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As filed with the Securities and Exchange Commission on August 1, 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)
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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CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to be Proposed Proposed Maximum Amount of
to be Registered Registered Maximum Offering Aggregate Offering Registration fee
Price Per Share (1) Price(1)
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Common Stock, 700,000 $24.25 $16,975,000 $4,481.40
$.01 par value
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) based on the average of the high and low sales
prices of the Common Stock on the Nasdaq National Market on July 28, 2000.
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The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until this
Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
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PROSPECTUS
700,000 Shares
Shares of Common Stock ($.01 par value)
ENERGY CONVERSION DEVICES, INC.
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This is an offering of shares of Common Stock, $0.01 per share, of Energy
Conversion Devices, Inc. This prospectus relates to an offering of 700,000
shares of Common Stock.
All of the shares of Common Stock in the offering are being sold by the
selling securityholder identified in this prospectus. We will not receive any
of the proceeds from the sale of the shares offered hereby.
The Common Stock is traded on the Nasdaq National Market under the symbol
"ENER." On July 28, 2000, the closing price of the Common Stock was $23.875
per share as reported by the Nasdaq National Market.
An investment in the Common Stock offered hereby involves a high degree
of risk. See "Risk Factors" on Page 5.
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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.
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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.
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Prospectus dated August 1, 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 us. 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
not been any change in the facts contained in this prospectus since the date of
this document.
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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
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Exchange Act of 1934 until the offering of all of the shares which are the
subject of this prospectus is completed.
- 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, and March 31, 2000 (Form 10-Q/A).
- Description of our Common Stock included in our 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
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Where You Can Find More Information .......................... 2
Cautionary Note Regarding Forward-Looking Statements.......... 3
The Company .................................................. 5
Risk Factors ................................................. 5
Use of Proceeds .............................................. 9
Selling Securityholder ....................................... 9
Plan of Distribution ......................................... 9
Validity of Securities........................................ 10
Experts ...................................................... 10
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.
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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
those listed under Risk Factors on page 5 and the following:
- 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.
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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, Ovonic Solid State Hydrogen Storage System(TM)
and Ovonic Regenerative 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. Our products and production technology are being manufactured and
marketed through strategic alliances and royalty-bearing licensing agreements
with major companies throughout the world.
On June 1, 2000, we announced the closing of the purchase by Texaco Inc.
of a 20 percent interest in ECD. As part of the relationship, we and Texaco
will focus on advanced energy technologies and establish joint ventures for
the continued development and commercialization of our proprietary Ovonic
Solid State Hydrogen Storage System(TM) and Ovonic Regenerative Fuel Cell
technologies.
In April 2000, we entered into a strategic alliance with N.V. Bekaert S.A.
in connection with our purchase from Canon Inc. of its entire interest in
United Solar Systems Corp., our photovoltaic product manufacturing and
marketing business. Our new venture with Bekaert will expand United Solar's
manufacturing capacity fivefold with the construction of a 25-megawatt annual
capacity plant to be built by us. Bekaert's equity investment in the new
United Solar venture will be $84 million.
In the field of information technology, our 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 ECD 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 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 non-exclusive, 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.
RISK FACTORS
The following risk factors should be considered in conjunction with the
other information included and incorporated by reference in this Prospectus
before purchasing or otherwise acquiring the Common Stock offered hereby.
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We Have Incurred Losses in the Past
From our founding through March 31, 2000, we have incurred net losses
totaling approximately $216.9 million. Our ability to achieve profitability in
the future years will depend largely on securing additional licensing agreements
and the successful commercialization of our products, as to which there can be
no assurance.
We May Need to Raise Additional Capital in the Future
We have in the past experienced substantial losses and negative cash flow
from operations and have required significant additional financing in order to
pursue the commercialization of our products based on our technologies. We
cannot predict when or if additional financing will be needed or, if needed, in
what amounts and may seek additional financing at any time, including the next
12 months. There can be no assurance that such additional financing will be
available or that the terms of such additional financing, if available, will be
acceptable to us. Additional equity financing by us may result in substantial
dilution to our stockholders, including purchasers of the Common Stock.
