SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q SB
[Mark One]
[X] QUARTERLY REPORT UNDER TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended January 31, 1999
OR
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the transition period from _________ to __________
Commission file number 0-25411
EVERCEL,INC.
(Exact name of small business issuer as specified in its charter)
Delaware 06-1528142
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
3 Great Pasture Road, Danbury, Connecticut 06813
Address of principal executive offices) (Zip code)
Issuer's telephone number including area code: (203) 825-6000
- --------------------------------------------------------------------------------
(Former name, former address and former fiscal year,
if changed since last report)
Check whether the issuer: (1) filed all reports required to be filed by Section
13 or 15(d) of the Securities Exchange Act of 1934 during the past 12 months (or
for such shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90 days.
[ ] Yes [X] No
APPLICABLE ONLY TO CORPORATE ISSUERS:
The number of shares outstanding of the issuer's common stock, par value $.01,
as of April 5, 1999, was 2,310,771.
Transitional Small Business Disclosure Format (check one):
[ ] Yes [X] No
<PAGE>
EVERCEL, INC.
FORM 10-Q SB
INDEX
PART I - FINANCIAL INFORMATION PAGE
- ------------------------------ ----
Item 1. Unaudited Condensed Financial Statements:
Condensed Balance Sheet as of January 31, 1999 2
Condensed Statements of Operations for the three
months ended January 31, 1999 and January 31, 1998 3
Condensed Statements of Cash Flows for the three
months ended January 31, 1999 and January 31, 1998 4
Notes to Unaudited Condensed Financial Statements 5
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 10
PART II - OTHER INFORMATION
- ---------------------------
Item 5. Other Information 13
Item 6. Exhibits and Reports on Form 8-K 13
Signatures 14
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EVERCEL, INC.
CONDENSED BALANCE SHEET
(Dollars in thousands)
(Unaudited)
January 31,
1999
----
ASSETS
CURRENT ASSETS:
Cash $ 1
Accounts receivable 36
Inventories 235
------
Total current assets 272
------
Property, plant and equipment:
Cost 1,892
Accumulated depreciation 866
------
Net 1,026
Other assets 523
------
TOTAL ASSETS $1,821
LIABILITIES AND NET ASSETS
CURRENT LIABILITIES:
Accrued liabilities $ 98
Accounts payable 33
Notes Payable 821
------
Total current liabilities 952
------
Deferred income tax liability 17
------
Total liabilities 969
------
Net assets of Evercel, Inc. 852
------
TOTAL LIABILITIES AND NET ASSETS $1,821
======
See accompanying notes to financial statements.
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EVERCEL, INC.
CONDENSED STATEMENTS OF OPERATIONS
(Dollars in thousands, except share and per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended January 31,
------------------------------
1999 1998
----------- -----------
<S> <C> <C>
Revenues:
Contracts $ -- $ 2
License fee income -- 125
----------- -----------
Total revenues -- 127
----------- -----------
Cost & expenses:
Cost of revenues -- 4
Depreciation & amortization 11 10
Administrative and selling expenses 300 249
Research & development 566 369
----------- -----------
877 632
----------- -----------
(Loss) from operations before income tax (benefit) (877) (505)
Income tax (benefit) (360) (172)
----------- -----------
Net (loss) $ (517) $ (333)
=========== ===========
Pro forma, net loss per share (basic and diluted) $ (.37) $ (.24)
=========== ===========
Pro forma weighted average shares (basic and diluted) 1,389,000 1,389,000
=========== ===========
Pro forma, net loss per share (basic and diluted),
as adjusted $ (.19) $ (.12)
=========== ===========
Pro forma weighted average shares (basic and diluted),
as adjusted 2,778,000 2,778,000
=========== ===========
</TABLE>
See accompanying notes to financial statements.
3
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EVERCEL, INC.
CONDENSED STATEMENTS OF CASH FLOWS
(Dollars in thousands)
(Unaudited)
Three Months Ended
January 31,
1999 1998
------- -------
Cash flows from operating activities:
Net (loss) $ (517) $ (333)
Depreciation and amortization 11 10
Changes in operating assets and liabilities:
Accounts receivable (19) 16
Inventory (235) --
Other current assets -- 42
Other assets (190) --
Accounts payable (20) 13
Accrued liabilities 18 11
------- -------
Net cash(used in)operating activities (952) (241)
------- -------
Cash flows from investing activities:
Capital expenditures (212) --
------- -------
Net cash (used in)investing activities (212) --
------- -------
Cash flows from financing activities:
Funding of operations provided by ERC 946 241
Increase in short term borrowings 218 --
------- -------
Net cash provided by financing activities 1,164 241
Net increase/(decrease) in cash -- --
Cash, beginning of period -- --
Cash, end of period $ -- $ --
======= =======
See accompanying notes to financial statements
4
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Part I - Financial Information
Item 1. Financial Statements
EVERCEL, INC.
NOTES TO UNAUDITED CONDENSED
FINANCIAL STATEMENTS
NOTE 1: BASIS OF PRESENTATION
The accompanying condensed financial statements for Evercel, Inc. ("the
Company"), have been prepared in accordance with generally accepted accounting
principles for interim financial information and with the instructions to Form
10-QSB and Item 310(b)of S-B. In the opinion of management, all adjustments
(consisting only of normal recurring adjustments) necessary to present fairly
the financial position of the Company as of January 31, 1999 and the results of
operations for the three months ended January 31, 1999 and 1998 and cash flows
for such three month periods have been included.
The accompanying financial statements are presented as if the Company had
existed as a corporation separate from Energy Research Corporation ("ERC"), the
former parent of the Company, for the periods presented and include the
historical assets, liabilities, revenues and expenses that are directly related
to the business that will comprise the Company's operations.
For the periods presented certain general and administrative expenses reflected
in the financial statements include allocations of certain corporate expenses
from ERC, which took into consideration personnel, space, estimates of time
spent to provide services, or other appropriate bases. Management believes the
foregoing allocations were made on a reasonable basis; however, they do not
necessarily equal the costs which would have been or will be incurred by the
Company on a stand-alone basis.
The financial information included herein may not necessarily reflect the
financial position and results of operations of the Company in the future or
what the financial position and results of operations of the Company would have
been had it been a separate, stand-alone company during the periods covered.
In September 1998, the (ERC) Board of Directors approved a restructuring
program. This program included an intention to separate ERC into two publicly
held companies: Evercel, Inc., a newly formed corporation which will own and
operate the Battery Business Group, and ERC, which will continue to own and
operate its fuel cell business. On February 22, 1999 the ERC Board of Directors
declared a special distribution (the "Distribution") of one share of common
stock of Evercel, Inc. for every three shares of ERC common stock outstanding.
The Distribution was treated as a tax-free dividend for tax reporting purposes.
The "Company" refers to Evercel, Inc. or the Battery Business Group of ERC, as
appropriate.
Immediately after the Distribution, the Company granted at no cost to holders of
its common stock as of February 22, 1999, transferable subscription rights to
subscribe for and purchase additional shares of the Company common stock (a
"Right"). Each holder of common stock of the Company received one transferable
Right for each share of common stock
5
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held. Each Right was exercisable to purchase one share of common stock of the
Company at a purchase price of $6.00 per share ("Subscription Price").
Each holder of Rights who elected to exercise his right to purchase for the
Subscription Price a share of common stock for each Right held ("Basic
Subscription Privilege"), could also subscribe at the Subscription Price for an
unlimited number of additional Underlying Shares (the "Oversubscription
Privilege") that were not otherwise purchased pursuant to the Basic Subscription
Privilege.
In connection with the completion of the Rights offering on April 5, 1999,
2,310,771 shares of common stock will be issued of which 1,389,000 were as a
result of the distribution and 921,771 shares were rights exercised at $6.00 per
share. Pursuant to the Standby Underwriting Agreement with Loeb Partners
Corporation and Burnham Securities Inc., an additional 467,227 shares will be
issued on April 12, 1999.
The Company intends to use the net proceeds from the Rights offering to lease
and equip a new facility for limited production and manufacturing purposes, to
repay outstanding indebtedness, and for working capital and other general
corporate purposes.
The Company operates as a separate, publicly held corporation. In order to
effect the segregation of these businesses, prior to the Distribution, effective
February 16, 1999 ERC transferred to the Company the principal assets related to
its Battery Business Group and certain liabilities related to those assets.
The results of operations for the three months ended January 31, 1999 and 1998
are not necessarily indicative of the results to be expected for the full year.
The reader should supplement the information in this document with disclosures
in the Company's Registration Statement.
NOTE 2: LICENSE AGREEMENTS AND SIGNIFICANT CONTRACTS
On May 29, 1998, ERC entered into a Technology Transfer and License Contract
(the "License Contract") with Xiamen Three Circles Co., Ltd. ("Xiamen"). In
connection with this transaction, ERC received $3,000 in payment for granting a
license of its nickel-zinc ("Ni-Zn") batteries to Xiamen. As required by the
License Contract, ERC entered into a Joint Venture Contract with Xiamen on July
24, 1998 for the construction of a manufacturing facility for the production of
Ni-Zn batteries. As a result, Xiamen Three Circles-ERC Battery Corp., Ltd. (the
"Joint Venture") was formed. The Joint Venture will manufacture batteries for
electric bicycles, scooters, wheel chairs, miners cap lamps and other
applications for sale within the licensed territories. In accordance with the
License Contract requirements, ERC contributed the $3,000 license fee received
plus an additional $80 to the Joint Venture in exchange for a 50.5% ownership
interest.
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In connection with the spin-off, ERC and the Company entered into a License
Assistance Agreement pursuant to which the Company will provide all services and
assistance necessary for the Company to effectively fulfill, on behalf of ERC,
all of ERC's obligations under the Joint Venture Contract and the License
Contract, until such time as ERC obtains the approval for the assignment of the
agreements to the Company. In return for such assistance, ERC will pay the
Company an amount equal to the sum of all money, dividends, profits,
reimbursements, distributions and payments actually paid to ERC in cash or in
kind or otherwise accruing to ERC pursuant to the Joint Venture Contract and the
License Contract. All expenses and costs incurred by the Company in meeting the
obligations under the License Assistance Agreement shall be solely those of the
Company, and ERC shall not be liable for their payment. The Company will account
for its involvement in the Joint Venture under the License Assistance Agreement
in a manner similar to the equity method of accounting.
In February 1998, ERC entered into a license agreement (the NanYa License
Agreement) with a joint venture between NanYa Plastics Corporation of Taiwan and
Xiamen for the use of the Company's Ni-Zn batteries in electric vehicles and
hybrid electric vehicles in China, Taiwan, Hong Kong and Macao on an exclusive
basis and for certain other Southeast Asian countries on a non-exclusive basis.
Under the NanYa License Agreement, which was assigned by ERC to the Company
pursuant to the Distribution Agreement, the joint venture would be required to
pay $2,000 to the Company upon completion of certain conditions, and a final
payment of $1,500 upon completion of duplication of the battery at its
facilities in China. In addition, the NanYa License Agreement requires the
licensee to pay to the Company royalties on sales of batteries during the term
of the Agreement. The NanYa License Agreement provides that the licensor has the
right to invest the final payment in equity in the joint venture manufacturing
and sales organization formed between NanYa Plastics and Xiamen. ERC has agreed
to seek the consent of the other parties to the NanYa License Agreement to the
assignment of such agreement to the Company.
As part of the separation of the Company's business from ERC, the Company
entered into various agreements with ERC including a Distribution Agreement, Tax
Sharing Agreement, Service Agreement and License Assistance Agreement.
The Distribution Agreement provides for, among other things, the principal
corporate transactions required to effect the Distribution, the transfer to the
Company of the assets of the battery business, the division between ERC and the
Company of certain liabilities and obligations, the distribution by ERC of all
outstanding shares of the Company common stock to ERC stockholders and certain
other agreements governing the relationship between ERC and the Company after
the Distribution. Subject to certain exceptions, the Distribution Agreement
provides for assumptions of obligations and liabilities and cross-indemnities
designed to allocate financial responsibility for the obligations and
liabilities arising out of or in connection with the battery business to the
Company and financial
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responsibility for the obligations and liabilities arising out of or in
connection with the fuel cell business to ERC.
The Tax Sharing Agreement defines the parties' rights and obligations with
respect to the filing of returns, payments, etc. relating to ERC's business for
periods prior to and including the Distribution and with respect to certain tax
attributes of ERC after the distribution.
The Services Agreement provides that ERC will provide to the Company certain
management and administrative services, as well as the use of certain office,
research and development, manufacturing and support facilities and services of
ERC. The Services Agreement shall continue until terminated by either party upon
120 days' notice. In addition, the Company may terminate the Services Agreement
as to one or more of the Services upon 60 days' notice to ERC.
The types of services provided pursuant to the Services Agreement by ERC,
through its employees, include financial reporting, accounting, auditing, tax,
office services, payroll, human resources, analytical lab, microscopic analysis,
machine shop and drafting, as well as the part time management services of ERC's
Chief Executive Officer and Chief Financial Officer. ERC also provides office,
research and development and manufacturing space for the Company. The method of
calculating the applicable charges paid by the Company for each type of service
are set forth in the Services Agreement; such charges are payable quarterly.
The Company estimates that the net fees to be paid to ERC for services performed
will initially be approximately $212 per quarter, excluding certain services
billed on the basis of usage, such as purchasing, analytical lab, microscope
analysis, machine shop and drafting, which amount takes into account ERC's
additional costs related to providing such services, and will decline as the
services performed decrease. The Company presently expects that most of such
services will be provided by ERC for approximately one year.
In order for ERC to transfer the Joint Venture contract and the Three Circles
License Agreement to the Company, ERC must obtain the consent of Xiamen Three
Circles Co., Ltd. and the Joint Venture and the approval of the appropriate
examination and approval authority of the People's Republic of China. ERC has
agreed to seek these consents and approvals, however, there can be no assurance
that these consents and approvals will be obtained on a timely basis or at all.
Pending receipt of these consents and approvals, ERC and the Company have
entered into a License Assistance Agreement pursuant to which ERC has retained
the Company to provide all services and assistance necessary for the Company to
effectively fulfill, on behalf of ERC, all of ERC's obligations under the Joint
Venture contract and Three Circles License Agreement in exchange for payment to
the Company by ERC of all remuneration paid and other benefits accruing to ERC
pursuant to such agreements.
8
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On December 22, 1998, The Company entered into a commitment to borrow up to
$1,000 from First Union National Bank (the "First Union Line of Credit") for the
purpose of acquiring machinery and equipment for the new battery manufacturing
plant. On February 17, 1999, the Company borrowed an additional $647, from First
Union. As of February 17, 1999, the Company had borrowed $468 against this
commitment. ERC has unconditionally guaranteed the commitment and has pledged
$1,647 of cash against the Notes. The Notes are payable from the proceeds of the
Rights Offering.
On January 15, 1999, the Company, Inc. entered into a lease for manufacturing
and office space in Danbury, CT. The lease term is five years with an option to
extend for an additional five years. The annual rent is $171 for the first three
years and increases to $178 in year four and $185 in year five. ERC has
guaranteed the performance of the lease (the "Lease Guaranty"). In the event of
a default by Evercel, ERC's liability is limited to $500 reduced each
anniversary date of the lease by $100. Notwithstanding the foregoing, the
guaranty terminates after the first anniversary of the lease upon Evercel's net
worth exceeding $3,000.
On February 5, 1999, the Company entered into a Loan Agreement and Line of
Credit Note (the "Line of Credit") to borrow up to $3,450 (including borrowings
noted above) from ERC for working capital and proposed capital expenditures. Any
outstanding borrowings will be secured by all of the tangible and intangible
personal property and bear interest at the London Interbank Offered Rate (LIBOR)
plus 1 1/2%, payable monthly in arrears. The $3,450 Line of Credit represents
the maximum borrowing limit and is reduced by the sum of the following: a) any
outstanding advances under the First Union Line of Credit; b) any amounts ERC
has paid on account of the Lease Guaranty; c) the net proceeds received on
account of any sale or issuance of any equity securities by the Company,
including the Rights Offering; and d) the amount of any loans (excluding the
First Union Line of Credit) obtained by the Company after the date of this
agreement, including the present value of the Company's lease obligations. The
Line of Credit terminates on August 5, 2000 or the date on which the Company has
received net proceeds from items c) and d) of at least $3,450, whichever is
earlier. In connection with the completion of the Rights offering, the Company
anticipates receiving $5,530 from the issuance of common stock on or about April
5, 1999, and under its Standby Underwriting Arrangement an additional $2,802 on
or about April 12, 1999. Upon receipt of these proceeds the line of credit
terminates pursuant to its terms.
9
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EVERCEL, INC.
NOTES TO UNAUDITED CONDENSED
FINANCIAL STATEMENTS
CONTINUED
NOTE 3: PRO FORMA LOSS PER SHARE
The pro forma weighted average shares of 1,389,000 reflect the distribution of
one share of common stock of Evercel, Inc. for every three shares of ERC common
stock outstanding as of February 22, 1999. The pro forma weighted average shares
as adjusted of 2,778,000 reflect both the distribution and the subsequent rights
offering.
The computation of diluted loss per share for the first quarter of fiscal 1999
follows the basic calculation since common stock equivalents were antidilutive.
The weighted average number of options outstanding for the period ending January
31, 1999 is 166,666.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION
Results of Operations
Comparison Three Months Ended January 31, 1999 and January 31, 1998
The Company had no revenues in the first quarter of fiscal 1999 as compared to
$127,000 for the same period last fiscal year. The decline was due to the
termination in May 1998 of a license agreement with Corning, Inc.
The Company had no cost of revenues in the first quarter of fiscal 1999 as
compared to $4,000 for the same period last fiscal year. The lack of cost is
attributable to having no revenues as previously mentioned.
Administrative and selling expense increased 20% to $300,000 in the first
quarter of fiscal 1999 from $249,000 in the same period last fiscal year. The
current quarter costs reflect an increase in costs related to efforts to
commercialize the Company's battery technology. These costs allocated based upon
research and development activity and administrative activity. Depreciation
remained relatively unchanged quarter to quarter.
Research and development expense increased 53% to $566,000 in the first quarter
of fiscal 1999 from $369,000 in the same period last fiscal year. This was a
result of increased costs as compared to the same period last fiscal year
relating to the commercialization of the Company's battery technology.
The Company has recorded a tax benefit for its losses in each quarter at the
rate of 41% and 34% respectively. Subsequent to the Distribution, the Company's
income tax provision will be recorded on a separate company basis pursuant to
the requirements of Financial Accounting Standard No. 109 "Accounting for Income
Taxes."
10
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Liquidity and Capital Resources
Historically, the Company has obtained all of its financial needs from ERC. ERC
has provided funding for all battery research activities under its research and
development expense budget. ERC has also provided all of the funding for capital
expenditures for the purchase of machinery and equipment for all battery
activities.
Working capital at January 31, 1999 was a negative $680,000 as compared to a
negative $718,000 at October 31, 1998. To date, ERC has provided all of the
working capital needs of the Company.
The Company has entered into a lease for manufacturing and office space in
Danbury, CT. The lease term is five years with a five-year option to extend. The
annual rent is $171,000 for the first three years and increases to $178,125 in
year four and $185,250 in year five. ERC has guaranteed the Company's
performance of this lease. In the event of a default by the Company, ERC's
liability is limited to $500,000 reduced each anniversary date of the lease by
$100,000. Notwithstanding the foregoing, ERC's guaranty terminates after the
first anniversary of the lease upon the Company's net worth exceeding
$3,000,000.
The Company has entered into an agreement pursuant to which it can borrow up to
$1,000,000 from First Union National Bank for the purpose of acquiring machinery
and equipment for the Company's new battery manufacturing plant. As of January
31, 1999, the Company had borrowed $821,000 under this facility. On February 17,
1999 the Company borrowed an additional $647,000 from First Union. The notes are
due on June 30, 1999. ERC has unconditionally guaranteed the commitment and has
pledged $1,647,000 of cash against the Notes. The Note are payable from the
proceeds of the Rights offering to be received on April 5, 1999.
Additionally, on February 5, 1999, the Company entered into a Loan Agreement and
Line of Credit Note to borrow up to $3,450,000 (including borrowings noted
above) from ERC for working capital and capital expenditures. The line of credit
is anticipated to terminate on April 5, 1999 the date on which the Company will
receive the net proceeds amounting to $5,530, from the Rights Offering.
The Company anticipates that is will raise at least $7,000,000 of net proceeds
from the Rights Offering including funds to be received from the sale of
unsubscribed shares to Loeb Partners Corporation and Burnham Securities Inc.
pursuant to a Standby Underwriting Agreement. The Company believes that these
net proceeds, together with license payments anticipated to be received under
the NanYa License Agreement, will be sufficient to support its planned
operations for at least the next twelve months. The Company estimates that it
will use at least $3,450,000 of cash to support its operations during this
period, primarily to lease and equip a new facility for limited production and
manufacturing purposes, to repay
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outstanding indebtedness, and for working capital and other general corporate
purposes. The Company's cash requirements will vary depending upon a number of
factors, many of which are beyond the control of the Company, including the
demand for the Company's products, the efforts and success of the Company's
licensees and joint venture partners in developing and marketing products
incorporating the Company's technology, the development of battery markets, the
level of competition faced by the Company and the ability of the Company to
develop, market and license new products and effectively manage operating
expenses. If and when the Company is required to raise additional funds, there
can be no assurance that the Company will be able to do so on favorable terms if
at all. Failure of the Company to raise funds required to support its operations
would have a material adverse effect on the Company's business, financial
condition and results of operations.
