|
Delaware
|
|
000-26966
|
|
84-0846841
|
(State or other jurisdiction of incorporation)
|
|
(Commission File Number)
|
|
(IRS Employer Identification No.)
|
1625 Sharp Point Drive, Fort Collins, Colorado
|
|
80525
|
|
||
(Address of principal executive offices)
|
|
(Zip Code)
|
|
(970) 221-4670
|
|||
(Registrant's telephone number, including area code)
|
|||
|
|
|
|
Not applicable
|
|||
(Former name or former address, if changed since last report)
|
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))
|
|
(d)
|
Exhibits
|
||
2.1
|
|
|
Sale and Purchase Agreement by and among Advanced Energy Industries, Inc., Blitz S13-103 GmbH, Jolaos Verwaltungs GmbH and Prettl Beteiligungs Holdings GmbH, dated as of April 8, 2013*
|
|
|
|
|
99.1
|
|
|
Press release dated April 9, 2013
|
|
|
|
*
|
|
Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. Advanced Energy undertakes to furnish supplemental copies of any of the omitted schedules upon request by the Securities and Exchange Commisssion.
|
|
|
|
|
|
|
/s/ Thomas O. McGimpsey
|
|
Date: April 11, 2013
|
|
Thomas O. McGimpsey
|
|
|
|
Executive Vice President of Corporate Development, General Counsel & Corporate Secretary
|
Exhibit Number
|
|
Description
|
2.1
|
|
Sale and Purchase Agreement by and among Advanced Energy Industries, Inc., Blitz S13-103 GmbH, Jolaos Verwaltungs GmbH and Prettl Beteiligungs Holdings GmbH, dated as of April 8, 2013*
|
|
|
|
99.1
|
|
Press release dated April 9, 2013
|
|
|
|
*
|
|
Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. Advanced Energy undertakes to furnish supplemental copies of any of the omitted schedules upon request by the Securities and Exchange Commisssion.
|
_____ _____ _____ _____
_____ _____ _____ _____
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sale and Purchase Agreement
|
|
|
(to be notarised)
|
|
April 8, 2013
|
|
PREAMBLE
|
|
|
|
SECTION 1
|
CORPORATE OWNERSHIP
|
|
|
SECTION 2
|
SALE AND PURCHASE AGREEMENT; ASSIGNMENT
|
|
|
SECTION 3
|
PRELIMINARY PURCHASE PRICE, PURCHASE PRICE, PAYMENT
|
|
|
SECTION 4
|
CLOSING
|
|
|
SECTION 5
|
EFFECTIVE DATE FINANCIAL STATEMENTS
|
|
|
SECTION 6
|
EBITDA-BASED EARN-OUT
|
|
|
SECTION 7
|
SELLER'S GUARANTIES
|
|
|
SECTION 8
|
REMEDIES FOR BREACH OF SELLER'S GUARANTIES
|
|
|
SECTION 9
|
PURCHASER'S AND PARENT COMPANY'S GUARANTIES
|
|
|
SECTION 10
|
INDEMNITY FOR TAX
|
|
|
SECTION 11
|
EMPLOYMENT INDEMNIFICATION
|
|
|
SECTION 12
|
SPECIFIC INDEMNITY
|
|
|
SECTION 13
|
COVENANTS
|
|
|
SECTION 14
|
CERTAIN AGREEMENTS BETWEEN REFUSOL AND ENTITIES OF THE PRETTL GROUP
|
|
|
SECTION 15
|
NON-COMPETE UNDERTAKING
|
|
|
SECTION 16
|
PURCHASER'S GUANTOR/SELLER'S GUARANTOR
|
|
|
SECTION 17
|
ASSIGNEMENT OF RIGHTS AND UNDERTAKINGS
|
|
|
SECTION 18
|
CONFIDENTIALITY AND PRESS RELEASES; RESTRICTIONS ON PURCHASER'S SECURITIES
|
|
|
SECTION 19
|
COSTS AND TRANSFER TAXES
|
|
|
SECTION 20
|
NOTICES
|
|
|
SECTION 21
|
MISCELLANEOUS
|
Term
|
Defined in
|
33 Act
|
Section 6.9.1(b)
|
Agreement
|
Preamble (C)
|
AktG
|
Section 7.3
|
Audited Consolidated Financial Statements
|
Section 4.2.1(a)
|
BGB
|
Section 7.1
|
Business Day
|
Section 21.3
|
Cap
|
Section 8.4
|
Carve-out
|
Section 11.1
|
Closing
|
Section 4.1
|
Closing Action/Closing Actions
|
Section 4.4
|
Closing Date
|
Section 4.1
|
Combined EBITDA
|
Section 6.1.3
|
Credit Suisse Loan
|
Section 13.3
|
Credit Suisse Loan Agreement
|
Section 13.3
|
Credit Suisse Loan Amount
|
Section 13.3
|
De Minimis
|
Section 8.3
|
Draft Earn-out Calculation
|
Section 6.2.2
|
Draft Effective Date Calculations
|
Section 5.2
|
Draft Effective Date Financial Statements
|
Section 5.1
|
Draft P&L Statements
|
Section 6.2.2
|
Earn-out Adjustment
|
Section 6.10.2
|
Earn-out Amount
|
Section 6.1.1
|
Earn-out Calculation
|
Section 6.8
|
Earn-out Period
|
Section 6.1.3
|
Earn-out Review Period
|
Section 6.4
|
Earn-Out Shares
|
Section 6.9.1(b)
|
Effective Date
|
Section 2.1
|
Effective Date Financial Statements
|
Section 5.7
|
Effective Date Calculations
|
Section 5.7
|
Entities of the Prettl Group
|
Section 13.2.7
|
Financial Debt
|
Section 3.2.1
|
General Cap
|
Section 8.4
|
Genset Solutions
|
Section 15.2
|
HGB
|
Section 3.2.2
|
Indemnified Taxes
|
Section 10.3.1
|
Insurance A/R
|
Section 12.2.1
|
Insurer
|
Section 12.2.1
|
Intellectual Property Rights
|
Section 7.7.1
|
Key Employees
|
Section 7.8.1
|
Legal Terms
|
Section 21.6.2
|
Material Agreements
|
Section 7.15.1
|
Maximum Earn-out Shares
|
Section 6.9.1(b)
|
Maximum US Dollar Equivalent
|
Section 6.9.1(b)
|
Net Working Capital
|
Section 3.2.2
|
Notice/Notices
|
