Attached files
| file | filename |
|---|---|
| EX-10.1 - EX-10.1 - ADVANCED ENERGY INDUSTRIES INC | d72408exv10w1.htm |
| EX-99.1 - EX-99.1 - ADVANCED ENERGY INDUSTRIES INC | d72408exv99w1.htm |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 20, 2010
Advanced Energy Industries, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 000-26966 | 84-0846841 | ||
| (State or other jurisdiction | (Commission | (IRS Employer | ||
| of incorporation) | File Number) | Identification No.) |
| 1625 Sharp Point Drive, Fort Collins, Colorado | 80525 | |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: (970) 221-4670
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions (see General Instruction
A.2. below):
| o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
| o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
| o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
| o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 1.01 | Entry into a Material Definitive Agreement. |
On April 21, 2010, Advanced Energy Industries, Inc. (the “Company”) entered into Amendment
No. 1 to the Agreement and Plan of Merger (the “Amendment”) with Neptune Acquisition Sub,
Inc., an Oregon corporation and wholly-owned subsidiary of the Company (“Acquisition Sub”),
and PV Powered, Inc., an Oregon corporation (“PV Powered”). The Amendment amends certain
provisions of the Agreement and Plan of Merger dated March 24, 2010 by and among the Company,
Acquisition Sub and PV Powered (the “Merger Agreement”) to address the conditions to the
closing (i) that all PV Powered stock options and warrants that are not exercised prior to or
contemporaneously with the closing be terminated as of the closing; and (ii) that there be no more
than thirty-five (35) shareholders who are not accredited investors (as defined in Regulation D of
the Securities Act of 1933, as amended (“Regulation D”)) who receive shares of the Company
in the merger and that the issuance of such shares complies with the requirements of Regulation D.
The Amendment provides that (i) the exercise price of any options and warrants to purchase capital
stock of PV Powered that are exercised other than by cash payment prior to the closing will be
satisfied by deducting the aggregate exercise price from the cash consideration payable to the
holder under the Merger Agreement and (ii) the merger consideration payable at closing will be
allocated such that certain holders of PV Powered stock options who are not accredited investors
under Regulation D will receive only cash consideration at closing. These amendments do not result
in any change to the aggregate merger consideration payable by the Company under the Merger
Agreement.
The other terms of the Merger Agreement not expressly amended by the Amendment are unchanged and
continue in full force and effect. The consummation of the merger remains subject to satisfaction
of certain closing conditions set forth in the Merger Agreement, a copy of which was filed by the
Company as an exhibit to the Current Report on Form 8-K filed with the Securities and Exchange
Commission on March 24, 2010.
The foregoing description of the Amendment does not purport to be complete and is qualified in its
entirety by the actual terms of the Amendment, which is attached as Exhibit 10.1 to this Current
Report on Form 8 K and incorporated herein by reference.
| Item 2.02 | Results of Operations and Financial Condition. |
The information in this Form 8-K that is furnished under “Item 2.02 Results of Operations and
Financial Condition” and Exhibit 99.1 attached hereto shall not be deemed “filed” for purposes of
Section 18 of the Securities Act of 1934, nor shall they be deemed incorporated by reference in any
filing under the Securities Act of 1933, except as shall be expressly set forth by specific
reference in such filing.
On April 22, 2010, the Company announced via press release its financial results for the quarter
ended March 31, 2010. A copy of the press release is furnished with this Current Report on Form 8-K
as Exhibit 99.1.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On April 20, 2010, the Board of Directors of the Company, upon the recommendation of the
Compensation Committee of the Board of Directors, established individual performance objectives for
the Chief Executive Officer of the Company, and the Compensation Committee of the Board of
Directors established individual performance objectives for each of the other named executive
officers of the Company, under the Company’s Leadership Corporate Incentive Plan (“Leadership
Plan”). As previously disclosed, the Company maintains two cash bonus plans: the Leadership
Plan and the Employee Corporate Incentive Plan (“Employee Plan”). The Leadership Plan
provides the Company’s executive officers and other key leaders, including the Company’s named
executive
officers, with the opportunity to earn cash bonuses based on achievement of corporate performance
metrics and individual performance objectives. Participants in the Leadership Plan do not
participate in the Employee Plan.
