As filed with the Securities and Exchange Commission on March 24, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ENERGY CONVERSION DEVICES, INC.
(Exact name of registrant as specified in its charter)
Delaware 8731 38-1749884
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
1675 West Maple Road
Troy, MI 48084
(248) 280-1900
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
ROGER JOHN LESINSKI, ESQ.
Energy Conversion Devices, Inc.
1675 West Maple Road
Troy, MI 48084
(248) 280-1900
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
CRAIG A. ROEDER, ESQ.
JENNER & BLOCK
601 Thirteenth Street, N.W.
Washington, D.C. 20005
(202) 639-6000
Approximate date of proposed commencement of sale to the public:
As soon as practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.[ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest-reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective Registration Statement for the same offering. [ ] ___________________.
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
Registration Statement for the same offering. [ ] ____________________________.
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
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Title of Securities to Amount to be Proposed Proposed Maximum Amount of
be Registered Registered Maximum Offering Aggregate Offering Registration Fee
Price Per Share Price(2)
and Per Warrant(2)
- ---------------------------------------------------------------------------------------------------------------
Common Stock, 306,000(1) $ 24.0625 $7,363,125 $ 1,943.87
$.01 par value
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Common Stock 70,000 $ 10.46875 $ 732,813 $ 193.46
Purchase Warrants
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Total . . . . . . . . $ 2,137.33
==============
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</TABLE>
(1) Number of shares of Common Stock registered includes shares issuable
upon the exercise of the Common Stock Purchase Warrants (the "Warrants")
registered hereby.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) based on the average of the high and low sales
prices of the Common Stock and the Warrants, respectively, on the Nasdaq
National Market on March 22, 2000.
------------
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a) may determine.
<TABLE>
<S><C>
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</TABLE>
<PAGE>
PROSPECTUS
306,000 Shares
Shares of Common Stock ($.01 par value)
70,000 Shares
Common Stock Purchase Warrants
ENERGY CONVERSION DEVICES, INC.
--------------
This is an offering of shares of Common Stock, $0.01 per share, of Energy
Conversion Devices, Inc., and warrants to purchase shares of Common Stock. This
prospectus relates to an offering of 306,000 shares of Common Stock and 70,000
Common Stock Purchase Warrants (the "Warrants").
All of the shares of Common Stock and the Warrants in the offering are
being sold by the selling securityholders identified in this prospectus. We will
not receive any of the proceeds from the sale of the shares or the Warrants
offered hereby. We will receive proceeds upon the exercise of the Warrants held
by the selling securityholders.
The Common Stock is traded on the Nasdaq National Market under the symbol
"ENER." The Warrants are traded on the Nasdaq National Market under the symbol
"ENERW." On March 22, 2000, the closing price of the Common Stock was $24.688
per share and the closing price of the Warrants was $10.813 per Warrant, as
reported by the Nasdaq National Market.
--------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION
NOR ANY OTHER REGULATORY BODY
HAS APPROVED OR DISAPPROVED THESE SECURITIES,
OR PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
--------------
Information contained in this prospectus is subject to completion and may
be changed. A registration statement relating to these securities has been filed
with the Securities and Exchange Commission. These securities may not be sold
nor may any offers to buy be accepted prior to the time the registration
statement becomes effective. This prospectus shall not constitute an offer to
sell or the solicitation of an offer to buy nor shall there be any sales of
these securities in any State in which such offer, solicitation or sale would be
unlawful prior to the registration or qualification under the securities laws of
any such State.
--------------
Prospectus dated March 24, 2000.
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No dealer, salesman, or any other person has been authorized to give any
information or to make any representations other than those contained in this
prospectus in connection with the offering herein contained and, if given or
made, such information or representations must not be relied upon as having been
authorized by the company. This prospectus does not constitute an offer to sell,
or a solicitation of an offer to buy, the securities offered hereby in any
jurisdiction to any person to whom it is unlawful to make an offer or
solicitation. Neither the delivery of this prospectus nor any sale made
hereunder shall, under any circumstances, create an implication that there has
been no change in the facts herein set forth since the date hereof.