Under the NanYa License Agreement, the Company expects to receive license fee
income upon the successful completion of two battery tests required by that
Agreement. The Company expects to receive a portion of this license fee income
during fiscal 1999, assuming the first test's successful completion, and the
remainder of the license fee income in fiscal year 2000 upon the duplication of
the battery and the first test's results. The amount of these payments is
expected to be $2,000,000 and $1,500,000 in fiscal years 1999 and 2000,
respectively.
The Company expects that to continue to enter into license agreements, to
participate in joint manufacturing ventures and to expand its battery
manufacturing facilities, for which the Company may require additional capital.
Year 2000 Compliance
The Year 2000 issue is a computer programming concern that may adversely affect
the Company's information technology systems. The Company believes that it has
taken reasonable steps to implement a Year 2000 compliance program designed to
ensure that the Company's computer systems and applications will function
properly beyond 1999. The Company believes that adequate resources have been
allocated for this purpose. The Company does not expect to incur significant
expenditures to address this issue. However, there can be no assurance that the
Company will identify all Year 2000 problems in advance of their occurrence or
that the Company will be able to successfully remedy any problems that are
discovered. The expenses of the Company's efforts to address such problems, or
the expenses or liabilities to which the Company may become subject as a result
of such problems, could have a material adverse effect on the Company's
business, results of operations and financial condition. In addition, the
revenue stream and financial stability of existing or future licensees, joint
venture partners or customers may be adversely impacted by Year 2000 problems,
which could cause fluctuations in the Company's revenues and operating
profitability.
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Part II - Other Information
Item 5. Other Information
On March 22, 1999 the Board of directors of the Company appointed Robert L.
Kanode as the President and Chief Executive Officer of the Company. Mr. Kanode
joins the Company from Varta Batteries Inc., a subsidiary of Varta AG,(Hanover,
Germany), where he has served as President since 1996 and where he was Vice
President of Sales and Marketing during 1996. Prior to his position at Varta,
Mr. Kanode held various positions at IBM since 1981, including positions on the
IBM ThinkPad team, from 1991 through 1996.
Item 6. Exhibits and Reports on Form 8-K
EXHIBIT INDEX
(a) EXHIBIT DESCRIPTION
- -----------------------
EXHIBIT NO.
10.1 Distribution Agreement, dated February 16, 1999 between
the Company and ERC;
10.2 Services Agreement, dated February 22, 1999 between the
Company and ERC;
10.3 License Assistance Agreement, dated February 16, 1999
between the Company and ERC;
10.4 Tax Sharing Agreement, dated February 16, 1999 between
the Company and ERC
10.5 Employment Agreement, dated as of March 23, 1999
between the Company and Robert L. Kanode
27 Financial Data Schedule
(b) Reports On Form 8-K
NONE
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SIGNATURES
In accordance with the requirements of the Securities Exchange Act of 1934, the
issuer caused this report to be signed on its behalf by the undersigned
thereunto duly authorized.
EVERCEL, INC.
/s/ Joseph G. Mahler
---------------------------------
Joseph G. Mahler
Acting Chief Financial Officer,
Treasurer and Secretary
Dated: April 5, 1999
14
DISTRIBUTION AGREEMENT
BY AND BETWEEN
ENERGY RESEARCH CORPORATION
AND
EVERCEL, INC.
DATED AS OF
FEBRUARY 16, 1999
<PAGE>
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS.........................................................1
ARTICLE II. TRANSFER OF ASSETS.................................................6
SECTION 2.01. TRANSFER OF ASSETS TO EVERCEL...................................6
SECTION 2.02. CONSIDERATION FOR ASSET TRANSFERS...............................7
SECTION 2.03. TRANSFERS NOT EFFECTED PRIOR TO THE DISTRIBUTION................7
SECTION 2.04. COOPERATION RE: ASSETS.........................................8
SECTION 2.05. NO REPRESENTATIONS OR WARRANTIES; CONSENTS......................8
SECTION 2.06. CONVEYANCING AND ASSUMPTION INSTRUMENTS.........................9
SECTION 2.07. CASH MANAGEMENT.................................................9
SECTION 2.08. RETAINED LICENSE TO USE TECHNOLOGY.............................10
ARTICLE III. ASSUMPTION AND SATISFACTION OF LIABILITIES.......................12
SECTION 3.01. ASSUMPTION AND SATISFACTION OF LIABILITIES.....................12
ARTICLE IV. THE DISTRIBUTION..................................................12
SECTION 4.01. COOPERATION PRIOR TO THE DISTRIBUTION..........................12
SECTION 4.02. ERC BOARD ACTION; CONDITIONS PRECEDENT TO THE DISTRIBUTION.....12
SECTION 4.03. THE DISTRIBUTION...............................................13
ARTICLE V. INDEMNIFICATION....................................................13
SECTION 5.01. INDEMNIFICATION BY ERC.........................................13
SECTION 5.02. INDEMNIFICATION BY EVERCEL.....................................14
SECTION 5.03. INSURANCE PROCEEDS.............................................14
SECTION 5.04. PROCEDURE FOR INDEMNIFICATION..................................15
SECTION 5.05. REMEDIES CUMULATIVE............................................17
SECTION 5.06. SURVIVAL OF INDEMNITIES........................................17
ARTICLE VI. CERTAIN ADDITIONAL MATTERS........................................17
SECTION 6.01. CERTAIN POST-DISTRIBUTION TRANSACTIONS.........................17
SECTION 6.02. NOTICES BY ERC.................................................18
ARTICLE VII. ACCESS TO INFORMATION AND SERVICES...............................18
SECTION 7.01. PROVISION OF CORPORATE RECORDS.................................18
SECTION 7.02. ACCESS TO INFORMATION..........................................18
SECTION 7.03. PRODUCTION OF WITNESSES........................................19
SECTION 7.04. REIMBURSEMENT..................................................19
SECTION 7.05. RETENTION OF RECORDS...........................................19
SECTION 7.06. CONFIDENTIALITY................................................19
SECTION 7.07. PRIVILEGED MATTERS.............................................20
ARTICLE VIII. INSURANCE.......................................................22
SECTION 8.01. POLICIES AND RIGHTS INCLUDED WITHIN THE EVERCEL ASSETS.........22
SECTION 8.02. POST-DISTRIBUTION DATE CLAIMS..................................22
SECTION 8.03. ADMINISTRATION AND RESERVES....................................22
SECTION 8.04. AGREEMENT FOR WAIVER OF CONFLICT AND SHARED DEFENSE............23
ARTICLE IX. MISCELLANEOUS.....................................................23
SECTION 9.01. COMPLETE AGREEMENT; CONSTRUCTION...............................23
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SECTION 9.02. EXPENSES.......................................................24
SECTION 9.03. GOVERNING LAW..................................................24
SECTION 9.04. NOTICES........................................................24
SECTION 9.05. AMENDMENTS; WAIVERS............................................25
SECTION 9.06. SUCCESSORS AND ASSIGNS.........................................25
SECTION 9.07. TERMINATION....................................................25
SECTION 9.08. NO THIRD-PARTY BENEFICIARIES...................................25
SECTION 9.09. TITLES AND HEADINGS............................................25
SECTION 9.10. EXHIBITS AND SCHEDULES.........................................25
SECTION 9.11. LEGAL ENFORCEABILITY...........................................26
SECTION 9.12. ARBITRATION OF DISPUTES........................................26
SECTION 9.13. COUNTERPARTS...................................................27
SECTION 9.14. RELATIONSHIP OF PARTIES........................................27
SECTION 9.15. FURTHER ACTION.................................................27
SECTION 9.16. PREDECESSORS AND SUCCESSORS....................................27
SCHEDULES.....................................................................29
EXHIBIT A: FORM OF SERVICES AGREEMENT
EXHIBIT B: FORM OF TAX SHARING AGREEMENT
EXHIBIT C: FORM OF LICENSE ASSISTANCE AGREEMENT
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DISTRIBUTION AGREEMENT
This DISTRIBUTION AGREEMENT (this "Agreement") is made as of this 16th day
of February, 1999 by and between Energy Research Corporation, a New York
corporation ("ERC"), and Evercel, Inc., a Delaware corporation and wholly-owned
subsidiary of ERC ("Evercel").
RECITALS
WHEREAS, the Board of Directors of ERC has determined that it is in the
best interests of its stockholders to transfer to Evercel certain principal
assets related to ERC's battery business group and for Evercel to assume certain
liabilities related to such assets (the "Asset Transfers") in consideration for
shares of Evercel Common Stock, and thereafter to distribute all of the
outstanding shares of Evercel Common Stock that are held by ERC to the holders
of ERC common stock (the "Distribution");
WHEREAS, in connection with the Distribution, ERC and Evercel have
determined that it is necessary and desirable to set forth the principal
corporate transactions required to effect the Asset Transfers and the
Distribution, and to set forth the agreements that will govern certain matters
following the Distribution.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained in this Agreement, the parties hereby agree as follows:
ARTICLE I.
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
ACTION: Any action, claim, suit, arbitration, inquiry, proceeding or
investigation by or before any court, any governmental or other regulatory or
administrative agency or commission or any arbitration tribunal.
AFFILIATE: With respect to any specified Person, any other Person directly
or indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition, "control,"
when used with respect to any Person, means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" shall have meanings correlative to the foregoing.
Notwithstanding the foregoing, (i) the Affiliates of ERC shall not include
Evercel or any other Person which would be an Affiliate of ERC by reason of
ERC's ownership of the capital stock of Evercel prior to the Distribution or the
fact that any officer or director of Evercel shall also serve as an officer or
director of ERC, and (ii) the Affiliates of Evercel shall not include ERC or any
other Person which would be an Affiliate of Evercel by reason of ERC's ownership
of the capital
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stock of Evercel prior to the Distribution or the fact that any
officer or director of Evercel shall also serve as an officer or director of
ERC.
AGENT: Continental Stock Transfer and Trust Company, the distribution agent
appointed by ERC to distribute the Evercel Common Stock pursuant to the
Distribution.
ASSET TRANSFERS: Shall have the meaning set forth in the recitals hereof.
COMMISSION: The Securities and Exchange Commission.
CONSENTS: Shall have the meaning set forth in Section 4.01(c) hereof.
CONVEYANCING AND ASSUMPTION INSTRUMENTS: Collectively, the various
agreements, instruments and other documents to be entered into to effect the
Asset Transfers and the assumption of Liabilities in the manner contemplated by
this Agreement and the Related Agreements.
DISTRIBUTION: Shall have the meaning set forth in the recitals hereof.
DISTRIBUTION DATE: The date determined by the ERC Board as the date on
which the Distribution shall be effected, which Distribution Date is
contemplated by the ERC Board to occur on or about February 22, 1999.
DISTRIBUTION RECORD DATE: The date established by the ERC Board as the date
for taking a record of the Holders of ERC Common Stock entitled to participate
in the distribution, which Distribution Record Date has been established as
February 19, 1999, subject to the fulfillment on or before February 22, 1999 of
certain conditions to the Distribution as provided in Section 4.02.
ERC: Shall have the meaning set forth in the recitals hereof.
ERC BOARD: The Board of Directors of ERC.
ERC BOOKS AND RECORDS: The books and records (including computerized
records) of ERC and all books and records owned by ERC which relate to the ERC
Retained Business or are necessary to operate the ERC Retained Business, or are
required by law to be retained by ERC, including without limitation, all files
relating to any Action pertaining to the ERC Retained Liabilities, original
corporate minute books, stock ledgers and certificates and corporate seals, and
all licenses, leases, agreements and filings, relating to ERC or the ERC
Retained Business (but not including the Evercel Books and Records, provided
that ERC shall have access to, and shall have the right to obtain duplicate
copies of, the Evercel Books and Records in accordance with the provisions of
Article VII).
ERC COMMON STOCK: The common stock, par value $.0001 per share, of ERC.
ERC CONTRACTS: The contracts to be assigned by ERC to Evercel listed on
Schedule 1.01(b).
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ERC INDEMNIFIABLE LOSSES: Shall have the meaning set forth in Section 5.02
hereof.
ERC INDEMNITEES: Shall have the meaning set forth in Section 5.02 hereof.
ERC INTELLECTUAL PROPERTY ASSETS: The intellectual property assets listed
on Schedule 1.01(d).
ERC PERSONAL PROPERTY ASSETS: The personal property assets listed on
Schedule 1.01(a).
ERC RETAINED ASSETS: The assets of ERC other than the Evercel Assets
transferred to Evercel by ERC, including without limitation (i) assets relating
to the ERC Retained Business, (ii) all of the assets expressly allocated to ERC
under this Agreement or the Related Agreements, and (iii) any other assets of
ERC and its Affiliates relating to the ERC Retained Business.
ERC RETAINED BUSINESS: The businesses conducted by ERC pursuant to or
utilizing the ERC Retained Assets, including without limitation, the fuel cell
business.
ERC RETAINED LIABILITIES: (i) All of the Liabilities arising out of or in
connection with the ERC Retained Assets or the ERC Retained Business, (ii) all
Liabilities arising out of or in connection with any lawsuits relating to the
Distribution, (iii) all of the Liabilities of ERC under, or to be retained or
assumed by ERC pursuant to, this Agreement or any of the Related Agreements,
(iv) any Financing Obligations not constituting Evercel Liabilities, (v) all
Liabilities for the payment of outstanding drafts of ERC attributable to the ERC
Retained Business existing as of the Distribution Date, (v) all Liabilities
arising out of or in connection with lawsuits or other claims or actions
relating to the Davis Superfund Site and the Gallups Quarry Superfund Site, (vi)
any obligation to repay up to $1,300,000 of payments previously made to ERC
pursuant to the Nan Ya License Agreement (as defined in Section 2.01(a) hereof),
and (vii) all other Liabilities of ERC not constituting Evercel Liabilities.
ERC RETAINED POLICIES: All Policies, current or past, which are owned or
maintained by or on behalf of ERC (or any of its predecessors) which relate to
the ERC Retained Business but do not relate to the Evercel Business.
EVERCEL: Shall have the meaning set forth in the recitals hereof.
EVERCEL ASSETS: Shall have the meaning set forth in Section 2.01(b) hereof.
EVERCEL BOOKS AND RECORDS: The books and records (including computerized
records) of Evercel and all books and records owned by ERC which relate to the
Evercel Business or are necessary to operate the Evercel Business, including,
without limitation, all such books and records relating to Evercel Employees,
all files relating to any Action being assumed by Evercel as part of the Evercel
Liabilities, original corporate minute books, stock ledgers and certificates and
corporate seals, and all licenses, leases, agreements and filings, relating to
Evercel or the Evercel Business (but not including the ERC Books and Records,
provided that
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Evercel shall have access to, and have the right to obtain duplicate copies of,
the ERC Books and Records in accordance with the provisions of Article VII).
EVERCEL BUSINESS: The business conducted by ERC prior to the Transfer Date,
and by Evercel thereafter, pursuant to or utilizing the Evercel Assets,
including without limitation, the acquisition, development and operation of
battery assets and business.
EVERCEL COMMON STOCK: The common stock, par value $.01 per share, of
Evercel.
EVERCEL EMPLOYEES: All of the Evercel employees at the time of the
Distribution, as identified on Schedule 1.01(e).
EVERCEL INDEMNIFIABLE LOSSES: Shall have the meaning set forth in Section
5.01 hereof.
EVERCEL INDEMNITEES: Shall have the meaning set forth in Section 5.01
hereof.
EVERCEL LIABILITIES: (i) All of the Liabilities of Evercel under, or to be
retained or assumed by Evercel pursuant to, this Agreement or any of the Related
Agreements, including those set forth on Schedule 1.01(c), (ii) all Liabilities
for payment of outstanding drafts of ERC attributable to the Evercel Business
existing as of the Distribution Date, and (iii) all Liabilities arising out of
or in connection with any of the Evercel Assets or the Evercel Business.
EVERCEL POLICIES: All Policies, current or past, which are owned or
maintained by or on behalf of ERC or any of its Affiliates or predecessors,
which relate to the Evercel Business but do not relate to the ERC Retained
Business, and which Policies are either maintained by Evercel or assignable to
Evercel.
FINANCING OBLIGATIONS: All (i) indebtedness for borrowed money, (ii)
obligations evidenced by bonds, notes, debentures or similar instruments, (iii)
obligations under capitalized leases and deferred purchase arrangements, (iv)
reimbursement or other obligations relating to letters of credit or similar
arrangements, and (v) obligations to guarantee, directly or indirectly, any of
the foregoing types of obligations on behalf of others.
HOLDERS: The holders of record of ERC Common Stock as of the Distribution
Record Date.
INDEMNIFIABLE LOSSES: Shall have the meaning set forth in Section 5.02
hereof.
INDEMNIFYING PARTY: Shall have the meaning set forth in Section 5.03
hereof.
INDEMNITEE: Shall have the meaning set forth in Section 5.03 hereof.
INFORMATION: Shall have the meaning set forth in Section 7.02 hereof.
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INSURANCE PROCEEDS: Those moneys (i) received by an insured from an
insurance carrier or (ii) paid by an insurance carrier on behalf of the insured,
in either case net of any applicable premium adjustment, retrospectively-rated
premium, deductible, retention, cost or reserve paid or held by or for the
benefit of such insured.
INSURED CLAIMS: Those Liabilities that, individually or in the aggregate,
are covered within the terms and conditions of any of the Policies, whether or
not subject to deductibles, co-insurance, uncollectability or
retrospectively-rated premium adjustments, but only to the extent that such
Liabilities are within applicable Policy limits, including aggregates.
LIABILITIES: Any and all debts, liabilities and obligations, absolute or
contingent, matured or unmatured, liquidated or unliquidated, accrued or
unaccrued, known or unknown, whenever arising, including all costs and expenses
relating thereto, and including, without limitation, those debts, liabilities
and obligations arising under any law, rule, regulation, Action, threatened
Action, order or consent decree of any governmental entity or any award of any
arbitrator of any kind, and those arising under any contract, commitment or
undertaking.
PERSON: Any individual, corporation, partnership, association, trust,
estate or other entity or organization, including any governmental entity or
authority.
POLICIES: Insurance policies and insurance contracts of any kind relating
to the Evercel Business or the ERC Retained Business as conducted prior to the
Distribution Date, including without limitation primary and excess policies,
comprehensive general liability policies, automobile and workers' compensation
insurance policies, and self-insurance and captive insurance company
arrangements, together with the rights, benefits and privileges thereunder.
PRIVILEGES: All privileges that may be asserted under applicable law,
including, without limitation, privileges arising under or relating to the
attorney-client relationship (including but not limited to the attorney-client
and work product privileges), the accountant-client privilege, and privileges
relating to internal evaluative processes.
PRIVILEGED INFORMATION: All Information as to which ERC, Evercel or any of
their Subsidiaries are entitled to assert the protection of a Privilege.
RELATED AGREEMENTS: All of the agreements, instruments, understandings,
assignments or other arrangements which are entered into in connection with the
transactions contemplated hereby and which are set forth in a writing,
including, without limitation (i) the Conveyancing and Assumption Instruments,
(ii) the Services Agreement, (iii) the Tax Sharing Agreement and (iv) the
License Assistance Agreement.
RIGHTS OFFERING: The offering by Evercel to its stockholders, following the
Distribution, to subscribe for and purchase additional shares of Evercel Common
Stock pursuant to the exercise of transferable subscription rights issued to
such stockholders immediately following the Distribution pursuant to a
Registration Statement on Form SB-2 which has been declared effective under the
Securities Act.
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SECURITIES ACT: The Securities Act of 1933, as amended.
SERVICES AGREEMENT: The Services Agreement between ERC and Evercel, which
agreement shall be entered into on or prior to the Distribution Date in
substantially the form of Exhibit A attached hereto.
SHARED POLICIES: All Policies, current or past, which are owned or
maintained by or on behalf of ERC or its predecessors which relate to both the
ERC Retained Business and the Evercel Business, and all other Policies not
constituting Evercel Policies or ERC Retained Policies.
SUBSIDIARY: With respect to any Person, (a) any corporation of which at
least a majority in interest of the outstanding voting stock (having by the
terms thereof voting power under ordinary circumstances to elect a majority of
the directors of such corporation, irrespective of whether or not at the time
stock of any other class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the time,
directly or indirectly, owned or controlled by such Person, by one or more
Subsidiaries of such Person, or by such Person and one or more of its
Subsidiaries, or (b) any non-corporate entity in which such Person, one or more
Subsidiaries of such Person, or such Person and one or more Subsidiaries of such
Person, directly or indirectly, at the date of determination thereof, has at
least majority ownership interest.
TAX SHARING AGREEMENT: The Tax Sharing Agreement between Evercel and ERC,
which agreement shall be entered into on or prior to the Distribution Date in
substantially the form of Exhibit B attached hereto.
THIRD-PARTY CLAIM: Shall have the meaning set forth in Section 5.04(a)
hereof.
TRANSFER DATE: The effective date of the transfer of assets and liabilities
hereunder by ERC to Evercel which date shall be on or prior to the Distribution
Date.
ARTICLE II.
TRANSFER OF ASSETS
Section 2.01. TRANSFER OF ASSETS TO EVERCEL
(a) On the Transfer Date, ERC shall take or cause to be taken all actions
necessary to cause the transfer, assignment, delivery and conveyance to Evercel
of all of ERC's right, title and interest in and to the principal assets related
to the Evercel Business, including, without limitation, the following assets:
(i) the ERC Personal Property Assets;
(ii) the ERC Contracts;
(iii) the ERC Intellectual Property Assets;
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(iv) the Evercel Books and Records;
(v) all of the other assets to be assigned to Evercel by ERC under this
Agreement or the Related Agreements; and
(vi) all other assets primarily relating to the Evercel Business held
by ERC.
