continue to be
subject to similar fluctuations. Many factors could cause the trading price of
our common stock to fluctuate substantially, including the following:
- future announcements concerning our business, our customers or our
competitors;
- variations in our operating results;
- announcements of technological innovations;
- introduction of new products or changes in product pricing policies by
us, our competitors or our customers;
- changes in earnings estimates by securities analysts or announcements of
operating results that are not aligned with the expectations of analysts
and investors;
- economic and competitive conditions in the industries in which our
customers operate; and
- general stock market trends.
OUR EXECUTIVE OFFICERS AND DIRECTORS OWN A SIGNIFICANT PERCENTAGE OF OUR
OUTSTANDING COMMON STOCK, WHICH COULD ENABLE THEM TO CONTROL OUR BUSINESS AND
AFFAIRS.
Our executive officers and directors owned approximately 39.9% of our
outstanding common stock outstanding as of September 29, 2000. Douglas S.
Schatz, our Chairman and Chief Executive Officer, owned approximately 34.2% of
our common stock outstanding as of September 29, 2000. These stockholdings give
our executive officers and directors collectively, and Mr. Schatz individually,
significant voting power. Depending on the number of shares that abstain or
otherwise are not voted on a particular matter, our executive officers and
directors collectively, and Mr. Schatz individually, may be able to elect all of
the members of our board of directors and to control our business and affairs
for the foreseeable future.
ANTI-TAKEOVER PROVISIONS LIMIT THE ABILITY OF A PERSON OR ENTITY TO ACQUIRE
CONTROL OF US.
13
<PAGE> 15
Our certificate of incorporation and bylaws include provisions which:
- allow the board of directors to issue preferred stock with rights senior
to those of the common stock without any vote or other action by the
holders of the common stock;
- limit the right of our stockholders to call a special meeting of
stockholders; and
- impose procedural and other requirements that could make it difficult
for stockholders to effect certain corporate actions.
In addition, we are subject to the anti-takeover provisions of the
Delaware General Corporation Law. Any of these provisions could delay or prevent
a person or entity from acquiring control of us. The effect of these provisions
may be to limit the price that investors are willing to pay in the future for
our securities. These provisions might also discourage potential acquisition
proposals or could diminish the opportunities for our stockholders to
participate in a tender offer, even if the acquisition proposal or tender offer
is at a price above the then current market price for our common stock.
CAUTIONARY NOTE ON FORWARD-LOOKING STATEMENTS
Some of the statements contained in or incorporated by reference in this
prospectus discuss our plans and strategies for our business or make other
forward-looking statements, as this term is defined in the Private Securities
Litigation Reform Act. The words "anticipates", "believes", "estimates",
"expects", "plans", "intends" and similar expressions are intended to identify
these forward-looking statements, but are not the exclusive means of identifying
them. These forward-looking statements reflect the current views of our
management. However, various risks, uncertainties and contingencies could cause
our actual results, performance or achievements to differ materially from those
expressed in, or implied by, these statements, including the following:
- the success or failure of our efforts to implement our business
strategy; and
- the other risks and uncertainties discussed under the heading "Risk
Factors" and elsewhere in this prospectus and in the documents
incorporated by reference.
We do not have any obligation to update publicly any forward-looking
statements, whether as a result of new information, future events or otherwise.
You should carefully consider the information set forth under the heading "Risk
Factors" and elsewhere in this prospectus and in the documents incorporated by
reference. In light of these risks, uncertainties and assumptions, the
forward-looking events discussed in, implied by or incorporated by reference in
this prospectus might not occur.
USE OF PROCEEDS
All of the shares of our common stock are being sold by the selling
stockholders. We will not receive any proceeds from the sale of these shares.
14
<PAGE> 16
SELLING STOCKHOLDERS
The following table sets forth the names of the selling stockholders and
the number of shares being registered for sale as of the date of the prospectus
and sets forth the number of shares of common stock known by us to be
beneficially owned by each of the selling stockholders as of September 29, 2000.
None of the selling stockholders has had a material relationship with Advanced
Energy within the past three years other than as a result of the ownership of
the shares or other securities of Advanced Energy and, with the exception of
Y.O. Systems, Inc., as employees of Sekidenko, a subsidiary of Advanced Energy.
