EXHIBIT 3.1
SECOND AMENDMENT TO THE BY-LAWS
OF
ADVANCED ENERGY INDUSTRIES, INC.
This Second Amendment to the By-laws of Advanced Energy Industries, Inc.,
a Delaware
corporation, is made pursuant to Article V of the corporation’s Restated Certificate of
Incorporation by resolution of the Board of Directors of the corporation.
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1.
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Section 5 (Article III) of the By-Laws is replaced in its entirety with the following:
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Section 5. Stockholder Meetings.
(a) Annual Meeting. The annual meeting of the stockholders of the corporation, for the
purpose of election of directors and for such other business as may lawfully come before it,
shall be held on such date and at such time as may be designated from time to time by the Board
of Directors.
(b) Special Meetings.
(i) Special meetings of the stockholders of the corporation may be called, for any purpose
or purposes, by (i) the Chairman of the Board of Directors, (ii) the President, (iii) the Board
of Directors pursuant to a resolution adopted by a majority of the total number of authorized
directors (whether or not there exist any vacancies in previously authorized directorships at
the time any such resolution is presented to the Board of Directors for adoption) or (iv) by the
holders of shares entitled to cast not less than twenty percent (20%) of the votes at the
meeting, and shall be held at such place, on such date, and at such time as the Board of
Directors, shall fix.
(ii) If a special meeting is called by any person or persons other than the Board of
Directors, the request shall be in writing, specifying the general nature of the business
proposed to be transacted, and shall be delivered personally or sent by registered mail or by
telegraphic or other facsimile transmission to the Chairman of the Board of Directors, the
President, or the Secretary of the corporation. No business may be transacted at such special
meeting otherwise than specified in such notice. The Board of Directors shall determine the
time and place of such special meeting, which shall be held not less than thirty-five (35) nor
more than one hundred twenty (120) days after the date of the receipt of the request. Upon
determination of the time and place of the meeting, the officer receiving the request shall
cause notice to be given to the stockholders entitled to vote, in accordance with the provisions
of Section 7 of these By-Laws. If the notice is not given within sixty (60) days after the
receipt of the request, the person or persons requesting the meeting may set the time and place
of the meeting and give the notice. Nothing contained in this paragraph (b) shall be construed
as limiting, fixing, or affecting the time when a meeting of stockholders called by action of
the Board of Directors may be held.
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2.
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Section 6 (Article III) of the By-Laws is replaced in its entirety with the following:
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Section 6. Advance Notice of Stockholder Nominations and Other Business.
(a) Annual Meeting of Stockholders.
(i) Nominations of persons for election to the Board of Directors and the proposal of other
business to be considered by the stockholders may be made at an annual meeting of stockholders
(A) brought before the annual meeting by or at the direction of the Board of Directors, or (B)
specified in the notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors (or any duly authorized committee thereof), or (C) by any stockholder of
the corporation who (1) was a stockholder of record at the time of giving notice provided for in
this
Section 6
, (2) at the time of the annual meeting is entitled to vote at the
meeting, and (3) complies with the notice procedures set forth in this
Section 6
as to
such business or nomination; clause (C) shall be the exclusive means for a stockholder to make
nominations or submit other business (other than matters properly brought under Rule 14a-8 under
the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”) and included in the
corporation’s notice of meeting) before an annual meeting of stockholders.
(ii) Without qualification, for any nominations or any other business to be properly
brought before an annual meeting by a stockholder pursuant to
Section 6(a)(i)(C)
of
these By-Laws, the stockholder must have given timely notice thereof in writing to the Secretary
and such other business must otherwise be a proper matter for stockholder action. To be timely,
a stockholder’s notice shall be delivered to the Secretary at the principal executive offices of
the corporation not earlier than the close of business on the 90th day and not later than the
close of business on the 60th day prior to the first anniversary of the preceding year’s annual
meeting;
provided, however
, that in the event that the date of the annual meeting is more than
30 days before or more than 30 days after such anniversary date, notice by the stockholder to be
timely must be so delivered not earlier than the close of business on the 90th day prior to the
date of such annual meeting and not later than the close of business on the later of the 60th
day prior to the date of such annual meeting or, if the first public announcement of the date of
such annual meeting is less than 70 days prior to the date of such annual meeting, the 10th day
following the day on which public announcement of the date of such meeting is first made by the
corporation. In no event shall any adjournment or postponement of an annual meeting or the
announcement thereof commence a new time period for the giving of a stockholder’s notice as
described above. To be in proper form, a stockholder’s notice (whether given pursuant to this
Section 6(a)(ii) or Section 6(b)
) to the Secretary must:
(A) set forth, as to the stockholder giving the notice and as to the Stockholder
Associated Person (as defined herein), if any, on whose behalf the nomination or proposal is
made (i) the name and address of such stockholder, as they appear on the corporation’s books and
such Stockholder Associated Person, if any, (ii) (a) the class and number of shares of the
corporation which are, directly or indirectly, owned beneficially and of record by such
stockholder and Stockholder Associated Person, (b) any option, warrant, convertible security,
stock appreciation right, or similar right with an exercise or conversion privilege or a
settlement payment or mechanism at a price related to any class of shares of the corporation or
with a value derived in whole or in part from the value of any class of shares of the
corporation, whether or not such instrument or right shall be subject to settlement in
the underlying class of stock of the corporation or otherwise (a “
Derivative Instrument
”)
directly or indirectly owned beneficially by such stockholder or Stockholder Associated Person
and any other direct or indirect opportunity to profit or share in any profit derived from any
increase or decrease in the value of shares of the corporation, (c) any proxy, contract,
arrangement, understanding, or relationship pursuant to which such stockholder or Stockholder
Associated Person has a right to vote any shares of any security of the Company, (d) any short
interest in any security of the Company (for purposes of this
Section 6
a person shall
be deemed to have a short interest in a security if such person directly or indirectly, through
any contract, arrangement, understanding, relationship or otherwise, has the opportunity to
profit or share in any profit derived from any decrease in the value of the subject security),
(e) any rights to dividends on the shares of the corporation owned beneficially by such
stockholder or Stockholder Associated Person that are separated or separable from the underlying
shares of the corporation, (f) any proportionate interest in shares of the corporation or
Derivative Instruments held, directly or indirectly, by a general or limited partnership in
which such stockholder or Stockholder Associated Person is a general partner or, directly or
indirectly, beneficially owns an interest in a general partner, (g) any performance-related fees
(other than an asset-based fee) that such stockholder or Stockholder Associated Person is
entitled to based on any increase or decrease in the value of shares of the corporation or
Derivative Instruments, if any, as of the date of such notice, including without limitation any
such interests held by members of such stockholder’s immediate family sharing the same household
and (h) any prior campaigns against the corporation by the stockholder or the Stockholder
Associated Person, (iii) a representation that such stockholder intends to appear in person or
by proxy at the meeting to nominate the persons named in its notice and (iv) any other
information relating to such stockholder or Stockholder Associated Person, if any, that would be
required to be disclosed in a proxy statement or other filings required to be made in connection
with solicitations of proxies for, as applicable, the proposal and/or for the election of
directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder;
(B) if the notice relates to any business other than a nomination of a director or
directors that the stockholder proposes to bring before the meeting, set forth a brief
description of the business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest of such stockholder and Stockholder
Associated Person, if any, on whose behalf the proposal is made, as well as (i) such other
information concerning such business and the stockholder proponent as would be required by the
appropriate Rules and Regulations of the Securities and Exchange Commission to be included in a
proxy statement soliciting proxies for the proposal and (ii) a description of all agreements,
arrangements and understandings between such stockholder and Stockholder Associated Person, if
any, and any other person or persons (including their names) in connection with the proposal of
such business;
(C) set forth, (i) as to each person whom the stockholder proposes to nominate for
election or reelection to the Board of Directors (each a “
Proposed Nominee
”) (a) the name, age,
business address, and residence address of the Proposed Nominee, (b) the principal occupation or
employment of the Proposed Nominee, (c) the class and number of shares of the corporation which
are directly or indirectly owned beneficially and of record by
the Proposed Nominee, (d) all information relating to the Proposed Nominee that would be
required to be disclosed in a proxy statement or other filings required to be made in connection
with solicitations of proxies for election of directors in a contested election pursuant to
Section 14 of the Exchange Act and the rules and regulations promulgated thereunder (including
the Proposed Nominee’s written consent to being named in the proxy statement as a nominee and to
