As filed with the Securities and Exchange Registration No. 333-
Commission on December 10, 2004 -----
===============================================================================
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
-------------------
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 3690 38-1749884
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification No.)
incorporation or Classification Code
organization) Number)
2956 Waterview Drive
Rochester Hills, Michigan 48309
(248) 293-0440
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
--------------------
Roger John Lesinski, Esq.
General Counsel
Energy Conversion Devices, Inc.
2956 Waterview Drive
Rochester Hills, Michigan 48309
Telephone: (248) 293-0440
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-------------------
Copy To:
Craig A. Roeder, Esq.
Baker & McKenzie LLP
130 East Randolph Drive
Chicago, Illinois 60601
Telephone: (312) 861-8000
-------------------
Approximate date of commencement of proposed sale to the public: From time
to time 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.
----
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, 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.
----
-------------------
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum Amount of
Title of Shares Amount To Be Offering Price Aggregate Offering Registration
To Be Registered Registered (1)(2) Per Share (3) Price (3) Fee (4)
---------------- ----------------- ---------------- ------------------ -------------
Common Stock, par value 5,285,197 $19.91 $105,228,272 $13,332.42
$.01 per share
(1) The number of shares of common stock being registered includes shares
issuable upon the exercise of common stock purchase warrants.
(2) Pursuant to Rule 416 under the Securities Act, the Registrant is also
registering such indeterminate number of shares of common stock as may be
issued from time to time upon exercise of the warrants as a result of the
antidilution provisions relating to the warrants.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act based on an average of
the high and low prices of our common stock on the Nasdaq National Market
System on December 7, 2004, which was $ 19.91 per share.
(4) Pursuant to Rule 457(p), $5,570.59 of the registration fee otherwise due
in respect of this Registration Statement has been offset by the
registration fee previously paid by Energy Conversion Devices, Inc. in
connection with its Registration Statement on Form S-1 (Registration No.
333-111500) initially filed by the company on December 23, 2003, and its
Registration Statement on Form S-1 (Registration No. 333-113435) initially
filed by the company on March 9, 2004, under which an aggregate of
5,285,197 shares remain unsold.
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 or until this Registration Statement shall
become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
===============================================================================
The information in this prospectus is not complete and may be changed. The
selling stockholders may not sell these shares of common stock until the
registration statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities and it is
not soliciting an offer to buy these securities in any state where the offer or
sale is not permitted.
SUBJECT TO COMPLETION, DATED DECEMBER 10, 2004
PROSPECTUS
(COMPANY LOGO)
5,285,197 Shares
Common Stock
Energy Conversion Devices, Inc.
This prospectus relates solely to the offer and sale by the selling
stockholders identified in this prospectus of up to 5,285,197 shares of our
common stock. Of these shares, 1,928,462 are currently issued and outstanding
and 3,356,735 are issuable upon exercise of warrants held by the selling
stockholders. The selling stockholders are offering all of the shares to be sold
in the offering, but they are not required to sell any of these shares. We will
not receive any of the proceeds from the sale of our common stock by the selling
stockholders, although we will receive proceeds from the exercise of the
warrants held by the selling stockholders to purchase 3,356,735 shares to the
extent they are exercised.
Shares of our common stock are traded on the Nasdaq National Market System
under the symbol "ENER." Shares of our Class A common stock and Class B common
stock are not publicly traded. On December 7, 2004, the closing price of our
common stock was $19.91 per share, as reported by the Nasdaq National Market.
-------------------
Investing in our common stock involves risks. See Risk Factors beginning
on page 4.
-------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
-------------------
The date of this prospectus is December 10, 2004.
You should rely only on the information contained in this prospectus.
Neither the selling stockholders nor we have authorized anyone to provide you
with information different from that contained in this prospectus. The selling
stockholders are offering to sell, and seeking offers to buy, shares of common
stock only in jurisdictions where offers and sales are permitted. The
information contained in this prospectus is accurate only as of the date of this
prospectus, regardless of the time of delivery of this prospectus or of any sale
of our common stock.
TABLE OF CONTENTS
Prospectus Summary...........................................................3
Risk Factors.................................................................4
Cautionary Note Regarding Forward-Looking Statements........................14
Selling Stockholders........................................................15
Plan of Distribution........................................................17
Use of Proceeds.............................................................18
Dividend Policy.............................................................18
Legal Matters...............................................................19
Experts.....................................................................19
Where You Can Find More Information.........................................19
Incorporation of Certain Information by Reference...........................20
Unless the context otherwise requires, throughout this prospectus the
words "ECD," "we," "us" and "our" refer to Energy Conversion Devices, Inc. and
its consolidated subsidiaries.
"Ovonic(R)" and "OvonicTM" are trademarks and service marks of
Energy Conversion Devices, Inc. and its affiliated companies.
2
PROSPECTUS SUMMARY
The following summary highlights selected information from this prospectus
and may not contain all the information that is important to you. To understand
our business and this offering fully, you should read this entire prospectus
carefully, along with the more detailed information and financial statements and
the notes to the financial statements appearing elsewhere in this prospectus or
incorporated by reference in this prospectus, before you decide whether to
participate in this offering. When we refer in this prospectus to the "Company,"
"ECD," "we," "us," and "our," we mean Energy Conversion Devices, Inc., a
Delaware corporation. This prospectus contains forward-looking statements and
information relating to ECD. See "Cautionary Note Regarding Forward-Looking
Statements" beginning on page 14.
