What changed in this filing

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Item 9A. Controls and Procedures

2024-02-20 compared with 2023-02-17 · 55 added, 35 removed, 184 unchanged (33% of the section changed)

1 unchanged sentence

Evaluation of Disclosure Controls and Procedures

We have established disclosure controls and procedures, which are designed to ensure that information required to be disclosed in reports filed or submitted under the Securities Exchange Act of 1934 (“Exchange Act”) is recorded, processed, summarized, and reported, within the time periods specified in the Securities and Exchange Commission’s rules and forms.

These disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed in the reports that we file or submit under the Exchange Act is accumulated and communicated to management, including our Principal Executive Officer (Stephen D.

Kelley, President and Chief Executive Officer) and Principal Financial Officer (Paul Oldham, Chief Financial Officer), as appropriate, to allow timely decisions regarding required disclosures.

We have established disclosure controls and procedures, which are designed to ensure that information required to be disclosed in reports filed or submitted under the Exchange Act is recorded, processed, summarized, and reported, within the time periods specified in the SEC’s rules and forms.

As of the end of the period covered by this report, we conducted an evaluation, with the participation of management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of the disclosure controls and procedures pursuant to the Exchange Act Rule 13a-15(b).

6 unchanged sentences

Our internal control over financial reporting is designed to provide reasonable assurance concerning the reliability of our financial reporting and the preparation of our financial statements for external purposes in accordance with generally accepted accounting principles.

In April 2022, we acquired SL Power.

Refer to Note 2.

Acquisitions in Part II, Item 8 “Financial Statements and Supplementary Data” for additional information.

SL Power’s objectives regarding internal controls over financial reporting are consistent, in all material respects, with Advanced Energy’s objectives.

We are in the process of completing a more comprehensive review of SL Power’s internal control over financial reporting and will be implementing changes to better align their reporting and controls with the rest of Advanced Energy.

As a result of the timing of the acquisition, anticipated changes, and general guidance issued by the SEC regarding exclusion of certain acquired businesses, we excluded SL Power from Advanced Energy’s December 31, 2022 assessment of internal controls over financial reporting.

SL Power accounted for approximately 2% of our total assets at December 31, 2022, and 3% of our total net sales for the year ended December 31, 2022.

Management, with the participation of our Chief Executive Officer and Chief Financial Officer, evaluated the effectiveness of our internal control over financial reporting as of December 31, 2023, using the criteria described in Internal Control-Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.

2 unchanged sentences

Changes in Internal Control over Financial Reporting

There was no change in our internal control over financial reporting that occurred during 2022 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

There was no change in our internal control over financial reporting that occurred during the fourth quarter of the current year that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

Limitations on Controls and Procedures

4 unchanged sentences

OTHER INFORMATION

Not applicable.

During the fourth quarter of 2023, no director or officer adopted or terminated a “Rule 10b5-1 trading arrangement” or a “Non-Rule 10b5-1 trading arrangement” (as defined in Item 408 of Regulation S-K).

DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS

3 unchanged sentences

DIRECTORS, EXECUTIVE OFFICERS, AND CORPORATE GOVERNANCE

The information set forth in the 2023 Proxy Statement under the headings “Management” and “Proposal No.

1 - Election of Directors” is incorporated herein by reference.

The information set forth in the 2024 Proxy Statement under the headings “Proposal No.

1 - Election of Directors,” “Corporate Governance,” “Management,” and “Delinquent Section 16(a) Reports” is incorporated herein by reference.

We adopted a Code of Ethical Conduct that applies to all employees, including our Chief Executive Officer, Chief Financial Officer, and others performing similar functions.

We posted a copy of the Code of Ethical Conduct on our website at www.advancedenergy.com, and such Code of Ethical Conduct is available, in print, without charge, to any stockholder who requests it from the Company’s Secretary.

We intend to satisfy the disclosure requirements under Item 5.05 of Form 8-K regarding amendments to, or waivers from, the Code of Ethical Conduct by posting such information on our website at www.advancedenergy.com.

26 unchanged sentences

2 - Ratification of the Appointment of Ernst & Young LLP as Advanced Energy’s Independent Registered Public Accounting Firm for 2024” is incorporated herein by reference.

EXHIBITS AND FINANCIAL STATEMENT SCHEDULES

EXHIBIT AND FINANCIAL STATEMENT SCHEDULES

Documents filed as part of this annual report on Form 10-K are as follows:

20 unchanged sentences

March 2, 2020

Indenture, dated September 12, 2023, between Advanced Energy Industries, Inc.