serving as a director if elected) and (ii) a description of all direct and indirect compensation
and other material monetary agreements, arrangements and understandings during the past three
years, and any other material relationships, between or among such stockholder and Stockholder
Associated Person, if any, and their respective affiliates and associates, or others acting in
concert therewith, on the one hand, and each Proposed Nominee, and his or her respective
affiliates and associates, or others acting in concert therewith, on the other hand, including,
without limitation all information that would be required to be disclosed pursuant to Rule 404
promulgated under Regulation S-K of the Securities and Exchange Commission if the stockholder
making the nomination and any Stockholder Associated Person on whose behalf the nomination is
made, if any, or any affiliate or associate thereof or person acting in concert therewith, were
the “registrant” for purposes of such rule and the nominee were a director or executive officer
of such registrant. The corporation may require any Proposed Nominee to furnish such other
information as may reasonably be required by the corporation to determine the eligibility of
such Proposed Nominee to serve as an independent director of the corporation or that could be
material to a reasonable stockholder’s understanding of the independence, or lack thereof, of
such nominee; and
(D) with respect to each Proposed Nominee for election or reelection to the Board of
Directors, include a completed and signed questionnaire, representation and agreement as set
forth in this
Section 6(a)(ii)(D)
. To be eligible to be a nominee for election or
reelection as a director of the corporation, a person must deliver (in accordance with the time
periods prescribed for delivery of notice under
Section 6(a)(ii)
of these By-Laws) to
the Secretary at the principal executive offices of the corporation a written questionnaire with
respect to the background and qualification of such person and the background of any other
person or entity on whose behalf the nomination is being made (which questionnaire shall be
provided by the Secretary upon written request) and a written representation and agreement (in
the form provided by the Secretary upon written request) that such person (1) is not and will
not become a party to (a) any agreement, arrangement or understanding with, and has not given
any commitment or assurance to, any person or entity as to how such person, if elected as a
director of the corporation, will act or vote on any issue or question (a “Voting Commitment”)
that has not been disclosed to the corporation or (b) any Voting Commitment that could limit or
interfere with such person’s ability to comply, if elected as a director of the corporation,
with such person’s fiduciary duties under applicable law, (2) is not and will not become a party
to any agreement, arrangement or understanding with any person or entity other than the
corporation with respect to any direct or indirect compensation, reimbursement or
indemnification in connection with service or action as a director that has not been disclosed
therein, and (3) in such person’s individual capacity and on behalf of any person or entity on
whose behalf the nomination is being made, would be in compliance, if elected as a director of
the corporation, and will comply with all applicable publicly disclosed corporate governance,
conflict of interest, confidentiality and stock ownership and
trading policies and guidelines of the corporation.
(E) A stockholder providing notice of with respect to
Section 6(a)(ii) or Section
6(b)
shall further update and supplement such notice, if necessary, so that the information
provided or required to be provided in such notice pursuant to
Section 6(a)(ii) or Section
6(b)
shall be true and correct as of the record date for the meeting and as of the date of
the meeting or any adjournment or postponement thereof, as the case may be, and such update and
supplement shall be delivered to or mailed and received by the Secretary at the principal
executive offices of the corporation not later than five (5) business days after the later of
the record date for the meeting or the date notice of such record date is first publicly
announced by the corporation (in the case of the update and supplement required to be made as of
the record date), and as promptly as practicable after any change in the information required to
be provided (in the case of any update or supplement required to be made after the record date).
As used herein, the term “Stockholder Associated Person” of any stockholder means (i) any person
controlling or controlled by, directly or indirectly or acting in concert with, such
stockholder, (ii) any beneficial owner of shares of stock of the corporation owned of record or
beneficially by such stockholder (other than a stockholder that is a depositary) and (iii) any
person that directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with such Stockholder Associated Person. A person
shall be deemed to be “acting in concert” with another person if such person knowingly acts
(whether or not pursuant to an express agreement) in concert with, or towards a common goal
relating to the management, governance or control of the corporation in parallel with, such
other person where (A) each person is conscious of the other person’s conduct or intent and this
awareness is an element in their decision-making process and (B) at least one additional factor
suggests that such persons intend to act in concert or in parallel, which such additional
factors may include, without limitation, exchanging information (whether publicly or privately),
attending meetings, conducting discussions or making or soliciting invitations to act in concert
or in parallel;
provided
that a person shall not be deemed to be acting in concert with any
other person solely as a result of the solicitation of proxies after the filing of an effective
Schedule 14A under Section 14(a) of the Exchange Act. A person acting in concert with another
person shall be deemed to be acting in concert with any third party who is also acting in
concert with such other person.
(iii) Notwithstanding anything in the second sentence of
Section 6(a)(ii)
of these
By-Laws to the contrary, in the event that the number of directors to be elected to the Board of
Directors is increased and there is no public announcement by the corporation naming all of the
nominees for director or specifying the size of the increased Board of Directors at least 70
days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s
notice pursuant to this
Section 6
shall also be considered timely, but only with respect
to nominees for any new positions created by such increase, if it shall be delivered to the
Secretary at the principal executive offices of the corporation not later than the close of
business on the 10th day following the day on which such public announcement is first made by
the corporation.
(b) Special Meetings of Stockholders. Only such business shall be conducted at a special
meeting of stockholders as shall have been brought before the meeting pursuant to the
corporation’s notice of meeting (or any supplement thereto). If the business stated in the
corporation’s notice of a special meeting of stockholders includes electing one or more
directors to the Board of Directors, nominations of persons for election to the Board of
Directors may be made (i) by or at the direction of the Board of Directors or (ii) provided that
the Board of Directors has determined that directors shall be elected at such meeting, by any
stockholder of the corporation who (A) is a stockholder of record at the time of giving of
notice provided for in this
Section 6
and at the time of the special meeting, (B) is
entitled to vote at the meeting, and (C) complies with the notice procedures set forth in
Section 6(a)(ii)
as to such nomination. Clause (ii) of this sentence shall be the
exclusive means for a stockholder to make nominations before a special meeting of shareholders.
To be timely, the stockholder’s notice required by
Section 6(a)(ii)
of these By-Laws
with respect to any Proposed Nominee (including the completed and signed questionnaire,
representation and agreement required by
Section 6(a)(ii)(D)
of these By-Laws) shall be
delivered to the Secretary at the principal executive offices of the corporation not earlier
than the close of business on the 90th day prior to the date of such special meeting and not
later than the close of business on the later of (Y) the 60th day prior to the date of such
special meeting or, (Z) if the first public announcement of the date of such special meeting is
less than 70 days prior to the date of such special meeting, the 10th day following the day on
which public announcement is first made of the date of the special meeting and of the nominees
proposed by the Board of Directors to be elected at such meeting. In no event shall any
adjournment or postponement of a special meeting or the announcement thereof commence a new time
period for the giving of a stockholder’s notice as described above. Such stockholder’s notice
shall set forth the information called for by
Sections 6(a)(ii)(A), (C), (D) and (E)
.
(c) General.
(i) Only such persons who are nominated in accordance with the procedures set forth in this
Section 6
shall be eligible to serve as directors and only such business shall be
conducted at a meeting of stockholders as shall have been brought before the meeting in
accordance with the procedures set forth in this
Section 6
. Except as otherwise provided
by law, the Certificate of Incorporation or these By-Laws, the Chairman of the meeting shall
have the power and duty to determine whether a nomination or any business proposed to be brought
before the meeting was made or proposed, as the case may be, in accordance with the procedures
set forth in this
Section 6
and, if any proposed nomination or business is not in
compliance with this
Section 6
, to declare that such defective proposal or nomination
shall be disregarded.
(ii) For purposes of this
Section 6
, “public announcement” shall mean disclosure in
a press release reported by a national news service or in any periodic or current report of the
corporation filed with or furnished to the Securities and Exchange Commission.
(iii) Notwithstanding the foregoing provisions of this
Section 6
, a stockholder
shall also comply with all applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in this
Section 6
;
provided,
however
, that any references in these By-Laws to the Exchange Act or the rules
promulgated thereunder are not intended to and shall not limit the requirements applicable to
nominations or proposals as to any other business to be considered pursuant to
Section
6
. Nothing in this
Section 6
shall be deemed to affect any rights (A) of
stockholders to request inclusion of proposals in the corporation’s proxy statement pursuant to
Rule 14a-8 under the Exchange Act or (B) of the holders of any series of Preferred Stock if and
to the extent provided for under law, the Certificate of Incorporation or these By-Laws.
