As filed with the Securities and Exchange Commission on June 30, 1999.
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------------------
EVERCEL, INC.
(Exact name of registrant as specified in its charter)
Delaware 06-1528142
- ------------------------ ---------------------------------
(State of Incorporation) (IRS Employer Identification No.)
2 Lee Mac Avenue, Danbury, Connecticut 06810
--------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
EVERCEL, INC.
1999 DISTRIBUTION AGREEMENT
1998 EQUITY INCENTIVE PLAN
--------------------------
(Full title of the Plans)
Robert L. Kanode, President
Evercel, Inc.
2 Lee Mac Avenue
Danbury, Connecticut 06810
--------------------------
(Name and address of agent for service)
(203) 825-3900
--------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------
Title of securities to Amount to be Proposed maximum offering Proposed maximum Amount of
be registered registered price per share aggregate offering price registration
fee
- ---------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par 300,000 shares (1) $9.66 (2) $2,898,000 $806
value
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Represents 83,333 shares of Common Stock issuable to a certain director
of the Registrant pursuant to Section 2.10 of the Distribution Agreement between
the Registrant and Energy Research Corporation, dated as of February 16, 1999
and 216,667 shares of Common Stock issuable pursuant to awards granted or to be
granted under the Registrants' 1998 Equity Incentive Plan. Such presently
indeterminable number of additional shares of Common Stock are also registered
hereunder as may be issued in the event of a merger, consolidation,
reorganization, recapitalization, stock dividend, stock split or other similar
change in Common Stock.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, on the basis of the
average high and low prices for the Registrant's Common Stock on June 23, 1999,
as reported by the Nasdaq SmallCap Market.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
- ---------------------------------------------------------
The following documents are hereby incorporated by reference into this
Registration Statement:
(a) The Registrant's Prospectus dated February 22, 1999 filed pursuant to
Rule 424(b) under the Securities Act of 1933, as amended ("Securities Act") that
contains audited financial statements for the fiscal year ended October 31, 1998
included in Registrant's Registration Statement on Form SB-2 (Registration No.
333-64931) filed under the Securities Act on September 30, 1998, as amended
thereafter;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") since the end
of the fiscal year covered by the Prospectus referred to in (a) above;
(c) The material included in "Description of Securities" beginning on page
60 of the Prospectus referred to in (a) above which was incorporated by
reference in Item 1 of Registrant's Registration Statement on Form 8-A under the
Exchange Act filed with the SEC on April 2, 1999.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act, subsequent to the date hereof and prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed hereby incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
registration statement to the extent that a statement contained herein or in any
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement.
Item 4. Description of Securities.
- ----------------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
- ------------------------------------------------
The legality of the Common Stock issuable pursuant to Section 2.10 of the
Distribution Agreement between the Registrant and Energy Research Corporation,
dated as of February 16, 1999, and pursuant to awards granted or to be granted
under the Registrant's 1998 Equity Incentive Plan has been passed upon for the
Registrant by Brown, Rudnick, Freed & Gesmer, One Financial Center, Boston,
Massachusetts 02111.
Item 6. Indemnification of Directors and Officers.
- --------------------------------------------------
Article Ninth of the Registrant's Amended and Restated Certificate of
Incorporation eliminates the personal liability of directors to the Registrant
or its stockholders for monetary damages for breach of fiduciary duty to the
full extent permitted by Delaware law. Article Ninth also provides that the
Registrant may indemnify its officers and directors to the full extent permitted
by the Delaware General Corporation Law. Section 145 of the Delaware General
Corporation Law authorizes a corporation to indemnify directors, officers,
employees and agents of the corporation if such party acted in good faith in a
manner he believed to be in or not opposed to the best interest of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful, as determined in
accordance with the Delaware General Corporation Law. Section 145 further
provides that indemnification shall be provided if the party in question is
successful on the merits or otherwise. The effect of these
II-1
<PAGE>
provisions is to permit such indemnification by the Registrant for
liabilities arising under the Securities Act of 1933, as amended (the
"Securities Act"). The Registrant also expects to obtain directors and officers
liability insurance.
Item 7. Exemption from Registration Claimed.
- --------------------------------------------
Not applicable.
Item 8. Exhibits.