Section 20.1
|
P&L Statements
|
Section 6.8
|
Parent Company
|
Page 1
|
Party/Parties
|
Page 1
|
Preliminary Earn-out Amount
|
Section 6.2.2
|
Preliminary Purchase Price
|
Section 3.3
|
Prettl Affiliates
|
Section 15.1
|
Prettl AG
|
Section 14.2
|
Public Subsidies
|
Section 7.12
|
Purchaser
|
Page 1
|
Purchase Price
|
Section 3.1
|
Purchase Price Adjustment
|
Section 3.5.2
|
REFU Drive
|
Section 11.1
|
REFU Drive Employees
|
Section 11.2
|
REFU Korea
|
Section 14.6
|
RefuSol
|
Preamble (A)
|
RefuSol Group Companies
|
Section 1.2.1
|
RefuSol Holding
|
Preamble (A)
|
Review Period
|
Section 5.3
|
SEC
|
Section 6.1.3
|
SEC Reports
|
Section 6.1.3
|
Seller
|
Page 1
|
Seller’s Guarantor
|
Page 1
|
Seller’s Best Knowledge
|
Section 7.18.3
|
Service Agreements
|
Section 12
|
Shares
|
Section 2.1
|
Signing Date
|
Section 7.1
|
Solar Energy Segment
|
Section 6.1.3
|
Strike Price
|
Section 6.9.1(b)
|
Subsidiary/Subsidiaries
|
Section 1.2.1
|
Supplier Issue
|
Section 12.2.1
|
Tax
|
Section 10.1
|
Tax Authority/Tax Authorities
|
Section 10.1
|
Tax Cap
|
Section 8.4
|
Tax Proceeding
|
Section 10.1
|
Tax Refund
|
Section 10.1
|
Tax Return
|
Section 10.1
|
Threshold
|
Section 8.3
|
Third Party Claim
|
Section 8.6
|
Upgraded Model
|
Section 15.4.2
|
Annex 11.2
|
REFU Drive Employees
|
|
Annex 14.2(a)
|
Amended Supply Agreement Prettl AG
|
|
Annex 14.2(b)
|
Amended Supply Agreement REFU Elektronik GmbH
|
|
Annex 14.4
|
Site Share Agreement Term Sheet
|
|
Annex 14.5
|
REFU Drive Domains and Trademarks
|
|
Annex 14.6(i)
|
Share Transfer and Assignment Agreement
|
|
Annex 14.6(ii)
|
REFU Korea Customer Contracts
|
|
Annex 15.4
|
Limited Right to Manufacture and Sell
|
|
Annex 15.5
|
IP License Agreement
|
|
1.1.1
|
RefuSol Holding is a limited liability company (
Gesellschaft mit beschränkter Haftung
) organized under the laws of Germany with registered offices in Metzingen and registered with the commercial register of the local court of Stuttgart under HRB 738996.
|
1.1.2
|
The registered share capital (
Stammkapital
) of RefuSol Holding amounts to EUR 26,000 (in words: twenty-six thousand euros). The registered share capital of RefuSol Holding is divided into 26,000 shares, each in a nominal amount of EUR 1 (in words: one euro) (nos. 1 through 26,000 of the shareholders list dated 17 August 2011), which are held by the Seller as detailed in
Annex 1.1.2
(columns A through C).
|
1.2.1
|
RefuSol Holding holds shares, directly or indirectly, in the wholly-owned or majority-owned subsidiaries listed in
Annex 1.2.1
(each of them a
Subsidiary
and collectively the
Subsidiaries
; RefuSol Holding and the Subsidiaries collectively also referred to as
RefuSol Group Companies
).
|
1.2.2
|
RefuSol Holding indirectly holds a minority participation in such entity as set forth in
Annex 1.2.2
.
|
3.2
|
Calculation of the Purchase Price
|
3.2.1
|
Financial Debt
means the sum of the following financial items:
|
(a)
|
bonds (
Anleihen
) as of the Effective Date;
|
(b)
|
with the exception of the Credit Suisse Loan Amount (which will be paid by Seller separately as defined in Section 13.3), liabilities to banks (
Verbindlichkeiten gegenüber Kreditinstituten
) including any accrued interest, redemption fees, termination fees, penalties, late payment fees, premium, expenses or other amounts which a bank is entitled to charge in connection with the repayment or termination of a loan or a delay or default in connection with the payment obligation and which have not been paid as of the Effective Date as well as non-bank third party borrowings as of the Effective Date which have the quality of bank liabilities and which are not already covered by Section 3.2.1(a), (c) or (d);
|
(c)
|
liabilities under promissory notes (
Wechselverbindlichkeiten
) as of the Effective Date; and
|
(d)
|
liabilities of RefuSol Group Companies to Entities of the Prettl Group (
insbesondere Verbindlichkeiten gegenüber verbundenen Unternehmen
) (as defined in Section 13.2.7), if any, except for liabilities qualifying as trade accounts payable (
Verbindlichkeiten aus Lieferungen und Leistungen
) as of the Effective Date.
|
3.2.2
|
The shortfall, if any, to be deducted pursuant to Section 3.1(c) is the amount by which the Net Working Capital falls short of
EUR 19,754,000
(in words: nineteen million seven hundred fifty-four thousand euros). The surplus amount, if any, to be added pursuant to Section 3.1(c) is the amount by which the Net Working Capital exceeds
EUR 19,754,000
(in words: nineteen million seven hundred fifty-four thousand euros).
