As filed with the Securities and Exchange Commission on May 19, 2003
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
FORM S-8
REGISTRATION STATEMENT
Advanced Energy Industries, Inc.
UNDER
THE SECURITIES ACT OF 1933
Delaware
(State or other jurisdiction of
incorporation or organization)
84-0846841
(I.R.S. Employer
Identification No.)
1625 Sharp Point Drive, Fort Collins, Colorado 80525
(Address, including zip code, of principal executive offices)
Employee Stock Purchase Plan
Michael El-Hillow
Executive Vice President and Chief Financial Officer
Advanced Energy Industries, Inc.
1625 Sharp Point Drive
Fort Collins, Colorado 80525
(Name and address of agent for service)
With a copy to:
Carissa C. W. Coze
Thelen Reid & Priest LLP
333 So. Hope Street, Suite 2900
Los Angeles, CA 90071
970-221-4670
CALCULATION OF REGISTRATION FEE
(Telephone number, including area code, of agent for service)
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
200,000
$
10.43
$
2,086,000
$
168.76
(1)
Also includes any additional shares of common stock that may become
issuable under the registrant’s Employee Stock Purchase Plan as a result
of the anti-dilution and adjustment provisions of the plan.
(2)
Estimated solely for the purpose of determining the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933.
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 16, 2003.
Statement Regarding Contents of Earlier Registration Statement
We filed a registration statement on Form S-8 on May 20, 1996 (File No. 333-04073) to register 200,000 shares of our common stock issuable under the Advanced Energy Industries, Inc. Employee Stock Purchase Plan. This registration statement on Form S-8 is being filed to register an additional 200,000 shares of our common stock issuable under that plan as the result of an amendment to the plan increasing the number of shares issuable thereunder to 400,000. The contents of the earlier registration statement, except for Items 3, 6 and 8 of Part II, are incorporated by reference in this registration statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The documents listed below, which we have filed with the Securities and Exchange Commission, are specifically incorporated by reference into this registration statement and form an integral part of this registration statement. Information in documents that we file with the Securities and Exchange Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 subsequent to the date of this registration statement will automatically update and supercede the information contained in the listed documents, until we file a post-effective amendment to this registration statement that either indicates that all securities covered by this registration statement have been sold or deregisters all securities unsold as of the date of the post-effective amendment.
(a) Annual Report on Form 10-K for the year ended December 31, 2002, filed on March 27, 2003;
(b) All other reports filed by us pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, since the end of the fiscal year covered by the annual report referred to in (a) above; and
(c) The description of our common stock contained in the registration statement on Form 8-A filed under the Securities Exchange Act of 1934 on October 12, 1995, including any amendment or report filed for the purpose of updating such description.
Item 6. Indemnification of Directors and Officers
As permitted by the Delaware General Corporation Law, our Restated Certificate of Incorporation provides that no director of our company shall be personally liable to our company 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 our company or our 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 Delaware General Corporation Law; or (iv) for any action from which the director derived an improper personal benefit. While our Restated Certificate of Incorporation provides protection from awards for monetary damages for breaches of the duty of care, it does
1
not eliminate the director’s duty of care. Accordingly, our Restated Certificate of Incorporation 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 our Restated Certificate of Incorporation described above apply to our officers only if they are also directors acting in their capacity as directors, and does not apply to our officers who are not directors.
In addition, our bylaws provide that we shall indemnify our executive officers (as defined in Rule 3b-7 under the Securities Exchange Act of 1934) and directors, and any employee who serves as an executive officer or director of any corporation at our request, to the fullest extent permitted under and in accordance with the Delaware General Corporation Law; provided, however, that we may modify the extent of such indemnification by individual contracts with our executive officers and directors; and, provided further, that we 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 our board of directors; (iii) such indemnification is provided by us, in our sole discretion, pursuant to the powers vested in our company under the Delaware General Corporation Law; or (iv) such indemnification is required to be made under Article XI, Section 43, Subsection (d) of our bylaws. Under the Delaware General Corporation Law, 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.
We maintain a policy of directors’ and officers’ liability insurance that insures our directors and officers against the cost of defense, settlement or payment of a judgment under certain circumstances.
Item 8. Exhibits
Exhibit Number
Description
4.1
Restated Certificate of Incorporation, as amended (1)
4.2
Bylaws (2)
5
Opinion of Thelen Reid & Priest LLP
23.1
Consent of KPMG LLP
23.2
Information regarding consent of Arthur Andersen LLP
23.3
Consent of Thelen Reid & Priest LLP (3)
24
Power of Attorney (4)
2
| (1) | Incorporated by reference from our Quarterly Report on Form 10-Q for the quarter ended June 30, 2001, filed August 13, 2001 (File No. 000-26966). | |
| (2) | Incorporated by reference from our registration statement on Form S-1, filed September 20, 1995, as amended (File No. 33-97188). | |
| (3) | Included in Exhibit 5. | |
| (4) | Included on the signature pages to this registration statement. |
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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 16th day of May, 2003.
| Advanced Energy Industries, Inc. | ||||
| By: | /s/ MICHAEL EL-HILLOW | |||
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Michael El-Hillow
Executive Vice President and Chief Financial Officer |
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POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Douglas S. Schatz and Michael El-Hillow, 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 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 the capacities and on the dates indicated.
