Exhibit 5
February 17, 2023
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Advanced Energy Industries, Inc. 1595 Wynkoop Street, Suite 800 Denver, Colorado 80202 | |
Ladies and Gentlemen:
We have acted as counsel for Advanced Energy Industries, Inc., a Delaware corporation (the “Company”), in connection with the preparation of a Registration Statement on Form S-3 (the “Registration Statement”), including the prospectus constituting a part thereof (the “Prospectus”), to be filed with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the issuance and sale by the Company from time to time of an indeterminate amount of: (i) debt securities of the Company (the “Debt Securities”); (ii) shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”); (iii) shares of the Company’s preferred stock, par value $0.001 per share (the “Preferred Stock”); (iv) warrants to purchase securities of the Company (the “Warrants”); (v) contracts to purchase shares of Common Stock or other securities of the Company (the “Purchase Contracts”); (vi) units, each comprised of a Purchase Contract and either debt obligations or other securities of the Company or debt obligations of third parties securing the holder’s obligation to purchase securities under the Purchase Contract (the “Purchase Units”); and (vii) units of the Company, each consisting of any interest in two or more securities of the types described in the Registration Statement, or a combination thereof (the “Units” and, together with the Debt Securities, the Common Stock, the Preferred Stock, the Warrants, the Purchase Contracts and the Purchase Units, the “Securities”). The Prospectus provides that it will be supplemented in the future by one or more supplements to such Prospectus and/or other offering material (each, a “Prospectus Supplement”).
As counsel to the Company in connection with the proposed issuance and sale of the Securities, we have examined: (i) the Registration Statement, including the Prospectus, and the exhibits (including those incorporated by reference) constituting a part of the Registration Statement; (ii) the Company’s Amended and Restated Certificate of Incorporation and Second Amended and Restated By-laws, each as amended to date; (iii) the Form of Indenture of the Company filed as an exhibit to the Registration Statement; (iv) resolutions of the Board of Directors of the Company relating to the registration of the Securities; and (v) such other proceedings, documents and records as we have deemed necessary to enable us to render this opinion.
In our examination of the above-referenced documents, we have assumed all electronic and manual signatures on all documents reviewed by us (including, without limitation, signatures delivered via electronic signature systems such as DocuSign, SecureDocs, or comparable electronic signature methods or systems) are genuine signatures of the purported signatories, the authenticity of all documents, certificates and instruments submitted to us as originals and the conformity with the originals of all documents submitted to us as copies. We have also assumed that (i) the Registration Statement, and any amendments thereto (including post-effective amendments), will comply with all applicable laws; (ii) a Prospectus Supplement, if required, will have been prepared and filed with the SEC describing the Securities offered thereby; (iii) all Securities will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and any applicable Prospectus Supplement; (iv) any indenture providing for the issuance of Debt Securities, together with any supplemental indenture or officer’s certificate setting forth the terms of a series of Debt Securities to be issued under such indenture, will each be duly
authorized, executed and delivered by the parties thereto in substantially the form reviewed by us; (v) a Form T-1 will be filed with the SEC with respect to the trustee executing any indenture or any supplemental indenture to such indenture; (vi) a definitive purchase, underwriting, placement, dealer or similar agreement with respect to any Securities offered will have been duly authorized and validly executed and delivered by the Company and the other parties thereto; (vii) any Securities issuable upon conversion, exchange or exercise of any Security being offered will have been duly authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange or exercise; (viii) with respect to shares of Common Stock or Preferred Stock offered, there will be sufficient shares of Common Stock or Preferred Stock authorized under the Company’s Amended and Restated Certificate of Incorporation, as amended, and not otherwise reserved for issuance; (ix) the warrant agreement, to be entered into between the Company and the warrant agent named therein, will be duly authorized, executed and delivered by the parties thereto (in proper form); and (x) the unit agreement, to be entered into between the Company and the unit agent named therein, will be duly authorized, executed and delivered by the parties thereto (in proper form).
Based upon and subject to the foregoing and the other matters set forth herein, and having regard for such legal considerations as we deem relevant, we are of the opinion that:
We express no opinion as to the laws of any jurisdiction other than the State of New York, the Delaware General Corporation Law and the federal laws of the United States. We assume no obligation to supplement this opinion letter if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinions expressed herein after the date hereof.
We hereby consent to the reference to our firm under the caption “Legal Matters” in the Prospectus which is filed as part of the Registration Statement, and to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are “experts” within the meaning of Section 11 of the Securities Act or within the category of persons whose consent is required by Section 7 of the Securities Act.
/s/ Foley & Lardner LLP
Foley & Lardner LLP