Net Working Capital
means current assets (including cash) (
Row 81
of the financials attached to Annex 3.2.2 showing sample numbers as of 31 December 2012 which must be updated as of the Effective Date based on the Effective Date Financial Statements) minus
|
3.2.3
|
The items described in Sections 3.2.1 to 3.2.2 must each be set at the sum of the amounts with which they are shown in the Effective Date Financial Statements of RefuSol Holding.
|
3.2.4
|
The Parties agree that any item reflected in the Financial Debt may (i) not be taken into account in more than one line item of Financial Debt, and (ii) also not be taken into account in the Net Working Capital (no double dipping).
|
3.5.1
|
If on the basis of the Effective Date Financial Statements the Purchase Price exceeds the Preliminary Purchase Price, the Purchaser shall pay to the Seller an amount equal to such excess; if the Purchase Price falls short of the Preliminary Purchase Price, the Seller shall pay to the Purchaser such shortfall.
|
3.5.2
|
Any such amount calculated in accordance with Section 3.5.1 (
Purchase Price Adjustment
) shall be paid as follows:
|
(a)
|
Any Purchase Price Adjustment owed by the Purchaser shall be paid by the Purchaser within ten (10) Business Days after the Effective Date Financial Statements having become final and binding upon the Parties in accordance with Section 5below;
|
(b)
|
any Purchase Price Adjustment owed by the Seller shall be paid by the respective Seller within ten (10) Business Days after the Effective Date Financial Statements having become final and binding upon the Parties in accordance with Section 5 below.
|
3.7.1
|
All payments owed by the Purchaser to the Seller pursuant to this Section 3 or Section 6 shall be paid in Euro by way of wire transfer – to be credited on the same day – free of any costs and fees into the Seller’s account as set forth in
Annex 3.7.1
or any other account to be nominated by the Seller to the Purchaser in writing at least three (3) Business Days prior to the date on which the payment is due.
|
3.7.2
|
All payments owed by the Seller to the Purchaser under this Section 3 or Section 6 shall be paid in Euro by way of wire transfer – to be credited on the same day – free of any costs and fees into the Purchaser’s accounts as set forth in
Annex 3.7.2
or any other account to be nominated by the Purchaser to the Seller in writing at least five (5) Business Days prior to the date on which the payment is due.
|
3.7.3
|
With the exception of any set-off by the Purchaser of any cash payments due by the Purchaser under Section 6 against any cash payments due by the Seller under Section 8 and Section 10, any right of the Purchaser to set-off and/or to withhold any payments due under this Agreement is hereby expressly waived and excluded except for claims which are undisputed or
res iudicatae
.
|
4.3.1
|
[reserved]
|
4.3.2
|
If the Preliminary Purchase Price has not been received on the Business Day following the date of this Agreement, the Seller is entitled to rescind this Agreement (
Rücktritt vom Vertrag
) by written notice to the other Parties with a copy to the acting notary.
|
4.3.3
|
If this Agreement is rescinded in accordance with this Section 4.3, this Agreement shall cease to have force and effect and shall not create any binding obligation between the Parties except that this Section 4.3 and Section 16 (Purchaser’s Guarantor/Seller’s Guarantor), 18 (Confidentiality and Press Releases), 19 (Costs and Transfer Taxes), 20 (Notices) and 21 (Miscellaneous) shall remain in force and effect.
|
4.5.1
|
The Purchaser may waive in writing the Closing Actions set forth in Section 4.4(a), (b), (d), (e)(ii), (g), (i) and (j), the Seller may waive in writing the Closing Actions set forth in Section 4(e)(i) and the Seller and the Purchaser may jointly amend in writing any or all of the Closing Actions. The effect of such waiver shall be limited to eliminating the need that the respective Closing Action is being performed at the Closing and shall not limit or prejudice any claims the Party waiving the Closing Action may have with respect to any circumstances relating to such waived Closing Action.
|
4.5.2
|
The Seller and the Purchaser shall sign a closing protocol substantially in the form as attached in
Annex 4.5.2
confirming the due performance or waiver of all Closing Actions and thereby the transfer of the Shares to the Purchaser, it being understood that such execution shall not itself be a Closing Action.
|
5.6.1
|
Any objections upon which the Parties do not reach an agreement according to Section 5.5 shall be decided upon by a written expert opinion (
Schiedsgutachten
). The expert shall examine whether the principles and calculations in Section 5.1 and Section 5.2 were complied with for the preparation of the Draft Effective Date Financial Statements and the Draft Effective Date Calculations. The expert shall give each Party a reasonable opportunity to present its views in writing. The expert must prepare a written expert's opinion (
Schiedsgutachten
) in his/her reasonable discretion (
billiges Ermessen
) in this regard within thirty (30) Business Days after his/her appointment, which shall be final and binding upon the Parties. Section 5.4 shall apply
mutatis mutandis
. The expert (
Schiedsgutachter
) shall neither interpret this Agreement nor decide upon legal issues unless such legal issues exclusively regard generally accepted principles of accounting under HGB (
Grundsätze ordnungsgemäßer Buchführung
).
|
5.6.2
|
The expert shall be jointly appointed by the Parties. If, upon the request of the Seller or the Purchaser to appoint an expert, the Parties do not agree upon the expert within ten (10) Business Days after the expiration of the twenty Business Day-period under Section 5.5, then such expert shall be appointed, upon the request of either the Seller or the Purchaser, by the Chairman of the Board (
Vorsitzender des Vorstands
) of the German Institute of Public Auditors in Germany (
Institut der Wirtschaftsprüfer in Deutschland e.V.
) in Düsseldorf.
|
5.6.3
|
Upon request by the expert, the Parties shall make an appropriate advance payment upon the costs and expenses of the expert which shall be borne by the Seller and the Purchaser in equal amounts. The expert may decide in its equitable discretion upon the final allocation of the costs and expenses, taking into account the degree of success or unsuccessfulness of the Parties. Each Party shall bear its own costs and the costs of its advisors and counsel.
|
5.6.4
|
Any balance sheet assessments or valuations determined in an opinion in accordance with this Section 5.6 within the scope of the expert’s mandate shall be incorporated into the Draft Effective Date Financial Statements and – if applicable – into the Draft Effective Date Calculations.
|
6.1.1
|
As a subsequent increase of the Purchase Price, the Purchaser and, to the extent the Earn-out Amount is payable in shares of the Parent Company in accordance with Section 6.9, the Parent Company shall pay to the Seller a one-time earn-out payment amounting to EUR 10,000,000 (in words: ten million euros) (
Earn-out Amount
) if the Combined EBITDA as defined in Section 6.1.2 below reaches US$ 50,000,000 (in words: fifty million US$).
