As filed with the Securities and Exchange Commission
on February 23, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ADVANCED ENERGY INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 84-0846841
(State or other (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization)
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1625 SHARP POINT DRIVE, FORT COLLINS, COLORADO 80525
(Address of Principal Executive Offices) (Zip Code)
1995 NON-EMPLOYEE DIRECTORS
STOCK OPTION PLAN
(Full title of the plan)
DOUGLAS S. SCHATZ
ADVANCED ENERGY INDUSTRIES, INC.
1625 SHARP POINT DRIVE, FORT COLLINS, COLORADO 80525
(Name and address of agent for service)
(970) 221-4670
(Telephone number, including area code, of agent for service)
WITH COPIES TO:
CARISSA C. W. COZE
THELEN, MARRIN, JOHNSON & BRIDGES LLP
TWO EMBARCADERO CENTER, 21ST FLOOR
SAN FRANCISCO, CA 94111-3995
CALCULATION OF REGISTRATION FEE
Title of Amount to Proposed Proposed Amount of
securities to be maximum maximum registration
be registered registered offering aggregate fee
(1) price per offering
share (2) price (2)
Common Stock, 50,000 $15.625 $781,250.00 $230.47
$0.001 par shares
value
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(1) The maximum number of shares of Common Stock to be offered under the 1995 Non-Employee Directors Stock Option Plan.
(2) Estimated solely for the purpose of determining the registration fee in accordance with Rule 457(h) under the Securities Act of 1933, as amended. The above calculation is based on the average of the reported high and low prices of the Common Stock on the Nasdaq National Market on February 18, 1998.
PART 1
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8 will be or have been sent or given to participants in the 1995 Non-Employee Directors Stock Option Plan (the "Plan") as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the "Securities Act"). Such documents are not submitted to the Securities and Exchange Commission (the "Commission") herewith in accordance with the Note to Part I of Form S-8, but (together with the documents incorporated by reference herein pursuant to Item 3 of Part II, below) shall constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
Item 1. PLAN INFORMATION
See above.
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
See above.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Advanced Energy Industries, Inc. (the "Company") are incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1996;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the end of the fiscal year covered by the Annual Report referred to in (a) above; and
(c) The description of the Company's common stock, $0.001 par value, contained in the Company's registration statement on Form 8-A filed under the Exchange Act on October 12, 1995, including any amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 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 (except that no document shall be deemed to be incorporated by reference herein if such document is filed after the filing of a post-effective amendment which indicates that all securities offered hereunder have been sold or which deregisters securities then remaining unsold).
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by the Delaware General Corporation Law
("GCL"), the Company's Restated Certificate of Incorporation, as
amended (the "Certificate"), provides that no director of the
Company shall be personally liable to the Company or any
stockholder of the Company for monetary damages for breach of
fiduciary duty as a director, except for liability: (i) for any
breach of the duty of loyalty to the Company or its stockholders;
(ii) for acts or omissions not in good faith or involving
intentional misconduct or a knowing violation of the law;
(iii) arising from payment of dividends or approval of a stock
purchase in violation of Section 174 of the GCL; or (iv) for any
action from which the director derived an improper personal
benefit. While the Certificate provides protection from awards
for monetary damages for breaches of the duty of care, it does
not eliminate the director's duty of care. Accordingly, the
Certificate will not affect the availability of equitable
remedies, such as an injunction, based on a director's breach of
the duty of care. The provisions of the Certificate described
above apply to officers of the Company only if they are directors
of the Company and are acting in their capacity as directors, and
does not apply to officers of the Company who are not directors.
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In addition, the Company's By-Laws provide that the Company shall indemnify its Executive Officers (as defined in Rule 3b-7 promulgated under the Securities Exchange Act of 1934, as amended) and directors, and any employee who serves as an Executive Officer or director of any corporation at the Company's request, to the fullest extent permitted under and in accordance with the GCL; provided, however, that the Company may modify the extent of such indemnification by individual contracts with its Executive Officers and Directors; and, provided further, that the Company shall not be required to indemnify any Executive Officer or director in connection with any proceeding (or part thereof) initiated by such person unless: (i) such indemnification is expressly required to be made by law; (ii) the proceeding was authorized by the directors of the Company; (iii) such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under the GCL; or (iv) such indemnification is required to be made under the By-Laws of the Company. Under the GCL, directors and officers as well as employees and individuals may be indemnified against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement in connection with specified actions, suits or proceedings, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation as a derivative action) if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful.