Notwithstanding the foregoing, the following assets shall not be
transferred to Evercel:
(i) payments received by ERC pursuant to the license agreement (the
"Nan Ya License Agreement") between ERC and a joint venture between Nan Ya
Plastics Corporation of Taiwan and Xiamen Three Circles Co., Ltd. (formerly
Xiamen Daily-Used Chemicals Co., Ltd.) up to $1,300,000; and
(ii) subject to the provisions of Section 2.03 hereof, ERC's interest
in the Cooperative Joint Venture Contract (the "Joint Venture Contract") between
ERC and Xiamen Three Circles Co., Ltd. for the Establishment of Xiamen Three
Circles - ERC Battery Corp., Ltd., a Sino-Foreign Manufacturing Joint Venture
(the "Joint Venture"), dated as of July 7, 1998, and the related Technology
Transfer and License Contract between ERC and the Joint Venture (the "Three
Circles License Agreement").
(b) The "Evercel Assets" shall consist of the assets transferred to Evercel
by ERC pursuant to this Section 2.01.
Section 2.02. CONSIDERATION FOR ASSET TRANSFERS
As consideration for the foregoing asset transfers on or prior to the
Distribution Date, ERC shall receive from Evercel a sufficient number of shares
of Evercel Common Stock to effect the Distribution to the Holders of ERC Common
Stock.
Section 2.03. TRANSFERS NOT EFFECTED PRIOR TO THE DISTRIBUTION
To the extent that any transfers contemplated by this Article II shall not
have been fully effected on the Distribution Date, the parties shall cooperate
to effect such transfers as promptly as shall be practicable following the
Distribution Date. Nothing herein shall be deemed to require the transfer of any
assets or the assumption of any Liabilities which by their terms or operation of
law cannot be transferred or assumed; PROVIDED, HOWEVER, that ERC and Evercel
and their respective Subsidiaries and Affiliates shall cooperate in seeking to
obtain any necessary consents or approvals for the transfer of all assets and
Liabilities contemplated to be transferred pursuant to this Article II. In the
event that any such transfer of assets or Liabilities has not been consummated
effective as of the Distribution Date, the party retaining such asset or
Liability shall thereafter hold such asset in trust for the use and benefit of
the party entitled thereto (at the expense of the party entitled thereto) and
retain such Liability for the account of the party by whom such Liability is to
be assumed pursuant hereto, and take such other actions as may be reasonably
required in order to place the parties, insofar as reasonably possible, in the
same position as would have existed had such asset been transferred or such
Liability been
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assumed as contemplated hereby. As and when any such asset or Liability becomes
transferable, such transfer and assumption shall be effected forthwith. The
parties agree that, except as set forth in this Section 2.03, as of the
Distribution Date, each party hereto shall be deemed to have acquired complete
and sole beneficial ownership over all of the assets, together with all rights,
powers and privileges incidental thereto, and shall be deemed to have assumed in
accordance with the terms of this Agreement all of the Liabilities, and all
duties, obligations and responsibilities incidental thereto, which such party is
entitled to acquire or required to assume pursuant to the terms of this
Agreement. The parties expressly agree that ERC's interest in the Joint Venture
Contract and the Three Circles License Agreement (together, the "Three Circles
Contracts") may not be assigned to Evercel prior to obtaining the written
consent and approval of ERC's Chinese partner and the appropriate Chinese
governmental authorities. Pending receipt of these approvals, ERC and Evercel
agree to enter into the License Assistance Agreement in the form attached hereto
as Exhibit C. Once such consents and approvals have been obtained, ERC agrees to
transfer and assign the Three Circles Contracts to Evercel.
Section 2.04. COOPERATION RE: ASSETS
In the case that at any time after the Distribution Date, Evercel
reasonably determines that any of the ERC Retained Assets are essential for the
conduct of the Evercel Business, or ERC reasonably determines that any of the
Evercel Assets are essential for the conduct of the ERC Retained Business, and
the nature of such assets makes it impracticable for Evercel or ERC, as the case
may be, to obtain substitute assets or to make alternative arrangements on
commercially reasonable terms to conduct their respective businesses, and
reasonable provisions for the use thereof are not already included in the
Related Agreements, then Evercel (with respect to the Evercel Assets) and ERC
(with respect to the ERC Retained Assets) shall cooperate to make such assets
available to the appropriate party on commercially reasonable terms, as may be
reasonably required for such party to maintain normal business operations
(provided that such assets shall be required to be made available only until
such time as the other party may reasonably obtain substitute assets or make
alternative arrangements on commercially reasonable terms to permit it to
maintain normal business operations).
Section 2.05. NO REPRESENTATIONS OR WARRANTIES; CONSENTS
Each of the parties hereto understands and agrees that no party hereto is,
in this Agreement or in any other agreement or document contemplated by this
Agreement or otherwise, representing or warranting in any way (i) as to the
value or freedom from encumbrance of, or any other matter concerning, any assets
of such party or (ii) as to the legal sufficiency to convey title to any asset
transferred pursuant to this Agreement or any Related Agreement, including,
without limitation, any Conveyancing and Assumption Instruments. It is also
agreed and understood that there are no warranties, express or implied, as to
the merchantability or fitness of any of the assets either transferred to or
retained by the parties, as the case may be, and all such assets shall be "as
is, where is" and "with all faults" (provided, however, that the absence of
warranties shall have no effect upon the allocation of liabilities under this
Agreement). Similarly, each party hereto understands and agrees that no party
hereto is, in this Agreement or in any other agreement or document contemplated
by this Agreement or otherwise, representing or warranting
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in any way that the obtaining of any consents or approvals, the execution and
delivery of any amendatory agreements and the making of any filings or
applications contemplated by this Agreement will satisfy the provisions of any
or all applicable laws or judgments or other instruments or agreements relating
to such assets. Notwithstanding the foregoing, the parties shall use their good
faith efforts to obtain all consents and approvals, to enter into all reasonable
amendatory agreements and to make all filings and applications which may be
reasonably required for the consummation of the transactions contemplated by
this Agreement, and shall take all such further reasonable actions as shall be
reasonably necessary to preserve for each of ERC and Evercel, to the greatest
extent feasible, the economic and operational benefits of the allocation of
assets and liabilities provided for in this Agreement. In case at any time after
the Distribution Date any further action is necessary or desirable to carry out
the purposes of this Agreement, the proper officers and directors of each party
to this Agreement shall take all such necessary or desirable action.
Section 2.06. CONVEYANCING AND ASSUMPTION INSTRUMENTS
In connection with the Asset Transfers and the assumptions of Liabilities
contemplated by this Agreement, the parties shall execute or cause to be
executed by the appropriate entities the Conveyancing and Assumption Instruments
in such forms as the parties shall reasonably agree, including the assignment of
trademarks, patents, patent applications and other intellectual property rights.
Section 2.07. CASH MANAGEMENT
(a) Evercel shall establish and maintain a separate cash management system
and accounting records with respect to the Evercel Business effective as of
12:01 a.m. on the day following the Distribution Date; thereafter, (i) any
payments by ERC on behalf of Evercel in connection with the Evercel Business
(including, without limitation, any such payments in respect of Liabilities or
other obligations of Evercel under the Related Agreements) shall be recorded in
the accounts of Evercel as a payable to ERC; (ii) any payments by Evercel on
behalf of ERC in connection with the ERC Retained Business (including, without
limitation, any such payments in respect of Liabilities or other obligations of
ERC under the Related Agreements), shall be recorded in the accounts of ERC, as
a payable to Evercel; (iii) any cash payments received by ERC relating to the
Evercel Business or the Evercel Assets shall be recorded in the accounts of ERC,
as a payable to Evercel; (iv) any cash payments received by Evercel relating to
the ERC Retained Business or the ERC Retained Assets shall be recorded in the
accounts of Evercel as a payable to ERC; (v) ERC and Evercel shall make
adjustments for late deposits, checks returned for not sufficient funds and
other post-Distribution Date transactions as shall be reasonable under the
circumstances consistent with the purpose and intent of this Agreement; and (vi)
the net balance due to ERC or Evercel, as the case may be, in respect of the
aggregate amounts of clauses (i), (ii), (iii), (iv) and (v) shall be paid by ERC
or Evercel, as appropriate, as promptly as practicable. For purposes of this
Section 2.07 (a), the parties contemplate that the ERC Retained Business and the
Evercel Business, including but not limited to the administration of accounts
payable and accounts receivable, will be conducted in the normal course.
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(b) All transactions contemplated in this Section 2.07 shall be subject to
audit by the parties, and any dispute thereunder shall be resolved by KPMG Peat
Marwick LLP (or, if KPMG Peat Marwick LLP is not available or the parties
mutually agree, by such other independent firm of certified public accountants
mutually acceptable to ERC and Evercel), whose decision shall be final and
unappealable.
Section 2.08. RETAINED LICENSE TO USE TECHNOLOGY
Notwithstanding anything to the contrary contained in this Agreement,
Evercel acknowledges that ERC has licensed certain of the ERC Intellectual
Property Assets to the Joint Venture pursuant to the Three Circles License
Agreement. The Three Circles Contracts may require certain consents and
approvals prior to being transferred to Evercel. Therefore, without limitation
of the foregoing, following the transfer of the ERC Intellectual Property
Assets, pending the receipt of such consents and approvals, ERC shall retain a
non-exclusive license to use the ERC Intellectual Property Assets for the sole
purpose of fulfilling its obligations under the Three Circles Contracts. Evercel
agrees to promptly from time to time, but at least once a year, disclose to ERC
any know-how or patents of Evercel arising or issued after the Distribution Date
necessary for ERC to fulfill its obligations under such contracts.
Notwithstanding the foregoing, with respect to the Three Circles Contracts, upon
receipt of the necessary approvals as described in Section 2.03 hereof,
Evercel's obligations under this Section 2.08 shall terminate.
Section 2.09 AGREEMENT NOT TO COMPETE
ERC agrees not to participate, directly or indirectly, as principal, owner,
part-owner, partner, or in any other capacity, including as a passive
stockholder, partner or beneficial owner, in any business which owns, controls,
manages or otherwise operates a business which competes directly with the
Evercel Business. ERC and Evercel understand and acknowledge, however, that ERC
has formed a joint venture, called the Xiamen-ERC Technology Company, Limited
(the "Technology Joint Venture"), to develop and commercialize various advanced
electrochemical technologies, including battery technologies. ERC agrees that it
will endeavor to obtain amendments to the joint venture contract and articles of
association for the Technology Joint Venture to add Evercel as a party to the
Technology Joint Venture. Until Evercel becomes a party to the Technology Joint
Venture, however, ERC and Evercel agree that the Technology Joint Venture will
not undertake any projects involving battery technology without Evercel's prior
consent.
Section 2.10 CERTAIN MATTERS REGARDING EMPLOYEES
(a) Reference is made to the Option Agreement entered into between ERC and
Jerry D. Leitman ("Leitman"), dated as of August 1, 1997 (the "Option
Agreement"). Pursuant to the terms of the Option Agreement, Evercel agrees to
issue one share of Evercel Common Stock to Leitman for every three shares of ERC
Common Stock which he purchases from ERC from time to time pursuant to his
exercise of options granted by the Option Agreement. The exercise price received
from Leitman with respect to his exercise of options pursuant to the Option
Agreement will be allocated between ERC and Evercel proportionately, based upon
the fair market value of
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shares of each company immediately after the Distribution. Evercel agrees to
register under the Securities Act of 1933, as amended, the shares of Evercel
Common Stock to be issued to Leitman pursuant to the exercise of the options
granted by the Option Agreement.
(b) In addition, Evercel agrees to issue to Leitman a non-transferable
option (the "Evercel Option") to acquire 83,333 shares of Evercel Common Stock
exercisable at the Rights Offering purchase price (currently expected to be
$6.00 per share). Evercel agrees that the Evercel Option will be issued pursuant
to Evercel's 1998 Equity Incentive Plan and will be exercisable during the
Rights Offering and will terminate at the end of the Rights Offering. The
Evercel Option will be exercisable to acquire 33,333 vested shares and 50,000
restricted (unvested) shares. The restricted (unvested) shares acquired pursuant
to the Evercel Option will vest in accordance with the vesting schedule set
forth in the Option Agreement. Evercel further agrees to allow Leitman to
exercise the Evercel Option with respect to the 50,000 restricted (unvested)
shares by issuing to Evercel a nonrecourse note (the "Note") in the amount of
the total exercise price. The Note shall provide that, at such time as these
restricted (unvested) shares would otherwise vest, Leitman may repay the
applicable installment of the Note (i.e. the Note shall be payable in three
installments corresponding to the three remaining vesting dates set forth in the
Option Agreement). However, until the applicable installment of the Note is
repaid, the shares will remain restricted. In the event the Note is not fully
repaid by August 4, 2001, the shares shall be forfeited to the Company for no
consideration.
(c) Evercel agrees to issue to Joseph G. Mahler a non-transferable option
to acquire 16,666 shares of Evercel Common Stock exercisable at the Rights
Offering purchase price (currently expected to be $6.00 per share). Evercel
agrees that this option will be issued pursuant to Evercel's 1998 Equity
Incentive Plan and will vest in 25% installments over a four year period
beginning on December 11, 1999.
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ARTICLE III.
ASSUMPTION AND SATISFACTION OF LIABILITIES
Section 3.01. ASSUMPTION AND SATISFACTION OF LIABILITIES
Except as set forth in the Services Agreement, the Tax Sharing Agreement or
the other Related Agreements, effective as of and after the Distribution Date,
(a) Evercel shall assume, pay, perform and discharge in due course all of the
Evercel Liabilities, and (b) ERC shall pay, perform and discharge in due course
all of the ERC Retained Liabilities.
ARTICLE IV. THE DISTRIBUTION
Section 4.01. COOPERATION PRIOR TO THE DISTRIBUTION
(a) ERC and Evercel shall take all such action as may be necessary or
appropriate under the securities or blue sky laws of states or other political
subdivisions of the United States in connection with the transactions
contemplated by this Agreement and the Related Agreements.
(b) ERC and Evercel shall use all reasonable efforts to obtain any
third-party consents or approvals necessary or desirable in connection with the
transactions contemplated hereby ("Consents").
(c) ERC and Evercel will use all reasonable efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, all things necessary or
desirable under applicable law, to consummate the transactions contemplated
under this Agreement and the Related Agreements.
Section 4.02. ERC BOARD ACTION; CONDITIONS PRECEDENT TO THE DISTRIBUTION
The ERC Board shall, in its discretion, establish any appropriate
procedures in connection with the Distribution. In no event shall the
Distribution occur unless the following conditions shall have been satisfied:
(a) The transactions contemplated by Sections 2.01 and 2.02 shall have been
consummated in all material respects;
(b) ERC and Evercel shall have obtained all Consents, the failure of which
to obtain would not, in the sole judgment of the ERC Board, have a material
adverse effect on ERC or Evercel;
(c) The Registration Statement on Form SB-2 under the Securities Act filed
by Evercel shall have been declared effective by the Commission;
(d) ERC and Evercel shall have entered into the Related Agreements to which
they are a party;
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(e) ERC and the Company shall have received an opinion of counsel
satisfactory to the ERC Board to the effect that the Distribution will qualify
as a tax free spin-off under Sections 355 and 368(a)(1)(D) of the Internal
Revenue Code of 1986, as amended.
PROVIDED, HOWEVER, that (i) any such condition may be waived by the ERC
Board in its sole discretion, and (ii) the satisfaction of such conditions shall
not create any obligation on the part of ERC or any other party hereto to effect
the Distribution or in any way limit ERC's power of termination set forth in
Section 9.07 or alter the consequences of any such termination from those
specified in such Section; and
PROVIDED, FURTHER, that ERC has entered into the Nan Ya License Agreement
and the Three Circles Contracts with certain Chinese and/or Taiwanese entities.
The parties acknowledge that the Joint Venture Contract does require consent,
and the Nan Ya License Agreement and the Three Circles License Agreement may
require consent, of the other parties to such contracts in order for ERC to
transfer them to Evercel. It is understood and agreed by the parties that such
Consents may not be obtained prior to the Transfer Date or the Distribution Date
and such Consents shall not be conditions precedent to the Distribution
Section 4.03. THE DISTRIBUTION
On the Distribution Date, subject to the conditions and rights of
termination set forth in this Agreement, ERC shall deliver to the Agent all of
the then outstanding shares of Evercel Common Stock owned by ERC and shall
instruct the Agent to distribute to the Holders one share of Evercel Common
Stock for every three shares of ERC Common Stock held as of the Distribution
Record Date, provided that such Evercel Common Stock shall be subject to a
restriction such that it may not be sold or otherwise disposed of prior to the
date on which the Rights Agent for the Rights Offering delivers to Evercel final
notice of the number of shares of Evercel Common Stock subscribed for in the
Rights Offering (the "Closing Date"). As soon as practicable following the
Closing Date of the Rights Offering, the Agent shall deliver certificates
representing the Evercel Common Stock to the Holders.
ARTICLE V.
INDEMNIFICATION
Section 5.01. INDEMNIFICATION BY ERC
Except as otherwise expressly set forth in a Related Agreement, ERC shall
indemnify, defend and hold harmless Evercel and its directors, officers,
employees, agents and Affiliates and each of the heirs, executors, successors
and assigns of any of the foregoing (the "Evercel Indemnitees") from and against
the ERC Retained Liabilities and any and all losses, Liabilities, damages,
including, without limitation, the costs and expenses of any and all Actions,
threatened Actions, demands, assessments, judgments, settlements and compromises
relating to the ERC Retained Liabilities and attorneys' fees and any and all
expenses whatsoever reasonably incurred in investigating, preparing or defending
against any such Actions or threatened Actions
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(collectively, "Evercel Indemnifiable Losses" and, individually, an "Evercel
Indemnifiable Loss") of the Evercel Indemnitees arising out of or due to the
failure or alleged failure of ERC or any of its Affiliates (i) prior to or after
the Distribution Date to pay, perform or otherwise discharge in due course any
of the ERC Retained Liabilities, or (ii) comply with the provisions of Section
6.01.
Section 5.02. INDEMNIFICATION BY EVERCEL
Except as otherwise expressly set forth in a Related Agreement, Evercel
shall indemnify, defend and hold harmless ERC and each of its respective
directors, officers, employees, agents and Affiliates and each of the heirs,
executors, successors and assigns of any of the foregoing (the "ERC
Indemnitees") from and against the Evercel Liabilities and any and all losses,
Liabilities, damages, including, without limitation, the costs and expenses of
any and all Actions, threatened Actions, demands, assessments, judgments,
settlements and compromises relating to the Evercel Liabilities and attorneys'
fees and any and all expenses whatsoever reasonably incurred in investigating,
preparing or defending against any such Actions or threatened Actions
(collectively, "ERC Indemnifiable Losses" and, individually, an "ERC
Indemnifiable Loss") of the ERC Indemnitees arising out of or due to the failure
or alleged failure of Evercel or any of its Affiliates (i) prior to or after the
Distribution Date to pay, perform or otherwise discharge in due course any of
the Evercel Liabilities or (ii) comply with the provisions of Section 6.01. The
"Evercel Indemnifiable Losses," and the "ERC Indemnifiable Losses" are
collectively referred to as the "Indemnifiable Losses."
Section 5.03. INSURANCE PROCEEDS
The amount which any party (an "Indemnifying Party") is or may be required
to pay to any other Person (an "Indemnitee") pursuant to Section 5.01 or Section
5.02 shall be reduced (including, without limitation, retroactively) by any
Insurance Proceeds or other amounts actually recovered by or on behalf of such
Indemnitee in reduction of the related Indemnifiable Loss. If an Indemnitee
shall have received the payment required by this Agreement from an Indemnifying
Party in respect of an Indemnifiable Loss and shall subsequently actually
receive Insurance Proceeds, or other amounts in respect of such Indemnifiable
Loss as specified above, then such Indemnitee shall pay to such Indemnifying
Party a sum equal to the amount of such Insurance Proceeds or other amounts
actually received.
Section 5.04. PROCEDURE FOR INDEMNIFICATION
(a) Except as may be set forth in a Related Agreement, if an Indemnitee
shall receive notice or otherwise learn of the assertion by a Person (including,
without limitation, any governmental entity) who is not a party to this
Agreement or to any of the Related Agreements of any claim or of the
commencement by any such Person of any Action (a "Third-Party Claim") with
respect to which an Indemnifying Party may be obligated to provide
indemnification pursuant to this Agreement, such Indemnitee shall give such
Indemnifying Party written notice thereof promptly after becoming aware of such
Third-Party Claim; provided that the failure of any Indemnitee to give notice as
required by this Section 5.04 shall not relieve the Indemnifying
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Party of its obligations under this Article V, except to the extent that such
Indemnifying Party is prejudiced by such failure to give notice.
(b) An Indemnifying Party may elect to defend or to seek to settle or
compromise, at such Indemnifying Party's own expense and by such Indemnifying
Party's own counsel, any Third-Party Claim, provided that the Indemnifying Party
must confirm in writing that it agrees that the Indemnitee is entitled to
indemnification hereunder in respect of such Third-Party Claim. Within 30 days
of the receipt of notice from an Indemnitee in accordance with Section 5.04(a)
(or sooner, if the nature of such Third-Party Claim so requires), the
Indemnifying Party shall notify the Indemnitee of its election whether to assume
responsibility for such Third-Party Claim (provided that if the Indemnifying
Party does not so notify the Indemnitee of its election within 30 days after
receipt of such notice from the Indemnitee, the Indemnifying Party shall be
deemed to have elected not to assume responsibility for such Third-Party Claim),
and such Indemnitee shall cooperate in the defense or settlement or compromise
of such Third-Party Claim. After notice from an Indemnifying Party to an
Indemnitee of its election to assume responsibility for a Third-Party Claim,
such Indemnifying Party shall not be liable to such Indemnitee under this
Article V for any legal or other expenses (except expenses approved in advance
by the Indemnifying Party) subsequently incurred by such Indemnitee in
connection with the defense thereof; provided that if the defendants in any such
claim include both the Indemnifying Party and one or more Indemnitees and in
such Indemnitees' reasonable judgment a conflict of interest between such
Indemnitees and such Indemnifying Party exists in respect of such claim, such
Indemnitees shall have the right to employ separate counsel and in that event
the reasonable fees and expenses of such separate counsel (but not more than one
separate counsel reasonably satisfactory to the Indemnifying Party) shall be
paid by such Indemnifying Party. If an Indemnifying Party elects not to assume
responsibility for a Third-Party Claim (which election may be made only in the
event of a good faith dispute that a claim was inappropriately tendered under
Section 5.01 or 5.02, as the case may be) such Indemnitee may defend or (subject
to the following sentence) seek to compromise or settle such Third-Party Claim.