|
6.1.2
|
Combined EBITDA
shall mean the Solar Energy Segment’s (as defined below) operating income for the 12-months period beginning on the first day of the month in which the Closing takes place (
Earn-out Period
), as consistently (comprising of the SEC Reports of the Parent Company for the financial year 2012) applied and reported in (i) the financial statements filed with the United States Securities and Exchange Commission (
SEC
) Form 10-Qs and Form 10-K reports (
SEC Reports
) for full calendar quarters, and (ii) in the internal management financials for full months outside the calendar quarters, plus, in accordance with generally accepted principles of accounting under the applicable laws, depreciation and amortization of such segment. The Parent Company acknowledges that it has not in the past and will not for the duration of the Earn-out Period apply restructuring charges to the Solar Energy Segment in the SEC Reports. To the extent the Combined EBITDA is negatively influenced by any circumstance that entails a liability or indemnification obligation of the Seller under this Agreement, the amount of such liability or indemnification obligation (whether already paid to the Purchaser or the RefuSol Group Companies or not) shall be added to the Solar Energy Segment’s operating income for the Earn-out Period.
|
6.1.3
|
Solar Energy Segment
shall mean the “Solar Energy Segment” as described in the SEC Form 10-Q for the fiscal quarter ended 30 September 2012 consisting of AE Solar Energy, Inc. and, from the first day of the month in which the Closing takes place, including the RefuSol Group Companies. For the avoidance of doubt, the Earn-out Period will include the Refusol Group Companies’ financial performance from 1 April 2013 to Closing.
|
12 Months Combined EBITDA
|
|
Max. Earn-out Amount
|
|
|
|
Less than US$ 46,000,000
|
|
EUR 0
|
US$ 46,000,000 to US$ 46,999,999
|
|
EUR 2,000,000
|
US$ 47,000,000 to US$ 47,999,999
|
|
EUR 4,000000
|
US$ 48,000,000 to US$ 48,999,999
|
|
EUR 6,000000
|
US$ 49,000,000 to US$ 49,999,999
|
|
EUR 8,000000
|
US$ 50,000,000 or greater
|
|
EUR 10,000,000
|
6.1.5
|
As noted in Section 6.1.4 above, if the Combined EBITDA is below US$ 46,000,000, no Earn-out Amount will be payable.
|
6.1.5
|
The Purchaser and the Parent Company undertake to use commercially reasonable efforts to achieve the highest Combined EBITDA possible.
|
6.2.1
|
The Parent Company will provide to the Seller sixty (60) days after the end of each calendar quarter beginning with or following the Closing Date reviewed and approved consolidated balance sheets and consolidated profit and loss statements of the Solar Energy Segment.
|
6.2.2
|
The Parent Company will further provide to the Seller 60 days after the end of the Earn-out Period (i) management reviewed and approved consolidated profit and loss statements of the Solar Energy Segment for the Earn-out Period that were prepared in accordance with generally accepted principles of accounting under the applicable laws (
Draft P&L Statements
), (ii), based on the Draft P&L Statements, a draft calculation of the respective Earn-out Amount in accordance with Section 6.1 (
Draft Earn-out Calculation
) showing (a) the calculation of the Combined EBITDA, and (b) the calculation of the Earn-out Amount on the basis of the Combined EBITDA; and (iii) the certificate of the Parent Company’s Controller or Chief Financial Officer confirming that the respective Draft Earn-out Calculation has been calculated in accordance with Section 6.1 above. The Earn-out Amount calculated pursuant to the preceding sentence shall be referred to as the
Preliminary Earn-out Amount
.
|
6.7.1
|
Any objections upon which the Parties do not reach an agreement according to Section 6.6 shall be decided upon by a written expert opinion (
Schiedsgutachten
). The expert shall examine whether the requirements set forth in Sections 6.1 and 6.2 were complied with for the preparation of the Draft P&L Statements and the Draft Earn-out Calculation. The expert shall give each Party a reasonable opportunity to present its views in writing. The expert must prepare a written expert's opinion (
Schiedsgutachten
) in his/her reasonable discretion (
billiges Ermessen
) in this regard within thirty (30) Business Days after his/her appointment, which shall be final and binding upon the Parties. Section 6.5 shall apply
mutatis mutandis
. The expert (
Schiedsgutachter
) shall neither interpret this Agreement nor decide upon legal issues unless such legal issues exclusively regard generally accepted principles of accounting under the applicable laws.
|
6.7.2
|
The expert shall be Ernst & Young in Denver. If, upon the request of the Seller or the Purchaser, Ernst & Young in Denver does not agree to act as an expert within ten (10) Business Days after the expiration of the twenty Business Day-period under Section 6.6, then such expert shall be appointed, upon the request of either the Seller or the Purchaser, by the American Institute of Certified Public Accountants (AICPA), New York office, 1211 Avenue of the Americas, New York, NY 10036-8775, USA.
|
6.7.3
|
Upon request by the expert, the Parties shall make an appropriate advance payment upon the costs and expenses of the expert which shall be borne by the Seller and the Purchaser in equal amounts. The expert may decide in its equitable discretion upon the final allocation of the costs and expenses, taking into account the degree of success or unsuccessfulness of the Parties. Each Party shall bear its own costs and the costs of its advisors and counsel.
|
6.7.4
|
Any amendments determined in an opinion in accordance with this Section 6.7 within the scope of the expert’s mandate shall be incorporated into the Draft P&L Statements and the Draft Earn-out Calculation.
|
6.9.1
|
The Preliminary Earn-out Amount shall be paid within 70 days after the end of Earn-out Period as follows:
|
(a)
|
50% of the Preliminary Earn-out Amount shall be paid in cash by the Purchaser to the Seller;
|
(b)
|
50% of the Preliminary Earn-out Amount shall be paid in shares of the Parent Company to the Seller (
Earn-out Shares
). The number of Earn-Out Shares shall be determined by the Maximum US Dollar Equivalent (defined below) divided by the Strike Price (defined below). The strike price for calculating the number of Earn-Out Shares the Parent Company has to provide to the Seller shall be US$ 18.8495 (
Strike Price
). The maximum US dollar equivalent shall equal EUR 5,000,000 x the $US to EUR exchange rate of 1.2897 (
Maximum US Dollar Equivalent
). In no event shall the number of Earn-out Shares issuable to the Seller by the Parent Company exceed 342,105 (in words: three hundred forty two thousand and one hundred and five) shares (
Maximum Earn-out Shares
) assuming that 50% of the Preliminary Earn-out is paid in full, as calculated above. Amounts shall be rounded down or up one share to avoid the issuance of a fractional share.