Our Business
Energy Conversion Devices, Inc. is a technology, product development and
manufacturing company engaged in the invention, engineering, development and
commercialization of new materials, products and production technology in the
fields of alternative energy technology and information technology. Based upon
the fundamental and pioneering inventions of Stanford R. Ovshinsky, principal
inventor, we have established a leadership role in the development of
proprietary materials, products and production technology based on our
atomically engineered amorphous and disordered materials using chemical and
structural disorder to provide multiple degrees of freedom that result in our
ability to make many new materials.
We have developed materials that permit us to design and commercialize
products such as thin-film solar cell (photovoltaic) products, nickel metal
hydride (NiMH) batteries, and phase-change memory devices. These products have
unique chemical, electrical, mechanical and optical properties and superior
performance characteristics. Our proprietary materials, products and
technologies are referred to as Ovonic(R).
We have established a multi-disciplinary business, scientific, technical
and manufacturing organization to commercialize products based on our
technologies, and have enabling proprietary technologies in the important fields
of energy generation and storage and information technology.
We manufacture and sell our proprietary products through our subsidiaries
and joint venture companies and through licensing arrangements with major
companies throughout the world. In addition, in support of these activities, we
are engaged in research and development, production of our proprietary materials
and products, as well as in designing and building production machinery. Our
extensive patent portfolio includes numerous basic and fundamental patents
applicable to each of our lines of business. We invent not only materials, but
also develop low-cost production technologies and high-performance products. Our
patents, therefore, cover not only materials, but also the production technology
and products we develop.
Our principal executive offices are located at 2956 Waterview Drive,
Rochester Hills, Michigan 48309. Our telephone number is (248) 293-0440. We
maintain an Internet web site at www.ovonic.com. The information contained on
our web site, or on other web sites linked to our web site, is not part of this
prospectus.
3
RISK FACTORS
The following risk factors should be considered in conjunction with the
other information included or incorporated by reference in this Prospectus
before purchasing or otherwise acquiring the common stock offered hereby.
Risks Relating to Our Business
We have a history of losses, our future profitability is
uncertain and our financial statements are subject to a going concern
explanatory paragraph by our independent accountants.
Since our founding through September 30, 2004, we have
incurred net losses of more than $334 million in connection with the research,
development and commercialization of products based on our technologies. Our
ability to achieve profitability in the future years is uncertain and will
depend largely on the successful commercialization of our products, as to which
there can be no assurance. As a result of these factors, our independent
accountants have included an explanatory paragraph in their audit opinion based
on substantial doubt regarding our ability to continue as a going concern.
We receive a significant portion of our revenues from a small number of
customers.
We historically have entered into agreements with a relatively small
number of major customers throughout the world. For example, for our 2004 fiscal
year, one major customer (Texaco Ovonic Hydrogen Systems) accounted for
approximately 15% of our total revenues. Because we now own 100% of Texaco
Ovonic Hydrogen Systems, this former customer will no longer be a source of
revenue to us. Our revenues would decrease substantially if we were to lose any
major customer.
We will need to obtain additional debt or equity financing to continue to
operate our business, and financing may be unavailable or available only
on disadvantageous terms.
We have in the past experienced substantial losses and negative cash
flow from operations and have required significant debt and equity financing in
order to pursue the commercialization of products based on our technologies. We
expect to seek additional debt and equity financing in the future. 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 may result in substantial dilution to our stockholders,
including purchasers of the common stock offered hereby. Our independent
accountants have included an explanatory paragraph in their audit report to
our 2004 financial statements based on substantial doubt regarding our ability
to continue as a going concern. A statement of this type may interfere with our
ability to issue our securities to the public or in private transactions.
Our revenues are dependent upon licensing arrangements and joint ventures,
and our licensees and joint venture partners may be unwilling or unable to
4
devote their financial resources and manufacturing and marketing
capabilities to commercialize products based on our technologies.
In the fields of consumer rechargeable batteries, hybrid and electric
vehicle batteries, scooter batteries and information technologies, we have
entered into licensing agreements and joint venture agreements with established
industrial companies. 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, accordingly, there can 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 may be unable to continue to protect and maintain the proprietary
nature of our technology, or to convince others of the necessity of
licensing our technology without litigation.
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. Therefore, we 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 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 may be unable to license
our technology without incurring the high costs of litigation to enforce our
patent and other proprietary rights. 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.
Other companies may be successful in asserting patent infringement or
other claims against us which prevent us from commercializing products
based on our technology or which force us to make royalty or other
payments to competitors.
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
5
involved in disputes with respect to the patents or proprietary rights of
third parties. 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.
Other companies may develop competing technologies which cause our
technology to become obsolete or non-competitive.
We and our joint venture partners compete with firms, both domestic and
foreign, that perform research and development, as well as firms that
manufacture and sell products. Some of our competitors 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 ability to succeed will be dependent upon our ability to successfully
implement our business plan, as to which no assurance can be given.
Our ability to execute our business plan must be considered in light of
the inherent risks, expenses and difficulties typically encountered by research
and development companies, particularly companies with new and evolving
technologies. Such unique difficulties include the costs and expense of our
research and development efforts, the uncertainties associated with
manufacturing products implementing new technologies, and the uncertainties of
market acceptance of our products. Additionally, our business may be affected by
adverse changes in general economic conditions or in political or competitive
forces.
Our product development programs involve a number of uncertainties;
additional research and development efforts will be required before
certain products can be manufactured and sold commercially, and there can
be no assurance that such efforts will be successful.
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.
We and our joint venture partners may not be able to manufacture our
developed products successfully on a commercial scale.