(iv) All notices required to be given by a stockholder pursuant to this
Section 6
must be in writing and delivered to the secretary of the corporation at the principal executive
offices of the corporation in person or by first class United States mail postage prepaid or by
reputable overnight delivery service within the time limits specified in this
Section 6
.
Any other form of communication, including without limitation facsimile transmission and email,
shall not satisfy the notice requirements of this
Section 6
applicable to stockholders.
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3.
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Section 7 (Article III) of the By-Laws is replaced in its entirety with the following:
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Section 7. Notice of Meetings; Waiver of Notice.
Except as otherwise provided by law or the
Certificate of Incorporation, written notice of each meeting of stockholders shall be given not
less than ten (10) nor more than sixty (60) days before the date of the meeting to each
stockholder entitled to vote at such meeting as of the record date for determining the
stockholders entitled to notice of the meeting. The notice shall specify the place, date and
hour of the meeting, the means of remote communication, if any, by which stockholders and proxy
holders may be deemed to be present in person and vote at such meeting, the record date for
determining the stockholders entitled to vote at the meeting, if such date is different from the
record date for determining stockholders entitled to notice of the meeting, and in the case of a
special meeting the purpose or purposes of the meeting
.
Notice of the time, place and purpose
of any meeting of stockholders may be waived in writing, signed by the person entitled to notice
thereof, either before or after such meeting, and will be waived by any stockholder by his
attendance thereat in person or by proxy, except when the stockholder attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Any stockholder so waiving
notice of such meeting shall be bound by the proceedings of any such meeting in all respects as
if due notice thereof had been given.
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4.
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Section 8 (Article III) of the By-Laws is replaced in its entirety with the following:
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Section 8. Quorum.
At each meeting of stockholders, except where otherwise provided by law,
the Certificate of Incorporation or these By-Laws, the presence, in person or by proxy duly
authorized, of the holders of a majority of the outstanding shares of stock entitled to vote at
the meeting shall constitute a quorum for the transaction of business. In the absence of a
quorum, any meeting of stockholders may be adjourned, from time to time, either by the chairman
of the meeting or by vote of the holders of a majority of the shares represented thereat, but no
other business shall be transacted at such meeting. The stockholders present at a duly called
or convened meeting, at which a quorum is present, may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave
less than a quorum. Except as otherwise provided by law, the Certificate of Incorporation or
these By-Laws, the affirmative vote of a majority of the shares present in person or represented
by proxy at the meeting, excluding abstentions and broker non-votes, shall be necessary for the
transaction of any business other than the election of directors; and
directors shall be
elected by a plurality of the votes of the shares present in person or represented by proxy at
the meeting and entitled to vote on the election of directors. Where a separate vote by a class
or classes or series is required, except where otherwise provided by law, the Certificate of
Incorporation or these By-Laws, a majority of the outstanding shares of such class or classes or
series, present in person or represented by proxy, shall constitute a quorum entitled to take
action with respect to the vote on that matter and, except where otherwise provided by law, the
Certificate of Incorporation or these By-Laws, the affirmative vote of the majority (plurality,
in the case of the election of directors) of the votes cast by the holders of shares of such
class or classes or series shall be the act of such class or classes or series.
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5.
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Section 9 (Article III) of the By-Laws is replaced in its entirety with the following:
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Section 9. Adjournment and Notice of Adjourned Meetings.
Any meeting of stockholders, whether
annual or special, may be adjourned from time to time either by the chairman of the meeting or
by the vote of a majority of the shares casting votes, excluding abstentions. When a meeting is
adjourned to another time or place, notice need not be given of the adjourned meeting if the
time and place thereof are announced at the meeting at which the adjournment is taken. At the
adjourned meeting the corporation may transact any business which might have been transacted at
the original meeting. If the adjournment is for more than 30 days a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the meeting. If, after
the adjournment, a new record date for stockholders entitled to vote is fixed for the adjourned
meeting, the Board of Directors shall fix a new record date for notice of such adjourned meeting
in accordance with Section 213(a) of the General Corporation Law of Delaware, and shall give
notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned
meeting as of the record date fixed for notice of such adjourned meeting.
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6.
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Section 12 (Article III) of the By-Laws is replaced in its entirety with the following:
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Section 12. List of Stockholders.
The Secretary shall prepare and make, at least ten (10)
days before every meeting of stockholders, a complete list of the stockholders entitled to vote
at the meeting; provided, however, if the record date for determining the stockholders entitled
to vote is less than 10 days before the meeting date, the list shall reflect the stockholders
entitled to vote as of the tenth day before the meeting date, arranged in alphabetical order, and
showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Nothing contained in this
Section 12
shall require the corporation to
include electronic mail addresses or other electronic contact information on such list. Such list
shall be open to the examination of any stockholder for any purpose germane to the meeting for a
period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic
network, provided that the information required to gain access to such list is provided with the
notice of the meeting, or (ii) during ordinary business hours, at the principal place of business
of the corporation. In the event that the corporation determines to make the list available on an
electronic network, the corporation may take reasonable steps to ensure that such information
is
available only to stockholders of the corporation. If the meeting is to be held at a place, then
a list of stockholders entitled to vote at the meeting shall be produced and kept at the time and
place of the meeting during the whole time thereof and may be examined by any stockholder who is
present. If the meeting is to be held solely by means of remote communication, then such list
shall also be open to the examination of any stockholder during the whole time of the meeting on
a reasonably accessible electronic network, and the information required to access such list
shall be provided with the notice of the meeting.
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7.
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Section 13(c) (Article III) of the By-Laws is replaced in its entirety with the following:
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(c) Prompt notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not consented in writing
and who, if the action had been taken at a meeting, would have been entitled to notice of the
meeting if the record date for notice of such meeting had been the date that written consents
signed by a sufficient number of holders to take the action were delivered to the corporation as
provided in Section 228(c) of the General Corporation Law of Delaware. If the action which is
consented to is such as would have required the filing of a certificate under any section of the
General Corporation Law of the State of Delaware if such action had been voted on by stockholders
at a meeting thereof, then the certificate filed under such section shall state, in lieu of any
statement required by such section concerning any vote of stockholders, that written consent has
been given as provided in Section 228 of the General Corporation Law of Delaware.
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8.
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Section 13(d) (Article III) of the By-Laws is deleted in its entirety.
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9.
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Section 27 (Article V) of the By-Laws is replaced in its entirety with the following:
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Section 27. Officers Designated.
The officers of the corporation shall be a Chairman of the
Board, a Chief Executive Officer, a Chief Financial Officer, a Secretary, and such other officers
as the Board of Directors may appoint, including a President, a Chief Operating Officer, one or
more Vice Presidents, a Treasurer, one or more Assistant Secretaries and Assistant Treasurers.
Each officer shall have the powers and duties set forth in these By-Laws and as the Board of
Directors from time to time shall specify. The Board of Directors may assign such additional
titles to one or more of the officers as it shall deem appropriate. Any one person may hold any
number of offices of the corporation at any one time unless specifically prohibited therefrom by
law. The salaries and other compensation of the officers of the corporation shall be fixed by or
in the manner designated by the Board of Directors.
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10.
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Sections 28 (Article V) of the By-Laws is replaced in its entirety with the following:
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Section 28.
(a)
General.
All officers shall hold office at the pleasure of the Board of Directors and
until their successors shall have been duly elected and qualified, unless sooner removed. Any
officer elected or appointed by the Board of Directors may be removed in accordance
with Section 31 of these By-Laws. If the office of any officer becomes vacant for any
reason,
the vacancy may be filled (i) by the Board of Directors, in the case of the Chief
Executive Officer and (ii) by the Chief Executive Officer, in the case of all other officers.
(b)
Duties of Chairman of the Board of Directors.
The Chairman of the Board of Directors,
when present, shall preside at all meetings of the stockholders and the Board of Directors. The
Chairman of the Board of Directors shall perform other duties commonly incident to his office and
shall also perform such other duties and have such other powers as the Board of Directors shall
designate from time to time.
(c)
Duties of Chief Executive Officer.