|
6.9.2
|
Notwithstanding sentence 2 of this Section 6.9.2, the Earn-out Amount shall become immediately due and payable in full (EUR 10,000,000) if the Purchaser or the Parent Company divest or cease to operate a substantial and material part of the Solar Energy Segment before the end of the Earn-out Period; provided, however, that the above provision shall not apply to restructurings (e.g., plant and office consolidations, employee consolidations, material write-downs, etc.) not entailing an extraordinary divestiture of a material part of the Solar Energy Segment, that are excluded from the Combined EBITDA calculation as set forth in the second to last sentence of Section 6.1.2 above. Furthermore, (i) any extraordinary disposals of parts of the Solar Energy Segment that are not substantial and material and (ii) any extraordinary acquisitions, for (i) and (ii) that are entered into after the date of this Agreement and either add to the Combined EBITDA or detract from the Combined EBITDA defined in Section 6.1.1 shall be neutralized for the purposes of calculating the Combined EBITDA (e.g., not adversely affect the Combined EBITDA). For the purpose of neutralizing such acquisitions or disposals, the Purchaser and the Parent Company shall hold separate in their accounting systems any parts of the Solar Energy Segment that are acquired by way of such acquisitions or disposed of by way of sale until the end of the Earn-out Period
|
6.10.1
|
If on the basis of the P&L Statements and the Earn-out Calculation the Earn-out Amount exceeds the Preliminary Earn-out Amount, the Purchaser and, to the extent the Earn-out Amount is payable in shares of the Parent Company in accordance with Section 6.9, the Parent Company shall pay to the Seller an amount equal to such excess (in shares). If the Earn-out Amount falls short of the Preliminary Earn-out Amount, the Seller shall pay to the Purchaser such shortfall and, to the extent the Preliminary Earn-out Amount has been paid in shares of the Parent Company in accordance with Section 6.9, return to the Parent Company such number of shares.
|
6.10.2
|
Any such amount calculated in accordance with Section 6.10.1 (
Earn-out Adjustment
) shall be paid as follows:
|
(a)
|
Any Earn-out Adjustment owed by the Purchaser and the Parent Company shall be paid by the Purchaser and the Parent Company within ten (10) Business Days after the P&L Statements and the Earn-out Calculation having become final and binding upon the Parties in accordance with Section 6.8;
|
(b)
|
any Earn-out Adjustment owed by the Seller shall be paid by the Seller within ten (10) Business Days after the P&L Statements and the Earn-out Calculation having become final and binding upon the Parties in accordance with Section 6.8.
|
7.2.1
|
The statements in Sections 1.1 and 1.2 hereof regarding RefuSol Holding and the Subsidiaries are complete and correct. The RefuSol Group Companies have been duly established and are validly existing under the laws of their respective jurisdiction.
Annex 7.2.1
sets forth a complete list of the Refusol Group Companies, the country of incorporation, and the officers and directors and the countries where each company must qualify as a foreign corporation for corporate law purposes (
Betriebsstätten
).
|
7.2.2
|
The Shares as well as the shares in RefuSol and the Refusol Group Companies have been validly issued, have been fully paid in, either in cash or in kind, and are free from any encumbrances or other rights of third parties, and there are no pre-emption rights (
Vorkaufsrechte
), options, voting
|
7.2.3
|
The Seller is entitled to freely dispose of the Shares in accordance with the terms of this Agreement without such a disposal infringing any rights of a third party. The Seller has all requisite authority and power to execute and perform this Agreement and to consummate the transactions contemplated thereby. The Agreement has been duly and validly executed by Seller and constitutes a legal, valid and binding obligation of the Seller enforceable in accordance with its terms. The execution of this Agreement and the consummation of the transactions contemplated thereby
|
(b)
|
does not, in order to be valid and binding on the Seller, require the consent of or notice to any other person or create an encumbrance on any assets of RefuSol Group Companies, or
|
7.2.4
|
No bankruptcy, insolvency or judicial composition proceedings concerning the RefuSol Group Companies have been applied for. No circumstances exist which would require an application for any bankruptcy, insolvency or judicial composition proceedings nor do any circumstances exist according to any applicable bankruptcy or insolvency laws which would justify the avoidance of this Agreement.
|
7.7.1
|
RefuSol Holding or RefuSol are the owners of, or have full right to use the intellectual property rights (
gewerbliche Schutzrechte
) which are listed in
Annex 7.7.1(a)
and which are registered in the respective registers or whose registration has been applied for (
Intellectual Property Rights
). The Intellectual Property Rights, the unregistered intellectual property rights owned by RefuSol Holding and RefuSol and the intellectual property rights licensed-in from third parties and listed in
Annex 7.7.1(b)
constitute all necessary registered and unregistered intellectual property rights and licenses that are material for the businesses of the RefuSol Group Companies as currently operated as of the Signing Date.
|
7.7.2
|
RefuSol has duly complied with, to the extent required by law, the provisions of the German Act on Employee Inventions (
Arbeitnehmererfindungsgesetz
) and has paid all remuneration due to persons entitled to any compensation under the German Act on Employee Inventions.
|
7.7.3
|
With the exception of the proceedings set forth in
Annex 7.7.3
, to the Seller’s Best Knowledge, no third party is infringing, violating or misappropriating the Intellectual Property Rights or the unregistered intellectual property rights owned by RefuSol Holding or RefuSol. Except as disclosed in Annex 7.7.3, the Intellectual Property Rights and the unregistered intellectual property rights owned by RefuSol Holding or RefuSol are not the subject of any judicial or regulatory proceedings in which the validity of the Intellectual Property Rights is being challenged and, to the Seller’s Best Knowledge, there are no facts or circumstances which would justify the cancellation (
Löschung
) or invalidation (
Nichtigerklärung
) of the Intellectual Property Rights.
|
7.7.4
|
Any and all payments required to maintain the Intellectual Property Rights have been duly made and all other measures required for these purposes, as the case may be, have been timely and duly taken.
|
7.7.5
|
Between July 2007 and the Signing Date, except as disclosed in
Annex 7.7.5
none of the RefuSol Group Companies has received any written communication (nor has legal action been instituted, settled or threatened in writing) that alleges that any of the RefuSol Group Companies has infringed, violated or misappropriated the intellectual property rights of any other person. To the Seller’s Best Knowledge, the RefuSol Group Companies have not prior to the Signing Date infringed any intellectual property rights of third parties.
