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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)
Energy Conversion Devices, Inc.
(Name of Issuer)
Common Stock, $0.01 par value
(Title of Class of Securities)
-----------------------
292659109
(Cusip Number)
Texaco Inc.
(Name of Persons Filing Statement)
Michael G. McQueeney
General Counsel
Texaco Inc.
2000 Westchester Avenue
White Plains, NY 10650
Telephone: (914) 253-4146
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
August 29, 2001
(Date of Event which Requires Filing of this Statement)
-----------------------
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this statement because of Rule 13d-1(b)(3) or (4), check the following: [ ]
Check the following box if a fee is being paid with this statement: [ ]
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Page 1 of 6
Texaco Inc. ("Texaco") hereby further amends and supplements its Report on
Schedule 13D, originally filed on June 12, 2000, and amended by Amendment No. 1
on November 6, 2000 (the "Schedule 13D") with respect to the purchase of the
common stock, par value $0.01 (the "Common Stock") of Energy Conversion
Devices, Inc. (the "Issuer").
Unless otherwise indicated, each capitalized term used but not defined
herein shall have the meaning assigned to such term in the Schedule 13D.
Cover Page.
The responses set forth in disclosure items 7, 9 and 11 of the Schedule
13D cover page are hereby amended and restated as follows:
(7) 4,316,391
(9) 4,316,391
(11) 4,316,391
Item 2. Identity and Background.
Appendix A to the Schedule 13D is hereby deleted in its entirety and
replaced with the Appendix A attached to this Amendment No. 2.
Item 3. Source and Amount of Funds or Other Consideration.
The response set forth in Item 3 of the Schedule 13D is hereby amended by
adding the following information as a third paragraph:
Pursuant to a Preemptive Rights Stock Purchase Agreement (the "Preemptive
Rights Agreement"), dated as of August 29, 2001, by and between TRMI Holdings
Inc. ("TRMI") and the Issuer, TRMI has purchased 448,358 additional shares of
Common Stock of the Issuer using available working capital. (TRMI is a
wholly-owned subsidiary of Texaco). The Preemptive Rights Agreement provides,
among other things, that the aggregate price to be paid for the additional
shares of Common Stock would be $8,893,629.29 and that the shares so acquired
shall be subject to the terms of Section 2.6(b), Part Four and Part Five of the
Purchase Agreement as if it were "Stock" (as defined in the Purchase
Agreement).
Item 4. Purpose of the Transaction.
The response set forth in Item 4 of the Schedule 13D is hereby amended by
adding the following information as a new paragraph at the end of Item 4:
Texaco has again purchased additional shares of Common Stock pursuant to
certain preemptive rights that are described in Section 4.1(d) of the Purchase
Agreement (and summarized in Item 6 of this Schedule 13D). The purpose of the
additional purchase is to permit Texaco to maintain its percentage of ownership
in the Issuer's Common Stock at 20 percent.
Page 2 of 6
Item 5. Interest in Securities of the Issuer.
The response set forth in Item 5 of the Schedule 13D is hereby amended and
restated as follows:
(a) Number of Shares Beneficially Owned: 4,316,391 shares of Common Stock.
Right to Acquire: Except for certain preemptive
rights which are contained in
Section 4.1(d) of the Purchase
Agreement, none.
Percent of Class: 20%
(b) Sole Power to Vote, Direct the
Vote of, or Dispose of Shares: 4,316,391.
(c) Recent Transactions: None, other than as discussed
above.
(d) Rights with Respect to Dividends
or Sales Proceeds: Not Applicable.
(e) Date of Cessation of Five Percent
Beneficial Ownership: Not Applicable.
Item 7. Material to be Filed as Exhibits.
The response set forth in Item 7 of the Schedule 13D is hereby amended by
adding the following exhibit:
Exhibit 3: Preemptive Rights Stock Purchase Agreement, dated as of August
29, 2001, by and between Energy Conversion Devices, Inc. and TRMI Holdings Inc.
Page 3 of 6
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: September 20, 2001
Texaco Inc.