Notwithstanding the foregoing, an Indemnitee may not settle or compromise any
claim without prior written notice to the Indemnifying Party, which shall have
the option within ten days following the receipt of such notice (i) to
disapprove the settlement and assume all past and future responsibility for the
claim, including reimbursing the Indemnitee for prior expenditures in connection
with the claim, or (ii) to disapprove the settlement and continue to refrain
from participation in the defense of the claim, in which event the Indemnifying
Party shall have no further right to contest the amount or reasonableness of the
settlement if the Indemnitee elects to proceed therewith, or (iii) to approve
the amount of the settlement, reserving the Indemnifying Party's right to
contest the Indemnitee's right to indemnity, or (iv) to approve and agree to pay
the settlement. In the event the Indemnifying Party makes no response to such
written notice from the Indemnitee, the Indemnifying Party shall be deemed to
have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any
Third-Party Claim, the Indemnitee shall make available to such Indemnifying
Party any personnel and any books, records or other documents within its control
or which it otherwise has the ability to make available that are necessary or
appropriate for such defense.
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(d) Notwithstanding anything else in this Section 5.04 to the contrary, an
Indemnifying Party shall not settle or compromise any Third-Party Claim unless
such settlement or compromise contemplates as an unconditional term thereof the
giving by such claimant or plaintiff to the Indemnitee of a written release from
all liability in respect of such Third-Party Claim (and provided further that
such settlement may not provide for any non-monetary relief by Indemnitee
without the written consent of Indemnitee). In the event the Indemnitee shall
notify the Indemnifying Party in writing that such Indemnitee declines to accept
any such settlement or compromise, such Indemnitee may continue to contest such
Third-Party Claim, free of any participation by such Indemnifying Party, at such
Indemnitee's sole expense. In such event, the obligation of such Indemnifying
Party to such Indemnitee with respect to such Third-Party Claim shall be equal
to (i) the costs and expenses of such Indemnitee prior to the date such
Indemnifying Party notifies such Indemnitee of the offer to settle or compromise
(to the extent such costs and expenses are otherwise indemnifiable hereunder)
plus (ii) the lesser of (A) the amount of any offer of settlement or compromise
which such Indemnitee declined to accept and (B) the actual out-of-pocket amount
such Indemnitee is obligated to pay subsequent to such date as a result of such
Indemnitee's continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result
from a Third-Party Claim shall be asserted by written notice given by the
Indemnitee to the applicable Indemnifying Party. Such Indemnifying Party shall
have a period of 15 days after the receipt of such notice within which to
respond thereto. If such Indemnifying Party does not respond within such 15-day
period, such Indemnifying Party shall be deemed to have refused to accept
responsibility to make payment. If such Indemnifying Party does not respond
within such 15-day period or rejects such claim in whole or in part, such
Indemnitee shall be free to pursue such remedies as may be available to such
party under applicable law or under this Agreement.
(f) In addition to any adjustments required pursuant to Section 5.03, if
the amount of any Indemnifiable Loss shall, at any time subsequent to the
payment required by this Agreement, be reduced by recovery, settlement or
otherwise, the amount of such reduction, less any expenses incurred in
connection therewith, shall promptly be repaid by the Indemnitee to the
Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in
connection with any Third-Party Claim, such Indemnifying Party shall be
subrogated to and shall stand in the place of such Indemnitee as to any events
or circumstances in respect of which such Indemnitee may have any right or claim
relating to such Third-Party Claim against any claimant or plaintiff asserting
such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying
Party in a reasonable manner, and at the cost and expense of such Indemnifying
Party, in prosecuting any subrogated right or claim.
Section 5.05. REMEDIES CUMULATIVE
The remedies provided in this Article V shall be cumulative and shall not
preclude assertion by any Indemnitee of any other rights or the seeking of any
and all other remedies against any Indemnifying Party.
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Section 5.06. SURVIVAL OF INDEMNITIES
The obligations of each of ERC and Evercel under this Article V shall
survive the sale or other transfer by it of any assets or businesses or the
assignment by it of any Liabilities with respect to any Indemnifiable Loss of
the other related to such assets, businesses or Liabilities.
ARTICLE VI.
CERTAIN ADDITIONAL MATTERS
Section 6.01. CERTAIN POST-DISTRIBUTION TRANSACTIONS
(a) EVERCEL. Evercel shall comply with each representation and statement
made, or to be made, to any taxing authority in connection with any ruling
obtained, or to be obtained, by ERC and Evercel acting together, from any such
taxing authority with respect to any transaction contemplated by this Agreement.
(b) ERC. ERC shall comply with each representation and statement made, or
to be made, to any taxing authority in connection with any ruling obtained, or
to be obtained, by ERC and Evercel acting together, from any such taxing
authority with respect to any transaction contemplated by this Agreement.
Section 6.02. NOTICES BY ERC
ERC shall provide notice of the Distribution to all holders of its
securities, or options, rights or warrants convertible into its securities, as
may be required by ERC's Certificate of Incorporation or Bylaws or any agreement
to which ERC is a party.
ARTICLE VII.
ACCESS TO INFORMATION AND SERVICES
Section 7.01. PROVISION OF CORPORATE RECORDS
(a) Except as may otherwise be provided in a Related Agreement, ERC shall
deliver to Evercel as soon as practicable following the Distribution Date, to
the extent not previously delivered in connection with the transactions
contemplated in Article II, the Evercel Books and Records in its possession,
except to the extent such items are already in the possession of Evercel. The
Evercel Books and Records shall be the property of Evercel, but shall be
available to ERC for review and duplication until ERC shall notify Evercel in
writing that such records are no longer of use to ERC.
(b) Except as otherwise provided in a Related Agreement, Evercel shall
deliver to ERC as soon as practicable following the Distribution Date, to the
extent not previously delivered in connection with the transactions contemplated
in Article II, the ERC Books and Records in its
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possession, except to the extent such items are already in the possession of
ERC. The ERC Books and Records shall be the property of ERC, but shall be
available to Evercel for review and duplication until Evercel shall notify ERC
in writing that such records are no longer of use to Evercel.
Section 7.02. ACCESS TO INFORMATION
Except as otherwise provided in a Related Agreement, from and after the
Distribution Date, ERC shall afford to Evercel and its authorized accountants,
counsel and other designated representatives reasonable access (including using
reasonable efforts to give access to persons or firms possessing information)
and duplicating rights during normal business hours to all records, books,
contracts, instruments, computer data and other data and information relating to
pre-Distribution operations (collectively, "Information") within ERC's
possession insofar as such access is reasonably required by Evercel for the
conduct of its business, subject to appropriate restrictions for classified or
Privileged Information. Similarly, except as otherwise provided in a Related
Agreement, Evercel shall afford to ERC and their authorized accountants, counsel
and other designated representatives reasonable access (including using
reasonable efforts to give access to persons or firms possessing information)
and duplicating rights during normal business hours to Information within
Evercel's possession, insofar as such access is reasonably required by ERC for
the conduct of its business, subject to appropriate restrictions for classified
or Privileged Information. Information may be requested under this Article VII
for the legitimate business purposes of either party, including, without
limitation, audit, accounting, claims (including claims for indemnification
hereunder), litigation and tax purposes, as well as for purposes of fulfilling
disclosure and reporting obligations and for performing this Agreement and the
transactions contemplated hereby.
Section 7.03. PRODUCTION OF WITNESSES
At all times from and after the Distribution Date, each of ERC and Evercel
shall use reasonable efforts to make available to the others, upon written
request, its and its Subsidiaries officers, directors, employees and agents as
witnesses to the extent that such persons may reasonably be required in
connection with any Action.
Section 7.04. REIMBURSEMENT
Except to the extent otherwise contemplated in any Related Agreement, a
party providing Information or witness services to another party under this
Article VII shall be entitled to receive from the recipient, upon the
presentation of invoices therefor, payments of such amounts, relating to
supplies, disbursements and other out-of-pocket expenses (at cost) and direct
and indirect expenses of employees who are witnesses or otherwise furnish
assistance (at cost), as may be reasonably incurred in providing such
Information or witness services.
Section 7.05. RETENTION OF RECORDS
Except as otherwise required by law or agreed to in a Related Agreement or
otherwise in writing, each of ERC and Evercel may destroy or otherwise dispose
of any of the Information,
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which is material Information and is not contained in other Information retained
by ERC or Evercel, as the case may be, at any time after the sixth anniversary
of this Agreement, provided that, prior to such destruction or disposal, (a) it
shall provide no less than 90 or more than 120 days prior written notice to the
other, specifying in reasonable detail the Information proposed to be destroyed
or disposed of and (b) if a recipient of such notice shall request in writing
prior to the scheduled date for such destruction or disposal that any of the
Information proposed to be destroyed or disposed of be delivered to such
requesting party, the party proposing the destruction or disposal shall promptly
arrange for the delivery of such of the Information as was requested at the
expense of the party requesting such Information.
Section 7.06. CONFIDENTIALITY
Each of ERC, Evercel and their respective Subsidiaries shall hold, and
shall cause its employees, consultants and advisors to hold, in strict
confidence, all Information concerning the other parties hereto in its
possession or furnished by the other parties or the other parties'
representatives pursuant to this Agreement (except to the extent that such
Information has been (i) in the public domain through no fault of such party or
(ii) later lawfully acquired from other sources by such party), and subject to
Section 7.07, each party shall not release or disclose such Information to any
other person, except its auditors, attorneys, financial advisors, rating
agencies, bankers and other consultants and advisors, unless compelled to
disclose by judicial or administrative process or, as reasonably advised by its
counsel or by other requirements of law, or unless such Information is
reasonably required to be disclosed in connection with (x) any litigation with
any third-parties or litigation between ERC and Evercel or any of them, (y) any
contractual agreement to which ERC or Evercel or any of them are currently
parties, or (z) in exercise of any party's rights hereunder.
Section 7.07. PRIVILEGED MATTERS
ERC and Evercel recognize that legal and other professional services that
have been and will be provided prior to the Distribution Date have been and will
be rendered for the benefit of each of ERC and Evercel and that each of ERC and
Evercel should be deemed to be the client for the purposes of asserting all
Privileges. To allocate the interests of each party in the Privileged
Information, the parties agree as follows:
(a) ERC shall be entitled, in perpetuity, to control the assertion or
waiver of all Privileges in connection with Privileged Information which relates
solely to the ERC Retained Business, whether or not the Privileged Information
is in the possession of or under the control of ERC or Evercel. ERC shall also
be entitled, in perpetuity, to control the assertion or waiver of all Privileges
in connection with Privileged Information that relates solely to the subject
matter of any claims constituting ERC Retained Liabilities, now pending or which
may be asserted in the future, in any lawsuits or other proceedings initiated
against or by ERC, whether or not the Privileged Information is in the
possession of or under the control of ERC or Evercel.
(b) Evercel shall be entitled, in perpetuity, to control the assertion or
waiver of all Privileges in connection with Privileged Information which relates
solely to the Evercel Business, whether or not the Privileged Information is in
the possession of or under the control of
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ERC or Evercel. Evercel shall also be entitled, in perpetuity, to control the
assertion or waiver of all Privileges in connection with Privileged Information
which relates solely to the subject matter of any claims constituting Evercel
Liabilities, now pending or which may be asserted in the future, in any lawsuits
or other proceedings initiated against or by Evercel, whether or not the
Privileged Information is in the possession of Evercel or under the control of
ERC or Evercel.
(c) ERC and Evercel agree that they shall have a shared Privilege, with
equal right to assert or waive, subject to the restrictions in this Section
7.07, with respect to all Privileges not allocated pursuant to the terms of
Sections 7.07(a) and (b). All Privileges relating to any claims, proceedings,
litigation, disputes or other matters which involve each of ERC and Evercel in
respect of which ERC and Evercel retain any responsibility or liability under
this Agreement shall be subject to a shared Privilege.
(d) No party may waive any Privilege which could be asserted under any
applicable law, and in which any other party has a shared Privilege, without the
consent of the other party, except to the extent reasonably required in
connection with any litigation with third-parties or as provided in subsection
(e) below. Consent shall be in writing, or shall be deemed to be granted unless
written objection is made within 20 days after notice upon the other party
requesting such consent.
(e) In the event of any litigation or dispute between ERC and Evercel, or
any of them, any party may waive a Privilege in which any other party has a
shared Privilege, without obtaining the consent of the other party, provided
that such waiver of a shared Privilege shall be effective only as to the use of
Information with respect to the litigation or dispute between such parties, and
shall not operate as a waiver of the shared Privilege with respect to
third-parties.
(f) If a dispute arises between the parties regarding whether a Privilege
should be waived to protect or advance the interest of any party, each party
agrees that it shall negotiate in good faith, shall endeavor to minimize any
prejudice to the rights of the other parties, and shall not unreasonably
withhold consent to any request for waiver by the other parties. Each party
specifically agrees that it will not withhold consent to waiver for any purpose
except to protect its own legitimate interests.
(g) Upon receipt by any party of any subpoena, discovery or other request
which arguably calls for the production or disclosure of Information subject to
a shared Privilege or as to which any other party has the sole right hereunder
to assert a Privilege, or if any party obtains knowledge that any of its current
or former directors, officers, agents or employees have received any subpoena,
discovery or other requests which arguably calls for the production or
disclosure of such Privileged Information, such party shall promptly notify the
other party of the existence of the request and shall provide the other party a
reasonable opportunity to review the Information and to assert any rights it may
have under this Section 7.07 or otherwise to prevent the production or
disclosure of such Privileged Information.
(h) The transfer of the Evercel Books and Records and the ERC Books and
Records and other Information between ERC, Evercel and their respective
Subsidiaries is made in reliance on the agreement of ERC and Evercel, as set
forth in Sections 7.06 and 7.07, to maintain
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the confidentiality of Privileged Information and to assert and maintain all
applicable Privileges. The access to information being granted pursuant to
Sections 7.01 and 7.02, the agreement to provide witnesses and individuals
pursuant to Section 7.03 and the transfer of Privileged Information between ERC,
Evercel and their respective Subsidiaries pursuant to this Agreement shall not
be deemed a waiver of any Privilege that has been or may be asserted under this
Agreement or otherwise.
ARTICLE VIII.
INSURANCE
Section 8.01. POLICIES AND RIGHTS INCLUDED WITHIN THE EVERCEL ASSETS
Without limiting the generality of the definition of the Evercel Assets set
forth in Section 2.01 or the effect of Section 2.01, the Evercel Assets shall
include (a) any and all rights of an insured party under each of the Shared
Policies, specifically including rights of indemnity and the right to be
defended by or at the expense of the insurer, with respect to all injuries,
losses, liabilities, damages and expenses incurred or claimed to have been
incurred on or prior to the Distribution Date by any party in or in connection
with the conduct of the Evercel Business or, to the extent any claim is made
against Evercel or any of its Subsidiaries, the ERC Retained Business, and which
injuries, losses, liabilities, damages and expenses may arise out of insured or
insurable occurrences or events under one or more of the Shared Policies;
PROVIDED, HOWEVER, that nothing in this Section 8.01 shall be deemed to
constitute (or to reflect) the assignment of the Shared Policies, or any of
them, to Evercel, and (b) the Evercel Policies.
Section 8.02. POST-DISTRIBUTION DATE CLAIMS
If, subsequent to the Distribution Date, any person, corporation, firm or
entity shall assert a claim against Evercel with respect to any injury, loss,
liability, damage or expense incurred or claimed to have been incurred on or
prior to the Distribution Date in or in connection with the Distribution or the
conduct of the Evercel Business or, to the extent any claim is made against
Evercel or any of its Subsidiaries, the ERC Retained Business, and which injury,
loss, liability, damage or expense may arise out of insured or insurable
occurrences or events under one or more of the Shared Policies, ERC shall at the
time such claim is asserted be deemed to assign, without need of further
documentation, to Evercel any and all rights of an insured party under the
applicable Shared Policy with respect to such asserted claim, specifically
including rights of indemnity and the right to be defended by or at the expense
of the insurer; provided, however, that nothing in this Section 8.02 shall be
deemed to constitute (or to reflect) the assignment of the Shared Policies, or
any of them, to Evercel.
Section 8.03. ADMINISTRATION AND RESERVES
(a) Notwithstanding the provisions of Article III, but subject to any
contrary provisions of any Related Agreement, from and after the Distribution
Date:
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(i) Evercel shall be entitled to any reserves established by ERC or any
of its Subsidiaries, or the benefit of reserves held by any insurance carrier,
with respect to the Evercel Liabilities; and
(ii) ERC shall be entitled to any reserves established by ERC or any of
its Subsidiaries, or the benefit of reserves held by any insurance carrier, with
respect to the ERC Retained Liabilities.
(b) INSURANCE PREMIUMS. Evercel shall have the right but not the obligation
to pay the premiums, to the extent that ERC does not pay premiums with respect
to the ERC Retained Liabilities (retrospectively-rated or otherwise), with
respect to Shared Policies and the Evercel Policies, as required under the terms
and conditions of the respective Policies, whereupon ERC shall forthwith
reimburse Evercel for that portion of such premiums paid by Evercel as are
attributable to the ERC Retained Liabilities.
(c) ALLOCATION OF INSURANCE PROCEEDS. Insurance Proceeds received with
respect to claims, costs and expenses under the Policies shall be paid to
Evercel with respect to the Evercel Liabilities and to ERC with respect to the
ERC Retained Liabilities. Payment of the allocable portions of indemnity costs
of Insurance Proceeds resulting from the liability policies will be made to the
appropriate party upon receipt from the insurance carrier. In the event that the
aggregate limits on any Shared Policies are exceeded, the parties agree to
provide an equitable allocation of Insurance Proceeds received after the
Distribution Date based upon their respective bona fide claims. The parties
agree to use their best efforts to cooperate with respect to insurance matters.
Section 8.04. AGREEMENT FOR WAIVER OF CONFLICT AND SHARED DEFENSE
In the event that Insured Claims of ERC and Evercel exist relating to the
same occurrence, such parties agree to jointly defend and to waive any conflict
of interest necessary to the conduct of that joint defense. Nothing in this
Section 8.04 shall be construed to limit or otherwise alter in any way the
indemnity obligations of the parties to this Agreement, including those created
by this Agreement, by operation of law or otherwise.
ARTICLE IX.
MISCELLANEOUS
Section 9.01. COMPLETE AGREEMENT; CONSTRUCTION
This Agreement, including the Schedules and Exhibits and the Related
Agreements and other agreements and documents referred to herein, constitutes
the entire agreement and supersedes all prior agreements, understandings,
negotiations and discussions, whether written or oral, between the parties
hereto with respect to the subject matter hereof, so that no such external or
separate agreement relating to the subject matter of this Agreement shall have
any effect or be
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<PAGE>
binding, unless the same is referred to specifically in this Agreement or is
executed by the parties after the date hereof. Notwithstanding any other
provisions in this Agreement to the contrary, in the event and to the extent
that there shall be a conflict between the provisions of this Agreement and the
provisions of the Related Agreements, the Related Agreements shall control.
Section 9.02. EXPENSES
Except as otherwise set forth in this Agreement or any Related Agreement,
all costs and expenses in connection with the preparation, execution, delivery
and implementation of this Agreement, the Distribution and with the consummation
of the transactions contemplated by this Agreement shall be charged to the party
for whose benefit the expenses are incurred, with any expenses which cannot be
allocated on such basis to be split equally between the parties. Notwithstanding
the foregoing, Evercel agrees to pay and/or reimburse ERC for any and all
expenses incurred by ERC pursuant to the License Assistance Agreement.
Section 9.03. GOVERNING LAW
This Agreement and the rights and obligations of the parties hereunder
shall be governed by the laws of the State of Connecticut, without regard to the
principles of choice of law thereof, except with respect to matters of law
concerning the internal corporate affairs of any corporate entity which is a
party to or subject of this Agreement, and as to those matters the law of the
jurisdiction under which the respective entity derives its powers shall govern.
Section 9.04. NOTICES
Notices shall be sent to the parties at the following addresses:
Energy Research Corporation
3 Great Pasture Road
Danbury, Connecticut 06813
Evercel, Inc.
3 Great Pasture Road
Danbury, Connecticut 06813
Notices may be hand-delivered or sent by certified mail, return receipt
requested, Federal Express or comparable overnight delivery service, or
facsimile. Notice shall be deemed received at the time delivered by hand, on the
fourth business day following deposit in the U.S. mail, and on the first
business day following deposit with Federal Express or other delivery service,
or upon transmission by facsimile. Any party to this Agreement may change its
address for notice by giving written notice to the other party at the address
and in accordance with the procedures provided above.
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<PAGE>
Section 9.05. AMENDMENTS; WAIVERS
No termination, cancellation, modification, amendment, deletion, addition
or other change in this Agreement, or any provision hereof, or waiver of any
right or remedy herein provided, shall be effective for any purpose unless such
change or waiver is specifically set forth in a writing signed by the party or
parties to be bound thereby. The waiver of any right or remedy with respect to
any occurrence on one occasion shall not be deemed a waiver of such right or
remedy with respect to such occurrence on any other occasion.