The Chief Executive Officer shall preside at all
meetings of the stockholders and at all meetings of the Board of Directors, unless the Chairman
of the Board of Directors has been appointed and is present. The Chief Executive Officer, or if
there shall at any time be no Chief Executive Officer then the President, shall be the chief
executive officer of the corporation and shall, subject to the control of the Board of Directors,
have general supervision, direction and control of the business and officers of the corporation.
The Chief Executive Officer, or if there shall at any time be no Chief Executive Officer then the
President, shall perform other duties commonly incident to his office and shall also perform such
other duties and have such other powers as the Board of Directors shall designate from time to
time.
(d)
Duties of Chief Financial Officer.
The Chief Financial Officer shall keep or cause to
be kept the books of account of the corporation in a thorough and proper manner and shall render
statements of the financial affairs of the corporation in such form and as often as required by
the Board of Directors or the President. The Chief Financial Officer, subject to the order of the
Board of Directors, shall have the custody of all funds and securities of the corporation. The
Chief Financial Officer shall perform other duties commonly incident to his office and shall also
perform such other duties and have such other powers as the Board of Directors or the President
shall designate from time to time. The President may direct the Treasurer or any Assistant
Treasurer, or the Controller or any Assistant Controller to assume and perform the duties of the
Chief Financial Officer in the absence or disability of the Chief Financial Officer, and each
Treasurer and Assistant Treasurer and each Controller and Assistant Controller shall perform
other duties commonly incident to his office and shall also perform such other duties and have
such other powers as the Board of Directors or the President shall designate from time to time.
(e)
Duties of Vice Presidents.
The Vice Presidents, if any are appointed, may assume and
perform the duties of the Chief Executive Officer or President in the absence or disability of
the Chief Executive Officer or President, as applicable. The Vice Presidents shall perform other
duties commonly incident to their office and shall also perform such other duties and have such
other powers as the Board of Directors, Chief Executive Officer or President shall designate from
time to time.
(f)
Duties of Secretary.
The Secretary shall attend all meetings of the stockholders and of
the Board of Directors and shall record all acts and proceedings thereof in the minute book of
the corporation. The Secretary shall give notice in conformity with these By-Laws of all
meetings of the stockholders and of all meetings of the Board of Directors and any
committee thereof requiring notice. The Secretary shall perform all other duties given him
in
these By-Laws and other duties commonly incident to his office and shall also perform such
other duties and have such other powers as the Board of Directors shall designate from time to
time. The President may direct any Assistant Secretary to assume and perform the duties of the
Secretary in the absence or disability of the Secretary, and each Assistant Secretary shall
perform other duties commonly incident to his office and shall also perform such other duties and
have such other powers as the Board of Directors, Chief Executive Officer or President shall
designate from time to time.
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11.
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Section 43(e) (Article XI) of the By-Laws is replaced in its entirety with the following:
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(e)
Non-Exclusivity of Rights.
The rights conferred on any person by this By-Law shall not
be exclusive of any other right which such person may have or hereafter acquire under any
statute, provision of the Certificate of Incorporation, By-Laws, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding office. A right to indemnification or to advancement of
expenses arising under a provision of the certificate of incorporation or a by-law shall not be
eliminated or impaired by an amendment to such provision after the occurrence of the act or
omission that is the subject of the civil, criminal, administrative or investigative action, suit
or proceeding for which indemnification or advancement of expenses is sought, unless the
provision in effect at the time of such act or omission explicitly authorizes such elimination or
impairment after such action or omission has occurred. The corporation is specifically authorized
to enter into individual contracts with any or all of its directors, officers, employees or
agents respecting indemnification and advances, to the fullest extent not prohibited by the
Delaware General Corporation Law.
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12.
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Section 46 (Article XIV) of the By-Laws is deleted in its entirety.
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13.
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Except as expressly amended hereby, the corporation’s By-Laws shall remain in full force
and effect without change.
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* * * * *
The undersigned, being the duly authorized and appointed Secretary of the corporation, hereby
certifies that the foregoing Second Amendment to the By-Laws of the corporation was duly adopted by
the Board of Directors of the corporation at a meeting held on December 8, 2009.
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/s/ Thomas O. McGimpsey
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Thomas O. McGimpsey,
Secretary
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EXHIBIT 10.1
FORM OF DIRECTOR INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the “
Agreement
”) is made and entered into as of December 8,
2009 between Advanced Energy Industries, Inc.
,
a Delaware corporation (the “
Company
”), and
(“
Indemnitee
”).
RECITALS:
WHEREAS, highly competent persons have become more reluctant to serve publicly held
corporations as directors, officers, or in other capacities unless they are provided with adequate
protection through insurance or adequate indemnification against inordinate risks of claims and
actions against them arising out of their service to and activities on behalf of the corporation;
WHEREAS, the Board of Directors of the Company (the “
Board
”) has determined that, in order to
attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis,
at its sole expense, liability insurance to protect persons serving the Company and its
subsidiaries from certain liabilities. Although the furnishing of such insurance has been a
customary and widespread practice among U.S.-based corporations and other business enterprises, the
Company believes that, given current market conditions and trends, such insurance may be available
to it in the future only at higher premiums and with more exclusions. At the same time, directors,
officers, and other persons in service to corporations or business enterprises are being
increasingly subjected to expensive and time-consuming litigation relating to, among other things,
matters that traditionally would have been brought only against the Company or business enterprise
itself. The Amended Bylaws (the “
Bylaws
”) and Restated Certificate of Incorporation (the
“
Certificate
”) of the Company require indemnification of the officers and directors of the Company.
Indemnitee may also be entitled to indemnification pursuant to the General Corporation Law of the
State of Delaware (“
DGCL
”). The Bylaws, the Certificate, and the DGCL expressly provide that the
indemnification provisions set forth therein are not exclusive, and thereby contemplate that
contracts may be entered into between the Company and members of the Board, officers, and other
persons with respect to indemnification;
WHEREAS, the uncertainties relating to such insurance and to indemnification have increased
the difficulty of attracting and retaining such persons;
WHEREAS, the Board has determined that the increased difficulty in attracting and retaining
such persons is detrimental to the best interests of the Company’s stockholders and that the
Company should act to assure such persons that there will be increased certainty of such protection
in the future;
WHEREAS, it is reasonable, prudent, and necessary for the Company contractually to obligate
itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the Company free from
undue concern that they will not be so indemnified;
WHEREAS, this Agreement is a supplement to and in furtherance of the Bylaws and the
Certificate and any resolutions adopted pursuant thereto, and shall not be deemed a substitute
therefor, nor to diminish or abrogate any rights of Indemnitee thereunder;
WHEREAS, Indemnitee does not regard the protection available under the Bylaws, the
Certificate, and insurance as adequate in the present circumstances, and may not be willing to
serve as a director without adequate protection, and the Company desires Indemnitee to serve in
such capacity. Indemnitee is willing to serve, continue to serve, and to take on additional
service for or on behalf of the Company on the condition that he be so indemnified; and
WHEREAS, the Company and the Indemnitee intend for this Agreement to replace the prior
Indemnification Agreement entered into between the two parties.
NOW, THEREFORE, in consideration of Indemnitee’s agreement to serve and/or continue to serve
as a director after the date hereof, the parties hereto agree as follows:
1.
Services to the Company
. Indemnitee agrees to serve and/or continue to serve as a
director of the Company. Indemnitee may at any time and for any reason resign from such position
(subject to any other contractual obligation or any obligation imposed by operation of law), in
which event the Company shall have no obligation under this Agreement to continue Indemnitee in
such position. This Agreement shall not be deemed an employment contract between the Company (or
any of its subsidiaries or any Enterprise (as hereinafter defined)) and Indemnitee. Indemnitee
specifically acknowledges that Indemnitee’s position with the Company is at will, and Indemnitee
may be discharged at any time for any reason, with or without cause, subject to the Bylaws, the
Certificate, and the DGCL. The foregoing notwithstanding, this Agreement shall continue in force
after Indemnitee has ceased to serve as a director of the Company.
2.
