As filed with the Securities and Exchange Commission on October 7, 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)
1625 SHARP POINT DRIVE, FORT COLLINS, COLORADO 80525
(Address of Principal Executive Offices) (Zip Code)
RF POWER PRODUCTS, INC. 1992 STOCK OPTION PLAN
RF POWER PRODUCTS, INC. 1993 NON-EMPLOYEE DIRECTORS STOCK OPTION
PLAN
RF POWER PRODUCTS, INC. 1995 STOCK OPTION PLAN
(Full title of the plans)
RICHARD P. BECK
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 REID & PRIEST LLP
TWO EMBARCADERO CENTER, 21ST FLOOR, SAN FRANCISCO, CALIFORNIA
94111-3995
CALCULATION OF REGISTRATION FEE
Title of securities Amount to Proposed Proposed Amount of
to be be maximum maximum registration
registered registered offering aggregate fee
(1) price offering
per share (2) price (2)
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Common Stock, $0.001 14,027 shares $ 0.67 $1,561,740.87 $460.75
par value 6,582 shares 3.42
88,627 shares 8.75
494 shares 8.93
494 shares 10.26
3,292 shares 11.03
8,229 shares 15.01
28,797 shares 17.29
4,937 shares 17.65
(1) Pursuant to the Agreement and Plan of Merger dated as of June
1, 1998 (the "Merger Agreement"), by and among the registrant,
Warpspeed, Inc. and RF Power Products, Inc. ("RF Power"), the
registrant will assume all of the outstanding options to
purchase common stock of RF Power granted under the RF Power
Products, Inc. 1992 Stock Option Plan, RF Power Products, Inc.
1993 Non-Employee Directors Stock Option Plan and RF Power
Products, Inc. 1995 Stock Option Plan. Such options will be
converted into options to purchase Common Stock of the
registrant, with appropriate adjustments to the number of
shares and exercise price of each assumed option to reflect
the ratio at which RF Power common stock will be converted
into Common Stock of the registrant under the Merger
Agreement.
(2) Pursuant to Rule 457(h) under the Securities Act of 1933, the
aggregate offering price and the registration fee have been
computed based on the fixed prices at which the options to
purchase Common Stock of the registrant will be exercisable.
PART 1
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
This Registration Statement on Form S-8 is being filed to
register the Common Stock, $0.001 par value ("Common Stock"), of
Advanced Energy Industries, Inc., a Delaware corporation (the
"Company"), issuable pursuant to the Company's assumption of the
RF Power Products, Inc. 1992 Stock Option Plan, RF Power
Products, Inc. 1993 Non-Employee Directors Stock Option Plan and
RF Power Products, Inc. 1995 Stock Option Plan (collectively, the
"Plans"), and certain options granted under the Plans, which
Plans and options were assumed by the Company in connection with
its acquisition of RF Power Products, Inc. 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 Plans, 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.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission by 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, 1997;
(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 Common Stock 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
("DGCL"), the Company's Certificate of Incorporation, as amended
(the "AE Certificate"), provides that no director shall be
personally liable to the 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 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
DGCL; or (iv) for any action from which the director derived an
improper personal benefit. While the AE 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 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 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 Bylaws provide that the Company
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 the Company's request, to the fullest extent
permitted under and in accordance with the DGCL; 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 DGCL; or (iv) such indemnification is required to be made
under Article XI, Section 43, Subsection (d) of the Company'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.
The Company maintains a policy of directors' and officers'
liability insurance that insures the Company's directors and
officers against the costs 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 Bylaws *
4.3 RF Power Products, Inc. 1992 Stock Option Plan
4.4 RF Power Products, Inc. 1993 Non-Employee
Directors Stock Option Plan
4.5 RF Power Products, Inc. 1995 Stock Option Plan
5 OPINION OF COUNSEL
23 CONSENTS OF EXPERTS AND COUNSEL
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5)
24 POWERS OF ATTORNEY (included on the Signature
Pages to this Registration Statement)
* 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:
(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 the 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 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 (a)(1)(i) and (a)(1)(ii) above
do not apply if 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 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.
(b) The undersigned registrant hereby undertakes that, for
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 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 of 1933 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
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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
October 6, 1998.
Advanced Energy Industries, Inc.,
a Delaware corporation
By: /s/ Richard P. Beck
Name: Richard P. Beck
Title: Senior Vice President and
Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints
Douglas S. Schatz, Hollis 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, 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 of 1933,
this registration statement has been signed by the following
persons in the capacities and on the date indicated.
/s/ Douglas S. Schatz
Date: October 6, 1998 Douglas S. Schatz
President and Chief Executive Officer and Director
(Principal Executive Officer)
/s/ Richard P. Beck
Date: October 6, 1998 Richard P. Beck
Senior Vice President and
Chief Financial Officer and Director
(Principal Financial and Accounting Officer)
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Date: G. Brent Backman
Director
/s/ Hollis Caswell
Date: October 6, 1998 Hollis Caswell
Director
Date: Elwood Spedden
Director
/s/ Arthur A. Noeth
Date: October 6, 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 Bylaws *
4.3 RF Power Products, Inc. 1992 Stock Option Plan
4.4 RF Power Products, Inc. 1993 Non-Employee
Directors Stock Option Plan
4.5 RF Power Products, Inc. 1995 Stock Option Plan
5 OPINION OF COUNSEL
23 CONSENTS OF EXPERTS AND COUNSEL
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5)
24 POWERS OF ATTORNEY (included on the Signature
Pages to this Registration Statement)
* Incorporated by reference to the Company's Registration Statement on Form
S-1 (File No. 33-97188) filed September 20, 1995, as amended.