6
We may not achieve the designed output capabilities of certain
manufacturing equipment designed to manufacture our developed products once the
technology is ready to be sold commercially, and there can be no assurance that
we and our joint venture partners will be able to successfully manufacture 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 establish or
significantly increase 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 our joint
venture partners and licensees 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 once the
technology has been developed and commercial-scale manufacturing has been
achieved.
There can be no assurance that products based on our technologies will be
perceived as being superior to existing products or new products being developed
by competing companies or that such products will otherwise be accepted by
consumers. 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 government product development and research contracts may be
terminated by unilateral government action, or we may be unsuccessful in
obtaining new government contracts to replace those which have been
terminated or completed.
We have several government product development and research contracts. Any
revenues or profits which may be derived by us from these contracts will be
substantially dependent upon the government agencies' willingness to continue to
devote their financial resources to our research and development efforts. There
can be no assurance that such financial resources will be available or that such
research and development efforts will be successful. Our government contracts
may be terminated for the convenience of the government at any time, even if we
have fully performed our obligations under the contracts. Upon a termination for
convenience, we would generally only be entitled to recover certain eligible
costs and expenses we had incurred prior to termination and would not be
entitled to any other payments or damages.
We may experience performance problems with key suppliers or
subcontractors.
Our success is highly dependent on the continued services of a limited
number of key suppliers and subcontractors. The loss of any of these suppliers
and subcontractors could have a material adverse effect on us. There can be no
assurance that we will be able to retain existing relationships with key
suppliers and subcontractors on acceptable terms.
7
We may suffer the loss of key personnel or may be unable to attract and
retain qualified personnel to maintain and expand our business.
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 subject to legal or regulatory proceedings which may reach
unfavorable resolutions.
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 proceeding could be unfavorable, and we may choose to make payments or
enter into other arrangements, to settle such proceedings. Failure to settle
such proceedings could require us 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 resolved, 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.
Risks Related to this Offering
We have disclosed several material weaknesses in our internal controls
that, if not remedied, could result in material misstatements in our
financial statements, cause investors to lose confidence in our reported
financial information and have a negative effect on the trading price of
our stock.
In our Annual Report on Form 10-K for the fiscal year ended June 30, 2003,
we disclosed that the following two matters were identified as reportable
conditions pursuant to the standards established by the American Institute of
Certified Public Accountants:
1. Policies and procedures regarding employee conduct and acceptable
business practices, including expense reporting and personal use of our
company assets, were not well-documented and did not adequately
communicate our company's expectations regarding these matters.
2. We were not able to meet the filing deadline for the June 30, 2003
Form 10-K because we lacked the resources to address the financial
reporting related to significant and complex business transactions
entered into in fiscal year 2003.
We have taken several actions to address and correct these conditions,
including employing qualified personnel and adopting and implementing policies
and procedures to address the issues identified. We have completed our
evaluation of resources to address
8
our financial reporting and believe our resources are sufficient and will
provide the time necessary to prepare, and provide for reviews by management,
the Audit Committee and the Board of Directors, and file periodic reports within
the time periods specified in the SEC's rules and regulations.
In our Annual Report on Form 10-K for the fiscal year ended June 30, 2004,
we disclosed that in September 2004 Grant Thornton LLP (GT), our independent
registered public accounting firm, reported to our Audit Committee and
management that it had identified during the course of its audit for the year
ended June 30, 2004 the following four significant deficiencies pursuant to
standards established by the Public Company Accounting Oversight Board:
1. We have insufficient documentation of our policies and procedures
around internal controls to ensure that the execution of activities and
controls are consistent with management objectives.
2. We do not currently have monitoring controls in place to determine
whether controls that have been implemented by management specifically in
the financial reporting function are actually operating consistently with
management's objectives.
3. We have areas where employees are performing processes or controls
that are incompatible with their function. Segregation of duties issues
were identified in the Accounts Receivable, Accounts Payable, Financial
Reporting, Payroll, and Treasury functions.
4. We have certain weaknesses in the security of data within our
information systems. These include issues regarding security event logs
and activity reports, assignment of administrator rights, segregation of
duties, and access to data and applications.
GT has indicated that each of the above significant deficiencies
constitutes a material weakness in our internal controls pursuant to standards
established by the Public Company Accounting Oversight Board. In general,
reportable conditions are significant deficiencies in our internal controls
that, in the judgment of our independent registered public accounting firm,
could adversely affect our ability to record, process, summarize and report
financial data consistent with the assertions of management in the financial
statements. A material weakness is a reportable condition in which our internal
controls do not reduce to a low level the risk that undetected misstatements
caused by error or fraud may occur in amounts that are material to our audited
financial statements.
As part of our effort to ensure compliance with provisions of Section 404
of the Sarbanes-Oxley Act of 2002, we have created a plan and have dedicated the
required resources to address and remediate these material weaknesses prior to
our attestation of control effectiveness as of June 30, 2005. The process of
designing and implementing effective internal controls and procedures is a
continuous effort that requires us to anticipate and react to changes in our
business and the economic and regulatory environments and to expend significant
resources to maintain a system of internal controls that is adequate to satisfy
our reporting obligations as a public company. The effectiveness of the steps we
are still in the process of taking to improve the reliability of our interim
financial statements is
9
subject to continued management review supported by confirmation and testing as
well as Audit Committee oversight. We cannot assure you that we will not in the
future identify further material weaknesses or significant deficiencies in our
internal control over financial reporting that we have not discovered to date.