Section 9.06. SUCCESSORS AND ASSIGNS
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns. This Agreement shall
not be assigned without the express written consent of each of the parties
hereto.
Section 9.07. TERMINATION
This Agreement may be terminated and the Distribution abandoned at any time
prior to the Distribution Date by and in the sole discretion of the ERC Board
without the approval of Evercel. In the event of such termination, no party
shall have any liability to any other party pursuant to this Agreement.
Section 9.08. NO THIRD-PARTY BENEFICIARIES
Except for the provisions of Article V relating to Indemnities, this
Agreement is solely for the benefit of the parties hereto and their respective
Subsidiaries and Affiliates and should not be deemed to confer upon
third-parties any remedy, claim, Liability, reimbursement, claim of action or
other right in excess of those existing without reference to this Agreement.
Section 9.09. TITLES AND HEADINGS
Titles and headings to sections herein are inserted for the convenience of
reference only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement.
Section 9.10. EXHIBITS AND SCHEDULES
The Exhibits and Schedules shall be construed with and as an integral part
of this Agreement to the same extent as if the same had been set forth verbatim
herein.
Section 9.11. LEGAL ENFORCEABILITY
In the event that one or more of the terms or provisions of this Agreement
or the application thereof to any person(s) or in any circumstance(s) shall, for
any reason and to any extent be found by a court of competent jurisdiction to be
invalid, illegal or unenforceable, such court shall have the power, and hereby
is directed, to substitute for or limit such invalid term(s), provision(s) or
application(s) and to enforce such substituted or limited terms or provisions,
or the application thereof. Subject to the foregoing, the invalidity, illegality
or enforceability of any
-24-
<PAGE>
one or more of the terms or provisions of this Agreement, as the same may be
amended from time to time, shall not affect the validity, legality or
enforceability of any other term or provision hereof. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. Without prejudice
to any rights or remedies otherwise available to any party hereto, each party
hereto acknowledges that damages would be an inadequate remedy for any breach of
the provisions of this Agreement and agrees that the obligations of the parties
hereunder shall be specifically enforceable.
Section 9.12. ARBITRATION OF DISPUTES
(a) Any controversy or claim arising out of this Agreement, or any breach
of this Agreement, including any controversy relating to a determination of
whether specific assets constitute Evercel Assets or ERC Retained Assets or
whether specific Liabilities constitute Evercel Liabilities or ERC Retained
Liabilities, shall be settled by arbitration in accordance with the Rules of the
American Arbitration Association then in effect, as modified by this Section
9.12 or by the further agreement of the parties.
(b) Such arbitration shall be conducted in Connecticut.
(c) Any judgment upon the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof. The arbitrators shall have the
authority to award to the prevailing party its attorneys' fees and costs
incurred in such arbitration. The arbitrators shall not, under any
circumstances, have any authority to award punitive, exemplary or similar
damages, and may not, in any event, make any ruling, finding or award that does
not conform to the terms and conditions of this Agreement.
(d) Nothing contained in this Section 9.12 shall limit or restrict in any
way the right or power of a party at any time to seek injunctive relief in any
court and to litigate the issues relevant to such request for injunctive relief
before such court (i) to restrain any other party from breaching this Agreement
or (ii) for specific enforcement of this Section 9.12. The parties agree that
any legal remedy available to a party with respect to a breach of this Section
9.12 will not be adequate and that, in addition to all other legal remedies,
each party is entitled to an order specifically enforcing this Section 9.12.
(e) The parties hereby consent to the jurisdiction of the federal courts
located in Hartford, Connecticut for all purposes under this Agreement.
(f) Neither the parties nor the arbitrators may disclose the existence or
results of any arbitration under this Agreement or any evidence presented during
the course of the arbitration without the prior written consent of the parties,
except as required to fulfill applicable disclosure and reporting obligations,
or as otherwise required by law.
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<PAGE>
(g) Except as provided in Section 9.12(c), each party shall bear its own
costs incurred in the arbitration. If any party refuses to submit to arbitration
any dispute required to be submitted to arbitration pursuant to this Section
9.12, and instead commences any other proceeding, including, without limitation,
litigation, then the party who seeks enforcement of the obligation to arbitrate
shall be entitled to its attorneys' fees and costs incurred in any such
proceeding.
Section 9.13. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which
together shall be deemed to be an original and all of which together shall be
deemed to constitute one and the same agreement.
Section 9.14. RELATIONSHIP OF PARTIES
Nothing in this Agreement shall be deemed or construed by the parties or
any third party as creating the relationship of principal and agent, partnership
or joint venture between the parties, it being understood and agreed that no
provision contained herein, and no act of the parties, shall be deemed to create
any relationship between the parties other than the relationship set forth
herein.
Section 9.15. FURTHER ACTION
Evercel and ERC each shall cooperate in good faith and take such steps and
execute such papers as may be reasonably requested by the other party to
implement the terms and provisions of this Agreement.
Section 9.16. PREDECESSORS AND SUCCESSORS
To the extent necessary to give effect to the purposes of this Agreement,
any reference to any corporation shall also include any predecessor or successor
thereto, by operation of law or otherwise.
[SIGNATURE PAGE FOLLOWS]
-26-
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
ENERGY RESEARCH CORPORATION
By: /s/ Jerry D. Leitman
----------------------
Name: Jerry D. Leitman
Title: President & Chief Executive Officer
EVERCEL, INC.
By: /s/ Allen Charkey
----------------------
Name: Allen Charkey
Title: Executive Vice President and Chief
Operating Officer
-27-
<PAGE>
SCHEDULES
Schedule 1.01(a): ERC Personal Property Assets
Schedule 1.01(b): ERC Contracts
Schedule 1.01(c): Evercel Liabilities
Schedule 1.01(d): ERC Intellectual Property Assets
Schedule 1.01(e): Evercel Employees
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<PAGE>
SCHEDULE 1.01(a)
ERC PERSONAL PROPERTY ASSETS
Description Acquisition Date
----------- ----------------
HP 6291A Power Supply 01/01/79
HP 6296A Power Supply 01/01/79
Mettler PC 4400 Balance 06/01/80
Dispatch Oven 01/01/79
Potentiostat Model 371 01/01/79
Polarographic Analyzer System 11/01/82
Power Supply DCR20-115B 11/01/82
Drying Racks 08/01/82
Mettler Balance Model PN1210 11/01/82
RE0091 X-Y Recorder 10/01/84
EG&G Par C MD 175 Programmer 11/01/82
Simpson 462 Digital Multimeter 01/01/79
Omega RD-115-T-AR12 Chart Recorder 08/01/87
HP 6263B Power Supply 01/01/75
Potentiostat/Galvanostat 11/01/82
Omega 595 Strip Chart Recorder 06/01/84
DCR 60-30B Power Supply 01/01/79
Unitron TM-25-544 Microscope 01/01/79
Thermolyne Oven 124 01/01/79
QRD 40-75 Power Supply 01/01/79
HP 6260B Power Supply 01/01/75
Linear 595 Chart Recorder 03/01/82
Omega Chart Recorder Model 595 04/01/88
Omega Chart Recorder 09/01/86
Diarco Shear #1 01/01/79
Power Supply DCR60-45B 11/01/82
HP Mod 6433B DC Power Supply 01/01/72
Power Supply QRD 15-2 11/01/82
QRD15-2 Power Supply 01/01/79
<PAGE>
Description Acquisition Date
----------- ----------------
Large Dough Mixer 01/01/79
Digital Multimeter 01/01/79
Linear 595 Chart Recorder 08/01/84
HP 6267B Power Supply 02/01/89
Model 461-2 Digital Multimeter 01/01/79
Fluke 75 Multimeter 01/01/79
Omega RD115-T AR12 Recorder 01/01/79
K-Tron Model LWF Loss In Feed 06/01/89
Kneader/Extruder w/Heat, Dies 02/01/83
Upgrade Buss Extruder 12/01/87
Dispatch Oven 01/01/79
Dispatch Oven 01/01/79
Rolling Mill 07/01/76
16" Electrode Rolling Mill 12/01/78
16" Electrode Rolling Mill 12/01/79
Revise 16" Rolling Mill to 20" 06/01/87
Control System for Rolling Mill 12/01/80
Oil Seals/Lab on Rolling Mill 02/01/80
Modify 20" Rolling Mill 01/01/90
Diarco #3 Shear 01/01/79
Linear 595 3 Pen Chart Recorder 01/01/79
Fluke 77 Multimeter 01/01/79
Weighing Scale and Scoop 02/01/76
Rolling Mill 01/01/79
Rolling Mill 01/01/79
Double Arm Sigma Blade Mixer 11/01/75
Ross Double Planetary Mixer 06/01/73
Rolling Mill 01/01/79
Rolling Mill 01/01/79
Photo Meter Digital 08/01/79
Illuminance Probe 11/01/79
DCB 40-125A Power Supply 01/01/79
-2-
<PAGE>
Description Acquisition Date
----------- ----------------
Steromicroscope, Wild 01/01/79
Power Supply DCR40-13B 10/01/85
179A Trms Multimeter 01/01/79
Power Supply DCR40-13B 10/01/85
Model 177 Digital Multimeter 12/01/85
Schulz Power Supply 01/01/79
ACDC Mod EL 750 Electronic Load 01/01/79
ACDC Mod EL750 Electronic Load 01/01/79
Power Supply QRD15-2 Sorensen 11/01/82
Thelco Lab Oven Model 4 01/01/79
DCR40-13B Power Supply 01/01/79
Digital Multimeter Data Precis. 01/01/79
Fluke 8050A Digital Multimeter 01/01/79
HP DC Power Supply 09/01/84
Sorensen Power Supply DCR80-6B 02/01/85
Power Supply DCR10-170B 11/01/82
Omega Chart Recorder Model 595 04/01/88
Linear 595 Chart Recorder 03/01/82
Fluke 8050A O M M 01/01/79
Diarco #2 Hand Notcher 12/01/78
Benchmaster Press #151 08/01/78
Benchmaster Punch Press #152 01/01/79
Diarco #4 Shear 01/01/79
Gruenberg 400 C Oven 01/01/79
Stock Stand Model P-10 09/01/84
2 Ft Shear #4, Dedgro 09/01/76
Profab Corner Radius Mach #900 08/01/85
Rosenthal Variable Shelter 10/01/85
Punch Press 09/01/76
Rolling Mill 01/01/79
Crosshead Extruder for Buss 02/01/84
80-12B Power Supply 01/01/79
-3-
<PAGE>
Description Acquisition Date
----------- ----------------
Continuous Piercing Machine 04/01/87
Two Roll Amil Milder Calander 01/01/72
Calander Tension Stand 02/01/86
80 Ton Press 01/01/74
J. H. Wood 80 Ton Press 12/01/77
Hydraulic Cylinder for Press 10/01/81
Vertrod Heat Sealer 12" 01/01/79
High Speed Twin Shell Blender 02/01/76
Potentiostat/Galvanostat M 273 06/01/86
HP 4328A Milliohm Meter 12/01/87
4 1/2 Digit Multimeter 09/01/76
Expansion of Government Piercer 10/01/83
HP 3476A Multimeter 01/01/79
Modify Battery Cycler 10/01/91
Chart Recorder 3 Channel 11/01/90
Grieve 5A550 Shelf Oven 03/01/91
Electrode Rinsing System 10/27/92
Pneumatic Hopper for Electrode 10/31/92
Cool Flow Refrig Recirculator 12/31/92
Cell Cycler 04/01/94
2-10 Input Hybrid Bench Recorder 06/01/95
Welder and Accessories 07/01/95
Battery Testing System 10/01/95
Display Cabinet Battery Parts 12/01/95
Battery Testing Freezer 03/01/96
Voltage Monitoring Test Stand 10/01/96
Piercing Machine and Mods 05/01/97
Champ Bench Scale 09/01/97
Arbin Test System 4 Indp Chan 09/01/97
Ultrasonic 3000 Watt Welder 05/01/97
Horn Anvil Top and Bottom Cutter 01/01/97
Arbin Test System Mod #149268 05/01/97
-4-
<PAGE>
Description Acquisition Date
----------- ----------------
2 Sorensen Power Supply 0-80V 03/01/98
Solvent Pump Delivery System 03/01/98
Ph Adjustment System 03/01/98
Aluminum Welded Dry Cabinet 03/01/98
Electric Scooter and Cycle 03/01/98
25241-0045 Model 45 Vacuum Pump 06/01/98
1500 Lb Trailer/Ramps and Lights 06/01/98
Install/Access for Battery Cycler 03/01/89
4 Post Car Lift and Cement Pad 06/01/98
Power Supply 0-6V DC 06/01/95
Battery Display Cabinet 03/01/97
Replace Transmission Frnch Mil 01/01/97
Bookcase w/Glass Doors, Black 01/01/79
Side Arm Chair, Black 04/01/83
Side Arm Chair, Black 04/01/83
Steelcase 5 Drawer File Cabinet 04/01/83
Work Table, Black w/Walnut 01/01/79
Bookcase, Black 01/01/79
Bookcase, Black 01/01/79
Drafting Board 01/01/79
Executive Desk, Black w/Walnut 01/01/79
Bookcase, Walnut 04/01/88
Highback Swivel Tilt Chair 04/01/88
Executive Desk, Black w/Walnut 01/01/79
4 Drawer File Cabinet, Black 01/01/79
Bookcase, Black 01/01/79
Folding Table, Oak Top 08/01/88
4 Drawer File Cabinet, Black 01/01/79
Lab Stool, Upholstered w/Casters 01/01/86
Storage Cabinet, Grey 01/01/79
Safety Storage Cabinet, Yellow 01/01/79
Storage Cabinet, Grey 01/01/79
-5-
<PAGE>
Description Acquisition Date
----------- ----------------
Storage Cabinet, Black 08/01/83
4 Drawer File Cabinet, Black 01/01/79
Captain Chair 01/01/91
Captain Chair 01/01/91
Captain Chair 01/01/91
Captain Chair 01/01/91
Captain Chair 01/01/91
Captain Chair 01/01/91
Captain Chair 01/01/91
Captain Chair 01/01/91
Captain Chair 01/01/91
Captain Chair 01/01/91
Office Furniture, Battery Area 06/01/98
Office Furniture, C. Huang 06/01/98
Office Furniture, K. Bates 04/01/98
Cell Case and Cover Mold 06/01/78
Tooling for Cell Case and Cover 12/01/77
Tooling Ni-Cd Miners Battery 06/01/82
Tooling Ni-Cd Miners Battery 12/01/79
Battery Case Injection Mold 10/01/82
Battery Cover Injection Mold 10/01/82
Special Znbr Tooling at Vendor 11/01/82
Steel Rule Die 11/01/82
3 Cavity Molds/Miners Battery 02/01/84
Cavity Mold/30 AH Cell Case 07/01/83
Case Mold 07/01/77
2 Single Cavity Injection Molds 04/01/86
Steel Stamp Tool/Miners Ni-Cd 01/01/85
Tooling/Stamp Tabs Ni-Cd Battery 04/01/85
Mod/Case/Cover Mold Miners Battery 05/01/85
Single Cavity Injection Mold 04/01/86
Tooling 8000 AG Ni-Cd Tabs 12/01/86
-6-
<PAGE>
Description Acquisition Date
----------- ----------------
Injection Mold/Zinc Battery 04/01/89
Compression Mold/Bipolm Plates 05/01/89
Mold/Battery Flash Arrestor Ni 01/01/89
Battery Case and Cover Mold 08/01/95
Panasonic KX-P1091 Printer 01/01/79
Personal Computer and Monitor 08/31/92
Hirez VGA and DeskJet 500C Printer 10/31/92
Gateway P5-75 09/01/95
Gateway P5-120 PC 01/01/96
Gateway 2000 P-5 133 PC 09/01/96
Gateway 300MHz PC InkJet Printer 06/01/98
Gateway GP6-300 PC 06/01/98
Monitor 08/01/98
Gateway G6-300 PC 06/01/98
Install 1 4000 Amp Trans Switch 12/01/93
Map Assist Software 09/01/91
Elec Hook Up EV Battery Test 06/01/98
Mettler Top Loading Elec Scale 04/01/98
Battery Insulation Test 04/01/98
Rosenthal Sheeting System 06/01/98
Kras VSK083 Press 06/01/98
AU50R Pneumatic Torque/Screw 06/01/98
Helium Leak Test System 06/01/98
BT2043 Computer Control Cycler 06/01/98
19 Cubic Ft Incubator 08/01/98
20KHz Titanium Bar Horn 09/01/98
Inert Atmosphere Furnace, Small 09/01/98
Two Dry Material Blenders 10/01/98
Miniflex and Portable XRD System 09/01/98
3 Gateway GP6-400MHz PCs 10/01/98
Surftest Test 10/01/98
Appro # 151102 07/01/98
-7-
<PAGE>
Description Acquisition Date
----------- ----------------
Appro # 151-126 10/01/98
Appro # 151-104 08/01/98
Appro # 151106 07/01/98
Appro # 151-109 07/01/98
Appro # 151-055 10/01/98
Appro # 151-130 10/01/98
Appro # 151-096 09/01/98
Appro # 151-143 SB 151-143 10/01/98
Appro # 153-111 10/01/98
Appro # 154054 07/01/98
Two Modular Work Stations 10/01/98
-8-
<PAGE>
SCHEDULE 1.01(b)
ERC CONTRACTS
Technology Transfer and License Agreement for Ni-Zn Battery Technology among
Xiamen Three Circles Co., Ltd. (formerly Xiamen Daily-Used Chemicals Co., Ltd.),
Nan Ya Plastics Corporation and ERC dated February 21, 1998.
Employment Agreement by and between ERC and Allen Charkey, dated as of December
15, 1998.
BATTERY GROUP CONFIDENTIALITY AGREEMENTS
(BY DATE)
NAME EFFECTIVE DATE
- ----
Proslovia Inc. 7/7/98
Talisman International of Ohio 6/6/98
Currie Technologies 5/26/98
Dukane Corp. 5/15/98
Bell Technologies 5/5/98
BM - Battery Machinw 4/30/98
G.E. Schmidt 4/16/98
Miyachi Corp 4/7/98
Audi AG 4/3/98
Electro Energy Inc. 3/31/98
Orbel Corp. 3/30/98
Texmax 3/23/98
Arbin Inc. 3/23/98
Lewis Corp. 3/18/98
Hibar Systems Limited 3/17/98
IMD Corp. 3/17/98
Charles Ross & Son 3/17/98
Despatch Industries 3/17/98
Bodine Assemble & Test System 2/23/98
Zentrum For Sonnergie-und Wasserstroff 2/16/98
<PAGE>
Beacon Group 2/10/98
BST Systems Corp. 12/19/97
Nan Ya Plastics Co. 11/14/97
Danstep Associates 2/11/97
Courtaulds Fibres 06/17/96
Eveready Battery Co., Inc. 11/26/96
MATEC/BEWAG, Berlin 11/25/98
MATEC/GEW, Wilhelmshaven 11/25/98
MATEC/Wilhelmshaven 11/25/98
MATEC/VASA Energy, Hamburg 11/25/98
INMETCO 11/17/98
City of Xiamen, City 11/14/98
Rechargable Battery Corp. 11/11/98
Richel Inc. 11/6/98
Electro Energy Inc. 11/6/98
Yardney Technical Products 11/2/98
Garlock Inc. 10/30/98
Jaygo Inc. 10/30/98
CELGARD LLC 10/27/98
The Guest Co. 10/22/98
Maccor Inc. 10/22/98
Mauricio Rizikow 10/22/98
Jet Puverizer 10/22/98
Firing Circuits Inc. 10/15/98
Vernay Laboratories 8/18/98
Aero Vironment Inc. 9/17/98
Computer Aided Engineering 8/13/98
Straton Industries 8/13/98
H.C. Starck Business Group 8/7/98
All Battery consultants 8/7/98
Celgard 8/6/98
-2-
<PAGE>
Mitsubishi Bank & Trust Corp. 7/7/98
BATTERY TEST AGREEMENTS
(BY DATE)
NAME EFFECTIVE DATE
- ----
NEOCON Technologies Inc. 11/30/98
Honda R&D Americas 10/13/98
Center for Hydrogen & Solar Research 7/28/98
ZAP Power System 7/22/98
EV Global Motors Co. 6/15/98
Charger Electric Bicycle Co. 6/17/98
Currie Technologies 5/26/98
Cannondale Corp. 8/5/98
PIVCO 3/3/98
Bodine Assembly & Test Systems 3/3/98
Bay Resource Corporation 2/26/98
Daimler Benz AG 8/7/97
Aero Vironment Inc. 9/17/96
Toro MFG. Corp. 9/12/96
Alvin J. Salkind 4/12/95
Electric Bicycle Co. 7/25/93
BATTERY SERVICE AGREEMENTS
(BY DATE)
NAME EFFECTIVE DATE
MATEC (Marketing and Techology Consult GmbH) 10/6/98
BATTERY MEMORANDUM OF UNDERSTANDING
(BY DATE)
NAME EFFECTIVE DATE
TRAPOS (Transport Systemetecnic AG) 10/27/98
-3-
<PAGE>
SCHEDULE 1.01(c)
EVERCEL LIABILITIES
-4-
<PAGE>
SCHEDULE 1.01(d)
ERC INTELLECTUAL PROPERTY ASSETS
U.S. PATENTS AND PENDING U.S. PATENT APPLICATIONS
Patent No. Issue Date File No.