The Company maintains a policy of directors' and officers' liability insurance that insures the Company's directors and officers against the cost of defense, settlement or payment of a judgment under certain circumstances.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable
Item 8. EXHIBITS
Number Exhibit
4 INSTRUMENTS DEFINING THE RIGHTS OF SECURITY
HOLDERS, INCLUDING INDENTURES
4.1 Company's Restated Certificate of Incorporation*
4.2 Company's By-laws *
4.3 1995 Non-Employee Directors Stock Option Plan *
5 OPINION OF COUNSEL
23 CONSENTS OF EXPERTS AND COUNSEL
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Independent Accountants
24 POWERS OF ATTORNEY (included on the Signature
Pages to this Registration Statement)
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* Incorporated by reference to the Company's Registration Statement on Form S-1 (File No. 33-97188) filed September 20, 1995, as amended.
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Item 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:
(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.
(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.
(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 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 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 February 10, 1998.
Advanced Energy Industries, Inc., a Delaware corporation
By: /s/ Richard P. Beck
Name: Richard P. Beck
Title: Vice President and Chief
Financial Officer
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POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Douglas S. Schatz, Hollis Caswell and G. Brent Backman, 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, and to sign any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, 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, this registration statement has been signed by the following persons in the capacities and on the date indicated.
/s/ Douglas S. Schatz
Date: February 10, 1998 Douglas S. Schatz
President and Chief Executive Officer
and Director
(Principal Executive Officer)
/s/ Richard P. Beck
Date: February 10, 1998 Richard P. Beck
Vice President and Chief Financial
Officer and Director
(Principal Financial and Accounting
Officer)
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/s/ G. Brent Backman
Date: February 10, 1998 G. Brent Backman
Director
/s/ Hollis Caswell
Date: February 10, 1998 Hollis Caswell
Director
/s/ Elwood Spedden
Date: February 10, 1998 Elwood Spedden
Director
/s/ Arthur A. Noeth
Date: February 10, 1998 Arthur A. Noeth
Director
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EXHIBIT INDEX
Number Exhibit
4 INSTRUMENTS DEFINING THE RIGHTS OF SECURITY
HOLDERS, INCLUDING INDENTURES
4.1 Company's Restated Certificate of Incorporation*
4.2 Company's By-laws *
4.3 1995 Non-Employee Directors Stock Option Plan *
5 OPINION OF COUNSEL
23 CONSENTS OF EXPERTS AND COUNSEL
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Independent Accountants
24 POWERS OF ATTORNEY (included on the Signature
Pages to this Registration Statement)
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* Incorporated by reference to the Company's Registration Statement on Form S-1 (File No. 33-97188) filed September 20, 1995, as amended.
[LETTERHEAD OF THELEN, MARRIN, JOHNSON & BRIDGES LLP]
February 20, 1998
Advanced Energy Industries, Inc.
1625 Sharp Point Drive
Fort Collins, CO 80525
Ladies and Gentlemen:
We have acted as counsel for Advanced Energy
Industries, Inc., a Delaware corporation (the "Company"), in
connection with the preparation of the Registration Statement on
Form S-8 relating to the issuance and sale of 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
(the "Plan")
Please be advised that we are of the opinion that the Common Stock to be offered and sold by the Company, when issued in the manner contemplated by the Plan, will be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement on Form S-8. Except as stated above, without our prior written consent, this opinion may not be furnished or quoted to any other person or entity for any purpose.
Very truly yours,
/s/THELEN, MARRIN, JOHNSON & BRIDGES LLP THELEN, MARRIN, JOHNSON & BRIDGES LLP |
JLM/MLJ
[LETTERHEAD OF ARTHUR ANDERSEN LLP]
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 31, 1997 included in Advanced Energy Industries, Inc.'s Form 10-K for the year ended December 31, 1996 and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
Denver, Colorado,
February 20, 1998
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