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WHERE YOU CAN FIND MORE INFORMATION
This prospectus constitutes part of a Registration Statement on Form S-3
filed with the SEC under the Securities Act of 1933. It omits some of the
information contained in the Registration Statement, and you should refer to the
Registration Statement for further information about us and the securities
offered by this prospectus. Any statement contained in this prospectus
concerning the provision of any document filed as an exhibit to the Registration
Statement or otherwise filed with the SEC is not necessarily complete, and in
each instance you should refer to the copy of the document filed.
In addition, we file annual, quarterly and current reports, proxy
statements and other information with the SEC. You may read and copy any
reports, proxy statements and other information filed by us at the SEC Public
Reference Rooms at:
450 Fifth Street, N.W. 7 World Trade Center Citicorp Center
Room 1024 Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, New York 10048 Suite 1400
Chicago, Illinois 60661-2511
Please call the SEC at 1-800-SEC-0330 for further information on the
Public Reference Rooms.
You may also request copies of these documents, upon payment of a
duplicating fee, by writing to the Public Reference Section of the SEC at 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549. The SEC also maintains an
Internet site that contains reports, proxy and information statements, and other
information about issuers, including us, who file electronically with the SEC.
The address of that site is www.sec.gov. You can also inspect reports, proxy
statements and other information about us at the offices of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
The SEC allows us to disclose important information to you by referring
you to documents we have filed or will file with the SEC. The information
"incorporated by reference" is an important part of this prospectus, and
information that we file later with the SEC will automatically update and
supersede previously filed information. We incorporate by reference the
documents listed below and any future filing made with the SEC under Sections
13(a), 14 or 15(d) of the Securities Exchange Act of 1934 until the offering of
all of the shares which are the subject of this prospectus is completed.
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<PAGE>
-- Annual Report on Form 10-K for the fiscal year ended June 30, 1999
-- Quarterly Reports on Form 10-Q for the periods ended September 30,
1999 and December 31, 1999
-- Description of the Common Stock of the company included in the
company's Registration Statement on Form 8-A as filed with the
Commission on November 27, 1968.
You can obtain any of the documents incorporated by reference in this
document from the SEC through the SEC's website at the address provided above.
You can also obtain any of the documents incorporated by reference from us,
excluding any exhibits to those documents unless the exhibit is specifically
incorporated by reference as an exhibit in this document, at no cost, by
requesting them in writing at the following address:
Energy Conversion Devices, Inc.
1675 West Maple Road
Troy, Michigan 48084
Attention: Corporate Secretary
Telephone: (248) 280-1900
TABLE OF CONTENTS
Page
----
Where You Can Find More Information ......................... 2
Cautionary Note Regarding Forward-Looking Statements......... 3
The Company ................................................. 4
Use of Proceeds ............................................. 5
Selling Securityholders ..................................... 5
Plan of Distribution ........................................ 6
Validity of Securities....................................... 7
Experts ..................................................... 7
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated in this prospectus by
reference contain forward-looking statements about our financial condition,
results of operations, plans, objectives, future performance and business. In
addition, from time to time we and our representatives have made or may make
forward-looking statements orally or in writing. The words "may," "will,"
"believes," "expects," "intends," "anticipates," "estimates," and similar
expressions have been used in this prospectus and the documents incorporated in
this prospectus by reference to identify forward-looking statements.