- ---------- ---------- --------
4,415,636 November 11, 1983 30512
4,546,058 October 8, 1985 32984
4,661,759 April 28,1987 40006
4,810,598 March 7, 1987 40067
4,976,904 December 11, 1990 40066
5,023,155 June 11, 1991 40110
5,264,305 November 23, 1993 B429-001
5,460,899 October 24, 1995 B429-010
5,556,720 September 17, 1996 B429-010 CIP
5,658,694 August 19, 1997 B429-021
Patent Appln. No. Filing Date File No.
- ----------------- ----------- --------
08/722,605 September 27, 1996 B429-019
08/828,801 March 27, 1997 B429-026
09/148,451 September 4, 1998 B429-029
<PAGE>
SCHEDULE 1.01(e)
EVERCEL EMPLOYEES
Permanent Employees Temporary Employees
- ------------------- -------------------
Kathy Bates Steve Elam
Fernando Bico Maria Quiroz
Allen Charkey Jeff Gardner
William Clark Vincent Marra
Elio Ferreira George Tirado
Lieng Nguyen Elaine Vargas
Jacqueline Nguyen Estelle Barnes
John Rotondo
Glen Bowling
Olivia Saraiva
Mike Nyce
Keith Williams
Virgil Handberry
James DeCarvalho
Phil Napoli
Richard Howard
<PAGE>
EXHIBITS
Exhibit A: Form of Services Agreement
Exhibit B: Form of Tax Sharing Agreement
Exhibit C: Form of License Assistance Agreement
<PAGE>
EXHIBIT A
FORM OF SERVICES AGREEMENT
<PAGE>
EXHIBIT B
FORM OF TAX SHARING AGREEMENT
<PAGE>
EXHIBIT C
FORM OF LICENSE ASSISTANCE AGREEMENT
C-2
SERVICES AGREEMENT
This Services Agreement is made as of this 22nd day of February, 1999 by
and between ENERGY RESEARCH CORPORATION, a New York corporation ("ERC") and
EVERCEL, INC., a Delaware corporation ("Evercel").
W I T N E S S E T H:
WHEREAS, ERC has transferred and assigned all of the assets and liabilities
of ERC's battery business to Evercel, a wholly-owned subsidiary of ERC until
February 22, 1999 when ERC distributed to its stockholders in a tax-free
distribution all of the issued and outstanding shares of Common Stock of
Evercel;
WHEREAS, ERC has historically provided to its battery business and to
Evercel certain management and administrative services and the use of certain
office, research and development, manufacturing and support facilities and
services;
WHEREAS, Evercel desires to continue to obtain from ERC these management
and administrative services, as well as the use of certain office, research and
development, manufacturing and support facilities and services of ERC;
WHEREAS, ERC wishes to continue to provide such assistance to Evercel under
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained, the parties hereto hereby agree as follows:
1. Engagement
Evercel does hereby engage ERC to provide the management and administrative
services and support facilities and services described herein. ERC accepts this
engagement and agrees to furnish the services described below for the
compensation set forth below.
2. Services to be Provided by ERC
ERC agrees to provide management and administrative services and certain
office, research and development, manufacturing and support facilities and
services necessary in the day-to-day operations of Evercel (collectively, the
"Services"). Such duties shall include the following:
(a) Providing and maintaining, at ERC's existing offices at 3 Great Pasture
Road, Danbury, Connecticut, or at such other location as ERC and Evercel may
agree, sufficient office, research and development and manufacturing space for
Evercel to carry on its business activities ("Building Services");
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(b) Providing Evercel with services supplied by the ERC Analytical Lab,
Microscopic Analysis, Machine Shop and Drafting (collectively, "Work Order
Services") upon submission by Evercel to ERC of an appropriate work order. Work
orders shall reflect job numbers:
Analytical Lab 6999-001
Microscopic Analysis 6999-002
Machine Shop 6999-003
Drafting 6999-004
(c) Providing and maintaining management information systems and
secretarial and administrative support services necessary for the business
operations of Evercel;
(d) Providing and maintaining financial support services, including
bookkeeping, internal auditing and accounting services and certain other "back
office" services required by Evercel;
(e) Administering the payroll and employee benefit plans of Evercel and
providing other human resources services;
(f) Assisting in the preparation of quarterly and annual financial
statements and related disclosures in SEC and shareholder documents for Evercel
as well as all other filings required by the SEC and all reports of operations
and tax returns which are required by taxing bodies or other governmental
agencies;
(g) Providing Evercel with the part-time management services of Jerry D.
Leitman and Joseph G. Mahler and such other management employees of ERC as
Evercel may reasonably request for the purpose of conducting its business;
(h) Providing such other management, administrative and support services
and facilities and Evercel may reasonably request and ERC may agree to provide.
Any input or information needed by either party to perform or utilize the
Services pursuant to the provisions of this Agreement shall be provided by the
other party upon reasonable request. Should the failure by Evercel to provide
such input or information render the performance of the Services impossible or
unreasonably difficult, ERC may, upon reasonable notice, refuse to provide such
Services.
3. Compensation
In consideration of the Services rendered pursuant to this Agreement,
Evercel shall pay to ERC the following charges:
(a) With respect to Building Services described in Paragraph 2(a), Evercel
shall pay to ERC its pro rata portion of all building related costs and
expenses, including, but not limited to, maintenance costs, maintenance
salaries, wages, and fringe benefits, depreciation, real estate
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taxes, utilities, communication costs, cleaning costs, and insurance premiums
(collectively, "Building Costs"). Evercel's pro rata portion of such Building
Costs shall be determined on the basis of the square footage occupied by Evercel
(currently 10%).
(b) With respect to Work Order Services described in Paragraph 2(b),
Evercel shall pay to ERC the amount of all costs and expenses incurred by ERC in
rendering such Work Order Services, including, but not limited to, labor,
overhead and general and administrative costs incurred by ERC.
(c) With respect to all other Services, Evercel shall pay to ERC its pro
rata portion of the general and administrative costs and expenses incurred by
ERC related to such Services, based upon the number of Evercel employees in
relation to ERC employees for the related quarter (currently 11%).
(d) Evercel shall also pay to ERC an amount equal to its pro rata portion
of the costs and expenses incurred by ERC in connection with Danbury purchasing
functions, based upon the number and weighted value of purchase orders issued.
The foregoing amounts shall be determined by the management of ERC
exercising its good faith judgment. In the event of any dispute regarding the
allocation of overhead charges or costs, such charges and costs shall be
determined by ERC's independent certified public accountants, whose
determination shall be binding and conclusive on all parties.
ERC shall submit to Evercel by the 10th working day of each quarter an
invoice for all charges associated with Services provided during the preceding
quarter. All invoices shall describe in reasonable detail the Services provided
and the charges associated therewith, any related adjustments and any other
amounts that are payable. Evercel shall remit payment in full for all charges
invoiced on or before the last working day of the month in which the invoice is
received.
4. Limitation on Exercise of Powers; No Agency
Notwithstanding anything to the contrary contained in this Agreement, ERC
shall have no right or authority, express or implied, to commit or otherwise
obligate Evercel in any manner whatsoever except to the extent specifically
provided in this Agreement. Any intention to create the relationship of
principal and agent between Evercel and ERC is disclaimed and nothing in this
Agreement shall constitute ERC as the general agent of Evercel. Notwithstanding
the foregoing, ERC is expressly authorized to execute and place purchase orders
on Evercel's behalf upon request of an approved, authorized employee of Evercel.
ERC shall not be liable for any debts or obligations of Evercel whether arising
before or after the date of this Agreement.
5. Term of Agreement
This Agreement shall become effective as of the date hereof and shall
continue thereafter until terminated as provided herein.
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This Agreement is terminable, without penalty, on one hundred twenty (120)
days' prior written notice, by either party to the other party. Notwithstanding
the foregoing, Evercel may from time to time terminate this Agreement with
respect to one or more of the Services upon giving at least sixty (60) days'
prior written notice to ERC, and ERC may from time to time terminate this
Agreement with respect to one or more of the Services upon giving at least one
hundred twenty (120) days' prior written notice to Evercel.
6. Potential Conflicts
Evercel understands that the persons employed by ERC to assist in the
performance of ERC's duties under this Agreement will not devote their full time
to such service and nothing contained in this Agreement shall be deemed to limit
or restrict the right of ERC or any affiliate of ERC to engage in and devote
time and attention to ERC's existing business or other businesses or to render
services of whatever kind or nature.
7. Limitation of Liability; Indemnification
None of ERC and its directors, officers, agents and employees (each an "ERC
Indemnified Person") shall be liable, responsible or accountable in damages to
Evercel for or in connection with any of the Services rendered pursuant to this
Agreement by any ERC Indemnified Person in good faith and in a manner reasonably
believed by such ERC Indemnified Person to be within the scope of the authority
granted to ERC by this Agreement, except for acts or omissions constituting
gross negligence or willful misconduct of such ERC Indemnified Person.
Evercel agrees to indemnify and hold harmless each ERC Indemnified Person
from and against any and all claims, losses, causes of action, damages and
liabilities (including all reasonable attorneys' fees) arising out of or in
connection with Services rendered or to be rendered by any ERC Indemnified
Person pursuant to this Agreement or any act or omission performed or omitted by
any ERC Indemnified Person in good faith on behalf of Evercel and in a manner
reasonably believed by such ERC Indemnified Person to be within the scope of the
authority granted to ERC by this Agreement, except that ERC Indemnified Persons
shall not be entitled to be indemnified in respect of any loss, damage or claim
incurred by reason of gross negligence or willful misconduct of any ERC
Indemnified Person.
ERC agrees to indemnify and hold harmless Evercel and each of its
directors, officers, agents and employees from and against any and all claims,
losses, causes of action, damages and liabilities (including all reasonable
attorneys' fees) arising out of the gross negligence or willful misconduct of
any ERC Indemnified Person in connection with the Services rendered or to be
rendered pursuant to this Agreement.
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8. Confidentiality
The parties each agree to hold in trust and maintain confidential, and,
except as required by law or applicable rules and regulations promulgated
thereunder or by court order or other legal process, not to disclose to others
without first obtaining the prior written approval of the other party, any
information received by it from the other party or developed or otherwise
obtained by it under this Agreement, including all information resulting from
the provision or utilization of the Services hereunder (collectively, the
"Information"). At the time of termination of this Agreement in whole or in
part, each party shall, within 90 days after the effective date of such
termination, return to each other all written information that it obtained and
shall not retain or allow any third party to retain photocopies or other
reproductions of such information, provided that (i) the parties may retain any
Information to the extent reasonably needed to comply with applicable tax,
accounting or financial reporting requirements or to resolve any legal issues
identified at the time of termination, and (ii) in the case of a partial
termination of this Agreement, the parties may retain any Information required
to perform or utilize any remaining Services covered by this Agreement.
Alternatively, each party may, upon receipt of the written consent of the other
party, destroy such Information instead of returning the same pursuant to the
foregoing sentence. The obligations set forth in this Paragraph 8 shall not
apply to any Information which is shown by either party to be or have become
knowledge generally available to the public other than through the acts or
omissions of such party.
9. Miscellaneous
(a) ERC may enter into subcontracts for the performance of its duties
hereunder with qualified persons, provided, however, that ERC will in all cases
remain primarily responsible for all obligations undertaken by it in this
Agreement with respect to the scope, quality and nature of the Services provided
to Evercel.
(b) Except as provided in (a) above, this Agreement otherwise shall not be
assignable by ERC. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except as otherwise provided herein.
(c) This Agreement shall be governed by and construed in accordance with
the laws of the State of Connecticut without giving effect to the conflict of
law rules thereof.
(d) Notices. All notices, demands and requests required or permitted to be
given under the provisions of this Agreement shall be in writing and shall be
deemed to have been duly given when mailed, if mailed by certified mail, return
receipt requested, postage prepaid, or when delivered, if delivered personally,
to the following addresses:
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if to ERC:
Energy Research Corporation
3 Great Pasture Road
Danbury, Connecticut 06813
Attention: Chief Financial Officer
if to Evercel:
Evercel, Inc.
3 Great Pasture Road
Danbury, Connecticut 06813
Attention: Chief Financial Officer
or to such other address as either of the parties may furnish to the other from
time to time by notice pursuant to this Section.
(e) This Agreement contains all of the terms agreed upon by the parties
with respect to the subject matter hereof. This Agreement may not be amended or
modified nor may any or these provisions be waived, except by an instrument in
writing signed by each party to be bound by such amendment, or except as
otherwise herein expressly provided.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
ENERGY RESEARCH CORPORATION
By: /s/ Jerry D. Leitman
----------------------
Name: Jerry D. Leitman
Title: President and Chief Executive Officer
EVERCEL, INC.
By: /s/ Allen Charkey
----------------------
Name: Allen Charkey
Title: Executive Vice President and Chief
Operating Officer
LICENSE ASSISTANCE AGREEMENT
This License Assistance Agreement (this "Agreement"), dated as of February
16, 1999, is entered into by and between ENERGY RESEARCH CORPORATION ("ERC"), a
New York corporation with its principal place of business at 3 Great Pasture
Road, Danbury, Connecticut, and EVERCEL, INC. ("Evercel"), a Delaware
corporation and wholly-owned subsidiary of ERC with its principal place of
business at 3 Great Pasture Road, Danbury, Connecticut.
WHEREAS, ERC has entered into a Cooperative Joint Venture Contract (the
"Joint Venture Contract"), and articles of association (the "Articles of
Association"), each dated as of July 7, 1998, with Xiamen Three Circles Co.,
Ltd. ("Xiamen"), which provides for the establishment of Xiamen Three
Circles-ERC Battery Corp., Ltd., a Sino-Foreign Manufacturing Joint Venture (the
"Joint Venture") to manufacture and sell nickel zinc ("Ni-Zn") batteries;
WHEREAS, the Joint Venture, Xiamen (formerly Xiamen Daily-Used Chemicals
Co., Ltd.) and ERC have entered into a Technology Transfer and License Contract
(the "License Contract"), dated as of May 29, 1998, pursuant to which ERC has
licensed certain of its Ni-Zn battery technology to the Joint Venture;
WHEREAS, the registered capital of the Joint Venture is US$6,100,000, of
which ERC has contributed US$3,080,500 in cash representing a 50.5% share of the
registered capital and cooperative conditions of the Joint Venture;
WHEREAS, Evercel is a wholly-owned subsidiary of ERC that has been formed
to develop the battery business of ERC following a spin-off of Evercel;
WHEREAS, ERC wishes to transfer to Evercel the principal assets and related
liabilities of its battery business in anticipation of the spin-off;
WHEREAS, ERC also wishes to assign its interests in the Joint Venture
Contract and the License Contract to Evercel in connection with the spin-off;
WHEREAS, such assignment of ERC's interest in the Joint Venture Contract
and the License Contract will require the consents of Xiamen and the Joint
Venture, respectively, and the approval of the appropriate examination and
approval authority of the People's Republic of China (the "PRC Approval
Authority");
WHEREAS, until such consents and approval are obtained and such assignments
are effectuated (such assignments collectively referred to herein as the
("Transfer")), ERC and Evercel desire that Evercel bear the obligations and
receive the benefits of ERC under the Joint Venture Contract and the License
Contract.
<PAGE>
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, ERC and Evercel hereby agree as follows:
1. Until the consents and approvals referred to in Section 5 and Section
6 below are obtained with respect to the Transfer and the Transfer is
completed, ERC and Evercel desire that Evercel bear the obligations
and receive the benefits of ERC under the Joint Venture Contract and
the License Contract. Therefore, to effectuate such intent, Evercel
shall provide to ERC, without charge or expense to ERC, all services
and assistance (including, without limitation, employee, technology,
machinery, equipment and materials selection, sales and marketing
assistance and financial assistance) necessary for Evercel to
effectively fulfill, on behalf of ERC, all of ERC's obligations under
the Joint Venture Contract and the License Contract. In return for
such services and assistance, ERC irrevocably agrees to pay to Evercel
an amount equal to the sum of all money, dividends, profits,
reimbursements, distributions (including liquidating distributions)
and payments actually paid to ERC in cash or in kind, or otherwise
accruing to ERC, pursuant to or in connection with the Joint Venture
Contract and the License Contract. ERC will provide to Evercel all
information that ERC receives from the Joint Venture pertaining to the
Joint Venture's annual income, losses, and operations sufficient to
enable Evercel to report on its annual U.S. federal and state tax
returns the allocable amount of taxable income, losses, deductions,
and credits to which ERC would otherwise be entitled absent this
Agreement. Further, ERC will cause and enable Evercel to have access
to all books and records of the Joint Venture or true and correct
copies thereof to which ERC is otherwise entitled.
2. Until the consents and approvals referred to in Section 5 and Section
6 below are obtained with respect to the Transfer and the Transfer is
completed, ERC agrees that, in the event of any vacancy in the Board
of Directors (the "Board") of the Joint Venture relating to a
directorship which ERC is entitled to appoint, or in the position of
Deputy General Manager of the Joint Venture, ERC will request a
nominee from Evercel to fill such vacancy. Within ten business days of
receipt of such request, Evercel will notify ERC in writing of its
nominee to fill such vacancy on the Board or as the Deputy General
Manager, as applicable. ERC will appoint Evercel's nominee to the
Board or as the Deputy General Manager, as applicable, unless ERC
raises a reasonable objection to such nominee. Upon ERC's reasonable
objection to a nominee, Evercel will notify ERC of a substitute
nominee, which substitute nominee (absent any further reasonable
objection by ERC) shall be appointed by ERC. In addition, in the event
that the Transfer has not taken place by the date that is six months
from the date hereof, upon the written request of Evercel, ERC will
replace its appointees to the Board with nominees specified by Evercel
in such notice (unless ERC raises a reasonable objection to such
nominee(s), in which case Evercel will
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notify ERC of substitute nominee(s)). ERC also agrees to exercise any
residual rights and powers in the Joint Venture interest, including,
but not limited to, voting rights, in accordance with Evercel's
instructions, provided that such instructions are not materially
adverse to ERC, in ERC's reasonable discretion. In the event of any
disagreement relating to the foregoing, ERC and Evercel will attempt
to work out a mutually agreeable solution.
3. This Agreement does not constitute an agreement for a partnership or
joint venture between ERC and Evercel. All expenses and costs incurred
by Evercel in meeting Evercel's obligations under this Agreement shall
be solely those of Evercel, and ERC shall not be liable for their
payment. All expenses and costs incurrred by ERC in meeting ERC's
obligations under this Agreement shall be reimbursed in full by
Evercel, provided that ERC, to the extent practical, agrees to notify
Evercel prior to incurring any costs or expenses pursuant to this
Agreement. Neither party to this Agreement shall have authority to
make commitments with third parties, including the Joint Venture, that
are binding upon the other party hereto without the other party's
written consent, and neither party to this Agreement shall in any way
hold itself out as having that power.
4. This Agreement is personal to both ERC and Evercel, and neither party
hereto can assign any rights or duties arising hereunder to a third
party, whether by contract or by operation of law, without the prior
written consent of the other party to this Agreement; any attempt to
do so shall be void.
5. Immediately following the execution of this Agreement by both parties,
ERC shall endeavor to obtain, pursuant to a contract (the "Transfer
Contract") to be entered into by and among ERC, Evercel, and the Joint
Venture, the written consent of Xiamen to the assignment of
obligations and benefits under the Joint Venture Contract and the
License Contract and the written consent of the Joint Venture in the
form of a unanimous resolution adopted by the Board approving the
Transfer and making application to the PRC Approval Authority, the
taking of all actions necessary to effectuate such Transfer and the
Amendment of the Joint Venture Contract, Articles of Association and
the License Contract of the Joint Venture pursuant to the Transfer
Contract.
6. Immediately upon receiving the consents and following the adoption of
the unanimous resolution by the Board of Directors of the Joint
Venture as set forth in Section 5 above, the parties to this Agreement
will endeavor to assist the Joint Venture in applying to the PRC
Approval Authority and any other appropriate governmental agency of
the PRC for approval of the Transfer Contract and of the corresponding
amendments to the Joint Venture Contract, Articles of Association and
the License Agreement. In connection
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therewith, the parties to this Agreement will endeavor to provide any
documents or any assistance reasonably requested by the Joint Venture.
7. Each of the parties will use its reasonable best efforts to take all
action and to do all things necessary, proper, or advisable in order
to carry out the intent of this Agreement as set forth in the
preambles to this Agreement.
8. Unless earlier terminated by mutual agreement of the parties to this
Agreement, the term of this Agreement shall commence on the date first
written above and continue until the consents and the approval set
forth in Section 5 above are obtained, at which time this Agreement
shall terminate and be of no further force or effect. During the term
of this Agreement, ERC agrees, in connection with any of its
activities related to the Joint Venture, to act in the best interests
of Evercel at all times. In the event that such consents and approval
are not obtained, the parties hereto agree that the contractual
obligations created hereby shall continue to exist coterminous with
the Joint Venture Contract.
9. ERC agrees that, except as specifically contemplated herein, it will
not enter into any amendment or modification to the Joint Venture
Contract, Articles of Association or the License Contract without the
express written consent of Evercel.
10. For purposes of the disclosure of information under the
Confidentiality Agreement dated May 29, 1998 between ERC and Xiamen
attached to the License Contract, the parties hereto agree that
Evercel is a legally authorized agent of ERC.
11. This Agreement shall be governed by the laws of the State of
Connecticut, without regard to choice of law considerations.
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<PAGE>
IN WITNESS WHEREOF, and intending to be legally bound, the duly authorized
representatives of each party hereto have signed this Agreement as of the date
first written above.
ENERGY RESEARCH CORPORATION
By: /s/ Jerry D. Leitman
----------------------
Name/Title: Jerry D. Leitman
President and Chief Executive
Officer
EVERCEL, INC.