Beginning with the year ending June 30, 2005, pursuant to Section 404 of the
Sarbanes-Oxley Act, our management will be required to deliver a report that
assesses the effectiveness of our internal control over financial reporting, and
we will be required to deliver an attestation report of our independent
registered public accounting firm on our management's assessment of and
operating effectiveness of internal controls. We have substantial effort ahead
of us to complete documentation of our internal control system and financial
processes, information systems, assessment of their design, remediation of
control deficiencies identified in these efforts and management testing of the
design and operation of internal controls. An inability to complete and document
this assessment could result in a scope limitation qualification or a scope
limitation disclaimer by our independent registered public accounting firm on
their attestation of our internal controls. In addition, if a material weakness
were identified with respect to our internal control over financial reporting,
we would not be able to conclude that our internal controls over financial
reporting were effective, which could result in the inability of our independent
registered public accounting firm to deliver an unqualified report, or any
report, on our internal controls. Inferior internal controls could also cause
investors to lose confidence in our reported financial information, which could
have a negative effect on the trading price of our stock.
Our stock price is subject to volatility and your investment could suffer
a decline in value.
There has been a history of significant volatility in the market price of
our common stock. We believe that many factors, including several which are
beyond our control, have a significant effect on the market price of our common
stock. These include:
o actual or anticipated announcements of technological innovations;
o new commercial products;
o actual or anticipated changes in laws and governmental regulations;
o disputes relating to patents or proprietary rights;
o changes in business practices;
o developments relating to our efforts to obtain additional
financing to fund our operations;
o announcements by us regarding transactions with potential
strategic partners;
o changes in industry trends or conditions;
o our issuance of additional debt or equity securities; and
o sales of significant amounts of our common stock or other
securities in the market.
10
In addition, the stock market in general, and the Nasdaq National Market
in particular, have experienced significant price and volume fluctuations that
have often been unrelated or disproportionate to the operating performance of
listed companies. These broad market and industry factors may seriously harm the
market price of our common stock, regardless of our operating performance. In
the past, securities class action litigation has often been instituted following
periods of volatility in the market price of a company's securities. A
securities class action suit against us could result in substantial costs,
potential liabilities and the diversion of our management's attention and
resources.
There is a large number of shares that may be sold in the market following
this offering, which may depress the market price of our common stock.
Up to 5,285,197 shares of our common stock may be sold in the market in
connection with this offering. Sales of a substantial number of shares of our
common stock or securities convertible into or exercisable for our common stock
in the public market following this offering could cause the market price of our
common stock to decline. If there are more shares of common stock offered for
sale than buyers are willing to purchase, then the market price of our common
stock may decline to a market price at which buyers are willing to purchase the
offered shares of common stock and sellers remain willing to sell the shares.
All of the shares sold in this offering will be freely tradeable without
restriction or further registration under the Securities Act, except for any
shares purchased by our "affiliates" as defined in Rule 144 of the Securities
Act.
Our quarterly operating results may fluctuate significantly.
We expect our results of operations to be subject to quarterly
fluctuations. The level of our revenues and results of operations at any given
time will be based primarily on the following factors:
o the status of the development and commercialization of products
based on our technologies;
o our entry into license or joint venture agreements with strategic
partners and the timing and accounting treatment of payments to
us, if any, under those agreements;
o our receipt of royalty payments under licenses of our technology
to third parties and the timing and accounting treatment of
these payments;
o the addition or termination of research programs or funding
support from governmental entities or other third parties;
o the addition or termination of machine-building contracts; and
o variations in the level of capital expenditure and operating
expenses related to our business operations during any given
period.
These and other factors may cause the price of our stock to fluctuate
substantially. We believe that quarterly comparisons of our financial results
are not necessarily meaningful and should not be relied upon as an indication of
our future performance.
11
If we are required or elect to account for employee stock option plans
using the fair value method, it could significantly increase our net loss
and net loss per share.
There has been ongoing public debate about whether shares issued under
employee stock option plans should be treated as a compensation expense and, if
so, how to properly value such compensation. If we elect or are required to
record an expense for our stock-based compensation plans using the fair value
method, we could have significant additional compensation expense. For example,
if we had historically accounted for stock-based compensation plans using the
fair value method prescribed in Financial Accounting Standards Board Statement
123, as amended by Statement 148, in our 2004 fiscal year, we would have
recorded approximately $3,004,000 in additional expenses, and our basic and
diluted loss per share would have been increased by $.13 per share. Although we
are not currently required to record any compensation expense using the fair
value method in connection with option grants that have an exercise price at or
above fair value at the grant date, the Financial Accounting Standards Board is
expected to establish a rule that will require us to treat all stock-based
compensation as an expense using the fair value method. See Note A of Notes to
Consolidated Financial Statements for the Three Years Ended June 30, 2004 for a
more detailed presentation of our accounting for stock-based compensation.
Because we do not intend to pay dividends, you will not receive funds
without selling shares and, depending on when you sell your shares, you
may lose the entire amount of your investment.
We have never declared or paid any cash dividends on our capital stock and
do not intend to pay cash dividends in the foreseeable future. We intend to
invest our future earnings, if any, to fund our growth. Therefore, you will not
receive any proceeds with respect to your stock prior to selling it. We also
cannot assure you that you will receive a return on your investment when you do
sell your shares or that you will not lose the entire amount of your investment.
Our management has broad discretion to determine how to use the proceeds
received upon the exercise of the warrants held by the selling
stockholders, and may use them in ways that may not enhance our operating
results or the price of our common stock.
All of the net proceeds from the sale of the common stock covered by this
prospectus will be received by the selling stockholders who offer and sell
shares of common stock. We will not receive any proceeds from the sale of common
stock offered by the selling stockholders. However, we will receive proceeds
from the exercise of warrants held by the selling stockholders to purchase
3,356,735 shares of common stock to the extent these warrants are exercised.