The shares offered by this prospectus may be offered from time to time by the
selling stockholders.
Pursuant to the acquisition of Sekidenko on August 18, 2000, we issued
2,100,000 shares of common stock to the selling stockholders. As part of the
acquisition, we undertook a contractual obligation, by the terms of the
Agreement and Plan of Reorganization, to file a registration statement covering
the resale of the shares issued in the acquisition by filing of a Form S-3 with
the Securities and Exchange Commission.
The selling stockholders have entered into an Escrow and Indemnity
Agreement with Advanced Energy, dated August 18, 2000, under which the shares
being registered may only be offered, pledged, transferred, sold or otherwise
disposed of according to the following schedule: 90% as of the date that
Advanced Energy files its Form 10-Q for the quarter ending September 30, 2000
and 10% as of August 18, 2001 if there are no claims under the indemnity
provisions of the Escrow Agreement.
All information contained in the table below is based upon information
provided to us by the selling stockholders, and we have not independently
verified this information. We are not able to estimate the amount of shares that
will be held by the selling stockholders after the completion of this offering
because the selling stockholders may offer all or some of their shares and
because there currently are no agreements, arrangements or understandings with
respect to the sale of any of their shares. The following table assumes that all
of the shares being registered will be sold. The selling stockholders are not
making any representation that any shares covered by the prospectus will be
offered for sale. The selling stockholders reserve the right to accept or
reject, in whole or in part, any proposed sale of shares.
<TABLE>
<CAPTION>
Number of Shares Number of
Name Beneficially Owned Shares Registered
---- ------------------ -----------------
<S> <C> <C>
Ray R. Dils 1,411,410 1,411,410
Y.O. Systems, Inc. 420,000 420,000
Anelyn Becker (1) 2,100 2,100
Glenn Berry (1) 4,935 4,935
Edmun Chau (1) 9,870 9,870
Cora C. Coughlin (1) 1,260 1,260
Steven Coutinho (1) 52,500 52,500
Marla Dils (1) 9,870 9,870
</TABLE>
15
<PAGE> 17
<TABLE>
<S> <C> <C>
Richard J. Farmer (1) 8,400 8,400
Chuck Gooding (1) 63,000 63,000
Mark A. Hatzenbuhler (1) 6,300 6,300
Thomas Haw (1) 8,400 8,400
Wieslaw Jedzrejewski (1) 5,040 5,040
Gary K. Kercheck (1) 8,400 8,400
Gina Marquart (1) 2,940 2,940
Jerry Mattison (1) 4,935 4,935
Nathan R. McClellan (1) 3,360 3,360
William McDonnell (1) 9,870 9,870
Loren Morris (1) 8,400 8,400
Thao Nguyen (1) 9,870 9,870
Brian Patterson (1) 4,200 4,200
Steven S. Peters (1) 6,300 6,300
Bill Pfeifer (1) 4,200 4,200
Michelle Robinson (1) 3,360 3,360
Jane Sliger (1) 6,300 6,300
Kelly Spurling (1) 9,870 9,870
Theresa A. Vandehey (1) 5,040 5,040
Mary Wiens (1) 9,870 9,870
</TABLE>
-------------
(1) The number of shares reported for each of these selling
stockholders are held of record by Curt Gleaves, Trustee under
Trust Agreement dated August 18, 2000. The selling stockholder
has an option to purchase from this trust the number of shares
reported and has the right to vote the shares.
This prospectus also covers any additional shares of common stock that
become issuable in connection with the shares being registered by reason of any
stock dividend, stock split, recapitalization or other similar transaction
effected without the receipt of consideration which results in an increase in
the number of our outstanding shares of common stock.