Certain of Our Revenues Are Dependent Upon Licensing Arrangements and
Joint Ventures
In the fields of consumer rechargeable batteries, electric vehicle
batteries, scooter batteries, photovoltaics and information technologies, we
have entered into licensing and/or joint venture agreements with established
industrial companies. We expect to enter into joint ventures with Texaco for the
continued development and commercialization of our proprietary Ovonic Solid
Hydrogen Storage System(TM) and Ovonic Regenerative Fuel Cell technologies. Any
revenues or profits which may be derived by us from these licensing and joint
venture agreements will be substantially dependent upon the willingness and
ability of our licensees and joint venture partners to devote their financial
resources and manufacturing and marketing capabilities to commercialize products
based on our technologies. There can be no assurance that such financial
resources will be available or that such commercialization will be successful.
Certain of our joint venture and business agreements contain conditions which,
if not satisfied, permit the joint venture or business partner to discontinue
such arrangements. Many of such conditions are outside of our control and there
can accordingly be no assurance that such conditions will be satisfied. There
are also various business, technological and other uncertainties that affect us
and our joint venture partners and licensees. In fields in which we are not
presently a party to joint venture or license agreements, we may be required to
enter into collaborative arrangements with established industry partners to
produce products on a commercial scale. There can be no assurance that we will
be able to enter into such collaborative arrangements.
We Receive a Significant Portion of Our Revenues and Profits from a Small
Number of Customers
We historically have entered into agreements with a relatively small number of
major customers thoughout the world. A significant portion of our revenues and
profits are received from these major customers. For example, for our 1999
fiscal year, two major customers accounted for approximately 63% of our total
revenues. Our revenues and profits would decrease substantially if we were to
lose one or more of these major customers.
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We Are Subject to Competition
We and our affiliates compete with firms, both domestic and foreign, that
perform research and development, as well as firms that manufacture and sell
products. Some competing firms are among the largest industrial companies in the
world and have well-established business organizations and product lines,
extensive resources and large research and development staffs and facilities.
There can be no assurance that one or more such companies will not succeed in
developing technologies or products that will become available for commercial
sale prior to our products, that will have performance superior to our products
or that would otherwise render our products obsolete or non-competitive.
Our Technology Is Subject to Certain Risks
Additional research and development efforts will be required before certain
of our products and technologies may be manufactured and sold commercially.
There can be no assurance that such research and development efforts will be
successful or that we will be able to develop commercial applications for our
products and technologies. The areas in which we are developing technologies and
products are characterized by rapid and significant technological change. Rapid
technological development may result in our products becoming obsolete or
non-competitive before we are able to recover any portion of the research and
development and other expenses we have incurred to develop our products and
technologies.
There May Be Uncertainties Associated with Manufacturing Our Products
In order to produce products on a commercial scale, we and our joint venture
partners and certain of our licensees will be required to expand or establish
manufacturing capabilities significantly greater than the manufacturing
capabilities currently being used to produce certain of our products. Although
substantially all of our joint venture partners and licensees have experience in
commercial scale manufacturing, we have little such experience and there can be
no assurance that we or such other parties will expand or establish
manufacturing capabilities for manufacturing our products beyond those presently
in existence.