Depending upon when these warrants are exercised, we would receive between
$46,860,020 and $53,808,462 if all of the warrants are exercised. If any of the
warrants are exercised, there will be further dilution to investors. The selling
stockholders are not obligated to exercise these warrants and we do not expect
that the selling stockholders will exercise the warrants unless the price of our
common stock increases substantially. If these warrants are exercised, our
management could spend the proceeds from the exercise of these warrants in ways
our stockholders may not agree with or that do not yield a favorable return. We
plan to use the net proceeds from the exercise of
12
these warrants for general corporate purposes, including working capital and
capital expenditures. Until we use the proceeds, if any, from the exercise of
these warrants, we plan to invest the net proceeds in interest-bearing,
investment-grade securities, which may not
yield a favorable rate of return.
Because our officers, directors and certain stockholders will together own
shares entitled to 34.58% of the voting power of our outstanding stock,
the voting power of other stockholders, including purchasers in this
offering, may be effectively limited.
Based on share ownership as of December 3, 2004, our officers, directors,
and our stockholders Sanoh Industrial Co., Ltd. (Sanoh) (through a proxy given
to Mr. Ovshinsky) and ChevronTexaco (which will vote its shares of our common
stock in accordance with votes cast by the holders of Class A common stock and
Class B common stock) and their respective affiliates will beneficially own or
control, directly or indirectly, a total of 5,317,424 shares of common stock,
Class A common stock and Class B common stock, which in the aggregate will
represent approximately 34.58% of the voting power of our outstanding stock. As
a result, if some of these persons or entities act together, they will have the
ability to substantially influence certain matters submitted to our stockholders
for approval, including the election and removal of directors, certain
amendments to our certificate of incorporation and bylaws and the approval of
any business combination. This may delay or prevent an acquisition of ECD or
cause the market price of our stock to decline. Some of these persons may have
interests different than yours.
Provisions in our charter documents and Delaware law may delay or prevent
an acquisition of our company.
Our certificate of incorporation and bylaws contain provisions that could
make it harder for a third party to acquire us without the consent of our Board
of Directors. For example, shares of our Class A common stock are presently
entitled to 25 votes per share on all matters to be voted on by our
stockholders, including mergers and the sale of all or substantially all of our
assets. In addition, if a potential acquiror were to make a hostile bid for us,
the acquiror would not be able to call a special meeting of stockholders to
remove our Board of Directors or act by written consent without a meeting. The
acquiror would also be required to provide advance notice of its proposal to
replace directors at any annual meeting, and would not be able to cumulate votes
at a meeting, which would require the acquiror to hold more shares to gain
representation on the Board of Directors than if cumulative voting were
permitted.
Our Board of Directors also has the ability to issue additional shares of
common stock that could significantly dilute the ownership of a hostile
acquiror. In addition, Section 203 of the Delaware General Corporation Law
limits mergers and other business combination transactions involving 15% or
greater stockholders of Delaware corporations unless certain board or
stockholder approval requirements are satisfied. These provisions and other
similar provisions make it more difficult for a third party to acquire us
without negotiation. These provisions may apply even if the offer may be
considered beneficial by some stockholders.
13
Our Board of Directors could choose not to negotiate with an acquiror that
it did not believe was in our strategic interests. If an acquiror is discouraged
from offering to acquire us or prevented from successfully completing a hostile
acquisition by these or other measures, you could lose the opportunity to sell
your shares at a favorable price.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS1
This prospectus contains forward-looking statements within the meaning of
the Private Securities Litigation Reform Act of 1995, including in particular
statements about our financial condition, results of operations, plans,
objectives, expectations, future performance and business prospects. You can
identify these statements by forward-looking words such as "may," "will,"
"anticipate," "believe," "estimate," "expect," "intend," "plan," "seek" and
similar expressions. We have based these forward-looking statements on our
current expectations with respect to future events and occurrences. Investors
are cautioned that our actual results in the future may differ materially from
the expected results reflected in our forward-looking statements. Important
factors that could cause our actual results to differ materially from the
results anticipated by the forward-looking statements are contained herein under
"Risk Factors," "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and elsewhere in this prospectus. Any or all of these
factors could cause our actual results and financial or legal status for future
periods to differ materially from those expressed or referred to in any
forward-looking statement. All written or oral forward-looking statements
attributable to us are expressly qualified in their entirety by these cautionary
statements. Forward-looking statements speak only as of the date on which they
are made.
14
SELLING STOCKHOLDERS
The following table provides information regarding the beneficial
ownership of the outstanding shares of common stock by the selling stockholders
both before the offering and as adjusted to reflect the sale of all of the
shares offered under this prospectus. The selling stockholders may offer the
shares for sale from time to time in whole or in part. Except where otherwise
noted, the selling stockholders named in the following table have, to our
knowledge, sole voting and investment power with respect to the shares
beneficially owned by them.
Beneficial Beneficial
Ownership Ownership (2)
Before Offering After Offering
--------------------- -------------------
Number of
Number Number of Shares Being Number
of Shares Percent Registered (1) of Shares Percent
--------- --------- -------------- --------- -------
Fidelity Capital Appreciation Fund 2,519,132(3) 9.70% 2,519,132 _ _
82 Devonshire Street, E31C
Boston, Massachusetts 02109
CCM Master Qualified Fund, Ltd. 1,710,371(4) 6.74% 1,337,792 372,579 1.51%
c/o Coghill Capital Management, L.L.C.