PLAN OF DISTRIBUTION
We are registering the 2,100,000 shares on behalf of the selling
stockholders. As used herein, "selling stockholders" includes donees and
pledgees selling shares received from a named Selling Stockholder after the date
of this prospectus. All costs, expenses and fees in connection with the
registration of the shares offered hereby will be borne by us. Brokerage
16
<PAGE> 18
commissions and similar selling expenses, if any, attributable to the sale of
shares will be borne by the selling stockholders. Sales of shares may be
effected by selling stockholders from time to time in one or more types of
transactions (which may include block transactions) on the NYSE, in the
over-the-counter market, in negotiated transactions, through put or call options
transactions relating to the shares, through short sales of shares, or a
combination of such methods of sale, at market prices prevailing at the time of
sale, or at negotiated prices. Such transactions may or may not involve brokers
or dealers. We have not been advised by the selling stockholders of any
agreements, understandings or arrangements that they may have entered into with
any underwriters or broker-dealers regarding the sale of their securities, nor
are we aware of any underwriter or coordinating broker acting in connection with
the proposed sale of shares by selling stockholders.
The Selling Stockholders may sell their shares directly to purchasers or
to or through broker-dealers, which may act as agents or principals. Such
broker-dealers may receive compensation in the form of discounts, concessions,
or commissions from the selling stockholders and/or the purchasers of shares for
whom such brokers-dealers may act as agents or to whom they sell as principal,
or both (which compensation as to a particular broker-dealer might be in excess
of customary commissions.)
The selling stockholders and any broker-dealers that act in connection
with the sale of shares might be deemed to be "underwriters" within the meaning
of Section 2(11) of the Securities Act, and any commissions received by such
broker-dealers and any profit on the resale of the shares sold by them while
acting as principals might be deemed to be underwriting discounts or commissions
under the Securities Act. We have agreed to indemnify each selling stockholder
against certain liabilities, including liabilities arising under the Securities
Act. The selling stockholders may agree to indemnify any agent, dealer or
broker-dealer that participates in transactions involving sales of the shares
against certain liabilities, including liabilities arising under the Securities
Act.
Because selling stockholders may be deemed to be "underwriters" within
the meaning of Section 2(11) of the Securities Act, the selling stockholders
will be subject to the prospectus delivery requirements of the Securities Act.
Selling stockholders also may resell all or a portion of the shares in open
market transactions in reliance upon Rule 144 under the Securities Act, provided
they meet the criteria and conform to the requirements of such Rule.
Upon the Company being notified by a selling stockholder that any
material arrangement has been entered into with a broker-dealer for the sale of
shares through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer, a supplement to this
prospectus will be filed, if required, pursuant to Rule 424(b) under the Act,
disclosing (i) the name of such selling stockholder and of the participating
broker-dealer(s), (ii) the number of shares involved, (iii) the price at which
such shares were sold, (iv) the commissions paid or discounts or concessions
allowed to such broker-dealer(s), where applicable, (v) that such
broker-dealer(s) did not conduct any investigation to verify the information set
out or incorporated by reference in this prospectus and (vi) other facts
material to the transaction. In addition, upon the company being notified by a
selling stockholder that a donee or pledgee intends to sell more than 500
shares, a supplement to this prospectus will be filed.
17
<PAGE> 19
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission a Registration
Statement on Form S-3 under the Securities Act of 1933, relating to the common
stock being offered. This prospectus is filed as part of the registration
statement. Other parts of the registration statement are omitted from this
prospectus. Statements made in this prospectus concerning the contents of any
contract or other document are not necessarily complete. For a more complete
description of the matter involved, you should read the entire contract or other
document, which has been filed as an exhibit to the registration statement.
We are required by the Securities Exchange Act of 1934 to file reports,
proxy statements and other information with the SEC. You may read and copy such
reports, proxy statements and other information at the SEC's public reference
facilities:
<TABLE>
<CAPTION>
Washington D.C. New York Chicago
--------------- -------- -------
<S> <C> <C>
Judiciary Plaza Seven World Trade Center Citicorp Center
450 Fifth Street, N.W. Suite 1300 500 West Madison Street
Room 1024 New York, NY 10048 Suite 1400
Washington, D.C. 20549 Chicago, IL 60661-2511
</TABLE>
You may call 1-800-SEC-0330 for further information about the public
reference facilities. For a fee, the SEC will send copies of any of our filings
to you. In addition, our filed reports, proxy statements and other information
are contained in the Internet web site maintained by the SEC. The address of
that site is http://www.sec.gov.