Following the end of each fiscal year, the Company funds a joint bonus pool for awards under the
Leadership Plan and the Employee Plan, only if (a) the Company’s total revenue for the year equals
or exceeds the total revenue set forth in the Company’s annual operating plan approved by the Board
of Directors (the “AOP Revenue”), and (b) the Company’s operating income for the year
exceeds 5% of the Company’s total revenue. Achievement of both of these corporate performance
metrics is required in order to fund the bonus pool for the Leadership Plan and achievement of the
operating income target only is required to fund the Employee Plan.
The amount of the bonus pool for both plans, if a bonus pool is funded, will be equal to 10% of the
Company’s operating income for the year. However, for 2010, the Board of Directors, upon the
recommendation of the Compensation Committee, approved an increase in the bonus pool to up to 17.5%
of the Company’s operating income for the year. If the Company’s total revenue exceeds the AOP
Revenue by at least $80 million, the bonus pool will be equal to 17.5% of the Company’s operating
income for the year. The bonus pool will increase incrementally from 10% to 17.5% of the Company’s
operating income for the year, if the Company’s total revenue exceeds the AOP Revenue by less than
$80 million.
If the bonus pool is funded, any individual bonus payable to a named executive officer under the
Leadership Plan will be based upon such named executive officer’s (a) pre-established target bonus,
(b) annual performance review and (c) achievement of individual performance objectives, subject to
consideration of the total size of the bonus pool and the limitation that no participant may
receive a bonus greater than 150% of his or her pre-established target bonus.
The pre-established target bonuses for the Company’s named executive officers under the Leadership
Plan are as follows:
| • | Hans Georg Betz, Chief Executive Officer — 90% of base salary | ||
| • | Yuval Wasserman, President and Chief Operating Officer — 70% of base salary | ||
| • | Lawrence D. Firestone, Executive Vice President and Chief Financial Officer — 60% of base salary |
The individual performance objectives for the named executive officers are based upon each named
executive officer’s individual contributions to the Company’s overall execution of its initiatives
in the categories of (1) revenue growth, (2) long-term strategic planning and execution, (3)
organizational development and succession planning, (4) business and financial process development
and (5) management of acquisitions or divestitures. Dr. Betz also has individual performance
objectives with respect to investor relations, enhancing stockholder return and maintaining quality
controls. Mr. Wasserman also has an individual performance objective with respect to the launch of
a one megawatt Solaron inverter.
The Board of Directors maintains the discretion to evaluate each executive officer’s performance
against his individual performance objectives and determine the relative weight of such objectives.
| Item 9.01 | Financial Statements and Exhibits. |
| (d) | Exhibits |
| 10.1 | Amendment No. 1 to the Agreement and Plan of Merger by and among Advanced Energy Industries, Inc., PV Powered, Inc. and Neptune Acquisition Sub, Inc., dated as of April 21, 2010 | ||
| 99.1 | Press release dated April 22, 2010 by Advanced Energy Industries, Inc., reporting its financial results for the quarter ended March 31, 2010. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Advanced Energy Industries, Inc. | ||||
Date: April 22, 2010 |
||||
| /s/ Thomas O. McGimpsey | ||||
| Thomas O. McGimpsey | ||||
| Vice President, General Counsel & Corporate Secretary |
Exhibit Index
| 10.1 | Amendment No. 1 to the Agreement and Plan of Merger by and among Advanced Energy Industries, Inc., PV Powered, Inc. and Neptune Acquisition Sub, Inc., dated as of April 21, 2010 | |
| 99.1 | Press release dated April 22, 2010 by Advanced Energy Industries, Inc., reporting its financial results for the quarter ended March 31, 2010. |