One North Wacker Drive, Suite 4350
Chicago, Illinois 60606
Heimdall Investments Ltd. 1,337,792(5) 5.13% 1,337,792 _ _
c/o HBK Investments L.P.
300 Crescent Court, Suite 700
Dallas, Texas 75201
Kelly Securities Corp. 70,800(6) * 70,800 _ _
Box 267
Monterey, MA 01245
Wharton Capital Partners 19,681(7) * 19,681 _ _
545 Madison Avenue
New York, NY 10022
- --------------------
* Less than 1%.
(1) Represents the maximum number of shares that may be sold by the
selling stockholders.
(2) Assumes all of the shares being registered pursuant to this
registration statement will be sold by the selling stockholders.
15
(3) Consists of 1,259,566 outstanding shares of common stock and
1,259,566 shares of common stock issuable upon exercise of currently
exercisable warrants.
(4) Consists of 1,041,475 outstanding shares of common stock and 668,896
shares of common stock issuable upon exercise of currently exercisable
warrants. Coghill Capital Management, L.L.C. and Clint D. Coghill,
through their control of CCM Master Qualified Fund, Ltd., have shared
voting and dispositive power over these shares.
(5) Consists of 1,337,792 shares of common stock issuable upon exercise of
currently exercisable warrants. HBK Investments L.P. may be deemed to
have sole voting power and sole dispositive power over the shares
held by Heimdall Investments Ltd. pursuant to an Investment
Management Agreement between HBK Investments L.P. and Heimdall
Investments Ltd.
(6) Consists of 70,800 shares of common stock issuable upon exercise of
currently exercisable warrants.
(7) Consists of 19,681 shares of common stock issuable upon exercise of
currently exercisable warrants.
16
PLAN OF DISTRIBUTION
The selling stockholders and any of their pledgees, assignees and
successors-in-interest may sell any or all of the shares covered by this
prospectus from time to time. The selling stockholders may sell all or a portion
of the shares, on any stock exchange, market or trading facility on which the
shares are traded or in privately negotiated transactions or otherwise, at fixed
prices that may be changed, at market prices prevailing at the time of sale, at
prices related to such market prices or at negotiated prices. The selling
stockholders may use any one or more of the following methods when selling
shares:
o block trades in which the broker or dealer will attempt to sell
the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
o purchases by a broker or dealer as principal and resale by such
broker or dealer for its account pursuant to this prospectus;
o ordinary brokerage transactions and transactions in which the
broker solicits purchasers;
o an exchange distribution in accordance with the rules of the
applicable exchange;
o privately negotiated transactions;
o short sales;
o a combination of any such methods of sale; and
o any other method permitted pursuant to applicable law.
The selling stockholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
The selling stockholders may also engage in short sales against the box,
puts and calls and other transactions in our securities or derivatives of our
securities and may sell or deliver shares in connection with these trades. The
selling stockholders may pledge their shares to their brokers under the margin
provisions of customer agreements. If a selling stockholder defaults on a margin
loan, the broker may, from time to time, offer and sell the pledged shares.
In effecting sales, brokers and dealers engaged by the selling
stockholders may arrange for other brokers or dealers to participate. The
selling shareholders may pay brokers or dealers commissions or give them
discounts or, if any such broker-dealer acts as agent for the purchaser of such
shares, from such purchaser in amounts customary in the types of transactions
involved. To the extent required, this prospectus may be amended or supplemented
from time to time to describe a specific plan of distribution.
Broker-dealers may agree with the selling stockholders to sell a specified
number of such shares at a stipulated price per share. Also, if a broker-dealer
is unable to sell the shares as agent for the selling stockholders, the
broker-dealer may purchase, as principal, any unsold shares at the price
required to fulfill the broker-dealer commitment to the selling stockholders.
Broker-dealers who acquire shares as principal may thereafter resell such
17
shares from time to time in transactions which may involve block transactions
and sales to and through other broker-dealers, including transactions of the
nature described above. Also, broker-dealers may sell shares in the Nasdaq Stock
Market or otherwise at prices and on terms then prevailing at the time of sale,
at prices then related to the then-current market price or in negotiated
transactions. In connection with these resales, broker-dealers may pay to or
receive from the purchasers of such shares commissions as described above.
The selling stockholders and any broker-dealers or agents that participate
with the selling stockholders in sales of the shares may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933 in connection
with such sales. In such event, any commissions received by such broker-dealers
or agents and any profit on the resale of the shares purchased by them may be
deemed to be underwriting commissions or discounts under the Securities Act. We
have advised the selling stockholders that the anti-manipulation rules under the
Securities Exchange Act of 1934 may apply to sales of the shares of common stock
in the market and to the activities of the selling stockholders and their
affiliates. We have also informed the selling stockholders of the need to
deliver a copy of this prospectus at, or prior to, the time of any sale of the
shares of common stock offered by this prospectus.
We are required to pay all of the expenses incidental to this offering and
sale of the shares, other than underwriting costs and brokerage discounts and
commissions that will be paid by the selling stockholders. We have agreed to
indemnify the selling stockholders against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act of 1933.
USE OF PROCEEDS
The selling stockholders will receive all of the net proceeds from the
sale of the common stock offering by this prospectus. Accordingly, we will not
receive any proceeds from the sale of the common stock. We will, however,
receive proceeds from the exercise of warrants held by the selling stockholders
to purchase 3,356,735 shares of common stock to the extent they are exercised.