By: /s/ Allen Charkey
----------------------
Name/Title: Allen Charkey
Executive Vice President and
Chief Operating Officer
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<PAGE>
TAX SHARING AGREEMENT
TAX SHARING AGREEMENT (the "Agreement"), dated as of February 16, 1999,
between Energy Research Corporation, a New York corporation ("ERC"), and
Evercel, Inc., a Delaware corporation ("Evercel").
WHEREAS, ERC is the parent corporation of an affiliated group of
corporations, including Evercel, that join in filing consolidated federal Income
Tax Returns and certain consolidated, combined or unitary state Income Tax
Returns;
WHEREAS, pursuant to the Distribution Agreement (as hereinafter defined),
ERC presently intends to distribute all of the common stock, $.01 par value per
share, of Evercel to its common stockholders (the "Distribution"); and
WHEREAS, ERC and Evercel desire on behalf of themselves, their subsidiaries
and their successors to set forth their respective rights and obligations with
respect to Taxes (as hereinafter defined).
NOW THEREFORE, in consideration of their mutual promises, the parties
hereby agree as follows:
1. DEFINITIONS.
When used herein the following terms shall have the following meanings:
"AGREEMENT" -- shall have the meaning set forth in the introductory
paragraph hereof.
"CLOSING DATE" -- the date the Distribution is consummated pursuant to the
terms of the Distribution Agreement.
"CODE" -- The Internal Revenue Code of 1986, as amended, or any successor
thereto, as in effect for the taxable year in question.
"DISTRIBUTION" -- shall have the meaning set forth in the recitals hereof.
"DISTRIBUTION AGREEMENT" -- The Distribution Agreement dated as of February
16, 1999 between ERC and Evercel.
"ERC" -- shall have the meaning set forth in the introductory paragraph
hereof.
"ERC Group" -- for any taxable year or period, ERC and each corporation
filing a consolidated federal Income Tax Return with ERC as the parent
corporation. For any taxable year or period ending on or before the Closing
Date, such term shall include
<PAGE>
Evercel. For any taxable year or period beginning after the Closing Date, such
term shall not include Evercel.
"EVERCEL" -- shall have the meaning set forth in the introductory paragraph
hereof.
"INCOME TAX(ES)" -- with respect to any corporation or group of
corporations, any and all Taxes to the extent based upon or measured by net
income (regardless of whether denominated as an "income tax," a "franchise tax"
or otherwise) imposed by any Taxing Authority, together with any related
interest, penalties or other additions thereto.
"IRS" -- the U.S. Internal Revenue Service.
"OTHER TAXES" -- Taxes other than Income Taxes.
"OVERDUE RATE" -- a rate of interest per annum that fluctuates with the
federal short-term rate established from time to time pursuant to Code Section
6621(b).
"TAX(ES)" -- any net income, gross income, gross receipts, sales, use,
excise, franchise, transfer, payroll, premium, property or windfall profits tax,
alternative or add-on minimum tax, or other tax, fee or assessment, together
with any interest and any penalty, addition to tax or other additional amount
imposed by any Taxing Authority, whether any such tax is imposed directly or
through withholding.
"TAXING AUTHORITY" -- the IRS and any other domestic or foreign
governmental authority responsible for the administration of any Tax.
"TAX RETURN(S)" -- all returns, reports, estimates, information statements,
declarations and other filings relating to, or required to be filed by any
taxpayer in connection with, its liability for, or its payment or receipt of any
refund of, any Tax.
2. PREPARATION AND FILING OF TAX RETURNS; PAYMENT OF TAXES
a. ERC shall prepare and timely file; or cause to be prepared and
timely filed, with the appropriate Taxing Authorities (i) all federal and state
Income and Other Tax Returns of the ERC Group and any member or members thereof
for all taxable years and periods ending on or before the Closing Date; and (ii)
all federal and state Income and Other Tax Returns of ERC for all taxable years
and periods beginning after the Closing Date. ERC shall pay, or cause to be
paid, all Taxes due with respect to Tax Returns described in this subsection
(a). ERC shall be entitled to all Tax refunds received or receivable with
respect to any and all Income and Other Taxes attributable to the ERC Group for
all taxable years and periods.
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b. Evercel shall prepare and timely file, or cause to be prepared and
timely filed, with the appropriate Taxing Authorities, all federal and state
Income and Other Tax Returns of Evercel for taxable years and periods beginning
after the Closing Date. Evercel shall pay, or cause to be paid, all Taxes due
with respect to Tax Returns described in this subsection (b). Evercel shall be
entitled to all Tax refunds received or receivable with respect to any and all
Income and Other Taxes attributable to Evercel for all taxable years and periods
beginning after the Closing Date.
3. PAYMENTS.
a. METHOD. Unless the parties otherwise agree, all payments made by a
party pursuant to this Agreement shall be made by wire transfer to a bank
account designated from time to time by the other party. The paying party shall
also provide a notice of payment to the recipient.
b. INTEREST. If any payment is not timely paid, interest shall accrue
on the unpaid amount at the Overdue Rate. A payment will be deemed to be timely
paid only if actually received by the payee within seven (7) days of the receipt
of notice from the other party that such payment is due.
c. CHARACTERIZATION. Any payment (other than interest thereon) made
hereunder shall be treated by all parties for all purposes as a nontaxable
intercompany settlement of liabilities existing immediately before the
Distribution or, to the extent appropriate, as a non-taxable dividend
distribution or capital contribution.
4. CONTESTS AND AUDITS; INDEMNIFICATION.
a. NOTICE. Upon the receipt by ERC or Evercel, as the case may be, of
notice of any pending or threatened Tax audit or assessment which may affect the
liability for Taxes that are subject to indemnification hereunder, ERC or
Evercel, as the case may be, shall promptly notify the other in writing of the
receipt of such notice.
b. CONTROL AND SETTLEMENT. From and after the Closing Date, ERC shall
have full control over, and the right to represent the interests of, ERC and all
other corporations involved in or affected by any Tax audit or administrative,
judicial or other proceeding relating, in whole or in part, to Taxes that are
subject to indemnification by ERC hereunder. ERC shall have the right to employ
counsel of its choice at its expense, and shall have the ultimate control of the
contest and any settlement or other resolution thereof. Any liability for Taxes
established pursuant to such proceeding shall be allocated and paid in
accordance with Section 2 of this Agreement.
c. AMENDMENT OF TAX RETURNS. ERC shall have sole control over the
preparation and filing of any and all amendments to Tax Returns described in
Section 2(a).
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d. INDEMNIFICATION. ERC shall indemnify and hold harmless Evercel
against any and all Income and Other Taxes of the ERC Group for all taxable
years and periods. Evercel shall indemnify and hold harmless ERC against any and
all Income and Other Taxes specifically attributable to Evercel for all taxable
years and periods beginning after the Closing Date.
5. COOPERATION; DOCUMENT RETENTION; CONFIDENTIALITY.
a. COOPERATION. Upon reasonable request, ERC and Evercel shall promptly
provide (and shall cause their respective affiliates to provide) the requesting
party with such cooperation and assistance, documents, and other information,
without charge, as may be necessary or reasonably helpful in connection with (i)
the preparation and filing of any original or amended Tax Return, (ii) the
conduct of any audit, appeal, protest or other examination or any judicial or
administrative proceeding involving to any extent Taxes or Tax Returns within
the scope of this Agreement, or (iii) the verification by a party of an amount
payable hereunder to, or receivable hereunder from, another party. Such
cooperation and assistance shall include, without limitation: (a) the provision
on demand of books, records, Tax Returns, documentation or other information
relating to any relevant Tax Return; (b) the execution of any document that may
be necessary or reasonably helpful in connection with the filing of any Tax
Return, or in connection with any audit, appeal, protest, proceeding, suit or
action of the type generally referred to in the preceding sentence, including,
without limitation, the execution of powers of attorney and extensions of
applicable statutes of limitations; (c) the prompt and timely filing of
appropriate claims for refund; and (d) the use of reasonable best efforts to
obtain any documentation from a governmental authority or a third party that may
be necessary or helpful in connection with the foregoing. Each party shall make
its employees and facilities available on a mutually convenient basis to
facilitate such cooperation.
b. RETENTION. ERC and Evercel shall retain or cause to be retained all
Tax Returns, and all books, records, schedules, workpapers, and other documents
relating thereto, which Tax Returns and other materials are within the scope of
this Agreement, until the expiration of the later of (i) all applicable statutes
of limitations (including any waivers or extensions thereof), and (ii) any
retention period required by law or pursuant to any record retention agreement.
The parties hereto shall notify each other in writing of any waivers, extensions
or expirations of applicable statutes of limitations, and shall provide at least
thirty (30) days prior written notice of any intended destruction of the
documents referred to in the preceding sentence. A party giving such a
notification shall not dispose of any of the foregoing materials without first
allowing the other party a reasonable opportunity to copy them at such other
party's expense.
c. CONFIDENTIALITY. Except as required by law or with the prior written
consent of the other party, all Tax Returns, documents, schedules, work papers
and similar items and all information contained therein, which Tax Returns and
other materials are within the scope of this Agreement, shall be kept
confidential by the parties
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hereto and their representatives, shall not be disclosed to any other person or
entity and shall be used only for the purposes provided herein.
6. MISCELLANEOUS.
a. EFFECTIVENESS. This Agreement shall be effective from and after the
Closing Date and shall survive until the expiration of all applicable statutes
of limitations with respect to taxable years and periods ending on or before or
including the Closing Date.
b. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and supersedes all prior agreements, understandings, negotiations and
discussions, whether written or oral, between the parties hereto with respect to
the subject matter hereof, so that no such external or separate agreement
relating to the subject matter of this Agreement shall have any effect or be
binding, unless the same is referred to specifically in this Agreement or is
executed by the parties after the date hereof. To the extent that the terms of
this Agreement and similar terms of the Distribution Agreement are in conflict,
this Agreement shall govern. This Agreement cancels and supersedes, as of the
Closing Date, any and all other agreements with respect to Taxes between ERC and
Evercel.
c. SEVERABILITY. In the event that one or more of the terms or
provisions of this Agreement or the application thereof to any person(s) or in
any circumstance(s) shall, for any reason and to any extent be found by a court
of competent jurisdiction to be invalid, illegal or unenforceable, such court
shall have the power, and hereby is directed, to substitute for or limit such
invalid term(s), provision(s) or application(s) and to enforce such substituted
or limited terms or provisions, or the application thereof. Subject to the
foregoing, the invalidity, illegality or enforceability of any one or more of
the terms or provisions of this Agreement, as the same may be amended from time
to time, shall not affect the validity, legality or enforceability of any other
term or provision hereof.
d. AMENDMENTS; WAIVERS. No termination, cancellation, modification,
amendment, deletion, addition or other change in this Agreement, or any
provision hereof, or waiver of any right or remedy herein provided, shall be
effective for any purpose unless such change or waiver is specifically set forth
in a writing signed by the party or parties to be bound thereby. The waiver of
any right or remedy with respect to any occurrence on one occasion shall not be
deemed a waiver of such right or remedy with respect to such occurrence on any
other occasion.
e. GOVERNING LAW. This Agreement and the rights and obligations of the
parties hereunder shall be governed by the laws of the State of New York,
without regard to the principles of choice of law thereof, except with respect
to matters of law concerning the internal corporate affairs of any corporate
entity which is a party to or subject of this Agreement, and as to those matters
the law of the jurisdiction under which the respective entity derives its powers
shall govern.
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f. NOTICES. All notices, requests, demands, statements, bills and other
communications under this Agreement shall be delivered in accordance with
Section 9.04 of the Distribution Agreement.
g. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
assigns. This Agreement shall not be assigned without the express written
consent of each of the parties hereto.
h. NO THIRD-PARTY BENEFICIARIES. This Agreement is solely for the
benefit of the parties hereto and shall not be deemed to confer upon third
parties any remedy, claim, liability, reimbursement, claim of action or other
right in excess of those existing without this Agreement.
i. TITLES AND HEADINGS. Titles and headings to sections herein are
inserted for the convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
j. PREDECESSORS AND SUCCESSORS. To the extent necessary to give effect
to the purposes of this Agreement, any reference to any corporation shall also
include any predecessor or successor thereto, by operation of law or otherwise.
k. TAX ELECTIONS. Nothing in this Agreement is intended to change or
otherwise affect any previous tax election made by or on behalf of the ERC
Group, and ERC shall have sole discretion to make or change any and all
elections affecting the ERC Group or any member or members thereof for all
taxable years and periods ending on or before the Closing Date.
l. EXPENSES. Except as otherwise set forth in this Agreement, all costs
and expenses in connection with the preparation, execution, delivery and
implementation of this Agreement and with the consummation of the transactions
contemplated by this Agreement shall be charged to the party for whose benefit
the expenses are incurred, with any expenses which cannot be allocated on such
basis to be split equally between the parties.
m. DISPUTE RESOLUTION. Any dispute arising under this Agreement shall
be resolved by binding arbitration in the manner contemplated by Section 9.12 of
the Distribution Agreement, including the attorneys fees provisions referred to
therein.
n. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which together shall be deemed to be an original and all
of which together shall be deemed to constitute one and the same agreement.
o. RELATIONSHIP OF PARTIES. Nothing in this Agreement shall be deemed
or construed by the parties or any third party as creating the relationship of
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principal and agent, partnership or joint venture between the parties, it being
understood and agreed that no provision contained herein, and no act of the
parties, shall be deemed to create any relationship between the parties other
than the relationship set forth herein.
p. FURTHER ACTION. Evercel and ERC each shall cooperate in good faith
and take such steps and execute such papers as may be reasonably requested by
the other party to implement the terms and provisions of this Agreement.
q. LEGAL ENFORCEABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Without prejudice to any
rights or remedies otherwise available to any party hereto, each party hereto
acknowledges that damages would be an inadequate remedy for any breach of the
provisions of this Agreement and agrees that the obligations of the parties
hereunder shall be specifically enforceable.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
ENERGY RESEARCH CORPORATION
By: /s/ Jerry D. Leitman
----------------------
Name: Jerry D. Leitman
Title: President and Chief Executive Officer
EVERCEL, INC.
By: /s/ Allen Charkey
----------------------
Name: Allen Charkey
Title: Executive Vice President and
Chief Operating Officer
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EXHIBIT D
DISTRIBUTION AGREEMENT
BY AND BETWEEN
ENERGY RESEARCH CORPORATION
AND
EVERCEL, INC.
DATED AS OF
FEBRUARY 16, 1999
<PAGE>
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS.........................................................1
ARTICLE II. TRANSFER OF ASSETS.................................................6
SECTION 2.01. TRANSFER OF ASSETS TO EVERCEL...................................6
SECTION 2.02. CONSIDERATION FOR ASSET TRANSFERS...............................7
SECTION 2.03. TRANSFERS NOT EFFECTED PRIOR TO THE DISTRIBUTION................7
SECTION 2.04. COOPERATION RE: ASSETS.........................................8
SECTION 2.05. NO REPRESENTATIONS OR WARRANTIES; CONSENTS......................8
SECTION 2.06. CONVEYANCING AND ASSUMPTION INSTRUMENTS.........................9
SECTION 2.07. CASH MANAGEMENT.................................................9
SECTION 2.08. RETAINED LICENSE TO USE TECHNOLOGY.............................10
ARTICLE III. ASSUMPTION AND SATISFACTION OF LIABILITIES.......................12
SECTION 3.01. ASSUMPTION AND SATISFACTION OF LIABILITIES.....................12
ARTICLE IV. THE DISTRIBUTION..................................................12
SECTION 4.01. COOPERATION PRIOR TO THE DISTRIBUTION..........................12
SECTION 4.02. ERC BOARD ACTION; CONDITIONS PRECEDENT TO THE DISTRIBUTION.....12
SECTION 4.03. THE DISTRIBUTION...............................................13
ARTICLE V. INDEMNIFICATION....................................................13
SECTION 5.01. INDEMNIFICATION BY ERC.........................................13
SECTION 5.02. INDEMNIFICATION BY EVERCEL.....................................14
SECTION 5.03. INSURANCE PROCEEDS.............................................14
SECTION 5.04. PROCEDURE FOR INDEMNIFICATION..................................15
SECTION 5.05. REMEDIES CUMULATIVE............................................17
SECTION 5.06. SURVIVAL OF INDEMNITIES........................................17
ARTICLE VI. CERTAIN ADDITIONAL MATTERS........................................17
SECTION 6.01. CERTAIN POST-DISTRIBUTION TRANSACTIONS.........................17
SECTION 6.02. NOTICES BY ERC.................................................18
ARTICLE VII. ACCESS TO INFORMATION AND SERVICES...............................18
SECTION 7.01. PROVISION OF CORPORATE RECORDS.................................18
SECTION 7.02. ACCESS TO INFORMATION..........................................18
SECTION 7.03. PRODUCTION OF WITNESSES........................................19
SECTION 7.04. REIMBURSEMENT..................................................19
SECTION 7.05. RETENTION OF RECORDS...........................................19
SECTION 7.06. CONFIDENTIALITY................................................19
SECTION 7.07. PRIVILEGED MATTERS.............................................20
ARTICLE VIII. INSURANCE.......................................................22
SECTION 8.01. POLICIES AND RIGHTS INCLUDED WITHIN THE EVERCEL ASSETS.........22
SECTION 8.02. POST-DISTRIBUTION DATE CLAIMS..................................22
SECTION 8.03. ADMINISTRATION AND RESERVES....................................22
SECTION 8.04. AGREEMENT FOR WAIVER OF CONFLICT AND SHARED DEFENSE............23
ARTICLE IX. MISCELLANEOUS.....................................................23
SECTION 9.01. COMPLETE AGREEMENT; CONSTRUCTION...............................23
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SECTION 9.02. EXPENSES.......................................................24
SECTION 9.03. GOVERNING LAW..................................................24
SECTION 9.04. NOTICES........................................................24
SECTION 9.05. AMENDMENTS; WAIVERS............................................25
SECTION 9.06. SUCCESSORS AND ASSIGNS.........................................25
SECTION 9.07. TERMINATION....................................................25
SECTION 9.08. NO THIRD-PARTY BENEFICIARIES...................................25
SECTION 9.09. TITLES AND HEADINGS............................................25
SECTION 9.10. EXHIBITS AND SCHEDULES.........................................25
SECTION 9.11. LEGAL ENFORCEABILITY...........................................26
SECTION 9.12. ARBITRATION OF DISPUTES........................................26
SECTION 9.13. COUNTERPARTS...................................................27
SECTION 9.14. RELATIONSHIP OF PARTIES........................................27
SECTION 9.15. FURTHER ACTION.................................................27
SECTION 9.16. PREDECESSORS AND SUCCESSORS....................................27
SCHEDULES.....................................................................29
EXHIBIT A: FORM OF SERVICES AGREEMENT
EXHIBIT B: FORM OF TAX SHARING AGREEMENT
EXHIBIT C: FORM OF LICENSE ASSISTANCE AGREEMENT
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DISTRIBUTION AGREEMENT
This DISTRIBUTION AGREEMENT (this "Agreement") is made as of this 16th day
of February, 1999 by and between Energy Research Corporation, a New York
corporation ("ERC"), and Evercel, Inc., a Delaware corporation and wholly-owned
subsidiary of ERC ("Evercel").
RECITALS
WHEREAS, the Board of Directors of ERC has determined that it is in the
best interests of its stockholders to transfer to Evercel certain principal
assets related to ERC's battery business group and for Evercel to assume certain
liabilities related to such assets (the "Asset Transfers") in consideration for
shares of Evercel Common Stock, and thereafter to distribute all of the
outstanding shares of Evercel Common Stock that are held by ERC to the holders
of ERC common stock (the "Distribution");
WHEREAS, in connection with the Distribution, ERC and Evercel have
determined that it is necessary and desirable to set forth the principal
corporate transactions required to effect the Asset Transfers and the
Distribution, and to set forth the agreements that will govern certain matters
following the Distribution.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained in this Agreement, the parties hereby agree as follows:
ARTICLE I.
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
ACTION: Any action, claim, suit, arbitration, inquiry, proceeding or
investigation by or before any court, any governmental or other regulatory or
administrative agency or commission or any arbitration tribunal.
AFFILIATE: With respect to any specified Person, any other Person directly
or indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition, "control,"
when used with respect to any Person, means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" shall have meanings correlative to the foregoing.
Notwithstanding the foregoing, (i) the Affiliates of ERC shall not include
Evercel or any other Person which would be an Affiliate of ERC by reason of
ERC's ownership of the capital stock of Evercel prior to the Distribution or the
fact that any officer or director of Evercel shall also serve as an officer or
director of ERC, and (ii) the Affiliates of Evercel shall not include ERC or any
other Person which would be an Affiliate of Evercel by reason of ERC's ownership
of the capital
<PAGE>
stock of Evercel prior to the Distribution or the fact that any
officer or director of Evercel shall also serve as an officer or director of
ERC.
AGENT: Continental Stock Transfer and Trust Company, the distribution agent
appointed by ERC to distribute the Evercel Common Stock pursuant to the
Distribution.
ASSET TRANSFERS: Shall have the meaning set forth in the recitals hereof.
COMMISSION: The Securities and Exchange Commission.
CONSENTS: Shall have the meaning set forth in Section 4.01(c) hereof.
CONVEYANCING AND ASSUMPTION INSTRUMENTS: Collectively, the various
agreements, instruments and other documents to be entered into to effect the
Asset Transfers and the assumption of Liabilities in the manner contemplated by
this Agreement and the Related Agreements.
DISTRIBUTION: Shall have the meaning set forth in the recitals hereof.
DISTRIBUTION DATE: The date determined by the ERC Board as the date on
which the Distribution shall be effected, which Distribution Date is
contemplated by the ERC Board to occur on or about February 22, 1999.