It Is Uncertain that the Market Will Accept Our Products
The market prices for our products may exceed the prices of competitive
products based on current technologies or new products based on technologies
currently under development by competitors. There can be no assurance that the
prices of our products will be perceived by consumers as cost-effective or that
the prices of such products will be competitive with existing products or with
other new products or technologies
Our Patents and the Protection of Our Proprietary Technologies May Be
Subject to Certain Uncertainties
Our ability to compete effectively will depend, in part, on our ability to
protect and maintain the proprietary nature of our technology. There can be no
assurance as to the degree of protection offered by the patents owned by us, or
as to the likelihood that additional patents will be issued based upon pending
patent applications. Patent applications in the United States are maintained in
secrecy until patents are issued and we, therefore, cannot be certain that we
were the first creator of the inventions covered by our patents or pending
patent applications, or that we were the first to file
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patent applications for such inventions. The high costs of enforcing patent
and other proprietary rights may also limit the degree of protection afforded
to us. We also rely on unpatented proprietary technology, and there can be no
assurance that others may not independently develop the same or similar
technology or otherwise obtain access to our proprietary technology. There
can be no assurance that our patents or other proprietary rights will be
determined to be valid or enforceable if challenged in court or administrative
proceedings or that our patents or other proprietary rights, even if determined
to be valid, will be broad enough in scope to enable us to prevent third
parties from producing products using similar technologies or processes. There
can also be no assurance that we will not become involved in disputes with
respect to the patents or proprietary rights of third parties. See "We May
Become Involved in Legal Proceedings." An adverse outcome from such proceedings
could subject us to significant liabilities to third parties, require disputed
rights to be licensed from third parties, prevent us from collecting royalties
from licensees or require us to stop using such technology, any of which would
have a material adverse effect on our financial condition and business
prospects.
We Are Dependent on Key Personnel
Our success is highly dependent on the continued services of a limited
number of skilled managers and scientists. The loss of any of these individuals
could have a material adverse effect on us. In addition, our success will depend
upon, among other factors, the recruitment and retention of additional highly
skilled and experienced management and technical personnel. There can be no
assurance that we will be able to retain existing employees or to attract and
retain additional personnel on acceptable terms given the competition for such
personnel in industry, universities and non-profit research institutions.
We May Become Involved in Legal Proceedings
Although there are no currently pending legal proceedings to which we are a
party which we believe to be material, we are involved in legal proceedings
arising in the normal course of business. Due to the inherent uncertainties of
legal proceedings, the outcome of any such proceedings could be unfavorable, and
we may choose to make payments, or enter into other arrangements, to settle such
proceedings or may be required to pay damages or other expenses, which could
have a material adverse effect on our financial condition or results of
operations. We have been subject to legal proceedings in the past involving the
validity and enforceability of certain of our patents. While such patent-related
legal proceedings have been successfully resolved in our favor, such proceedings
can require the expenditure of substantial management time and financial
resources and can adversely affect our financial performance. There can be no
assurance that we will not be a party to other legal proceedings in the future.
Our Stock Price Is Subject to Volatility
There has been a history of significant volatility in the market price of
our Common Stock. We believe that many factors, including actual or anticipated
announcements of technological innovations, new commercial products, actual or
anticipated changes in laws and governmental regulations, disputes relating to
patents or proprietary rights, changes in business practices and other factors
may have a significant effect on the market price of our Common Stock.
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USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares
offered hereby.
SELLING SECURITYHOLDER
The shares of the Common Stock to which this prospectus relates are
being offered by the selling securityholder. The selling securityholder is
Canon Inc. of Tokyo, Japan.
Pursuant to a Stock Purchase Agreement dated March 31, 2000, we purchased
from Canon all of its 2,924,558.85 shares of the voting stock of United Solar,
the photovoltaic product joint venture we established with Canon in 1990. In
exchange for Canon's stock in United Solar, Canon was paid $24 million (in cash
and notes) and we issued Canon 700,000 shares of our Common Stock. In connection
with the closing of our purchase of Canon's voting stock of United Solar, we and
Canon also amended or terminated certain other agreements, including agreements
relating to intellectual property. We and Canon also entered into a Registration
Rights Agreement dated April 11, 2000 pursuant to which we granted Canon certain
rights to cause us to register all or a portion of Canon's 700,000 shares of
Common Stock under the Securities Act. Canon has exercised its rights under the
Registration Rights Agreement.