Depending upon when these warrants are exercised, we would receive between
$46,860,020 and $53,808,462 if all of the warrants are exercised in full. The
selling stockholders are not obligated to exercise these warrants and we do not
expect that the selling stockholders will exercise the warrants unless the price
of our common stock increases substantially. If any of the warrants are
exercised, there will be further dilution to investors. We will use these
proceeds, if any, for general corporate purposes, including working capital and
capital expenditures.
DIVIDEND POLICY
We have not paid any dividends in the past and do not intend to pay cash
dividends on our common stock for the foreseeable future. Instead, for the
foreseeable future, we intend to retain our earnings, if any, for use in the
operation and expansion of our business. Payment of future dividends, if any,
will be at the discretion of our Board of Directors after taking into account
various factors, including our financial condition, our results of operations
and our current and anticipated cash needs.
18
LEGAL MATTERS
The validity of the shares of common stock offered hereby has been passed
upon by Roger John Lesinski, Esq., the General Counsel of ECD. Mr. Lesinski
beneficially owns 1,200 shares of common stock and holds presently exercisable
options to purchase an additional 17,500 shares of common stock.
EXPERTS
The consolidated financial statements and the related financial statement
schedule as of and for the year ended June 30, 2004 incorporated by reference
from in our Annual Report on Form 10-K for the fiscal year ended June 30, 2004
have been audited by Grant Thornton LLP, our Independent Registered Public
Accounting Firm, as stated in their report included in the Annual Report (which
report expresses an unqualified opinion and contains an explanatory paragraph
relating to substantial doubt about our ability to continue as a going concern),
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.
The consolidated financial statements as of June 30, 2003 and for each of
the two years in the period ended June 30, 2003 and the related financial
statement schedule incorporated by reference from our Annual Report have been
audited by Deloitte & Touche LLP, an Independent Registered Public Accounting
Firm, as stated in their report included in the Annual Report (which report
expresses an unqualified opinion and contains explanatory paragraphs relating to
(i) our change in method of accounting for goodwill and other intangible assets
in fiscal year 2003, and (ii) substantial doubt about our ability to continue as
a going concern), 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.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission a registration
statement on Form S-3 under the Securities Act with respect to the common stock
offered by this prospectus. This prospectus, which is part of the registration
statement, omits certain information, exhibits, schedules and undertakings set
forth in the registration statement. For further information pertaining to us
and our common stock, reference is made to such registration statement and the
exhibits and schedules to the registration statement. Statements contained in
this prospectus as to the contents or provisions of any documents referred to in
this prospectus are not necessarily complete, and in each instance where a copy
of the document has been filed as an exhibit to the registration statement,
reference is made to the exhibit for a more complete description of the matters
involved.
You may read and copy all or any portion of the registration statement
without charge at the SEC's Public Reference Room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. You may obtain information on the operation of the
Public Reference Room by calling the SEC at 1-800-SEC-0330. Copies of the
registration statement may be obtained from the SEC at prescribed rates from the
Public Reference Room of the SEC at such address. In addition, registration
statements and certain other filings made with the SEC
19
electronically are publicly available through the SEC's web site at www.sec.gov.
The registration statement, including all exhibits and amendments to the
registration statement, has been filed electronically with the SEC.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Securities and Exchange Commission allows us to "incorporate by
reference" the information we file with it, which means that we can disclose
important information to you by referring you to those documents. The
information we incorporate by reference is an important part of this prospectus,
and later information that we file with the SEC will automatically update and
supersede some of this information. We incorporate by reference the documents
listed below and any future filings we make with the SEC under Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until we sell all of
the securities covered by this prospectus. The documents we incorporate by
reference are:
o our Annual Report on Form 10-K for the year ended June 30, 2004;
o our Quarterly Report on Form 10-Q for the quarter ended
September 30, 2004;
o our Current Report on Form 8-K dated November 4, 2004;
o our current report on Form 8-K dated December 7, 2004; and
o the description of our common stock included in the our
Registration Statement on Form 8-A, as filed with the SEC on
November 27, 1968, including any amendments or reports filed
for the purpose of updating such description.
Information in Current Reports on Form 8-K furnished to the SEC, including
under Item 9 or 12 of Form 8-K (prior to August 23, 2004) or Item 2.02 or 7.01
of Form 8-K (on or subsequent to August 23, 2004), prior, on or subsequent to
the date hereof is not being and will not be incorporated herein by reference.
You may request a copy of these filings (other than an exhibit to the
filings unless we have specifically incorporated that exhibit by reference into
the filing), at no cost, by writing or telephoning us at the following address:
Energy Conversion Devices, Inc.
2956 Waterview Drive
Rochester Hills, Michigan 48309
Attention: General Counsel
20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth an itemization of all estimated expenses,
all of which we will pay, in connection with the issuance and distribution of
the securities being registered:
SEC Registration Fee...................... $ 13,332
Printing and Engraving Fees............... 1,000
Legal Fees and Expenses ................. 85,000
Accounting Fees and Expenses.............. 40,000
Blue Sky Fees and Expenses................ 1,000
Transfer Agent and Registrar Fees......... 3,000
Miscellaneous............................. 6,000
--------
Total................... $149,332
========
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation--a derivative action), if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard is applicable in the case of derivative
actions, except that indemnification only extends to expenses (including
attorneys' fees) incurred in connection with the defense or settlement of such
action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute provides that it is not exclusive of other
indemnification that may be granted by a corporation's charter, bylaws,
disinterested director vote, stockholder vote, agreement or otherwise. Article
Eleven of our Certificate of Incorporation generally provides that we will be
obligated to indemnify our officers and directors to the fullest extent
permitted by Delaware law.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation will not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
payments of unlawful dividends or unlawful stock repurchases or redemptions, or
(iv) for any transaction from which the director derived an improper personal
benefit.