Indemnity of Indemnitee
. The Company hereby agrees to hold harmless and indemnify
Indemnitee to the fullest extent permitted by law, as such may be amended from time to time. In
furtherance of the foregoing indemnification, and without limiting the generality thereof:
(a)
Proceedings Other Than Proceedings by or in the Right of the Company
. Indemnitee
shall be entitled to the rights of indemnification provided in this
Section 2(a)
if, by
reason of Indemnitee’s Corporate Status (as hereinafter defined), Indemnitee is, or is threatened
to be made, a party to or participant in any Proceeding (as hereinafter defined) other than a
Proceeding by or in the right of the Company. Pursuant to this
Section 2(a)
, Indemnitee
shall be indemnified against all Expenses (as hereinafter defined), judgments, penalties, fines,
and amounts paid in settlement actually and reasonably incurred by Indemnitee, or on Indemnitee’s
behalf, in connection with such Proceeding or any claim, issue, or matter therein, if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the
best interests of the Company, and with respect to any criminal Proceeding, had no reasonable cause
to believe Indemnitee’s conduct was unlawful.
(b)
Proceedings by or in the Right of the Company
. Indemnitee shall be entitled to
the rights of indemnification provided in this
Section 2(b)
if, by reason of Indemnitee’s
Corporate Status, Indemnitee is, or is threatened to be made, a party to or participant in any
Proceeding brought by or in the right of the Company. Pursuant to this
Section 2(b)
,
Indemnitee shall be indemnified to the fullest extent permitted by applicable law against all
Expenses actually and reasonably incurred by Indemnitee, or on Indemnitee’s behalf, in connection
with such Proceeding or any claim, issue, or matter therein if Indemnitee acted in good faith and
in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the
Company; provided, however, if applicable law so provides, no indemnification against such Expenses
shall be made in respect of any claim, issue, or matter in such Proceeding as to which Indemnitee
shall have been finally adjudged to be liable to the Company unless and only to the extent that the
Court of Chancery of the State of Delaware or any court in which such Proceeding was brought shall
determine upon application that such indemnification may be made, despite the adjudication of
liability.
(c)
Indemnification for Expenses of a Party Who is Wholly or Partly Successful
.
Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason
of Indemnitee’s Corporate Status, a party to and is successful, on the merits or otherwise, in any
Proceeding or in defense of any claim, issue, or matter therein, in whole or in part, Indemnitee
shall be indemnified to the maximum extent permitted by law, as such may be amended from time to
time, against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf
in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less than all claims, issues, or
matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually
and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with each
successfully resolved claim, issue, or matter. For purposes of this Section and without
limitation, the termination of any claim, issue, or matter in such a Proceeding by dismissal, with
or without prejudice, shall be deemed to be a successful result as to such claim, issue, or matter.
2
(d)
Indemnification for Expenses of a Witness
. Notwithstanding any other provision of
this Agreement, to the fullest extent permitted by applicable law, to the extent that Indemnitee
is, by reason of Indemnitee’s Corporate Status, a witness in any Proceeding to which Indemnitee is
not a party, he shall be indemnified against all Expenses actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection therewith.
3.
Additional Indemnity
. In addition to, and without regard to any limitations on,
the indemnification provided for in
Section 2
of this Agreement, the Company shall and
hereby does indemnify and hold harmless to the fullest extent permitted by applicable law
Indemnitee against all Expenses, judgments, penalties, fines, and amounts paid in settlement
actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf if, by reason of
Indemnitee’s Corporate Status, Indemnitee is, or is threatened to be made, a party to or
participant in any Proceeding including, without limitation, all liability arising out of the
negligence or active or passive wrongdoing of Indemnitee. The only limitation that shall exist upon
the Company’s obligations pursuant to this Agreement shall be that the Company shall not be
obligated to make any payment to Indemnitee that is finally determined (under the procedures, and
subject to the presumptions, set forth in
Sections 6
and
7
hereof) to be unlawful.
4.
Contribution.
(a) Whether or not the indemnification provided in
Sections 2
and
3
hereof is
available, in respect of any threatened, pending, or completed Proceeding in which the Company is
jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company shall pay,
in the first instance, the entire amount of any judgment or settlement of such Proceeding without
requiring Indemnitee to contribute to such payment and the Company hereby waives and relinquishes
any right of contribution it may have against Indemnitee. The Company shall not enter into any
settlement of any Proceeding in which the Company is jointly liable with Indemnitee (or would be if
joined in such Proceeding) unless such settlement provides for a full and final release of all
claims asserted against Indemnitee.
(b) Without diminishing or impairing the obligations of the Company set forth in the preceding
subparagraph, if, for any reason, Indemnitee shall elect or be required to pay all or any portion
of any judgment or settlement in any threatened, pending, or completed Proceeding in which the
Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company
shall contribute to the amount of expenses (including attorneys’ fees), judgments, fines, and
amounts paid in settlement actually and reasonably incurred and paid or payable by Indemnitee in
proportion to the relative benefits received by the Company and all officers, directors, or
employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would
be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, from the
transaction from which such Proceeding arose; provided, however, that the proportion determined on
the basis of relative benefit may, to the extent necessary to conform to law, be further adjusted
by reference to the relative fault of the Company and all officers, directors or employees of the
Company other than Indemnitee who are jointly liable with Indemnitee (or would be if joined in such
Proceeding), on the one hand, and Indemnitee, on the other hand, in connection with the events that
resulted in such expenses, judgments, fines, or settlement amounts, as well as any other equitable
considerations which the Law may require to be considered. The relative fault of the Company and
all officers, directors, or employees of the Company, other than Indemnitee, who are jointly liable
with Indemnitee (or would be if joined in such Proceeding), on the one hand, and Indemnitee, on the
other hand, shall be determined by reference to, among other things, the degree to which their
actions were motivated by intent to gain personal profit or advantage, the degree to which their
liability is primary or secondary, and the degree to which their conduct is active or passive.
(c) The Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims
of contribution which may be brought by officers, directors, or employees of the Company, other
than Indemnitee, who may be jointly liable with Indemnitee.
(d) To the fullest extent permissible under applicable law, if the indemnification provided
for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu
of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee,
3
whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in
settlement, and/or Expenses, in connection with any claim relating to an indemnifiable event under
this Agreement, in such proportion as is deemed fair and reasonable in light of all of the
circumstances of such Proceeding in order to reflect (i) the relative benefits received by the
Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such
Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees,
and agents) and Indemnitee in connection with such event(s) and/or transaction(s).
5.
Advancement of Expenses
. Notwithstanding any other provision of this Agreement,
the Company shall advance, to the extent not prohibited by law, all Expenses incurred by or on
behalf of Indemnitee in connection with any Proceeding by reason of Indemnitee’s Corporate Status
within thirty (30) days after the receipt by the Company of a statement or statements from
Indemnitee requesting such advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall reasonably evidence the
Expenses incurred by Indemnitee and shall include or be preceded or accompanied by an undertaking
by or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately be determined
that Indemnitee is not entitled to be indemnified against such Expenses. Advances shall include
any and all reasonable Expenses incurred pursuing an action to enforce this right of advancement.
Any advances and undertakings to repay pursuant to this
Section 5
shall be unsecured and
interest free. This
Section 5
shall not apply to any claim made by Indemnitee for which
indemnity is excluded pursuant to
Section 9
.
6.
Procedures and Presumptions for Determination of Entitlement to Indemnification
.
It is the intent of this Agreement to secure for Indemnitee rights of indemnity that are as
favorable as may be permitted under the DGCL and public policy of the State of Delaware.
Accordingly, the parties agree that the following procedures and presumptions shall apply in the
event of any question as to whether Indemnitee is entitled to indemnification under this Agreement:
(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a
written request for indemnification or advancement of Expenses, including therein or therewith such
documentation and information as is reasonably available to Indemnitee and is reasonably necessary
to determine whether and to what extent Indemnitee is entitled to indemnification, as soon as is
reasonably practicable following the receipt by Indemnitee of written notice thereof. Such written
request to the Company shall include a description of the nature of the Proceeding and the facts
underlying such Proceeding. The omission by Indemnitee to notify the Company hereunder will not
relieve the Company from any liability that it may have to Indemnitee hereunder or otherwise than
under this Agreement, and any delay in so notifying the Company shall not constitute a waiver by
Indemnitee of any rights under this Agreement. The Secretary of the Company shall, promptly upon
receipt of such a request for indemnification, advise the Board in writing that Indemnitee has
requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to
Section 6(a)
hereof, a determination, if required by applicable law, with respect to Indemnitee’s entitlement
thereto shall be made in the specific case by one of the following four (4) methods, which shall be
at the election of the Board: (1) by a majority vote of the Disinterested Directors, even though
less than a quorum, (2) by a committee comprised of Disinterested Directors designated by a
majority vote of the Disinterested Directors, even though less than a quorum, (3) if there are no
Disinterested Directors or if the Disinterested Directors so direct, by Independent Counsel (as
hereinafter defined) in a written opinion to the Board, a copy of which shall be delivered to
Indemnitee, or (4) if so directed by the Board, by the stockholders of the Company; provided,
however, that if a Change in Control shall have occurred, such determination as to Indemnitee’s
entitlement to indemnification hereunder shall be made by Independent Counsel in a written opinion
to the Board, a copy of which shall be delivered to Indemnitee.