|
7.8.1
|
Annex 7.8.1
contains a list of those employees whom the Purchaser considers to be key employees (
Key Employees
). As of the Signing Date, no Key Employee has terminated his engagement. Purchaser has been provided with any and all current employment agreements with such Key Employees listed in no. 1 of Annex 7.8.1 and will be provided with the employment agreements of all other Key Employees after the Signing Date. Annex 7.8.1 sets forth the Seller’s obligation to transfer an employee of RefuSol to Seller or a Prettl Affiliate and assume such employee’s employment agreement and other obligations.
|
7.8.2
|
Annex 7.8.2
contains a complete list of all collective bargaining agreements and works agreements (
Betriebsvereinbarungen
) of RefuSol Holding and RefuSol.
|
7.8.3
|
Except as disclosed in
Annex 7.8.3
, in the last three years prior to the Signing Date, the RefuSol Group Companies have not experienced any strike or labour interruption (
Arbeitskampfmaßnahmen
).
|
7.8.4
|
To the extent not listed in Annex 7.8.2,
Annex 7.8.4
contains a complete list of all employee pension plans (
betriebliche Alterversorgung
) and written company-wide benefit plans for each of the Refusol Group Companies. For each of the RefuSol Group Companies provisions relating to these employee pension plans have been made in the Audited Consolidated Financial Statements to the extent required by the applicable generally accepted principles of accounting.
|
7.13.1
|
issued any shares or otherwise granted a participation in RefuSol Holding, RefuSol or other RefuSol Group Companies to third parties;
|
7.13.2
|
made any investment or entered into any contractual obligation to this effect outside the ordinary course of business;
|
7.13.3
|
acquired or sold any fixed assets outside the ordinary course of business and at terms which are not at arm’s length;
|
7.13.4
|
incurred any liability to third parties outside the ordinary course of business (including extensions to standard product warranties);
|
7.13.5
|
terminated any insurance contracts for the business operations of RefuSol Holding or RefuSol;
|
7.13.6
|
granted or prolonged any loans to third party outside the ordinary course of business; or
|
7.13.7
|
extended any guarantees, suretyships, letters of comfort, performance or warranty bonds or similar instruments securing any indebtedness or other obligation of any third party (including Entities of the Prettl Group).
|
7.15.1
|
Annexes 7.15.1(a) through (l)
include for each of the RefuSol Group Companies correct and complete lists of the following agreements with third parties (including Entities of the Prettl Group) with principal obligations (
Hauptleistungspflichten
) not yet fully performed, and correctly state for each such agreement the type of agreement, parties, date and nature as well as the date of the latest of any ancillary agreements, amendments, side letters, waivers and similar documents, if any (
Material Agreements
):
|
(b)
|
credit or lending agreements with any RefuSol Group Company as a lender or borrower and other instruments evidencing financial indebtedness of any RefuSol Group Company, in each case with outstanding amounts (including, without limitation, interest accrued);
|
(c)
|
guarantees, suretyships (
Bürgschaften
), letters of comfort (
Patronatserklärungen
), performance or warranty bonds and similar instruments issued by any (i) third party (including Entities of the Prettl Group) or (ii) any RefuSol Group Company, to secure any indebtedness or other obligation of a RefuSol Group Company or of a third party, respectively;
|
(d)
|
agreements regarding swaps, options, forward sales or purchases (other than in the ordinary course of business), futures and other financial derivatives and combinations thereof;
|
(e)
|
agreements to sell or otherwise dispose of any noncurrent assets with a fair market or replacement value in excess of EUR 100,000.00 (in words: one hundred thousand euros);
|
(f)
|
agreements relating to capital expenditures involving an amount exceeding EUR 100,000 (in words: one hundred thousand euros);
|
(g)
|
real estate lease agreements with any RefuSol Group Company in Germany, the Unitted States or India as landlord or tenant involving an annual rent (without ancillary costs) in excess of EUR 10,000 (in words: ten thousand euros);
|
(h)
|
agreements with any third party (including Entities of the Prettl Group) (i) establishing exclusivity of such third party in certain markets or territories with respect to the sale or distribution of photovoltaic inverters under or including the brand "RefuSol", (ii) containing other exclusivity terms or (iii) most-favored pricing provisions ;
|
(i)
|
agreements or purchase arrangements with suppliers (including Entities of the Prettl Group) where the estimated aggregate spend is expected to be greater than EUR 1,000,000 (in words: one million euros);
|
(j)
|
agreements or purchase orders with customers (including Entities of the Prettl Group), including agreements or purchase orders fully performed, where the aggregate purchase in 2012 was greater than EUR 2,500,000 (in words: two million fivehundred thousand euros);
|
(k)
|
license agreements with any third party (including Entities of the Prettl Group) that relate to intellectual property rights that are material to any RefuSol Group Company’s business, plans or operations;
|
a.
|
collective bargaining agreements and works council agreements for the German Refusol Group Companies.
|
7.15.2
|
Except as disclosed in Annex 7.15.1(a) through 7.15.1(l), to the Seller’s Best Knowledge (i) the Material Agreements are in full force and effect and are enforceable against the parties thereto in accordance with their terms, unless this, i.e. the ineffectiveness or unenforceability, would not cause
|
7.17a.1
|
The RefuSol Group Companies have duly and timely (taking into account extensions granted by the Tax Authorities) filed in accordance with applicable law all returns, forms and other statements required to be filed by such Group Company for Tax returns (
Steuererklärungen
) and have correctly included all required information. No RefuSol Group Company is currently subject to any audit, examination or similar proceedings by any Tax Authorities.
|
7.17a.2
|
All Taxes to be paid or withheld and remitted by the RefuSol Group Companies have been duly paid or withheld and remitted to the appropriate Tax Authority.
|
7.17a.3
|
No RefuSol Group Company has received any written Tax ruling or entered into or is currently under negotiations to enter into any agreement with any Tax Authority.
|
7.17a.4
|
No RefuSol Group Company has taken any measure deviating from the ordinary course of business which results in Taxes or other Tax disadvantages, in particular but not limited to constructive dividends (
verdeckte Gewinnausschüttungen
) and non-deductible business expenses (
nicht abziehbare Betriebsausgaben
), since 1 January 2013.