We have based these forward-looking statements on our current views with
respect to future events and performance. Actual results may differ materially
from those predicted by the forward-looking statements. These forward-looking
statements involve risks, uncertainties and assumptions, including among others
the following:
3
<PAGE>
-- our continued ability to protect and maintain the proprietary nature
of our technology;
-- our dependence on the willingness and ability of our licensees
and joint venture partners to devote financial resources and
manufacturing and marketing capabilities to commercialize products
based on our technologies;
-- our government product development and research contracts are
terminated by unilateral government action;
-- we are unable to successfully execute our internal business plans;
-- we experience performance problems with key suppliers or
subcontractors;
-- there are no adverse changes in general economic conditions or in
political or competitive forces;
-- competition increases in our industry or markets;
-- legal or regulatory proceedings reach unfavorable resolutions;
-- the costs of providing compensation and benefits to our employees
increase;
-- we need to seek additional financing at a time when financing is not
available on terms acceptable to us;
-- there are adverse changes in the securities markets; and
-- we suffer the loss of key personnel.
There is also the risk that we incorrectly analyze these risks or that
strategies we develop to address them are unsuccessful.
These forward-looking statements speak only as of the date of this
prospectus or, in the case of any document incorporated by reference, the date
of that document. All subsequent written and oral forward-looking statements
attributable to us or any person acting on our behalf are qualified in their
entirety by the cautionary statements in this section. Because of these risks,
uncertainties and assumptions, you should not place undue reliance on these
forward-looking statements. We are not obligated to update or revise any
forward-looking statement, whether as a result of new information, future events
or otherwise.
THE COMPANY
Energy Conversion Devices, Inc. is in the business of synthesizing new
materials and developing advanced production technology and innovative products
based on amorphous (disordered) and related materials, with an emphasis on
alternative energy (such as its proprietary photovoltaic products, nickel metal
hydride (NiMH) batteries, hydrogen storage and fuel cell technologies) and
advanced information technologies. It has pioneered and developed enabling
technologies, covered by a basic and broad patent portfolio, leading to new
products and production processes. The Company's products and production
technology are being manufactured and marketed through strategic alliances with
major companies throughout the world.
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<PAGE>
In the field of information technology, the Company's Ovonic phase-change
erasable optical memory technology is becoming an international choice of major
optical memory manufacturers, including, among others, Matsushita Electric
Industrial Co., Ltd., Ricoh Company Ltd., Sony Corporation, TDK Corporation,
Toray Industries, Inc. and Plasmon PLC. In March 2000, GE Plastics, a unit of
General Electric, and the Company announced that they formed a new joint
venture, Ovonic Media LLC, to design, develop and commercialize continuous web
roll-to-roll technology for ultra-high speed manufacture of optical media
products, primarily rewritable DVDs. In February 2000, Ovonyx, Inc., the joint
venture with Mr. Tyler Lowrey, a recognized authority in semiconductor memory
technology and the former vice chairman and chief technology officer of Micron
Technology, Inc., announced a new strategic alliance with Intel Corporation.
Intel Capital made an investment in Ovonyx. Intel also entered into a
nonexclusive, royalty-bearing license agreement and is jointly developing with
Ovonyx the Ovonic Unified Memory technology (OUM) at one of Intel's wafer
manufacturing facilities. Ovonyx is also working with Lockheed Martin to
commercialize the OUM for radiation-hard applications.
Our principal executive offices are located at 1675 West Maple Road, Troy,
Michigan 48084, and our telephone number is (248) 280-1900.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares or
the Warrants offered hereby. We will receive proceeds upon the exercise of the
Warrants held by the selling securityholders.
SELLING SECURITYHOLDERS
The shares of the Common Stock and the Warrants to which this prospectus
relates are being offered by the selling securityholders. The selling
securityholders are Janney Montgomery Scott LLC (formerly Janney Montgomery
Scott, Inc. ("Janney"); Nolan Securities Corporation ("Nolan"); Lehman Brothers
Finance S.A. ("Lehman"); Charles H. Brunie; Sherlock Hibbs; John B. Deinhardt
Revocable Trust, John B. Deinhardt, Trustee (the "Deinhardt Revocable Trust");
and Dennis Nebbe.