By: /s/ Michael H. Rudy
-----------------------
Name: Michael H. Rudy
Title: Secretary
Page 4 of 6
Appendix A
DIRECTORS AND EXECUTIVE OFFICERS OF TEXACO INC.
The name, title, present principal occupation or employment, and business
address of each of the directors and executive officers of Texaco Inc.
("Texaco") are set forth below. Unless otherwise indicated, the business
address for each person is c/o Texaco Inc., 2000 Westchester Avenue, White
Plains, New York, 10650.
Title, Present Principal Occupation
Name or Employment and Citizenship
------------------------------------ --------------------------------------
A. Charles Baillie.................. Director. Chairman & Chief Executive
Officer of Toronto-Dominion Bank.
Toronto-Dominion Bank, 55 King Street
West, 11th Floor, Toronto Dominion Bank
Tower, Toronto, Ontario M5K 1A2,
Canada. Mr. Baillie is a citizen of
Canada.
Mary K. Bush........................ Director. President of Bush
International, Inc. Bush
International, Inc., 4201 Cathedral
Avenue, N.W., Suite 1016E, Washington,
D.C. 20016.
Edmund M. Carpenter................. Director. President & Chief Executive
Officer of Barnes Group, Inc. Barnes
Group, Inc., 123 Main Street, P.O. Box
489, Bristol, CT 06011-0489.
Robert J. Eaton .................... Director. Former Chairman of the Board
of Management of DaimlerChrysler, A.G.
DaimlerChrysler Corporation, 1000
Chrysler Dr., CIMS 480-01-01, Auburn
Hills, MI 48326-2766.
Michael C. Hawley................... Director. Former Chairman & Chief
Executive Officer of The Gillette
Company. The Gillette Company,
Prudential Tower Building, 800 Boylston
Street, Boston, MA 02119-8004.
Franklyn G. Jenifer................. Director. President of the University
of Texas at Dallas. University of Texas
at Dallas, 2601 North Floyd Road, Room
AD2.418, Richardson, TX 75080.
Sam Nunn............................ Director. Senior Partner of King &
Spalding. King & Spalding, 191
Peachtree Street, Atlanta, GA
30303-1763.
Charles H. Price, II................ Director. Former Chairman of Mercantile
Bank of Kansas City. Mercantile Bank of
Kansas City, One West Armour Blvd.,
Suite 300, Kansas City, MO 64111.
Charles R. Shoemate................. Director. Advisory Director of Unilever
PLC. Unilever PLC, P.O. Box 68,
Unilever House, Blackfriars, London
EC4P 4BQ, United Kingdom.
Robin B. Smith...................... Director. Former Chairman & Chief
Executive Officer of Publishers
Clearing House. Publishers Clearing
House, 382 Channel Drive, Port
Washington, NY 11050.
William C. Steere, Jr............... Director. Former Chairman & Chief
Executive Officer of Pfizer Inc.
Pfizer Inc., 235 East 42nd Street, New
York, NY 10017-5755.
Glenn F. Tilton..................... Director. Chairman of the Board of
Directors and Chief Executive Officer
of Texaco.
Thomas A. Vanderslice............... Director. President of TAV Associates.
TAV Associates, Le Rivage, Unit 10-N,
4351 Gulf Shore Blvd. North, Naples, FL
34103.
Patrick J. Lynch.................... Senior Vice President & Chief Financial
Officer.
Page 5 of 6
John J. O'Connor.................... Senior Vice President.
William M. Wicker................... Senior Vice President.
Bruce S. Appelbaum.................. Vice President. 4800 Fournace Place,
Bellaire, TX 77401-2324
John Bethancourt.................... Vice President.
Eugene Celentano.................... Vice President.
James F. Link....................... Vice President.
James R. Metzger.................... Vice President.
Rosemary Moore ..................... Vice President.
Robert C. Oelkers................... Vice President.
Elizabeth P. Smith.................. Vice President.
Robert A. Solberg................... Vice President. 1111 Bagby Street,
Houston, TX 77002-2543
Janet L. Stoner..................... Vice President.
Michael N. Ambler................... General Tax Counsel.