(c) If the determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to
Section 6(b)
hereof, the Independent Counsel shall be selected as
provided in this
Section 6(c)
. If a Change in Control shall not have occurred, the
Independent Counsel shall be selected by the Board, and the Board shall give written notice to
Indemnitee of the identity of such Independent Counsel. If a Change in Control shall have
occurred, the Independent Counsel shall
4
be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the
Board, in which event the preceding sentence shall apply) and Indemnitee shall give written notice
to the Company of the identity of such Independent Counsel. In either event, the Company or
Indemnitee, as the case may be, may, within 10 days after such written notice of selection shall
have been given, deliver to Indenitee or the Company, as the case may be, a written objection to
such selection; provided, however, that such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of “
Independent Counsel
” as defined
in
Section 13
of this Agreement, and the objection shall set forth with particularity the
factual basis of such assertion. Absent a proper and timely objection, the person so selected
shall act as Independent Counsel. If a written objection is made and substantiated, the
Independent Counsel selected may not serve as Independent Counsel unless and until such objection
is withdrawn or a court has determined that such objection is without merit. If, within 20 days
after submission by Indemnitee of a written request for indemnification pursuant to
Section
6(a)
hereof, no Independent Counsel shall have been selected and not objected to, either the
Company or Indemnitee may petition the Court of Chancery of the State of Delaware or other court of
competent jurisdiction for resolution of any objection which shall have been made by Indemnitee or
the Company to the other’s selection of Independent Counsel and/or for the appointment as
Independent Counsel of a person selected by the court or by such other person as the court shall
designate, and the person with respect to whom all objections are so resolved or the person so
appointed shall act as Independent Counsel under
Section 6(b)
hereof. The Company shall
pay any and all reasonable fees and expenses of Independent Counsel incurred by such Independent
Counsel in connection with acting pursuant to
Section 6(b)
hereof, and the Company shall
pay all reasonable fees and expenses incident to the procedures of this
Section 6(c)
,
regardless of the manner in which such Independent Counsel was selected or appointed. Upon the
commencement of any Proceeding or arbitration pursuant to
Section 7(a)
hereof, the
Independent Counsel shall be discharged and relieved of any further responsibility in such capacity
(subject to the applicable standards of professional conduct then prevailing).
(d) In making a determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement, to the fullest extent not prohibited by law if Indemnitee has
submitted a request for indemnification in accordance with this Agreement. Anyone seeking to
overcome this presumption, including the Company, shall have the burden of proof and the burden of
persuasion by clear and convincing evidence, to the fullest extent not prohibited by law. Neither
the failure of the Company (including by its directors or Independent Counsel) to have made a
determination prior to the commencement of any action pursuant to this Agreement that
indemnification is proper in the circumstances because Indemnitee has met the applicable standard
of conduct, nor an actual determination by the Company (including by its directors or Independent
Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that Indemnitee has not met the applicable standard of conduct.
(e) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on
the records or books of account of the Enterprise, including financial statements, or on
information supplied to Indemnitee by the officers of the Enterprise in the course of their duties,
or on the advice of legal counsel for the Enterprise or on information or records given or reports
made to the Enterprise by an independent certified public accountant or by an appraiser or other
expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions,
or failure to act, of any director, officer, agent, or employee of the Enterprise shall not be
imputed to Indemnitee for purposes of determining the right to indemnification under this
Agreement. Whether or not the foregoing provisions of this
Section 6(e)
are satisfied, it
shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests of the Company.
Anyone seeking to overcome this presumption shall have the burden of proof and the burden of
persuasion by clear and convincing evidence.
(f) If the person, persons, or entity empowered or selected under this
Section 6
to
determine whether Indemnitee is entitled to indemnification shall not have made a determination
within sixty (60) days after receipt by the Company of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been made and Indemnitee
shall
5
be entitled to such indemnification absent (i) a misstatement by Indemnitee of a material
fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially
misleading, in connection with the request for indemnification, or (ii) a prohibition of such
indemnification under applicable law; provided, however, that such 60-day period may be extended
for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or
entity making such determination with respect to entitlement to indemnification in good faith
requires such additional time to obtain or evaluate documentation and/or information relating
thereto; and provided, further, that the foregoing provisions of this
Section 6(f)
shall
not apply (1) if the determination of entitlement to indemnification is to be made by the
stockholders pursuant to
Section 6(b)
of this Agreement and if (A) within fifteen (15) days
after receipt by the Company of the request for such determination, the Board or the Disinterested
Directors, if appropriate, resolve to submit such determination to the stockholders for their
consideration at an annual meeting thereof to be held within seventy-five (75) days after such
receipt and such determination is made thereat, or (B) a special meeting of stockholders is called
within fifteen (15) days after such receipt for the purpose of making such determination, such
meeting is held for such purpose within sixty (60) days after having been so called and such
determination is made thereat, or (2) if the determination of entitlement to indemnification is to
be made by the Independent Counsel.
(g) Indemnitee shall cooperate with the person, persons, or entity making such determination
with respect to Indemnitee’s entitlement to indemnification, including providing to such person,
persons, or entity upon reasonable advance request any documentation or information that is not
privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee
and reasonably necessary to such determination. Any Independent Counsel, member of the Board or
stockholder of the Company shall act reasonably and in good faith in making a determination
regarding Indemnitee’s entitlement to indemnification under this Agreement. Any costs or expenses
(including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the
person, persons, or entity making such determination shall be borne by the Company (irrespective of
the determination as to Indemnitee’s entitlement to indemnification), and the Company hereby
indemnifies and agrees to hold Indemnitee harmless therefrom.
(h) The Company acknowledges that a settlement or other disposition short of final judgment
may be successful if it permits a party to avoid expense, delay, distraction, disruption, and
uncertainty. In the event that any action, claim, or proceeding to which Indemnitee is a party is
resolved in any manner other than by adverse judgment against Indemnitee (including, without
limitation, settlement of such action, claim, or proceeding with or without payment of money or
other consideration) it shall be presumed that Indemnitee has been successful on the merits or
otherwise in such Proceeding. Anyone seeking to overcome this presumption shall have the burden of
proof and the burden of persuasion by clear and convincing evidence.
(i) The termination of any Proceeding or of any claim, issue, or matter therein, by judgment,
order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not
(except as otherwise expressly provided in this Agreement) of itself adversely affect the right of
Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and
in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of
the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to
believe that Indemnitee’s conduct was unlawful.
6
7.
Remedies of Indemnitee.
(a) Subject to
Section 7(f)
, in the event that (i) a determination is made pursuant to
Section 6
of this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to
Section 5
of this
Agreement, (iii) no determination of entitlement to indemnification is made pursuant to
Section
6(b)
of this Agreement within 90 days after receipt by the Company of the request for
indemnification, (iv) payment of indemnification is not made pursuant to this Agreement within ten
(10) days after receipt by the Company of a written request therefor, (v) payment of
indemnification is not made within ten (10) days after a determination has been made that
Indemnitee is entitled to indemnification or such determination is deemed to have been made
pursuant to
Section 6
of this Agreement, or (vi) in the event that the Company or any other
person takes or threatens to take any action to declare this Agreement void or unenforceable, or
institutes any litigation or other action or Proceeding designed to deny, or to recover from,
Indemnitee the benefits provided or intended to be provided to Indemnitee hereunder, Indemnitee
shall be entitled to an adjudication in an appropriate court of the State of Delaware of
Indemnitee’s entitlement to such indemnification.
(b) In the event that a determination shall have been made pursuant to
Section 6(b)
of
this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding
commenced pursuant to this
Section 7
shall be conducted in all respects as a de novo trial
on the merits, and Indemnitee shall not be prejudiced by reason of the adverse determination under
Section 6(b)
. In any judicial proceeding commenced pursuant to this
Section 7
, the
Company shall have the burden of proving Indemnitee is not entitled to indemnification or
advancement of Expenses, as the case may be.