Pursuant to the Placement Agents' Warrant Agreement dated as of May 15,
1998, we issued to Janney and Nolan warrant certificates representing the right
to purchase, respectively, 52,500 (the "Janney Warrant") and 17,500 (the "Nolan
Warrant") units ("Units"), each Unit consisting of one share of Common Stock and
one Warrant to purchase one share of Common Stock. The exercise price per Unit
is $17.225, subject to adjustment, and the exercise price of each Warrant is
$20.54, subject to adjustment.
All of the 105,000 shares of Common Stock issuable upon the exercise of
the Janney Warrant and each respective Warrant are being offered hereby for the
account of Janney. We have been advised by Janney that it does not presently own
any of our securities other than the Janney Warrant.
All of the 35,000 shares of Common Stock issuable upon the exercise of the
Nolan Warrant and each respective Warrant are being offered hereby for the
account of Nolan. We have been advised by Nolan that it does not presently own
any of our securities other than the Nolan Warrant.
Lehman is the holder of a warrant (the "Lehman Warrant") to acquire up to
100,000 shares of Common Stock at an exercise price, subject to adjustment, of
$9.75 per share. The Lehman Warrant was initially issued to a former advisor to
the company and was subsequently transferred to Lehman.
5
<PAGE>
All of the 100,000 shares of Common Stock issuable upon the exercise of
the Lehman Warrant are being offered hereby for the account of Lehman. We have
been advised by Lehman that it does not presently own any of our securities
other than the Lehman Warrant.
Mr. Brunie was issued a warrant (the "Brunie Warrant") to acquire up to
30,000 shares of Common Stock in connection with a private placement
transaction. All 30,000 shares of Common Stock are being offered hereby for
the account of Mr. Brunie. Mr. Brunie is the owner of 30,000 shares of Common
Stock.
Mr. Hibbs was issued a warrant (the "Hibbs Warrant") to acquire up to
20,000 shares of Common Stock in connection with a private placement
transaction. All 20,000 shares of Common Stock are being offered hereby for
the account of Mr. Hibbs. Mr. Hibbs is the owner of 83,500 shares of Common
Stock.
The Deinhardt Revocable Trust was issued a warrant (the "Deinhardt
Revocable Trust Warrant") to acquire up to 10,000 shares of Common Stock in
connection with a private placement transaction. All 10,000 shares of Common
Stock are being offered hereby for the account of the Deinhardt Revocable Trust.
Deinhardt Investment Corporation, of which Mr. John B. Deinhardt is the sole
shareholder, is the owner of 13,000 shares of Common Stock.
Mr. Nebbe was issued a warrant (the "Nebbe Warrant") to acquire up to
6,000 shares of Common Stock in connection with a private placement
transaction. All 6,000 shares of Common Stock are being offered hereby for
the account of Mr. Nebbe. We have been advised by Mr. Nebbe that he does
not presently own any of our securities other than the Nebbe Warrant.
Except as described above, none of the foregoing persons or entities have
held any position or office or had any other material relationship with us
within the past three years.
PLAN OF DISTRIBUTION
We have been advised that the shares of Common Stock and the Warrants to
which this prospectus relates may be distributed by the selling securityholders
from time to time in one or more public or private transactions, including block
transactions, effected on the Nasdaq National Market or on other exchanges or
markets on which the Common Stock or the Warrants may from time to time be
trading, in negotiated transactions, or in a combination of the foregoing. Sales
of shares of Common Stock or the Warrants by the selling securityholders may be
made at prevailing market prices or at prices negotiated with the purchasers of
such shares.
The selling securityholders may effect sales of the shares of Common Stock
and the Warrants to which this prospectus relates to or through broker-dealers.
Such broker-dealers may receive compensation in the form of discounts or
commissions payable by the selling securityholders and may receive commissions
payable by purchasers of shares for whom such broker-dealers may act as agents.
Any broker-dealer that participates with the selling securityholders in
the distribution of the shares of Common Stock or the Warrants to which this
prospectus relates may be deemed to be an underwriter within the meaning of the
Securities Act, and any commissions or discounts received by such broker-dealer
and any profit on the resale of shares by such broker-dealer may be deemed to be
underwriting discounts and commissions under the Securities Act.