George J. Batavick.................. Comptroller.
Ira D. Hall......................... Treasurer.
Michael G. McQueeney................ General Counsel.
Michael H. Rudy..................... Secretary.
Page 6 of 6
Exhibit 3
PREEMPTIVE RIGHTS STOCK PURCHASE AGREEMENT
(Stock of Energy Conversion Devices, Inc.)
PREEMPTIVE RIGHTS STOCK PURCHASE AGREEMENT ("Agreement") dated as of
August 29, 2001 is made and entered into by and between ENERGY CONVERSION
DEVICES, INC., a Delaware corporation ("Seller"), and TRMI HOLDINGS INC., a
Delaware corporation ("Buyer"). Seller and Buyer are sometimes referred to
herein individually as a "Party" and together as the "Parties."
WHEREAS, pursuant to Section 4.1(d) of the Stock Purchase Agreement dated
as of May 1, 2000, by and between Seller and Buyer, Seller has delivered to
Buyer Preemptive Rights Notice(s), stating that Buyer has the right to purchase
certain Seller Stock (as defined in such Stock Purchase Agreement).
WHEREAS, Buyer desires to purchase such Seller Stock.
WHEREAS, Buyer and Seller desire to effectuate such purchase as
contemplated by Section 4.1(d) of such Stock Purchase Agreement.
NOW THEREFORE, Buyer and Seller agree as follows:
ARTICLE 1
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1 Defined Terms; Rules of Construction. Unless the context shall
otherwise require, terms used and not defined herein shall have the meanings
assigned thereto in the Stock Purchase Agreement dated as of May 1, 2000, by
and between Seller and Buyer (the "Stock Purchase Agreement"), and all rules of
construction set forth therein shall apply hereto.
ARTICLE 2
PURCHASE AND SALE, TRANSFER
AND PURCHASE PRICE OF THE PREEMPTIVE RIGHTS STOCK
Section 2.1 Purchase and Sale of the Preemptive Rights Stock. Pursuant to
Section 4.1(d) of the Stock Purchase Agreement, Seller shall issue and sell to
Buyer, and Buyer shall purchase from Seller, the shares set forth in Schedule
2.1 (the "Preemptive Rights Stock").
Section 2.2 Transfer of the Preemptive Rights Stock; Deliveries. The
closing of the purchase and sale of the Preemptive Rights Stock under this
Agreement (the "Closing") will take place at the offices of Seller, or at such
other place as Buyer and Seller mutually agree, at 10:00 A.M., local time, on
the date of this Agreement, or on such later Business Day and time as Buyer and
Seller mutually agree (the "Closing Date"). At the Closing, Seller shall
deliver to Buyer the certificates evidencing the Preemptive Rights Stock, and
convey to Buyer good,
1
marketable and unencumbered title to, and legal and beneficial ownership of,
the Preemptive Rights Stock.
Section 2.3 Purchase Price of the Preemptive Rights Stock. The purchase
price for the Preemptive Rights Stock shall be as set forth in Schedule 2.3
(the "Purchase Price").
Section 2.4 Method of Payment. The Purchase Price shall be payable in
immediately available funds by means of a wire transfer to Seller's account at
Standard Federal Bank, 2600 West Big Beaver Road, Troy, Michigan 48084, ABA
routing number 272471674, account number 1054400890 (with immediate telephone
notice to Steve Zumsteg at (248) 280-1900) or to such other account number and
depository as Seller may by written notice direct.
Section 2.5 Fees and Stamp and Other Transfer Taxes. Buyer shall pay all
sales, documentary, stamp and other transfer taxes, if any, payable in respect
of this Agreement or for the transfer of the Preemptive Rights Stock to Buyer
hereunder.
Section 2.6 Restrictive Legend. The Preemptive Rights Stock shall bear the
legend set forth in Section 2.6(a) of the Stock Purchase Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.1 Seller and Buyer. Each Party hereby represents and warrants to
the other as follows:
(a) Organization and Standing. Such Party is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware, and in the case of Seller, is in good standing as
foreign corporation in all jurisdictions where the nature of its
properties or business require it.