- -----------------
<TABLE>
<CAPTION>
Number Description
- ------ -----------
<S> <C>
4.1 Amended and Restated Certificate of Incorporation of the Registrant - Filed as Exhibit
3.1 to the Registrant's Registration Statement on Form 8-A (File No. 001-14919) filed
with the Securities and Exchange Commission ("SEC")on April 2, 1999.*
4.2 Amended and Restated By-Laws of the Registrant - Filed as Exhibit 3.2 to the Registrant's
Registration Statement on Form 8-A (File No. 001-14919) filed with the SEC on April 2, 1999.*
4.3 Specimen Certificate of Common Stock - Filed as Exhibit 4.1 to the Registrant's
Registration Statement on Form SB-2 (File No. 333-64931) filed with the SEC on September 30,
1998, as amended thereafter.*
5 Legal Opinion of Brown, Rudnick, Freed & Gesmer.
23.1 Consent of KPMG LLP.
23.2 Consent of Brown, Rudnick, Freed & Gesmer is included in their legal opinion filed as Exhibit
5 hereof.
24 Power of Attorney (included on the signature page of this Registration Statement).
99.1 Registrant's 1998 Equity Incentive Plan - Filed as Exhibit 10.5 to the Registrant's
Registration Statement on Form SB-2 (File No. 333-64931) filed with the SEC on September 30, 1998,
as amended thereafter.*
99.2 Section 2.10 of the Distribution Agreement between the Registrant and Energy Research
Corporation, dated as of February 16, 1999 - Filed as Exhibit 10.1 to the Registrant's
Quarterly Report on Form 10-QSB for the quarter ended January 31, 1999.*
- --------------
* Not filed herewith. In accordance with Rule 411 promulgated pursuant to the
Securities Act of 1933, as amended, reference is made to the documents
previously filed with the Commission, which are incorporated by reference
herein.
</TABLE>
Item 9. Undertakings.
- ----------------------
(a) 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 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.
II-2
<PAGE>
(2) That, for the purpose of determining liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) 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 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.
(c) 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 Act
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 whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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<PAGE>
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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Danbury, State of Connecticut, on June 15, 1999.
EVERCEL, INC.
By: /s/ Robert L. Kanode
------------------------
Robert L. Kanode
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Robert L. Kanode and Joseph G. Mahler and each of
them (with full power to each of them to act alone), his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
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 date indicated.
Signature Title Date
- --------- ----- ----
/s/ Robert L. Kanode
- -------------------- President and Chief Executive June 15, 1999
Robert L. Kanode Officer (Principal Executive
Officer) and Director
/s/ Joseph G. Mahler
- -------------------- Acting Chief Financial June 15, 1999
Joseph G. Mahler Officer, Treasurer and
Corporate Secretary (Principal
Financial and Accounting
Officer)
/s/ Jerry D. Leitman
- -------------------- Director June 15, 1999
Jerry D. Leitman
/s/ Allen Charkey
- ----------------- Director June 15, 1999
Allen Charkey
/s/ Bernard S. Baker
- -------------------- Director June 15, 1999
Bernard S. Baker
II-4
<PAGE>
/s/ Warren D. Bagatelle
- ----------------------- Director June 15, 1999
Warren D. Bagatelle
/s/ William A. Lawson
- --------------------- Director June 15, 1999
William A. Lawson
/s/ Richard M. H. Thompson
- -------------------------- Director June 15, 1999
Richard M.H. Thompson
/s/ James D. Gerson
- ------------------- Director June 15, 1999
James D. Gerson
/s/ Thomas L. Kempner
- --------------------- Director June 15, 1999
Thomas L. Kempner
II-5
<PAGE>
Exhibit Index
<TABLE>
<CAPTION>
Number Description Reference
- ------ ----------- ---------
<S> <C> <C>
4.1 Amended and Restated Certificate of Incorporation of the Registrant - Filed
as Exhibit 3.1 to the Registrant's Registration Statement on Form 8-A
(File No. 001-14919) filed with the Securities and Exchange Commission ("SEC")
on April 2, 1999.*
4.2 Amended and Restated By-Laws of the Registrant - Filed as Exhibit 3.2 to the
Registrant's Registration Statement on Form 8-A (File No. 001-14919) filed
with the SEC on April 2, 1999.*
4.3 Specimen Certificate of Common Stock - Filed as Exhibit 4.1 to the Registrant's
Registration Statement on Form SB-2 (File No. 333-64931) filed with the SEC on
September 30, 1998, as amended thereafter.*
5 Legal Opinion of Brown, Rudnick, Freed & Gesmer.
23.1 Consent of KPMG LLP.
23.2 Consent of Brown, Rudnick, Freed & Gesmer is included in their legal opinion filed
as Exhibit 5 hereof.