Bank Trust Company, National Association, as trustee

September 13, 2023

Form of Global 2.50% Convertible Senior Note due 2028 (included in Exhibit 4.3)

September 13, 2023

Lease, dated January 16, 2003, by and between China Great Wall Computer Shenzhen Co., Ltd., Great Wall Limited and Advanced Energy Industries (Shenzhen) Co., Ltd., for a building located in Shenzhen, China

1 unchanged sentence

Form of Director and Officer Indemnification Agreement

Filed herewith

February 17, 2023

Form of Notice of Grant Stock Option under 2008 Omnibus Incentive Plan *

2 unchanged sentences

March 14, 2017

Incorporated by Reference

2008 Omnibus Incentive Plan, as amended May 4, 2010 *

4 unchanged sentences

February 10, 2021

Incorporated by Reference

Global Supply Agreement by and between Advanced Energy Industries, Inc.

and Applied Materials, Inc.

dated August 29, 2005 +

and Applied Materials, Inc., dated August 29, 2005 +

November 7, 2005

Shipping Amendment to the Global Supply Agreement by and between Advanced Energy Industries, Inc.

and Applied Materials, Inc.

dated August 29, 2005 +

and Applied Materials, Inc., dated August 29, 2005 +

November 7, 2005

Bridge Amendment to the Global Supply Agreement by and between Advanced Energy Industries, Inc.

and Applied Materials, Inc.

dated January 28, 2011 +

and Applied Materials, Inc., dated January 28, 2011 +

Offer Letter to Paul Oldham, dated March 26, 2018 *

March 29, 2018

Form of Executive Change in Control and General Severance Agreement

August 6, 2018

Credit Agreement, dated September 10, 2019, by and among Advanced Energy Industries, Inc., Bank of America N.A.

3 unchanged sentences

ISDA 2002 Master Agreement, by and between Advanced Energy Industries, Inc.

and HSBC Bank USA, National Association, dated as of April 2, 2020 (the “HSBC ISDA Master Agreement”)

and HSBC Bank USA, National Association, dated April 2, 2020 (the “HSBC ISDA Master Agreement”)

April 10, 2020

ISDA 2002 Master Agreement, by and between Advanced Energy Industries, Inc.

and Citibank, N.A., dated as of April 7, 2020 (the “Citibank ISDA Master Agreement”)

and Citibank, N.A., dated April 7, 2020 (the “Citibank ISDA Master Agreement”)

April 10, 2020

6 unchanged sentences

April 10, 2020

Incorporated by Reference

Rate Swap Transaction Confirmation, by and between Advanced Energy Industries, Inc.

1 unchanged sentence

April 10, 2020

Incorporated by Reference

Amendment No.

9 unchanged sentences

Form of Restricted Stock Unit Agreement under 2017 Omnibus Incentive Plan *

Filed herewith

February 17, 2023

Form of LTI Performance Stock Unit Agreement under 2017 Omnibus Incentive Plan *

February 17, 2023

Amendment No.

2 to Credit Agreement, dated March 31, 2023, among Advanced Energy Industries, Inc., the guarantors party thereto, Bank of America N.A., as Administrative Agent, and the Lenders party thereto

Form of Confirmation for Convertible Note Hedges***

September 13, 2023

Form of Confirmation for Warrants***

September 13, 2023

Amendment No.

3 to Credit Agreement, dated September 7, 2023, among Advanced Energy Industries, Inc., the guarantors party thereto, Bank of America, N.A., as Administrative Agent, and the Lenders party thereto

September 13, 2023

Amended and Restated 2023 Omnibus Incentive Plan *

November 8, 2023

Form of Executive Change in Control and General Severance Agreement *

November 8, 2023

Form of Performance Stock Unit Agreement under the Amended and Restated 2023 Omnibus Incentive Plan *

Filed herewith

Form of Restricted Stock Unit Agreement under the Amended and Restated 2023 Omnibus Incentive Plan *

Filed herewith

Incorporated by Reference

Form of Annual Incentive Plan *

Filed herewith

Insider Trading Policy

Filed herewith

Subsidiaries of Advanced Energy Industries, Inc .

12 unchanged sentences

Filed herewith

Compensation Clawback Policy

Filed herewith

Inline XBRL Instance Document

4 unchanged sentences

Filed herewith

Incorporated by Reference

Inline XBRL Taxonomy Extension Definition Linkbase Document

6 unchanged sentences

Filed herewith

* Compensation Plan

* Management contract or compensatory plan.

** Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K.

*** Certain personally identifiable information has been omitted from this exhibit pursuant to Item 601(a)(6) of Regulation S-K.

+ Confidential treatment has been granted for portions of this agreement.

13 unchanged sentences

February 20, 2024

(Principal Financial and Accounting Officer)

(Principal Financial Officer)

/s/ Bernard R.

Colpitts, Jr.

Chief Accounting Officer and Senior Vice President

February 20, 2024

Colpitts, Jr.

(Principal Accounting Officer)

Chairman of the Board

6 unchanged sentences

February 20, 2024

/s/ Edward C.

February 17, 2023

/s/ Lanesha T.

4 unchanged sentences

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 9A. Controls and Procedures