Our common stock is quoted on the Nasdaq National Market under the
symbol "AEIS". Our SEC filings can be read at the following Nasdaq address:
Nasdaq Operations
1735 K Street, N.W.
Washington, D.C. 20006
INCORPORATION BY REFERENCE
The SEC allows us to incorporate by reference the information we file
with it, which means we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered
to be a part of this prospectus, and information that we later file with the SEC
will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
until all of the securities registered in this offering are sold:
1. Our Quarterly Reports on Form 10-Q for the quarters ended March 30,
2000 and June 31, 2000, filed April 18, 2000 and August 4, 2000
respectively (File #000-26966).
2. Our Annual Report on Form 10-K for the year ended December 31, 1999,
filed March 20, 2000 (File #000-26966).
18
<PAGE> 20
3. The description of our common stock contained in our Registration
Statement on Form 8-A filed October 12, 1995, and any amendment or
report filed for the purpose of updating such description.
4. Our Current Report on Form 8-K, dated August 18, 2000, as amended on
September 19, 2000 (File No. 000-26966).
You may request a copy of these filings, at no cost, by calling Investor
Relations at (970) 221-4670 or by writing us at the following address:
Advanced Energy Industries, Inc.
1625 Sharp Point Drive
Fort Collins, Colorado 80525
Attention: Cathy Kawakami
LEGAL MATTERS
The validity of the common stock will be passed upon for us by Thelen
Reid & Priest LLP, San Francisco, California.
EXPERTS
The financial statements and schedules incorporated by reference in this
prospectus have been audited by Arthur Andersen LLP, independent public
accountants, as set forth in their reports as of and for the years ended
December 31, 1999 and 1998. In the report for the year ended December 31, 1997,
that firm states that with respect to certain subsidiaries its opinion is based
on the reports of other independent public accountants. The financial statements
and supporting schedules referred to above have been incorporated by reference
herein in reliance upon the authority of those firms as experts in giving said
reports.
19
<PAGE> 21
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth an estimate of the expenses to be
incurred by the Registrant in connection with the issuance and distribution of
the securities being registered:
<TABLE>
<CAPTION>
Amount to
Be Paid
--------
<S> <C>
Registration Fee - SEC..................................... $18,764
Legal Fees and Expenses.................................... $ 5,000
Accounting Fees and Expenses .............................. $ 9,000
Miscellaneous.............................................. $ 1,000
Total...................................................... $33,764
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by the Delaware General Corporation Law ("DGCL"), Advanced
Energy's Restated Certificate of Incorporation, as amended (the "AE
Certificate"), provides that no director shall be personally liable to Advanced
Energy 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
Advanced Energy or its stockholders; (ii) for acts or omissions not in good
faith or involving intentional misconduct or a knowing violation of the law;
(iii) under Section 174 of the DGCL; or (iv) for any transaction from which the
director derived an improper personal benefit. While the AE Certificate provides
protection from awards for monetary damages for breaches of fiduciary duty, it
does not eliminate the director's duty of care. Accordingly, the AE 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 AE
Certificate described above apply to officers of Advanced Energy only if they
are directors of Advanced Energy and are acting in their capacity as directors,
and does not apply to officers of Advanced Energy who are not directors.
In addition, Advanced Energy's Bylaws provide that Advanced Energy
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 Advanced Energy's request,
to the fullest extent permitted under and in accordance with the DGCL; provided,
however, that Advanced Energy may modify the extent of such indemnification by
individual contracts with its Executive Officers and directors; and, provided
further, that Advanced Energy 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
Advanced Energy; (iii) such indemnification is provided by Advanced
II-1
<PAGE> 22
Energy, in its sole discretion, pursuant to the powers vested in Advanced Energy
under the DGCL; or (iv) such indemnification is required to be made under
Article XI, Section 43, Subsection (d) of Advanced Energy's Bylaws. Under the
DGCL, 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. Advanced Energy maintains a policy of directors' and officers'
liability insurance that insures Advanced Energy's directors and officers
against the costs of defense, settlement or payment of a judgment under certain
circumstances.