(b) Authority. Such Party has all requisite corporate power and
authority to execute, deliver and perform this Agreement and to consummate
the transactions contemplated hereby. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all requisite corporate
action on the part of such Party and this Agreement has been duly executed
and delivered by such Party.
(c) Validity of Agreement. This Agreement constitutes the legal,
valid and binding obligation of such Party, enforceable against such Party
in accordance with its terms, except as enforcement may be subject to (i)
bankruptcy, insolvency, reorganization, or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights
generally, and (ii) general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
2
(d) No Violation. Neither the execution or delivery by such Party of
this Agreement, nor the performance by such Party of its obligations under
this Agreement, nor the consummation of the transactions contemplated
hereby, (i) contravene or violate any provision of the Corporate Documents
of such Party, (ii) contravene or violate any Law to which such Party or
any of its material assets may be subject, or (iii) in the case of Seller,
result in the creation or imposition of a Lien on any material asset of
Seller or any Subsidiary.
(e) No Consent Required. No consent, approval, permit, authorization
or other action by or filing with, any Governmental Entity or any other
Person is required in connection with the execution, delivery and
performance by such Party of this Agreement or the consummation of the
transactions contemplated hereby.
Section 3.2 Seller. Seller hereby represents and warrants to Buyer as
follows:
(a) Offering. Neither Seller nor any Person acting on its behalf has
taken or will take any action (including, without limitation, any offering
of any securities of Seller under circumstances which would require, under
the Securities Act, the integration of such offering with the offering and
sale of the Preemptive Rights Stock) which might subject the offering,
issuance or sale of the Preemptive Rights Stock to the registration
requirements of Section 5 of the Securities Act.
(b) Ownership of Preemptive Rights Stock. The Preemptive Rights
Stock, when issued and delivered in accordance with the terms of this
Agreement, will be validly issued and outstanding, fully paid and
nonassessable, free and clear (except as set forth in Section 4.2(b) of
the Stock Purchase Agreement) of any and all proxies or proxy agreements,
voting trust arrangements and liens, and Seller may transfer and deliver
the Preemptive Rights Stock to Buyer at the Closing.
(c) Capitalization. Seller's authorized Seller Stock consists of the
shares set forth in Schedule 3.2(c) Part A, of which the shares set forth
in Schedule 3.2(c) Part B are issued and presently outstanding and held as
set forth therein. All outstanding shares have been validly issued, are
fully paid and nonassessable, were not issued in violation of the terms of
any Contract binding upon Seller and were issued in compliance with all
Corporate Documents of Seller.
(d) Options or Warrants. Except as provided for in Section 4.1(d) of
Stock Purchase Agreement and as set forth in Schedule 3.2(d), there are
(i) no existing Contracts, subscriptions, Options, Warrants, calls,
commitments or other rights of any kind to purchase or otherwise acquire
from Seller, at any time, or upon the happening of any stated event,
shares of the capital stock or other securities of Seller, whether or not
presently issued or outstanding; (ii) no outstanding securities of Seller
that are convertible into or exchangeable for capital shares or other
securities of Seller; (iii) no Contracts, subscriptions, Options,
Warrants, calls, commitments or rights to purchase or otherwise acquire
from Seller any such convertible or exchangeable securities; and (iv) no
preemptive rights with respect to the issuance of any shares of capital
stock of Seller.
3
Section 3.3 Buyer, re Private Placement. Buyer hereby represents and
warrants to Seller as follows:
(a) Buyer understands that the offering and sale of the Preemptive
Rights Stock is intended to be exempt from registration under the
Securities Act pursuant to Section 4(2) of the Securities Act and any
applicable state securities or blue sky laws.
(b) The Preemptive Rights Stock to be acquired by Buyer pursuant to
this Agreement is being acquired for its own account and without a view to
the resale or distribution of the Preemptive Rights Stock or any interest
therein other than in a transaction exempt from registration under the
Securities Act.
(c) Buyer is an "Accredited Investor" as such term is defined in
Regulation D under the Securities Act.