As of the date of this prospectus, Canon is also the owner of 371,905
shares of Common Stock which were purchased from us in 1987. These shares could
be sold by Canon at anytime. We have no agreement with Canon regarding the
holding or sale of these shares. An employee of a U.S. subsidiary of Canon
serves on our Board of Directors, but there are no agreements or understandings
obligating us to continue such director's service on the Board.
Except as described above, Canon has not 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 to which this
prospectus relates may be distributed by Canon 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 may from time to time be trading, in negotiated transactions, or in a
combination of the foregoing. Sales of shares of Common Stock by Canon may be
made at prevailing market prices or at prices negotiated with the purchasers of
such shares.
Canon may effect sales of the shares of Common Stock to which this
prospectus relates or through broker-dealers. Such broker-dealers may receive
compensation in the form of discounts or commissions payable by Canon and may
receive commissions payable by purchasers of shares for whom such broker-dealers
may act as agents.
Any broker-dealer who participates with Canon in the distribution of the
shares of Common Stock to which this prospectus relates may be deemed to be an
underwriter within the
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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 Registration Rights Agreement, we have agreed to indemnify
Canon and its 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 offered
hereby.
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 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
our 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 have been so incorporated
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Registration fee............................................... $ 4,481.40
Legal fees and expenses........................................ 5,000.00*
Accountants' fees and expenses................................. 10,000.00*
Miscellaneous.................................................. 1,518.60*
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Total:................................................... $21,000.00
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* Estimated
We 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 in the best interests of ECD,
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.
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Item 17. Undertakings
A. Subsequent Disclosure.
We hereby undertake:
(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 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.
We hereby undertake that, for purposes of determining any liability under
the Securities Act, each filing of our 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 ECD pursuant to the foregoing provisions, or otherwise, we have 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 us of expenses incurred or
paid by a director, officer or controlling person of ECD 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, we
will, unless in the opinion of our 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,
ECD 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 August 1, 2000.
ENERGY CONVERSION DEVICES, INC.
By /S/
----------------------------------------
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 ECD in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/S/ Director, President and Chief August 1, 2000
----------------------------- Executive Officer (principal --------------
Stanford R. Ovshinsky executive officer)
/S/ Treasurer August 1, 2000
----------------------------- (principal financial officer and --------------
Stephan W. Zumsteg principal accounting officer)
/S/
----------------------------- Chairman of the Board of August 1, 2000
Robert C. Stempel Directors --------------
II-3
<PAGE>
/S/
----------------------------- August 1, 2000
Iris M. Ovshinsky Director --------------
/S/
----------------------------- August 1, 2000
Nancy M. Bacon Director --------------
/S/
----------------------------- August 1, 2000
Umberto Colombo Director --------------
/S/
----------------------------- August 1, 2000
Subhash K. Dhar Director --------------
/S/
----------------------------- August 1, 2000
Hellmut Fritzsche Director --------------
/S/
-----------------------------
Seymour Liebman Director --------------
/S/
-----------------------------
Tyler Lowrey Director --------------
/S/
----------------------------- August 1, 2000
Walter J. McCarthy, Jr. Director --------------
/S/
----------------------------- August 1, 2000
Florence I. Metz Director --------------
/S/
-----------------------------
James R. Metzger Director --------------
/S/
----------------------------- August 1, 2000
Stanley K. Stynes Director --------------
/S/
----------------------------- August 1, 2000
William M. Wicker Director --------------
II-4
<PAGE>
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 (f)
shares of Common Stock, par value one cent ($.01) per share
3.7 Bylaws of the Company in effect as of July 17, 1997 (g)
3.8 Amendment to Article VIII of the Bylaws effective as of
April 27, 2000 __
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 (h)
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 __
<PAGE>
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 3.6 to the Company's Registration Statement on Form S-3
(Registration No. 333-33266) and incorporated herein by reference.
(g) 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.
(h) Filed as Exhibit 13-D to the Company's Registration Statement on Form S-1
(Registration No. 2-26772) and incorporated herein by reference.