(c) If a determination shall have been made pursuant to
Section 6(b)
of this Agreement
that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in
any judicial proceeding commenced pursuant to this
Section 7
, absent (i) a misstatement by
Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s
misstatement not materially misleading in connection with the application for indemnification, or
(ii) a prohibition of such indemnification under applicable law.
(d) In the event that Indemnitee, pursuant to this
Section 7
, seeks a judicial
adjudication of Indemnitee’s rights under, or to recover damages for breach of, this Agreement, or
to recover under any directors’ and officers’ liability insurance policies maintained by the
Company, the Company shall pay on Indemnitee’s behalf, in advance, any and all expenses (of the
types described in the definition of Expenses in
Section 14(e)
of this Agreement) actually
and reasonably incurred by Indemnitee ,to the maximum extent permitted by Delaware law .
(e) The Company shall be precluded from asserting in any judicial proceeding commenced
pursuant to this
Section 7
that the procedures and presumptions of this Agreement are not
valid, binding, and enforceable and shall stipulate in any such court that the Company is bound by
all the provisions of this Agreement. The Company shall indemnify Indemnitee against any and all
Expenses and, if requested by Indemnitee, shall (within ten (10) days after receipt by the Company
of a written request therefore) advance, to the extent not prohibited by law, such expenses to
Indemnitee, which are incurred by Indemnitee in connection with any action brought by Indemnitee
for indemnification or advance of Expenses from the Company under this Agreement or under any
directors’ and officers’ liability insurance policies maintained by the Company,.
(f) Notwithstanding anything in this Agreement to the contrary, no determination as to
entitlement to indemnification under this Agreement shall be required to be made prior to the final
disposition of the Proceeding.
7
8.
Non-Exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The rights of indemnification as provided by this Agreement shall not be deemed exclusive
of any other rights to which Indemnitee may at any time be entitled under applicable law, the
Certificate, the Bylaws, any agreement, a vote of stockholders, a resolution of directors, or
otherwise. No amendment, alteration, or repeal of this Agreement or of any provision hereof shall
limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or
omitted by such Indemnitee in Indemnitee’s Corporate Status prior to such amendment, alteration, or
repeal. To the extent that a change in the DGCL, whether by statute or judicial decision, permits
greater indemnification than would be afforded currently under the Certificate, the Bylaws, and
this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this
Agreement the greater benefits so afforded by such change. To the extent that a change in the
DGCL, whether by statute or judicial decision, limits the indemnification rights that would be
afforded currently under the Certificate, the Bylaws, and this Agreement, it is the intent of the
parties hereto that such change, to the extent not otherwise required by such law, statute, or rule
to be applied to this Agreement, shall have no effect on this Agreement or the parties’ rights and
obligations hereunder. No right or remedy herein conferred is intended to be exclusive of any
other right or remedy, and every other right and remedy shall be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other right or remedy.
(b) To the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, agents, or fiduciaries of the Company or of
any Enterprise, Indemnitee shall be covered by such policy or policies in accordance with its or
their terms to the maximum extent of the coverage available for any director, officer, employee,
agent, or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a
claim pursuant to the terms hereof, the Company has director and officer liability insurance in
effect, the Company shall give prompt notice of the commencement of such proceeding to the insurers
in accordance with the procedures set forth in the respective policies. The Company shall
thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of
Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such
policies.
(c) In the event of any payment under this Agreement, the Company shall be subrogated to the
extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers
required and take all action necessary to secure such rights, including execution of such documents
as are necessary to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually
received such payment under any insurance policy, contract, agreement, or otherwise.
(e) The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is
or was serving at the request of the Company as a director, officer, employee, or agent of any
other corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise
shall be reduced by any amount Indemnitee has actually received as indemnification or advancement
of expenses from such other corporation, partnership, joint venture, trust, employee benefit plan,
or other enterprise.
9.
Exception to Right of Indemnification
. Notwithstanding any provision in this
Agreement, the Company shall not be obligated under this Agreement to make any indemnity in
connection with any claim made against Indemnitee:
(a) for which payment has actually been made to or on behalf of Indemnitee under any insurance
policy or other indemnity provision, except with respect to any excess beyond the amount paid under
any insurance policy or other indemnity provision; or
8
(b) (i) for an accounting of profits made from the purchase and sale (or sale and purchase) by
Indemnitee of securities of the Company within the meaning of
Section 16(b)
of the
Securities Exchange Act of 1934, as amended (the
“Exchange Act
”), or similar provisions of state
statutory law or common law, or (ii) any reimbursement of the Company by Indemnitee of any bonus or
other incentive-based or equity-based compensation or of any profits realized from the sale of the
Company’s securities, as required in each case under the Exchange Act (including any such
reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of
the Sarbanes-Oxley Act of 2002 (the “
Sarbanes-Oxley Act
”), or the payment to the Company of profits
arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the
Sarbanes-Oxley Act); or
(c) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee,
including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the
Company or its directors, officers, employees, or other indemnitees, unless (i) the Board
authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) the Company
provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company
under applicable law, (iii) the proceeding was initiated to establish or enforce a right to
indemnification under this Agreement, any other agreement or insurance policy, or under the Bylaws
or the Certificate, or (iv) as otherwise required under the laws of the State of Delaware.
10.
Duration of Agreement
. All agreements and obligations of the Company contained
herein shall continue during the period Indemnitee is a director of the Company (or is or was
serving at the request of the Company as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust or other enterprise) and shall continue thereafter
so long as Indemnitee shall be subject to any Proceeding (or any proceeding commenced under
Section 7
hereof) by reason of Indemnitee’s Corporate Status, whether or not he is acting
or serving in any such capacity at the time any liability or expense is incurred for which
indemnification can be provided under this Agreement.
11.
Period of Limitations
. No legal action shall be brought and no cause of action
shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s estate,
spouse, heirs, executors, or personal or legal representatives after the expiration of two (2)
years from the date of accrual of such cause of action, and any claim or cause of action of the
Company shall be extinguished and deemed released unless asserted by the timely filing of a legal
action within such two-year (2) period; provided, however, that if any shorter period of
limitations is otherwise applicable to any such cause of action, such shorter period shall govern.
12.
Security
. To the extent requested by Indemnitee and approved by the Board, the
Company may at any time and from time to time provide security to Indemnitee for the Company’s
obligations hereunder through an irrevocable bank line of credit, funded trust, or other
collateral. Any such security, once provided to Indemnitee, may not be revoked or released without
the prior written consent of Indemnitee.
13.
Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and
assumes the obligations imposed on it hereby in order to induce Indemnitee to serve, or continue to
serve, as a director of the Company, and the Company acknowledges that Indemnitee is relying upon
this Agreement in serving as a director of the Company.
(b) This Agreement constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and understandings, oral, written and
implied, between the parties hereto with respect to the subject matter hereof; provided, however,
that this Agreement is a supplement to and in furtherance of the Certificate, the Bylaws, and any
applicable law, and shall not be deemed a substitute therefor, nor to diminish or abrogate any
rights of Indemnitee thereunder.
9
14.
Definitions
. For purposes of this Agreement:
(a) A “
Change of Control
” shall be deemed to have occurred upon the earliest to occur after
the date of this Agreement of any of the following events:
(i)
Acquisition of Stock by Third Party
. Any Person (as defined below) is or becomes the
Beneficial Owner (as defined below), directly or indirectly, of securities of the Company
representing twenty percent (20%) or more of the combined voting power of the Company’s then
outstanding securities;
(ii)
Change in Board of Directors
. During any period of two (2) consecutive years (not
including any period prior to the execution of this Agreement), individuals who at the beginning of
such period constitute the Board, and any new director (other than a director designated by a
person who has entered into an agreement with the Company to effect a transaction described in
Sections 14(a)(i)
,
14(a)(iii)
, or
14(a)(iv)
) whose election by the Board or
nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds
of the directors then still in office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved, cease for any reason to
constitute at least a majority of the members of the Board;
(iii)
Corporate Transactions
. The effective date of a merger or consolidation of the Company
with any other entity, other than a merger or consolidation that would result in the voting
securities of the Company outstanding immediately prior to such merger or consolidation continuing
to represent (either by remaining outstanding or by being converted into voting securities of the
surviving entity) more than 51% of the combined voting power of the voting securities of the
surviving entity outstanding immediately after such merger or consolidation and with the power to
elect at least a majority of the board of directors or other governing body of such surviving
entity;
(iv)
Liquidation
. The approval by the stockholders of the Company of a complete liquidation
of the Company or an agreement for the sale or disposition by the Company of all or substantially
all of the Company’s assets; and
(v)
Other Events
. There occurs any other event of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar
item on any similar schedule or form) promulgated under the Exchange Act (as defined below),
whether or not the Company is then subject to such reporting requirement.