21
Article Thirteen of our Certificate of Incorporation provides that no
director will be personally liable to us or any of our stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to us or our stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) pursuant to section 174 of the Delaware General
Corporation Law or (iv) for any transaction from which the director derived an
improper personal benefit. Any repeal or modification of such Article Thirteen
may not adversely affect any right or protection of a director for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
We maintain insurance policies under which our directors and officers are
insured, within the limits and subject to the limitations of such policies,
against certain expenses in connection with the defense of, and certain
liabilities which might be imposed as a result of, actions, suits or proceedings
to which they are parties by reason of being or having served as our directors
or officers.
Item 16. Exhibits.
Exhibit
Number Exhibit Title
- ---------- -----------------------------------------------------
4.1 Form of Common Stock Purchase Warrant, for the *
right to purchase shares of ECD Common Stock, issued
to each of Fidelity Capital Trust: Fidelity Capital
Appreciation Fund; Heimdall Investments Ltd.; CCM
Master Qualified Fund, Ltd.; Kelly Securities Corp.;
and Wharton Capital Partners.
5.1 Opinion of Roger John Lesinski, Esq., General Counsel **
of ECD
10.1 Form of Stock Purchase Agreement between ECD and each ***
of Fidelity Capital Trust: Fidelity Capital
Appreciation Fund; Heimdall Investments Ltd.; and CCM
Master Qualified Fund, Ltd.
23.1 Consent of Independent Registered Public Accounting **
Firm, Grant Thornton LLP
23.2 Consent of Independent Registered Public Accounting **
Firm, Deloitte & Touche LLP
23.3 Consent of Roger John Lesinski, Esq. (included in **
Exhibit 5.1)
24.1 Power of attorney (included in signature page) **
- ---------------------
22
* Previously filed as Exhibit 4.3 to our Registration Statement on Form S-1
(Registration No. 333-111500) as filed with the SEC on December 23, 2003.
** Filed herewith.
*** Previously filed as Exhibit 4.2 to our Registration Statement on Form S-1
(Registration No. 333-111500) as filed with the SEC on December 23, 2003.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(iii) 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; provided, however, that paragraphs (1)(i)
and (1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the SEC
by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference
in this 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.
23
(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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Act of 1934) that is incorporated by reference in the 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant 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 of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant 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 registrant 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 of whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
24
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
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 Rochester Hills, State of Michigan, on the 9th day of
December, 2004.
ENERGY CONVERSION DEVICES, INC.
By: /s/ Robert C. Stempel
-------------------------------------------
Robert C. Stempel,
Chairman and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Energy Conversion Devices,
Inc., hereby, severally constitute and appoint each of Roger John Lesinski, Esq.
and Ghazaleh Koefod our true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement, and registration statements filed pursuant to Rule 462 under the
Securities Act of 1933, and to file the same with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto such attorney-in-fact and agent, full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that such attorney-in-fact and agent, or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
/s/ Robert C. Stempel Chairman of the Board, Chief December 9, 2004
------------------------- Executive Officer and Director
Robert C. Stempel (Principal Executive Officer)
/s/ Stephan W. Zumsteg Vice President and Chief December 9, 2004
------------------------- Financial Officer (Principal
Stephan W. Zumsteg Financial and Accounting
Officer)
25
/s/ Stanford R. Ovshinsky President, Chief Technology December 9, 2004
------------------------- Officer and Director
Stanford R. Ovshinsky
Robert I. Frey* Director December 9, 2004
-------------------------
Robert I. Frey
William J. Ketelhut* Director December 9, 2004
-------------------------
William J. Ketelhut
Florence I. Metz* Director December 9, 2004
-------------------------
Florence I. Metz
/s/ Iris M. Ovshinsky Director December 9, 2004
-------------------------
Iris M. Ovshinsky
Stephen Rabinowitz* Director December 9, 2004
-------------------------
Stephen Rabinowitz
*By: /s/ Roger John Lesinski
-------------------------------------
Roger John Lesinski, Attorney-in-Fact
26
INDEX TO EXHIBITS
Exhibit
Number Exhibit Title
- ---------- -----------------------------------------------------
4.1 Form of Common Stock Purchase Warrant, for the *
right to purchase shares of ECD Common Stock, issued
to each of Fidelity Capital Trust: Fidelity Capital
Appreciation Fund; Heimdall Investments Ltd.; CCM
Master Qualified Fund, Ltd.; Kelly Securities Corp.;
and Wharton Capital Partners.
5.1 Opinion of Roger John Lesinski, Esq., General Counsel **
of ECD
10.1 Form of Stock Purchase Agreement between ECD and each ***
of Fidelity Capital Trust: Fidelity Capital
Appreciation Fund; Heimdall Investments Ltd.; and CCM
Master Qualified Fund, Ltd.
23.1 Consent of Independent Registered Public Accounting **
Firm,
Grant Thornton LLP
23.2 Consent of Independent Registered Public Accounting **
Firm, Deloitte & Touche LLP
23.3 Consent of Roger John Lesinski, Esq. (included in **
Exhibit 5.1)
24.1 Power of attorney (included in signature page) **
- ---------------------
* Previously filed as Exhibit 4.3 to our Registration Statement on Form S-1
(Registration No. 333-111500) as filed with the SEC on December 23, 2003.
** Filed herewith.
*** Previously filed as Exhibit 4.2 to our Registration Statement on Form S-1
(Registration No. 333-111500) as filed with the SEC on December 23, 2003.
27