|
7.18.1
|
The Purchaser explicitly acknowledges to purchase and acquire the Shares and the business of the RefuSol Group Companies without reliance upon any express or implied representations, warranties or guaranties of any nature made by the Seller except for the guaranties explicitly given by the Seller under this Agreement.
|
7.18.2
|
Without limiting the generality of the foregoing, the Purchaser acknowledges that (i) in deciding on the acquisition of the Shares and the business of the RefuSol Group Companies, and in determining the terms of the acquisition, the Purchaser has not relied on, and (ii) the Seller shall not be responsible, and give no representation, warranty or guaranty, with respect to:
|
(a)
|
any projections, estimates or budgets delivered or made available to the Purchaser or its counsel, accountants or advisors of future revenues, future results of operations (or any component thereof), future cash flows or future financial condition (or any component thereof) or the future business operations of the RefuSol Group Companies;
|
(b)
|
any other information or documents made available to the Purchaser or its counsel, accountants or advisors with respect to the RefuSol Group Companies or the business of the RefuSol Group Companies, including, but not limited to, (i) all facts and circumstances contained in the data room made available to the Purchaser in the run-up to the transaction contemplated by this Agreement, (ii) the answers to the questions asked by the Purchaser or its counsel, accountants or advisors during the due diligence process, except as expressly set forth in this Agreement;
|
7.18.3
|
Seller’s Best Knowledge
, within the meaning of this Agreement, shall mean only the actual knowledge, after due inquiry, of the persons listed in
Annex 7.18.3
as of the Signing Date.
|
8.1.1
|
In the event of any breach or non-fulfilment by the Seller of any of the guaranties pursuant to Section 7, the Seller shall put the Purchaser or, at the election of the Seller, the respective RefuSol Group Company/Companies into the position the Purchaser or respectively the respective RefuSol Group Company/Companies, as the case may be, would have been in had the guaranty not been breached (restitution in kind;
Naturalrestitution
). If the Seller is unable to achieve this position within two months after having been notified by the Purchaser of the breach, the Purchaser may claim from the Seller for monetary damages (
Schadenersatz in Geld
), provided, however, that such damages shall only cover actual damages incurred by the Purchaser, and shall in particular not cover internal administration or overhead costs of the Purchaser, consequential damages (
Folgeschäden
), loss of profits (
entgangener Gewinn
) or any arguments that the Purchase Price was calculated upon incorrect assumptions.
|
8.1.2
|
The Seller shall not be liable for, and the Purchaser shall not be entitled to claim for, any damage of the Purchaser under or in connection with this Agreement if and to the extent (i) any damage of the Purchaser is covered by enforceable claims against third parties, including, but not limited to, through existing insurance policies and/or (ii) the matter to which the claim relates is provided for in the statutory financial statements of the RefuSol Group Companies for the financial year 2012.
|
8.1.3
|
The Seller shall not be liable for, and the Purchaser shall not be entitled to claim for, any damage if the Purchaser has not complied with the procedure set out in Section 8.2 or Section 8.6.
|
9.1.1
|
the execution, delivery and performance by the Purchaser and the Parent Company of this Agreement and the consummation of the transaction contemplated hereby are within the Purchaser’s and the Parent Company’s respective corporate powers and have been duly authorized by all necessary corporate actions of the Purchaser and the Parent Company and their respective subsidiaries and this Agreement is legally valid, binding and enforceable against the Purchaser and the Parent Company at its terms;
|
9.1.2
|
the Purchaser has sufficient immediately available funds to pay the Preliminary Purchase Price at Closing and to make all other payments required to be made under or in connection with this Agreement and the Parent Company has sufficient immediately available authorized shares of the Parent Company to make all share transfers required to be made under or in connection with this Agreement;
|
9.1.3
|
neither the Purchaser nor the Parent Company, after due inquiry with their respective advisors, is aware of (i) any facts or circumstances which could reasonably be expected to result in a claim being made against the Seller or (ii) any misrepresentation by or on behalf of the Seller in connection with this Agreement.
|
10.2.1
|
The Seller agrees to indemnify and hold harmless the Purchaser, or, in the Purchaser’s absolute discretion the relevant RefuSol Group Company, from and against all Taxes which are imposed on
any of the RefuSol Group Companies, are due for payment (
fällig
) taking into consideration any extension period granted by the Tax Authorities, and are attributable to periods up to and including the Effective Date (
Indemnified Taxes
), but only if and to the extent that
|
(a)
|
there is for a specific Tax assessed, no Tax accrual or Tax provision that has a specific cash reserve for such Tax as noted in the Effective Date Financial Statements;
|
(b)
|
none of the RefuSol Group Companies has a corresponding valid and enforceable claim for a Tax Refund or indemnification against a third party or such claim, where existing, has been assigned to the Seller;
|
(c)
|
the Indemnified Tax does not correspond to or cannot be offset against future Tax reductions (
Steuerminderungen
) arising after the Effective Date at the level of a RefuSol Group Company, the Purchaser or any of the Purchaser's affiliates in the meaning of sec. 15 et seqq. of the AktG and out of a circumstance having triggered a Tax indemnification claim, including but not limited to reciprocal effects (
Wechselwirkungen
) resulting e.g. from the extension of depreciation periods or higher depreciation allowances (
Phasenverschiebung
) or from transfer of items relevant for Indemnified Taxes (e.g. turnover, income, expenses, VAT payable corresponding with a VAT refund etc.) into another calendar year or transfer of Tax items from one entity to another entity. The Tax benefit shall be determined by discounting the possible future reductions in Taxes over a deemed period of four (4) years of the potential Tax benefits, applying (i) the Tax rate applicable in the year in which the Tax benefit could arise for the first time in the relevant jurisdiction, and (ii) a discount rate of 6.5 % p.a.
|
10.2.2
|
The Seller shall indemnify the Purchaser or at the Purchaser's sole discretion the respective RefulSol Group Company from and against all Taxes imposed on a RefuSol Group Company due to and in connection with the Earn-out payments pursuant to Section 6.3.