ITEM 16. EXHIBITS
The following is a list of Exhibits filed as part of the Registration
Statement:
2.1 Merger Agreement between the Registrant, Sekidenko, Inc., and
Mercury Merger Corporation, dated July 21, 2000.(1)
4.1 Restated Certificate of Incorporation, as amended (2)
4.2 Bylaws (2)
4.3 Specimen Certificate for the Common Stock (2)
4.4 Form of Indenture between State Street Bank and Trust Company of
California, N.A., as trustee, and Advanced Energy Industries, Inc. (including
form of % Convertible Subordinated Note due 2006) (3)
4.5 Undertaking re: Other Long-Term Debt
5.1 Opinion of Thelen Reid & Priest LLP re legality of common stock
23.1 Consent of Arthur Andersen LLP
23.2 Consent of KPMG LLP
23.3 Consent of Thelen Reid & Priest LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included on the signature pages to this
Registration Statement.)
-----------------
(1) Incorporated by reference from Advanced Energy's Quarterly Report
on Form 10-Q for the quarter ended June 30, 2000, filed August 4,
2000 (File No. 000-26966).
(2) Incorporated by reference from Advanced Energy's Registration
Statement on Form S-1, filed September 20, 1995, as amended (File
No. 33-97188).
II-2
<PAGE> 23
(3) Incorporated by reference from Advanced Energy's Registration
Statement on Form S-3, filed September 21, 1999 (File No.
333-87455).
ITEM 17. UNDERTAKINGS
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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the 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 the 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 percent 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 the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) of this section do
not apply if the registration statement is on Form S-3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(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.
The undersigned registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the
II-3
<PAGE> 24
foregoing provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange 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 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> 25
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 September 28,
2000.
ADVANCED ENERGY INDUSTRIES, INC.
By: /s/ Douglas S. Schatz
-------------------------------
Douglas S. Schatz
Chief Executive Officer and
Chairman of the Board
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 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 by the following persons in capacities
and on the date indicated.
Date: September 28, 2000 /s/ Douglas S. Schatz
-------------------------------
Douglas S. Schatz
Chief Executive Officer and
Chairman of the Board
(Principal Executive Officer)
Date: September 28, 2000 /s/ Hollis L. Caswell
-------------------------------
Hollis L. Caswell
President, Chief Operating
Officer and Director
II-5
<PAGE> 26
Date: September 28, 2000 /s/ Richard P. Beck
-------------------------------
Richard P. Beck
Senior Vice President, Chief
Financial Officer and Director
(Principal Financial and
Accounting Officer)
Date: , 2000
-------------------------------
G. Brent Backman
Director
Date: September 20, 2000 /s/ Trung T. Doan
-------------------------------
Trung T. Doan
Director
Date: September 27, 2000 /s/ Arthur A. Noeth
-------------------------------
Arthur A. Noeth
Director
Date: , 2000
-------------------------------
Elwood Spedden
Director
Date: September 28, 2000 /s/ Gerald Starek
-------------------------------
Gerald Starek
Director
Date: , 2000
-------------------------------
Arthur Zafiropoulo
Director
II-6
<PAGE> 27
EXHIBIT INDEX
EXHIBIT
NUMBERS DESCRIPTION
------- -----------
The following is a list of Exhibits filed as part of the Registration
Statement:
2.1 Merger Agreement between the Registrant, Sekidenko, Inc., and
Mercury Merger Corporation, dated July 21, 2000.(1)
4.1 Restated Certificate of Incorporation, as amended (2)
4.2 Bylaws (2)
4.3 Specimen Certificate for the Common Stock (2)
4.4 Form of Indenture between State Street Bank and Trust Company of
California, N.A., as trustee, and Advanced Energy Industries, Inc. (including
form of % Convertible Subordinated Note due 2006) (3)
4.5 Undertaking re: Other Long-Term Debt
5.1 Opinion of Thelen Reid & Priest LLP re legality of common stock
23.1 Consent of Arthur Andersen LLP
23.2 Consent of KPMG LLP
23.3 Consent of Thelen Reid & Priest LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included on the signature pages to this
Registration Statement.)
-----------------
(1) Incorporated by reference from Advanced Energy's Quarterly Report
on Form 10-Q for the quarter ended June 30, 2000, filed August 4,
2000 (File No. 000-26966).
(2) Incorporated by reference from Advanced Energy's Registration
Statement on Form S-1, filed September 20, 1995, as amended (File
No. 33-97188).
(3) Incorporated by reference from Advanced Energy's Registration
Statement on Form S-3, filed September 21, 1999 (File No.
333-87455).