Pursuant to the Placement Agents' Warrant Agreement, we have agreed to
indemnify Janney and Nolan and their respective officers, directors and
stockholders against certain liabilities, including certain liabilities arising
under the Securities Act, arising in connection with the offer and sale of the
Common Stock and the Warrants offered hereby.
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We will bear all costs and expenses of the registration of the securities
to which this prospectus relates.
VALIDITY OF COMMON STOCK
The validity of the shares of Common Stock and the Warrants being sold in
the offering has been passed upon by Roger John Lesinski, Esq., the General
Counsel of Energy Conversion Devices, Inc.
EXPERTS
The financial statements incorporated in this prospectus by reference from
the company's Annual Report on Form 10-K for the year ended June 30, 1999 have
been audited by Deloitte & Touche LLP, independent auditors, as stated in their
report, which is incorporated herein by reference, and has been so incorporated
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
7
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Registration fee............................................... $ 2,137.33
Legal fees and expenses........................................ 5,000.00*
Accountants' fees and expenses................................. 10,000.00*
Miscellaneous.................................................. 2,863.00*
-----------
Total:................................................... $ 20,000.33
===========
- ----------
* Estimated
The company will bear all of the foregoing expenses.
Item 15. Indemnification of Directors and Officers
Our certificate of incorporation provides that we will indemnify our
current and former directors and officers from and against all liabilities and
reasonable expenses that they incur in connection with, or resulting from, any
claims, actions, suits or proceedings to the extent that indemnification is not
inconsistent with Delaware law. We also provide directors' and officers'
liability insurance coverage for the acts and omissions of our directors and
officers. In order to be entitled to indemnification under the provisions of our
certificate of incorporation, a director or officer must be wholly successful
with respect to the claim, action, suit or proceeding or have acted in good
faith in what he or she reasonably believed to be the best interests of the
company, or, with respect to a criminal action or proceeding, must have had no
reasonable cause to believe that his or her conduct was unlawful. Prior to the
final disposition of a claim, action, suit or proceeding, we will advance
expenses incurred by a current or former director or officer if the director or
officer provides us with an undertaking to repay the amount advanced if he or
she is not entitled to indemnification after the final disposition.
Our certificate of incorporation provides that a director will not be
personally liable to us or our stockholders for monetary damages for breach of
fiduciary duty as a director, except for breach of the director's duty of
loyalty to us or our stockholders for acts or omissions not in good faith, or
which involve intentional misconduct, or a knowing violation of law, for
unlawful payment of a dividend or unlawful stock purchase or redemption under
the Delaware General Corporation Law, or for any transaction from which the
director derived an improper personal benefit. While this provision provides
directors with protection from awards for monetary damages for breaches of their
duty of care, it does not eliminate that duty.
Item 16. Exhibits
See Exhibit Index.
Item 17. Undertakings
A. Subsequent Disclosure.
The company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any material
information with respect to the
II-1
<PAGE>
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
Offering.
B. Incorporation by Reference.
The company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Indemnification.
Insofar as the indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the company pursuant to the foregoing provisions, or otherwise, the company
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the company of expenses
incurred or paid by a director, officer or controlling person of the company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned thereunto
duly authorized, in the City of Troy, State of Michigan, on March 23, 2000.
ENERGY CONVERSION DEVICES, INC.
