Item 3.03 Material Modifications to Rights of Security Holders.
The information set forth under Item 5.03 and Item 9.01 of this report is incorporated herein by reference.
Item 5.03 Amendments to the Certificate of Incorporation or Bylaws; Change in Fiscal Year.
Amended and Restated Certificate of Incorporation
On April 25, 2024, at the 2024 Annual Meeting of Stockholders of Advanced Energy Industries, Inc. (“Advanced Energy” or the “Company”), the Company’s stockholders approved an Amended and Restated Certificate of Incorporation of the Company to (i) limit the personal liability of the Company’s officers in light of recent amendments to the Delaware General Corporation Law (“DGCL”) and (ii) make certain other minor, non-substantive updates and improvements (the “Restated Certificate”), which had previously been approved by the Company’s Board of Directors, subject to stockholder approval. On April 25, 2024, the Company filed the Restated Certificate with the Secretary of State of the State of Delaware.
The Restated Certificate is described in detail in the Company’s Definitive Proxy Statement on Schedule 14A (the “Proxy Statement”) filed with the Securities and Exchange Commission (the “SEC”) on March 15, 2024, under the caption “Proposal No. 4 - Approval Of Advanced Energy’s Second Amended and Restated Certificate of Incorporation to Provide Exculpation from Personal Liability for Certain Officers as Permitted by Delaware Law and Make Certain Other Minor, Non-Substantive Updates,” which description is incorporated herein by reference. A copy of the Restated Certificate is also filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by reference. The description of the Restated Certificate set forth above does not purport to be complete and is qualified in its entirety by reference to such materials.
Third Amended and Restated By-Laws
On April 25, 2024, the Company’s Board of Directors amended and restated the by-laws of the Company (the “Third Amended and Restated By-Laws”), effective immediately upon their adoption. These amendments principally provide for the following:
| (i) | to revise the advance notice requirements and procedures for stockholder proposals and director nominations and to address the universal proxy rules adopted by the SEC, including (A) updating the advance notice deadlines for stockholder proposals and nominations to no earlier than the close of business on the one hundred twentieth (120th) day and no later than the ninetieth (90th) day prior to the first anniversary of the preceding year’s annual meeting, or if the meeting date is more than 30 days before or after the first anniversary and the first public announcement of such date is less than one hundred (100) days before the meeting, the tenth (10th) day following such public announcement, (B) updating the advance notice informational and disclosure requirements for stockholder proposals and director nominations, (C) requiring evidence of compliance with Rule 14a-19 under the Securities and Exchange Act of 1934, as amended, and (D) specifying the color of proxy card reserved for exclusive use by the Company; |
| (ii) | to adopt an exclusive forum provision designating the U.S. federal district courts as the exclusive forum for all claims arising under the Securities Act of 1933, as amended; |
| (iii) | to align with recent changes to the DGCL, such as those regarding adjournment procedures for stockholder meetings and the provision of the stockholder list; |
| (iv) | to update the stock ownership requirement to call a special meeting of stockholders to not less than 20% of the shares entitled to vote at the meeting; and |
| (v) | to make other clarifying, conforming and administrative changes. |
A copy of the Third Amended and Restated By-Laws filed as Exhibit 3.2 to this Current Report on Form 8-K and is incorporated by reference herein. The foregoing summary description of the Third Amended and Restated Bylaws does not purport to be complete and is qualified in its entirety by reference to the full text of the Third Amended and Restated Bylaws.