|
10.2.3
|
With respect to Tax of any RefuSol Group Company which are assessed or collected within Tax assessment or Tax collection periods beginning prior to or on the Effective Date but ending after the Effective Date and which are based on income, profit or turnover, the amount of Tax attributable to periods up to and including the Effective Date shall be the amount of Tax to which any RefuSol Group Company would be liable if the respective Tax assessment or Tax collection period would have ended on the Effective Date (“as if assessment”). To the extent that income, profit or turnover are resulting from business transactions prior to or on the Effective Date, this income, profit or turnover shall be attributable to the periods prior to the Effective Date; to the extent that they are
|
10.2.4
|
With respect to all other Tax of any RefuSol Group Company, the amount of Tax attributable to the periods up to and including the Effective Date shall be determined on a pro rata temporis basis. The relevant allocation quota shall be calculated on the basis of actual days elapsed up to and including the Effective Date and a calendar year with 360 days.
|
10.2.5
|
Indemnification payments shall become due twenty (20) Business Days following written notice by the Purchaser that the respective Tax is payable and the Seller has received a copy of the underlying Tax assessment but in no case earlier than the date at which the Tax to be indemnified is due and payable to the Tax Authority including any extension period.
|
10.5.1
|
After the Closing Date, the Purchaser shall ensure that the RefuSol Group Companies notify the Seller of any Tax Proceeding relating to any time period up to and including the Effective Date within twenty (20) Business Days of the Purchaser becoming aware of such Tax Proceeding. The Purchaser shall ensure that the RefuSol Group Companies allow the Seller or its counsel to fully participate in such Tax Proceeding. The Seller may elect to direct any Tax Proceeding relating to time periods up to and including the Effective Date. The Purchaser shall ensure that the RefuSol Group Companies cooperate with the Seller in each phase of such Tax Proceeding.
Seller shall reimburse Purchaser’s reasonable costs for external tax advisors incurred in connection with Tax Proceedings regarding Indemnified Taxes.
|
10.5.2
|
In any case, the Purchaser shall procure that after the Closing Date (i) no document or information related to time periods up to and including the Effective Date is submitted to any Tax Authority or court without the prior written consent of the Seller, which shall not be unreasonably withheld, and that (ii) no Tax Proceeding relating fully or partly to time periods up to and including the Effective Date is settled or becomes time-barred without a prior written consent of the Seller. If the Seller fails to respond within twenty (20) Business Days after having been informed by the Purchaser, the Seller shall be deemed to have approved the respective measure.
|
10.6.1
|
All claims of the Parties under this Section 10 shall become time-barred upon expiration of a period of three months after the respective Indemnified Tax became un-appealable (
formell und materiell bestandskräftig
) at the latest seven (7) years after the Closing Date.
|
10.6.2
|
For the avoidance of doubt, Section 8.3 (De Minimis / Threshold) shall not apply to the claims of the Purchaser under this Section 10.
|
10.6.3
|
All claims under this Section 10 shall only be subject to the limitations as provided for in this Section 10 and Section 8.4 (Tax Cap).
|
12.2.1
|
Some customers of RefuSol have experienced equipment failures due to alleged defects in watertightness of casings. Alleged defect casings (not watertight) for inverters were supplied to RefuSol by a certain supplier (
Supplier Issue
)
RefuSol has a current accounts receivable of 800,000 Euros (
Insurance A/R
) based on its current claim negotiations with HDI Gerling Munich, the insurer to the supplier (
Insurer
). Notwithstanding Section 3 and Section 5, the Parties agree that for purposes of the Effective Date Financial Statements and for purposes of calculating the Purchase Price, the Insurance A/R shall be recorded as an accounts receivable and reflected in the Net Working Capital. If and to the extent the Insurance A/R has not been paid by the Insurer at the time the Effective Date Financial Statements have become final and binding in accordance with Section 5, the Seller agrees to pay as part of the Purchase Price Adjustment the discrepancy between the amount the Insurer has actually paid and EUR 800,000.
|
12.2.2
|
Seller further agrees to reimburse RefuSol on a quarterly basis for any additional claims of customers in connection with the Supplier Issue alleged and actually paid during 2013 up to an aggregate maximum amount of EUR 550,000 if and to the extent RefuSol Group Companies do not receive indemnification payments from the Insurer or the supplier for such additional claims.
|
12.2.3
|
Section 8.5 and Section 8.6 sentence 2, 3 and 4 shall apply to this Section 12.2
mutatis mutandis
. If insurance proceeds are received by RefuSol in excess of the amounts the Seller has received credit for in accordance with Sections 12.2.1 and/or 12.2.2, Purchaser will remit such additional insurance proceeds to Seller.
|
15.4
|
Limited Right to Manufacture and Sell
|
20.7.1
|
The receipt of Notices or any copies thereof in connection with this Agreement by the Parties’ advisors or, in case of Notices to the Purchaser, by the Parent Company shall not constitute the receipt, or serve as a substitute for the receipt, of such Notice by the Parties themselves.
|
20.7.2
|
Whether or not the advisor to a Party or, in case of Notices to the Purchaser, the Parent Company received the Notice for its/his/her information is irrelevant for the purpose of determining the receipt of the Notice by that Party, even if this Agreement specifically provides that a Notice should be given to the respective advisor or the Parent Company.
|
21.5.1
|
This Agreement shall be governed by the laws of the Federal Republic of Germany, excluding both German private international law and the United Nations Convention on Contracts for the International Sale of Goods.
|
21.5.2
|
The competent courts in Stuttgart shall have the exclusive jurisdiction for any disputes between the Parties arising from or in connection with this Agreement.
|
21.6.1
|
Terms to which a German translation has been added shall be interpreted throughout this Agreement in the meaning assigned to them by the German translation.
|
21.6.2
|
Any reference made in this Agreement to any types of companies or participations, proceedings, authorities or other bodies, rights, institutions, regulations or legal relationships (
Legal Terms
) under German law shall extend to any corresponding (
funktionsgleich
) or identical Legal Terms under foreign law to the extent that relevant facts and circumstances must be assessed under such foreign law. Where no corresponding or identical Legal Terms under foreign law exist, such Legal Terms shall be introduced as - functionally - come closest to the Legal Terms under German law.
|
CONTACTS:
|
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|
|
Danny Herron
|
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Annie Leschin/Vanessa Lehr
|
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Advanced Energy Industries, Inc.
|
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Advanced Energy Industries, Inc.
|
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970.407.6570
|
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970.407.6555
|
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danny.herron@aei.com
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ir@aei.com
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