| Dated: May 16, 2003 | /s/ DOUGLAS S. SCHATZ | |||
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Douglas S. Schatz
Chairman of the Board, President and Chief Executive Officer (Principal Executive Officer) |
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| Dated: May 16, 2003 | /s/ MICHAEL EL-HILLOW | |||
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Michael El-Hillow
Executive Vice President and Chief Financial Officer (Principal Financial Officer) |
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| Dated: May 16, 2003 | /s/ RICHARD P. BECK | |||
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Richard P. Beck
Director |
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| Dated: May 16, 2003 | /s/ TRUNG T. DOAN | |||
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Trung T. Doan
Director |
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| Dated: May 16, 2003 | /s/ ARTHUR A. NOETH | |||
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Arthur A. Noeth
Director |
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| Dated: May 16, 2003 | /s/ ELWOOD SPEDDEN | |||
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Elwood Spedden
Director |
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| Dated: May 16, 2003 | /s/ GERALD M. STAREK | |||
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Gerald M. Starek
Director |
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5
EXHIBIT INDEX
Exhibit Number
Description
4.1
Restated Certificate of Incorporation, as amended (1)
4.2
Bylaws (2)
5
Opinion of Thelen Reid & Priest LLP
23.1
Consent of KPMG LLP
23.2
Information regarding consent of Arthur Andersen LLP
23.3
Consent of Thelen Reid & Priest LLP (3)
24
Power of Attorney (4)
| (1) | Incorporated by reference from our Quarterly Report on Form 10-Q for the quarter ended June 30, 2001, filed August 13, 2001 (File No. 000-26966). | |
| (2) | Incorporated by reference from our registration statement on Form S-1, filed September 20, 1995, as amended (File No. 33-97188). | |
| (3) | Included in Exhibit 5. | |
| (4) | Included on the signature pages to this registration statement. |
EXHIBIT 5
[Letterhead of Thelen Reid & Priest LLP]
May 16, 2003
Advanced Energy Industries, Inc.
1625 Sharp Point Drive
Fort Collins, CO 80525
Re: REGISTRATION STATEMENT ON FORM S-8: EMPLOYEE STOCK PURCHASE PLAN
Dear Sirs:
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 an additional 200,000 shares of common stock, $0.001 par value, of the Company ("Common Stock"), pursuant to the Company's Employee Stock Purchase 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 and paid for in the manner contemplated by the 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 (which includes applicable provisions of the Delaware Constitution, the Delaware General Corporation Law and reported judicial decisions interpreting these laws).
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 23.1
Independent Auditors' Consent
The Board of Directors
Advanced Energy Industries, Inc.:
We consent to incorporation by reference in this Form S-8 of our report dated February 11, 2003, with respect to the consolidated balance sheet of Advanced Energy Industries, Inc. (the Company) and subsidiaries as of December 31, 2002, the related consolidated statements of operations, stockholders' equity, and cash flows for the year ended December 31, 2002, and the related consolidated financial statement schedule, which report appears in the December 31, 2002 annual report on Form 10-K of Advanced Energy Industries, Inc.
Our report dated February 11, 2003 contains an explanatory paragraph relating to the fact that the consolidated financial statements of Advanced Energy Industries, Inc. and subsidiaries as of December 31, 2001 and for each of the years in the two-year period then ended were audited by other auditors who have ceased operations. As described in note 1 to the consolidated financial statements, those consolidated financial statements have been revised to include the transitional disclosures required by Statement of Financial Accounting Standards No. 142, Goodwill and Other Intangible Assets, which was adopted by the Company as of January 1, 2002. However, we were not engaged to audit, review, or apply any procedures to the 2001 and 2000 consolidated financial statements of Advanced Energy Industries, Inc. and subsidiaries other than with respect to such disclosures and, accordingly, we do not express an opinion or any other form of assurance on the 2001 and 2000 consolidated financial statements taken as a whole.
/s/ KPMG LLP
KPMG LLP
Denver, Colorado
May 16, 2003
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EXHIBIT 23.2
INFORMATION REGARDING CONSENT OF ARTHUR ANDERSEN LLP
Section 11(a) of the Securities Act of 1933, as amended (the "Securities Act"), provides that if part of a registration statement at the time it becomes effective contains an untrue statement of a material fact, or omits a material fact required to be stated therein or necessary to make the statements therein not misleading, any person acquiring a security pursuant to such registration statement (unless it is proved that at the time of such acquisition such person knew of such untruth or omission) may assert a claim against, among others, an accountant who has consented to be named as having certified any part of the registration statement or as having prepared any report for use in connection with the registration statement.
In June of 2002, Arthur Andersen LLP ("Andersen") was convicted of obstructing justice, which is a felony offense. The Securities and Exchange Commission prohibits firms convicted of a felony from auditing public companies. Andersen is thus unable to consent to the incorporation by reference in this Registration Statement of Advanced Energy Industries, Inc. on Form S-8 of its report dated February 28, 2002 included in Advanced Energy Industries, Inc.'s Form 10-K as of December 31, 2001 and for the two years then ended. Under these circumstances, Rule 437a under the Securities Act permits Advanced Energy Industries, Inc. to file this Registration Statement on Form S-8 without a written consent from Andersen. As a result, with respect to transactions in Advanced Energy Industries, Inc. securities pursuant to this Registration Statement, Andersen will not have any liability under Section 11(a) of the Securities Act for any untrue statements of a material fact contained in the financial statements audited by Andersen or any omission of a material fact required to be stated therein. Accordingly, you would be unable to assert a claim against Andersen under Section 11(a) of the Securities Act.