(d) Buyer has sufficient knowledge and experience in financial and
business matters so as to be capable of evaluating the merits and risks of
its investment in Stock and Buyer is capable of bearing the economic risks
of such investment, including a complete loss of its investment in Stock.
Buyer understands that its investment in the Preemptive Rights Stock
involves a high degree of risk.
(e) Buyer has been furnished with and carefully read a copy of the
Form 10-K, each of the Form 10-Q's and this Agreement and has been given
the opportunity to ask questions of, and receive answers from, Seller
concerning the terms and conditions of Stock and other related matters.
Seller has made available to Buyer or its agents all documents and
information relating to an investment in the Preemptive Rights Stock
requested by or on behalf of Buyer.
(f) Buyer understands that the Preemptive Rights Stock has not been
and, except as provided herein, are not being registered under the
Securities Act or any state securities laws, and may not be offered, sold,
pledged or otherwise transferred except in compliance with the Securities
Act or state securities laws.
Section 3.4 No Other Warranties. Except as otherwise provided herein,
there are no express or implied warranties that apply to the transactions
contemplated herein.
ARTICLE 4
APPLICABILITY OF STOCK PURCHASE AGREEMENT
Section 4.1 Applicability of Stock Purchase Agreement. The Preemptive
Rights Stock, when issued and delivered in accordance with the terms of this
Agreement, shall be subject to the terms of Section 2.6(b), Part Four, and Part
Five of the Stock Purchase Agreement as if it were "Stock" as defined in the
Stock Purchase Agreement, and shall be included in Seller Stock owned by Buyer
for all purposes under the Stock Purchase Agreement.
4
ARTICLE 5
MISCELLANEOUS
Section 5.1 Notices. All notices, consents, requests, demands and other
communications hereunder shall be given in the manner and to the addressees
designated in Section 7.1 of the Stock Purchase Agreement.
Section 5.2 Modification. This Agreement, including this Section 5.2,
shall not be modified except by an instrument in writing signed by or on behalf
of the Parties.
Section 5.3 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of Delaware as applied to
contracts made and performed within the State of Delaware, without regard to
principles of conflict of laws.
Section 5.4 Assignment Binding Effect. This Agreement may not be assigned
by either Party without the prior written consent of the other Parties, except
that Buyer may assign its rights and obligations to any wholly-owned Subsidiary
of Texaco Inc. This Agreement shall be binding upon and inure to the benefit of
the Parties and their respective successors and permitted assigns.
Seven 5.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
Section 5.6 Invalidity. If any of the terms, provisions, covenants or
restrictions of this Agreement is held by a court of competent jurisdiction to
be invalid, void or unenforceable and unless the invalidity, voidability or
unenforceability thereof does substantial violence to the underlying intent and
sense of the remainder of this Agreement, such invalidity, voidability or
unenforceability shall not affect in any way the validity or enforceability of
any other provision of this Agreement except those which the invalidated,
voided or unenforceable provision comprises an integral part of or is otherwise
clearly inseparable from. In the event any term, provision, covenant or
restriction is held invalid, void or unenforceable, the Parties shall attempt
to agree on a valid or enforceable provision which shall be a reasonable
substitute for such invalid or unenforceable provision in light of the tenor of
this Agreement and, on so agreeing, shall incorporate such substitute provision
in the Agreement.
Section 5.7 Entire Agreement. This Agreement contains the entire agreement
between the Parties hereto with respect to the transactions contemplated herein
and all prior or contemporaneous understandings and agreements shall merge
herein. There are no additional terms, whether consistent or inconsistent, oral
or written, which are intended to be part of the Parties' understandings which
have not been incorporated into this Agreement.
Section 5.8 Expenses. Except as the Parties may otherwise agree or as
otherwise provided herein, Buyer and Seller shall bear their respective fees,
costs and expenses in connection with this Agreement and the transactions
contemplated hereby.