By /s/Stanford R. Ovshinsky
----------------------------------------
Stanford R. Ovshinsky
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Roger John Lesinski and Ghazaleh Koefod, and each
of them, as his or her lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stand, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto such attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that such attorneys-in-fact and agents, or
any of them, or their substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons on
behalf of the company in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Stanford R. Ovshinsky Director, President and Chief March 23, 2000
- --------------------------------- Executive Officer (principal --------------
Stanford R. Ovshinsky executive officer)
/s/ Stephan W. Zumsteg Treasurer March 23, 2000
- --------------------------------- (principal financial officer --------------
Stephan W. Zumsteg and principal accounting officer)
/s/ Robert C. Stempel Chairman of the Board of March 23, 2000
- --------------------------------- Directors --------------
Robert C. Stempel
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/s/ Iris M. Ovshinsky Director March 23, 2000
- --------------------------------- --------------
Iris M. Ovshinsky
/s/ Nancy M. Bacon Director March 23, 2000
- --------------------------------- --------------
Nancy M. Bacon
/s/ Umberto Colombo Director March 23, 2000
- -------------------------------- --------------
Umberto Colombo
/s/ Subhash K. Dhar Director March 23, 2000
- -------------------------------- --------------
Subhash K. Dhar
/s/ Hellmut Fritzsche Director March 23, 2000
- -------------------------------- --------------
Hellmut Fritzsche
/s/ Joichi Ito Director March 23, 2000
- -------------------------------- --------------
Joichi Ito
/s/ Seymour Liebman Director March 23, 2000
- -------------------------------- --------------
Seymour Liebman
/s/ Tyler Lowrey Director March 23, 2000
- -------------------------------- --------------
Tyler Lowrey
/s Walter J. McCarthy, Jr. Director March 23, 2000
- -------------------------------- --------------
Walter J. McCarthy, Jr.
/s/ Florence I. Metz Director March 23, 2000
- -------------------------------- --------------
Florence I. Metz
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/s/ Nathan J. Robfogel Director March 23, 2000
- -------------------------------- --------------
Nathan J. Robfogel
/s/ Stanley K. Stynes Director March 23, 2000
- -------------------------------- --------------
Stanley K. Stynes
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EXHIBIT INDEX
PAGE OR
EXHIBIT NO. REFERENCE
- ----------- ---------
3.1 Restated Certificate of Incorporation filed September 29, 1967 (a)
3.2 Certificate of Amendment to Certificate of Incorporation filed
September 15, 1978 increasing and extending voting rights of
the Company's Class A Common Stock and establishing class
voting with respect to other matters (b)
3.3 Certificate of Amendment to Certificate of Incorporation filed
January 7, 1982 increasing and extending voting rights to the
Company's Class A Common Stock (c)
3.4 Certificate of Amendment to Certificate of Incorporation filed
September 13, 1993 extending voting rights of the Company's
Class A Common Stock (d)
3.5 Certificate of Amendment to Certificate of Incorporation filed
March 25, 1999, extending voting rights of the Company's Class A
Common Stock, increasing the authorized capital stock of the
Company's Common Stock to 20,930,000 shares and authorizing
430,000 shares of Class B Common Stock (e)
3.6 Certificate of Amendment to Certificate of Incorporation filed
January 27, 2000 increasing to 30,000,000 the number of shares
of Common Stock, par value one cent ($.01) per share
3.7 Bylaws of the Company in effect as of July 17, 1997 (f)
3.8 Amendment to Article VIII of the Bylaws effective as of
October 14, 1999
10.1 Agreement among the Company, Stanford R. Ovshinsky and Iris M.
Ovshinsky, relating to the automatic conversion of Class A
Common Stock into the Company's Common Stock upon the
occurrence of certain events, dated September 15, 1964 (g)
5.1 Opinion of Roger John Lesinski, Esq.
23.1 Consent of Roger John Lesinski, Esq.
(included in the opinion filed as Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP
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Notes to Exhibit List
---------------------
(a) Filed as Exhibit 2-A to the Company's Form 8-A and incorporated herein
by reference.
(b) Filed as Exhibit 3-A-2 to Post-Effective Amendment No. 1 to the
Company's Registration Statement on Form S-1 (Registration No.
2-61551) and incorporated herein by reference.
(c) Filed as Exhibit 1 to the Company's Quarterly Report on Form 10-Q
for the quarter ended December 31, 1981 and incorporated herein by
reference.