For purposes of this
Section 14(a)
, the following terms shall have the following meanings:
(A) “
Exchange Act
” shall mean the Securities Exchange Act of 1934, as amended.
(B) “
Person
” shall have the meaning as set forth in Sections 13(d) and 14(d) of the Exchange
Act; provided, however, that Person shall exclude (i) the Company, (ii) any trustee or other
fiduciary holding securities under an employee benefit plan of the Company, and (iii) any
corporation owned, directly or indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company.
(C) “
Beneficial Owner
” shall have the meaning given to such term in Rule 13d-3 under the
Exchange Act; provided, however, that Beneficial Owner shall exclude any Person otherwise becoming
a Beneficial Owner by reason of the stockholders of the Company approving a merger of the Company
with another entity.
(b) “
Corporate Status
” describes the status of a person who is or was a director, officer,
employee, agent or fiduciary of the Company or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise that such person is or was serving at the
express written request of the Company.
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(c) “
Disinterested Director
” means a director of the Company who is not and was not interested
in the transaction or conduct giving rise to the Proceeding in respect of which indemnification is
sought by Indemnitee.
(d) “
Enterprise
” shall mean the Company and any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise that Indemnitee is or was serving at the express
written request of the Company as a director, officer, employee, agent or fiduciary.
(e) “
Expenses
” shall include all reasonable attorneys’ fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees and all other disbursements or
expenses of the types customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, participating or being or preparing to be a witness in a
Proceeding. Expenses also shall include Expenses incurred in connection with any appeal resulting
from any Proceeding, including without limitation the premium, security for and other costs
relating to any cost bond, supersede as bond or other appeal bond or its equivalent. Expenses,
however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or
fines against Indemnitee. Indemnitee agrees to instruct his or her attorney to provide the Company
with detailed monthly billing statements that provide a sufficient breakdown of hourly billings so
as to enable the Company to determine the reasonableness of such charges. Indemnitee’s attorney
may redact specific attorney-client privileged discussions or information in such submitted monthly
billing statements.
(f) “
Independent Counsel
” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the past five years has been, retained
to represent: (i) the Company or Indemnitee in any matter material to either such party (other
than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees
under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to
a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent
Counsel” shall not include any person who, under the applicable standards of professional conduct
then prevailing, would have a conflict of interest in representing either the Company or Indemnitee
in an action to determine Indemnitee’s rights under this Agreement. The Company agrees to pay the
reasonable fees of the Independent Counsel referred to above and to fully indemnify such counsel
against any and all Expenses, claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto.
(g) “
Proceeding
” includes any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other
actual, threatened or completed proceeding, whether brought by or in the right of the Company or
otherwise and whether civil, criminal, administrative or investigative, in which Indemnitee was, is
or will be involved as a party or otherwise, by reason of the fact that Indemnitee is or was an
officer or director of the Company, by reason of any action taken by Indemnitee or of any inaction
on Indemnitee’s part while acting as a director of the Company, or by reason of the fact that
Indemnitee is or was serving at the request of the Company as a director, officer, employee, agent
or fiduciary of another corporation, partnership, joint venture, trust or other Enterprise; in each
case whether or not he is acting or serving in any such capacity at the time any liability or
expense is incurred for which indemnification can be provided under this Agreement; including one
pending on or before the date of this Agreement, but excluding one initiated by Indemnitee pursuant
to
Section 7
of this Agreement to enforce Indemnitee’s rights under this Agreement.
15.
Severability
. If any provision or provisions of this Agreement shall be held to
be invalid, illegal, or unenforceable for any reason whatsoever: (a) the validity, legality, and
enforceability of the remaining provisions of this Agreement (including without limitation, each
portion of any Section of this Agreement containing any such provision held to be invalid, illegal,
or unenforceable that is not itself invalid, illegal, or unenforceable) shall not in any way be
affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law;
(b) such provision or provisions shall be deemed reformed to the extent necessary to conform to
applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the
fullest extent possible, the provisions of this Agreement
11
(including, without limitation, each portion of any Section of this Agreement containing any
such provision held to be invalid, illegal, or unenforceable that is not itself invalid, illegal,
or unenforceable) shall be construed so as to give effect to the intent manifested thereby.
Without limiting the generality of the foregoing, this Agreement is intended to confer upon
Indemnitee indemnification rights to the fullest extent permitted by applicable laws. In the event
any provision hereof conflicts with any applicable law, such provision shall be deemed modified,
consistent with the aforementioned intent, to the extent necessary to resolve such conflict.
16.
Modification and Waiver
. No supplement, modification, termination or amendment of
this Agreement shall be binding unless executed in writing by both of the parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing
waiver.
17.
Assignment
. This Agreement shall be binding upon and inure to the benefit of and
be enforceable by the parties hereto and their respective successors (including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of
the business and/or assets of the Company), assigns, spouses, heirs, and personal and legal
representatives. The Company shall require and cause any successor (whether direct or indirect by
purchase, merger, consolidation or otherwise) to all, substantially all or a substantial part, of
the business and/or assets of the Company, by written agreement in form and substance satisfactory
to Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform if no such succession had taken
place. This Agreement shall continue in effect regardless of whether Indemnitee continues to serve
as a director, officer, employee, or agent of the Company or of any other enterprise at the
Company’s request.
18.
Notice By Indemnitee
. Indemnitee agrees promptly to notify the Company in writing
upon being served with or otherwise receiving any summons, citation, subpoena, complaint,
indictment, information or other document relating to any Proceeding or matter which may be subject
to indemnification covered hereunder. The failure to so notify the Company shall not relieve the
Company of any obligation which it may have to Indemnitee under this Agreement or otherwise unless
and only to the extent that such failure or delay materially prejudices the Company.
19.
Notices
. All notices and other communications given or made pursuant to this
Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to
the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during
normal business hours of the recipient, and if not so confirmed, then on the next business day, (c)
five (5) days after having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. All communications shall be
sent:
(a) To Indemnitee at the address set forth below Indemnitee’s signature hereto.
(b) To the Company at:
Advanced Energy Industries, Inc.
1625 Sharp Point Drive
Fort Collins, Colorado 80027
Attention: President
or to such other address as may have been furnished to Indemnitee by the Company or to the Company
by Indemnitee, as the case may be.
20.
Counterparts
. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
Agreement. This Agreement may also be executed and delivered by facsimile signature and in two or
12
more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
21.
Headings
. The headings of the paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
22.
Governing Law and Consent to Jurisdiction
. This Agreement and the legal relations
among the parties shall be governed by, and construed and enforced in accordance with, the laws of
the State of Delaware, without regard to its conflict of law rules. The Company and Indemnitee
hereby irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in
connection with this Agreement shall be brought only in the Chancery Court of the State of Delaware
(the “
Delaware Court
”), and not in any other state or federal court in the United States of America
or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the
Delaware Court for purposes of any action or proceeding arising out of or in connection with this
Agreement, (iii) appoint, to the extent such party is not otherwise subject to service of process
in the State of Delaware, irrevocably the Company’s agent for service of process in Delaware as
such party’s agent for acceptance of legal process in connection with any such action or proceeding
against such party with the same legal force and validity as if served upon such party personally
within the State of Delaware, (iv) waive any objection to the laying of venue of any such action or
proceeding in the Delaware Court and (v) waive, and agree not to plead or to make, any claim that
any such action or proceeding brought in the Delaware Court has been brought in an improper or
inconvenient forum.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and
year first above written.
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ADVANCED ENERGY INDUSTRIES, INC. (THE COMPANY)
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By:
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Name
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Title:
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INDEMNITEE
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Name:
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Address:
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[SIGNATURE PAGE TO DIRECTOR INDEMNIFICATION AGREEMENT]
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