24 Power of Attorney (included on the signature page of this Registration Statement).
99.1 Registrant's 1998 Equity Incentive Plan - Filed as Exhibit 10.5 to the Registrant's
Registration Statement on Form SB-2 (File No. 333-64931) filed with the SEC on
September 30, 1998, as amended thereafter.*
99.2 Section 2.10 of the Distribution Agreement between the Registrant and Energy Research
Corporation, dated as of February 16, 1999 - Filed as Exhibit 10.1 to the Registrant's
Quarterly Report on Form 10-QSB for the quarter ended January 31, 1999.*
- --------------
* Not filed herewith. In accordance with Rule 411 promulgated pursuant to the
Securities Act of 1933, as amended, reference is made to the documents
previously filed with the Commission, which are incorporated by reference
herein.
</TABLE>
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<PAGE>
Consent of Independent Accountants
The Board of Directors
Evercel, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of Evercel, Inc. of our report dated January 22, 1999, except as to the
third paragraph of note 11 which is as of February 5, 1999, relating to the
balance sheet of the Battery Business Group of Energy Research Corporation as of
October 31, 1998 and the related Statements of Operations and Cash Flows for the
years ended October 31, 1997 and 1998; and our report dated January 22, 1999,
relating to the balance sheet of Evercel, Inc. as of October 31, 1998, which
reports appear in the registration statement (No. 333-64931) on Form SB-2, as
amended on February 9, 1999, of Evercel, Inc.
Stamford, CT
June 25, 1999
<PAGE>
JAYNE M. DONEGAN, ESQ.
DIRECT DIAL (401)276-2612
E-MAIL ADDRESS: [email protected]
June 30, 1999
Evercel, Inc.
2 Lee Mac Avenue
Danbury, Connecticut 06810
RE: Evercel, Inc. Registration Statement on Form S-8
Ladies and Gentlemen:
We are general counsel to Evercel, Inc., a Delaware corporation (the
"Company"). We have been asked to deliver this opinion in connection with the
preparation and filing with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Act"), of a Registration Statement on
Form S-8 (the "Registration Statement") relating to 83,333 shares (the
"Distribution Agreement Shares") of the Company's Common Stock, $.01 par value
("Common Stock") issuable pursuant to Section 2.10 of the Distribution Agreement
(the "Distribution Agreement") between the Company and Energy Research
Corporation, dated as of February 16, 1999, and 216,667 shares of Common Stock
(collectively with the Distribution Agreement Shares, the "Shares") issuable
pursuant to awards granted or to be granted under the Company's 1998 Equity
Incentive Plan (the "1998 Plan").
In connection with this opinion, we have examined and are familiar with
originals or copies, certified or otherwise identified to our satisfaction, of
the following documents (collectively, the "Documents"):
1. A copy of the Amended and Restated Certificate of Incorporation of the
Company, as in effect on the date hereof;
2. A copy of the Amended and Restated By-laws of the Company, as in effect
on the date hereof;
3. Records of the meetings of the Board of Directors and the
stockholders of the Company relating to the approval of the
Distribution Agreement and the 1998 Plan;
<PAGE>
Evercel, Inc.
June 30, 1999
Page 2
4. The Distribution Agreement;
5. The 1998 Plan; and
6. The Registration Statement.
In giving our opinion, we have relied as to matters of fact upon
certificates of public officials and officers of the Company. For purposes of
this opinion we have assumed without any investigation (1) the legal capacity of
each natural person and (2) the genuineness of each signature, the completeness
of each document submitted to us as an original and the conformity with the
original of each document submitted to us as a copy.
Our opinion hereafter expressed is based solely upon (1) our review of
the Documents, (2) discussions with certain officers of the Company with respect
to the Documents, (3) discussions with those of our attorneys who have devoted
substantive attention to the matters contained herein and (4) such review of
published sources of law as we have deemed necessary.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized and, when issued in accordance with the terms
of the Distribution Agreement and the 1998 Plan, respectively, the Shares will
be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the reference to our firm wherever it appears in
the Registration Statement.
Very truly yours,
BROWN, RUDNICK, FREED & GESMER
By: Brown, Rudnick, Freed & Gesmer, Ltd.,
a partner
By: /s/ Jayne M. Donegan
--------------------
Jayne M. Donegan, a Member duly authorized
PJF/JMD
<PAGE>