(d) Filed as Exhibit 3.11 to the Company's Annual Report on Form 10-K
for the fiscal year ended June 30, 1993 and incorporated herein by
reference.
(e) Filed as Exhibit 3.3 to the Company's Annual Report on Form 10-K for
the fiscal year ended June 30, 1999 and incorporated herein by
reference.
(f) Filed as Exhibit 3.10 to the Company's Annual Report on Form 10-KA
(Amendment No. 1) for the fiscal year ended June 30, 1997 and
incorporated herein by reference.
(g) Filed as Exhibit 13-D to the Company's Registration Statement on Form
S-1 (Registration No. 2-26772) and incorporated herein by reference.
II-7
Exhibit 3.6
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
ENERGY CONVERSION DEVICES, INC.
ENERGY CONVERSION DEVICES, INC., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware
(the "Corporation"), does hereby certify:
FIRST: The following amendment to the Certificate of Incorporation of
said Corporation was duly adopted in accordance with the provisions of Section
242, Title 8, Chapter 1, Delaware Code;
The first sentence of Article Fourth is to be modified to read as
follows:
"FOURTH: The total number of shares of all classes of stock which
the Corporation shall have authority to issue is 30,930,000
shares, of which 500,000 shares shall be Class A Common Stock of
a par value of one cent ($.01) per share, 430,000 shall be Class
B Common Stock of a par value of one cent ($.01) per share, and
30,000,000 shares shall be Common Stock of a par value of one
cent ($.01) per share."
SECOND: That the capital of the Corporation will not be reduced under,
or by reason of, same amendment.
IN WITNESS WHEREOF, the Corporation has caused this amendment to be
signed by its President and Chief Executive Officer and its corporate seal to
be hereunto affixed by its Secretary this 27th of January 2000.
ENERGY CONVERSION DEVICES, INC.
/s/ Stanford R. Ovshinsky
------------------------------------------
By: Stanford R. Ovshinsky
Its: President and Chief Executive Officer
ATTEST:
/s/ Ghazaleh Koefod
- -------------------------------
Ghazaleh Koefod, Secretary
EXHIBIT 3.8
Amendment to Article VIII of the Bylaws
of Energy Conversion Devices, Inc.
The first sentence of the Fourth paragraph of Article VIII of the Bylaws
is amended as of October 14, 1999, as follows:
The total number of directors shall consist of not
less than three nor more than fifteen directors.
[ECD LETTERHEAD]
Exhibit 5.1
March 23, 2000
Energy Conversion Devices, Inc.
1675 West Maple Road
Troy, MI 48084
Ladies and Gentlemen:
I have acted as counsel to Energy Conversion Devices, Inc., a Delaware
corporation ("ECD"), in connection with the Registration Statement on Form S-3
(the "Registration Statement") filed by ECD under the Securities Act of 1933, as
amended, with the Securities and Exchange Commission relating to the issuance by
ECD and the sale by the Selling Securityholders of up to 306,000 shares of
Common Stock ($.01 par value) (the "Shares") and 70,000 Common Stock Purchase
Warrants (the "Warrants").
In arriving at the opinions expressed below, I have examined and relied upon the
accuracy and completeness of the facts, information, covenants and
representations contained in originals, or copies certified or otherwise
identified to my satisfaction, of the Registration Statement.
Based on the foregoing, I hereby advise you that in my opinion the Shares and
Warrants have been duly authorized by ECD and will, when issued, be validly
issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the Registration
Statement. In giving this consent, I do not hereby admit that I am in the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/S/ Roger John Lesinski
- -----------------------
Roger John Lesinski
General Counsel
EXHIBIT 23.2
[DELOITTE & TOUCHE LETTERHEAD]
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this registration statement of
Energy Conversion Devices, Inc. ("the Company") on Form S-3 of our report dated
September 24, 1999 included in the Annual Report on Form 10-K of the Company
for the year ended June 30, 1999 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of the Registration Statement.
/s/ Deloitte & Touche LLP
Detroit, Michigan
March 22, 2000