5
Section 5.9 Waiver. No waiver by any Party, whether express or implied, of
any right under any provision of the Agreement shall constitute a waiver of
such Party's right at any other time or a waiver of such Party's rights under
any other provision of the Agreement unless it is made in writing and signed by
a duly authorized representative of a Party waiving the condition. No failure
by either Party hereto to take any action with respect to any breach of this
Agreement or Default by another Party shall constitute a waiver of the former
Party's right to enforce any provision of this Agreement or to take action with
respect to such breach or Default or any subsequent breach or Default by such
other Party.
Section 5.10 No Admissions. Nothing in this Agreement shall constitute any
admission, expressed or implicit, by the Parties of any wrongdoing. Nothing
herein expressed or implied is intended to confer upon any other Person any
rights or remedies hereunder.
Section 5.11 Survival. All of the covenants, agreements, representations
and warranties, and indemnities made by each Party contained in this Agreement
and in any Schedule, certificate or other document delivered by any such Party
pursuant hereto or in connection herewith shall survive for a period of three
years from the Closing Date.
Section 5.12 Arbitration. Sections 7.12 and 7.13 of the Stock Purchase
Agreement contain provisions regarding Dispute Resolution which shall govern
this Agreement. Such Sections are hereby incorporated herein by reference.
Section 5.13 Further Assurances. Seller and Buyer shall provide to each
other such information regarding the Preemptive Rights Stock as may be
reasonably requested and shall execute and deliver to each other such further
documents and take such further action as may be reasonably requested by either
Party to document, complete or give full effect to the terms and provisions of
this Agreement and the transactions contemplated herein.
6
IN WITNESS WHEREOF, the Parties hereto have entered into this Agreement as
of the date first herein above written.
ENERGY CONVERSION DEVICES, INC.
a Delaware corporation
By: /s/ Stanford R. Ovshinsky
----------------------------------------
Name: Stanford R. Ovshinsky
Title: President and CEO
By: /s/ Robert C. Stempel
----------------------------------------
Name: Robert C. Stempel
Title: Chairman
TRMI HOLDINGS INC.
a Delaware corporation
By: /s/ William M. Wicker
----------------------------------------
Name: William M. Wicker
Title: Vice President
Schedule 2.1
to
Preemptive Rights Stock Purchase Agreement
PREEMPTIVE RIGHTS STOCK
448,358 shares of Common Stock
8
Schedule 2.3
to
Preemptive Rights Stock Purchase Agreement
PURCHASE PRICE
Closing Date 29-Aug-01
------------ ---------
Date Closing Price
22-Aug-01 $19.570
23-Aug-01 $19.420
24-Aug-01 $20.650
27-Aug-01 $19.860
28-Aug-01 $19.680
Five-Day Average $19.836
Number of Shares Purchased 448,358
Total Purchase Price $8,893,629.29
9
Schedule 3.2(c)
to
Preemptive Rights Stock Purchase Agreement
CAPITALIZATION
Part A
Total number of shares of all classes of stock: 30,930,000 (of which 500,000
shares shall be Class A Common Stock and 430,000 shares shall be Class B Common
Stock).
Part B
ECD Issued and Outstanding Securities @ 8/7/01
----------------------------------------------
SECURITY AMOUNT
-------- ------
Class A Common Stock 219,913
Class B Common Stock 430,000
Common Stock 20,784,893
21,434,806
10
Schedule 3.2(d)
To
Preemptive Rights Stock Purchase Agreement
OPTIONS AND WARRANTS @ 8/7/01
Options Outstanding under plans satisfying Rule 16b-3 2,513,545
November 18, 1993 stock options pursuant to Stock Option
Agreements*, as amended, between ECD and S.R. Ovshinsky
and I.M. Ovshinsky (as of 6/30/01) 585,529
January 15, 1999 stock options pursuant to Stock Option
Agreement between Bob Stempel and ECD 300,000
GE Warrants (in connection with Optical Media JV) 400,000
JMS/Nolan Warrants to purchase one share of Common Stock
(Placement Agent Warrants in connection with '98 Offering) 70,000
---------
3,869,074
=========
---------
*Under the terms of the Stock Option Agreement dated November 18, 1993, the
number of options granted to Mr. and Dr. Ovshinsky are adjustable pursuant to
certain changes in capitalization.
11