DISTRIBUTION RECORD DATE: The date established by the ERC Board as the date
for taking a record of the Holders of ERC Common Stock entitled to participate
in the distribution, which Distribution Record Date has been established as
February 19, 1999, subject to the fulfillment on or before February 22, 1999 of
certain conditions to the Distribution as provided in Section 4.02.
ERC: Shall have the meaning set forth in the recitals hereof.
ERC BOARD: The Board of Directors of ERC.
ERC BOOKS AND RECORDS: The books and records (including computerized
records) of ERC and all books and records owned by ERC which relate to the ERC
Retained Business or are necessary to operate the ERC Retained Business, or are
required by law to be retained by ERC, including without limitation, all files
relating to any Action pertaining to the ERC Retained Liabilities, original
corporate minute books, stock ledgers and certificates and corporate seals, and
all licenses, leases, agreements and filings, relating to ERC or the ERC
Retained Business (but not including the Evercel Books and Records, provided
that ERC shall have access to, and shall have the right to obtain duplicate
copies of, the Evercel Books and Records in accordance with the provisions of
Article VII).
ERC COMMON STOCK: The common stock, par value $.0001 per share, of ERC.
ERC CONTRACTS: The contracts to be assigned by ERC to Evercel listed on
Schedule 1.01(b).
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ERC INDEMNIFIABLE LOSSES: Shall have the meaning set forth in Section 5.02
hereof.
ERC INDEMNITEES: Shall have the meaning set forth in Section 5.02 hereof.
ERC INTELLECTUAL PROPERTY ASSETS: The intellectual property assets listed
on Schedule 1.01(d).
ERC PERSONAL PROPERTY ASSETS: The personal property assets listed on
Schedule 1.01(a).
ERC RETAINED ASSETS: The assets of ERC other than the Evercel Assets
transferred to Evercel by ERC, including without limitation (i) assets relating
to the ERC Retained Business, (ii) all of the assets expressly allocated to ERC
under this Agreement or the Related Agreements, and (iii) any other assets of
ERC and its Affiliates relating to the ERC Retained Business.
ERC RETAINED BUSINESS: The businesses conducted by ERC pursuant to or
utilizing the ERC Retained Assets, including without limitation, the fuel cell
business.
ERC RETAINED LIABILITIES: (i) All of the Liabilities arising out of or in
connection with the ERC Retained Assets or the ERC Retained Business, (ii) all
Liabilities arising out of or in connection with any lawsuits relating to the
Distribution, (iii) all of the Liabilities of ERC under, or to be retained or
assumed by ERC pursuant to, this Agreement or any of the Related Agreements,
(iv) any Financing Obligations not constituting Evercel Liabilities, (v) all
Liabilities for the payment of outstanding drafts of ERC attributable to the ERC
Retained Business existing as of the Distribution Date, (v) all Liabilities
arising out of or in connection with lawsuits or other claims or actions
relating to the Davis Superfund Site and the Gallups Quarry Superfund Site, (vi)
any obligation to repay up to $1,300,000 of payments previously made to ERC
pursuant to the Nan Ya License Agreement (as defined in Section 2.01(a) hereof),
and (vii) all other Liabilities of ERC not constituting Evercel Liabilities.
ERC RETAINED POLICIES: All Policies, current or past, which are owned or
maintained by or on behalf of ERC (or any of its predecessors) which relate to
the ERC Retained Business but do not relate to the Evercel Business.
EVERCEL: Shall have the meaning set forth in the recitals hereof.
EVERCEL ASSETS: Shall have the meaning set forth in Section 2.01(b) hereof.
EVERCEL BOOKS AND RECORDS: The books and records (including computerized
records) of Evercel and all books and records owned by ERC which relate to the
Evercel Business or are necessary to operate the Evercel Business, including,
without limitation, all such books and records relating to Evercel Employees,
all files relating to any Action being assumed by Evercel as part of the Evercel
Liabilities, original corporate minute books, stock ledgers and certificates and
corporate seals, and all licenses, leases, agreements and filings, relating to
Evercel or the Evercel Business (but not including the ERC Books and Records,
provided that
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Evercel shall have access to, and have the right to obtain duplicate copies of,
the ERC Books and Records in accordance with the provisions of Article VII).
EVERCEL BUSINESS: The business conducted by ERC prior to the Transfer Date,
and by Evercel thereafter, pursuant to or utilizing the Evercel Assets,
including without limitation, the acquisition, development and operation of
battery assets and business.
EVERCEL COMMON STOCK: The common stock, par value $.01 per share, of
Evercel.
EVERCEL EMPLOYEES: All of the Evercel employees at the time of the
Distribution, as identified on Schedule 1.01(e).
EVERCEL INDEMNIFIABLE LOSSES: Shall have the meaning set forth in Section
5.01 hereof.
EVERCEL INDEMNITEES: Shall have the meaning set forth in Section 5.01
hereof.
EVERCEL LIABILITIES: (i) All of the Liabilities of Evercel under, or to be
retained or assumed by Evercel pursuant to, this Agreement or any of the Related
Agreements, including those set forth on Schedule 1.01(c), (ii) all Liabilities
for payment of outstanding drafts of ERC attributable to the Evercel Business
existing as of the Distribution Date, and (iii) all Liabilities arising out of
or in connection with any of the Evercel Assets or the Evercel Business.
EVERCEL POLICIES: All Policies, current or past, which are owned or
maintained by or on behalf of ERC or any of its Affiliates or predecessors,
which relate to the Evercel Business but do not relate to the ERC Retained
Business, and which Policies are either maintained by Evercel or assignable to
Evercel.
FINANCING OBLIGATIONS: All (i) indebtedness for borrowed money, (ii)
obligations evidenced by bonds, notes, debentures or similar instruments, (iii)
obligations under capitalized leases and deferred purchase arrangements, (iv)
reimbursement or other obligations relating to letters of credit or similar
arrangements, and (v) obligations to guarantee, directly or indirectly, any of
the foregoing types of obligations on behalf of others.
HOLDERS: The holders of record of ERC Common Stock as of the Distribution
Record Date.
INDEMNIFIABLE LOSSES: Shall have the meaning set forth in Section 5.02
hereof.
INDEMNIFYING PARTY: Shall have the meaning set forth in Section 5.03
hereof.
INDEMNITEE: Shall have the meaning set forth in Section 5.03 hereof.
INFORMATION: Shall have the meaning set forth in Section 7.02 hereof.
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INSURANCE PROCEEDS: Those moneys (i) received by an insured from an
insurance carrier or (ii) paid by an insurance carrier on behalf of the insured,
in either case net of any applicable premium adjustment, retrospectively-rated
premium, deductible, retention, cost or reserve paid or held by or for the
benefit of such insured.
INSURED CLAIMS: Those Liabilities that, individually or in the aggregate,
are covered within the terms and conditions of any of the Policies, whether or
not subject to deductibles, co-insurance, uncollectability or
retrospectively-rated premium adjustments, but only to the extent that such
Liabilities are within applicable Policy limits, including aggregates.
LIABILITIES: Any and all debts, liabilities and obligations, absolute or
contingent, matured or unmatured, liquidated or unliquidated, accrued or
unaccrued, known or unknown, whenever arising, including all costs and expenses
relating thereto, and including, without limitation, those debts, liabilities
and obligations arising under any law, rule, regulation, Action, threatened
Action, order or consent decree of any governmental entity or any award of any
arbitrator of any kind, and those arising under any contract, commitment or
undertaking.
PERSON: Any individual, corporation, partnership, association, trust,
estate or other entity or organization, including any governmental entity or
authority.
POLICIES: Insurance policies and insurance contracts of any kind relating
to the Evercel Business or the ERC Retained Business as conducted prior to the
Distribution Date, including without limitation primary and excess policies,
comprehensive general liability policies, automobile and workers' compensation
insurance policies, and self-insurance and captive insurance company
arrangements, together with the rights, benefits and privileges thereunder.
PRIVILEGES: All privileges that may be asserted under applicable law,
including, without limitation, privileges arising under or relating to the
attorney-client relationship (including but not limited to the attorney-client
and work product privileges), the accountant-client privilege, and privileges
relating to internal evaluative processes.
PRIVILEGED INFORMATION: All Information as to which ERC, Evercel or any of
their Subsidiaries are entitled to assert the protection of a Privilege.
RELATED AGREEMENTS: All of the agreements, instruments, understandings,
assignments or other arrangements which are entered into in connection with the
transactions contemplated hereby and which are set forth in a writing,
including, without limitation (i) the Conveyancing and Assumption Instruments,
(ii) the Services Agreement, (iii) the Tax Sharing Agreement and (iv) the
License Assistance Agreement.
RIGHTS OFFERING: The offering by Evercel to its stockholders, following the
Distribution, to subscribe for and purchase additional shares of Evercel Common
Stock pursuant to the exercise of transferable subscription rights issued to
such stockholders immediately following the Distribution pursuant to a
Registration Statement on Form SB-2 which has been declared effective under the
Securities Act.
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SECURITIES ACT: The Securities Act of 1933, as amended.
SERVICES AGREEMENT: The Services Agreement between ERC and Evercel, which
agreement shall be entered into on or prior to the Distribution Date in
substantially the form of Exhibit A attached hereto.
SHARED POLICIES: All Policies, current or past, which are owned or
maintained by or on behalf of ERC or its predecessors which relate to both the
ERC Retained Business and the Evercel Business, and all other Policies not
constituting Evercel Policies or ERC Retained Policies.
SUBSIDIARY: With respect to any Person, (a) any corporation of which at
least a majority in interest of the outstanding voting stock (having by the
terms thereof voting power under ordinary circumstances to elect a majority of
the directors of such corporation, irrespective of whether or not at the time
stock of any other class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the time,
directly or indirectly, owned or controlled by such Person, by one or more
Subsidiaries of such Person, or by such Person and one or more of its
Subsidiaries, or (b) any non-corporate entity in which such Person, one or more
Subsidiaries of such Person, or such Person and one or more Subsidiaries of such
Person, directly or indirectly, at the date of determination thereof, has at
least majority ownership interest.
TAX SHARING AGREEMENT: The Tax Sharing Agreement between Evercel and ERC,
which agreement shall be entered into on or prior to the Distribution Date in
substantially the form of Exhibit B attached hereto.
THIRD-PARTY CLAIM: Shall have the meaning set forth in Section 5.04(a)
hereof.
TRANSFER DATE: The effective date of the transfer of assets and liabilities
hereunder by ERC to Evercel which date shall be on or prior to the Distribution
Date.
ARTICLE II.
TRANSFER OF ASSETS
Section 2.01. TRANSFER OF ASSETS TO EVERCEL
(a) On the Transfer Date, ERC shall take or cause to be taken all actions
necessary to cause the transfer, assignment, delivery and conveyance to Evercel
of all of ERC's right, title and interest in and to the principal assets related
to the Evercel Business, including, without limitation, the following assets:
(i) the ERC Personal Property Assets;
(ii) the ERC Contracts;
(iii) the ERC Intellectual Property Assets;
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(iv) the Evercel Books and Records;
(v) all of the other assets to be assigned to Evercel by ERC under this
Agreement or the Related Agreements; and
(vi) all other assets primarily relating to the Evercel Business held
by ERC.
Notwithstanding the foregoing, the following assets shall not be
transferred to Evercel:
(i) payments received by ERC pursuant to the license agreement (the
"Nan Ya License Agreement") between ERC and a joint venture between Nan Ya
Plastics Corporation of Taiwan and Xiamen Three Circles Co., Ltd. (formerly
Xiamen Daily-Used Chemicals Co., Ltd.) up to $1,300,000; and
(ii) subject to the provisions of Section 2.03 hereof, ERC's interest
in the Cooperative Joint Venture Contract (the "Joint Venture Contract") between
ERC and Xiamen Three Circles Co., Ltd. for the Establishment of Xiamen Three
Circles - ERC Battery Corp., Ltd., a Sino-Foreign Manufacturing Joint Venture
(the "Joint Venture"), dated as of July 7, 1998, and the related Technology
Transfer and License Contract between ERC and the Joint Venture (the "Three
Circles License Agreement").
(b) The "Evercel Assets" shall consist of the assets transferred to Evercel
by ERC pursuant to this Section 2.01.
Section 2.02. CONSIDERATION FOR ASSET TRANSFERS
As consideration for the foregoing asset transfers on or prior to the
Distribution Date, ERC shall receive from Evercel a sufficient number of shares
of Evercel Common Stock to effect the Distribution to the Holders of ERC Common
Stock.
Section 2.03. TRANSFERS NOT EFFECTED PRIOR TO THE DISTRIBUTION
To the extent that any transfers contemplated by this Article II shall not
have been fully effected on the Distribution Date, the parties shall cooperate
to effect such transfers as promptly as shall be practicable following the
Distribution Date. Nothing herein shall be deemed to require the transfer of any
assets or the assumption of any Liabilities which by their terms or operation of
law cannot be transferred or assumed; PROVIDED, HOWEVER, that ERC and Evercel
and their respective Subsidiaries and Affiliates shall cooperate in seeking to
obtain any necessary consents or approvals for the transfer of all assets and
Liabilities contemplated to be transferred pursuant to this Article II. In the
event that any such transfer of assets or Liabilities has not been consummated
effective as of the Distribution Date, the party retaining such asset or
Liability shall thereafter hold such asset in trust for the use and benefit of
the party entitled thereto (at the expense of the party entitled thereto) and
retain such Liability for the account of the party by whom such Liability is to
be assumed pursuant hereto, and take such other actions as may be reasonably
required in order to place the parties, insofar as reasonably possible, in the
same position as would have existed had such asset been transferred or such
Liability been
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assumed as contemplated hereby. As and when any such asset or Liability becomes
transferable, such transfer and assumption shall be effected forthwith. The
parties agree that, except as set forth in this Section 2.03, as of the
Distribution Date, each party hereto shall be deemed to have acquired complete
and sole beneficial ownership over all of the assets, together with all rights,
powers and privileges incidental thereto, and shall be deemed to have assumed in
accordance with the terms of this Agreement all of the Liabilities, and all
duties, obligations and responsibilities incidental thereto, which such party is
entitled to acquire or required to assume pursuant to the terms of this
Agreement. The parties expressly agree that ERC's interest in the Joint Venture
Contract and the Three Circles License Agreement (together, the "Three Circles
Contracts") may not be assigned to Evercel prior to obtaining the written
consent and approval of ERC's Chinese partner and the appropriate Chinese
governmental authorities. Pending receipt of these approvals, ERC and Evercel
agree to enter into the License Assistance Agreement in the form attached hereto
as Exhibit C. Once such consents and approvals have been obtained, ERC agrees to
transfer and assign the Three Circles Contracts to Evercel.
Section 2.04. COOPERATION RE: ASSETS
In the case that at any time after the Distribution Date, Evercel
reasonably determines that any of the ERC Retained Assets are essential for the
conduct of the Evercel Business, or ERC reasonably determines that any of the
Evercel Assets are essential for the conduct of the ERC Retained Business, and
the nature of such assets makes it impracticable for Evercel or ERC, as the case
may be, to obtain substitute assets or to make alternative arrangements on
commercially reasonable terms to conduct their respective businesses, and
reasonable provisions for the use thereof are not already included in the
Related Agreements, then Evercel (with respect to the Evercel Assets) and ERC
(with respect to the ERC Retained Assets) shall cooperate to make such assets
available to the appropriate party on commercially reasonable terms, as may be
reasonably required for such party to maintain normal business operations
(provided that such assets shall be required to be made available only until
such time as the other party may reasonably obtain substitute assets or make
alternative arrangements on commercially reasonable terms to permit it to
maintain normal business operations).
Section 2.05. NO REPRESENTATIONS OR WARRANTIES; CONSENTS
Each of the parties hereto understands and agrees that no party hereto is,
in this Agreement or in any other agreement or document contemplated by this
Agreement or otherwise, representing or warranting in any way (i) as to the
value or freedom from encumbrance of, or any other matter concerning, any assets
of such party or (ii) as to the legal sufficiency to convey title to any asset
transferred pursuant to this Agreement or any Related Agreement, including,
without limitation, any Conveyancing and Assumption Instruments. It is also
agreed and understood that there are no warranties, express or implied, as to
the merchantability or fitness of any of the assets either transferred to or
retained by the parties, as the case may be, and all such assets shall be "as
is, where is" and "with all faults" (provided, however, that the absence of
warranties shall have no effect upon the allocation of liabilities under this
Agreement). Similarly, each party hereto understands and agrees that no party
hereto is, in this Agreement or in any other agreement or document contemplated
by this Agreement or otherwise, representing or warranting
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in any way that the obtaining of any consents or approvals, the execution and
delivery of any amendatory agreements and the making of any filings or
applications contemplated by this Agreement will satisfy the provisions of any
or all applicable laws or judgments or other instruments or agreements relating
to such assets. Notwithstanding the foregoing, the parties shall use their good
faith efforts to obtain all consents and approvals, to enter into all reasonable
amendatory agreements and to make all filings and applications which may be
reasonably required for the consummation of the transactions contemplated by
this Agreement, and shall take all such further reasonable actions as shall be
reasonably necessary to preserve for each of ERC and Evercel, to the greatest
extent feasible, the economic and operational benefits of the allocation of
assets and liabilities provided for in this Agreement. In case at any time after
the Distribution Date any further action is necessary or desirable to carry out
the purposes of this Agreement, the proper officers and directors of each party
to this Agreement shall take all such necessary or desirable action.
Section 2.06. CONVEYANCING AND ASSUMPTION INSTRUMENTS
In connection with the Asset Transfers and the assumptions of Liabilities
contemplated by this Agreement, the parties shall execute or cause to be
executed by the appropriate entities the Conveyancing and Assumption Instruments
in such forms as the parties shall reasonably agree, including the assignment of
trademarks, patents, patent applications and other intellectual property rights.
Section 2.07. CASH MANAGEMENT
(a) Evercel shall establish and maintain a separate cash management system
and accounting records with respect to the Evercel Business effective as of
12:01 a.m. on the day following the Distribution Date; thereafter, (i) any
payments by ERC on behalf of Evercel in connection with the Evercel Business
(including, without limitation, any such payments in respect of Liabilities or
other obligations of Evercel under the Related Agreements) shall be recorded in
the accounts of Evercel as a payable to ERC; (ii) any payments by Evercel on
behalf of ERC in connection with the ERC Retained Business (including, without
limitation, any such payments in respect of Liabilities or other obligations of
ERC under the Related Agreements), shall be recorded in the accounts of ERC, as
a payable to Evercel; (iii) any cash payments received by ERC relating to the
Evercel Business or the Evercel Assets shall be recorded in the accounts of ERC,
as a payable to Evercel; (iv) any cash payments received by Evercel relating to
the ERC Retained Business or the ERC Retained Assets shall be recorded in the
accounts of Evercel as a payable to ERC; (v) ERC and Evercel shall make
adjustments for late deposits, checks returned for not sufficient funds and
other post-Distribution Date transactions as shall be reasonable under the
circumstances consistent with the purpose and intent of this Agreement; and (vi)
the net balance due to ERC or Evercel, as the case may be, in respect of the
aggregate amounts of clauses (i), (ii), (iii), (iv) and (v) shall be paid by ERC
or Evercel, as appropriate, as promptly as practicable. For purposes of this
Section 2.07 (a), the parties contemplate that the ERC Retained Business and the
Evercel Business, including but not limited to the administration of accounts
payable and accounts receivable, will be conducted in the normal course.
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(b) All transactions contemplated in this Section 2.07 shall be subject to
audit by the parties, and any dispute thereunder shall be resolved by KPMG Peat
Marwick LLP (or, if KPMG Peat Marwick LLP is not available or the parties
mutually agree, by such other independent firm of certified public accountants
mutually acceptable to ERC and Evercel), whose decision shall be final and
unappealable.
Section 2.08. RETAINED LICENSE TO USE TECHNOLOGY
Notwithstanding anything to the contrary contained in this Agreement,
Evercel acknowledges that ERC has licensed certain of the ERC Intellectual
Property Assets to the Joint Venture pursuant to the Three Circles License
Agreement. The Three Circles Contracts may require certain consents and
approvals prior to being transferred to Evercel. Therefore, without limitation
of the foregoing, following the transfer of the ERC Intellectual Property
Assets, pending the receipt of such consents and approvals, ERC shall retain a
non-exclusive license to use the ERC Intellectual Property Assets for the sole
purpose of fulfilling its obligations under the Three Circles Contracts. Evercel
agrees to promptly from time to time, but at least once a year, disclose to ERC
any know-how or patents of Evercel arising or issued after the Distribution Date
necessary for ERC to fulfill its obligations under such contracts.
Notwithstanding the foregoing, with respect to the Three Circles Contracts, upon
receipt of the necessary approvals as described in Section 2.03 hereof,
Evercel's obligations under this Section 2.08 shall terminate.
Section 2.09 AGREEMENT NOT TO COMPETE
ERC agrees not to participate, directly or indirectly, as principal, owner,
part-owner, partner, or in any other capacity, including as a passive
stockholder, partner or beneficial owner, in any business which owns, controls,
manages or otherwise operates a business which competes directly with the
Evercel Business. ERC and Evercel understand and acknowledge, however, that ERC
has formed a joint venture, called the Xiamen-ERC Technology Company, Limited
(the "Technology Joint Venture"), to develop and commercialize various advanced
electrochemical technologies, including battery technologies. ERC agrees that it
will endeavor to obtain amendments to the joint venture contract and articles of
association for the Technology Joint Venture to add Evercel as a party to the
Technology Joint Venture. Until Evercel becomes a party to the Technology Joint
Venture, however, ERC and Evercel agree that the Technology Joint Venture will
not undertake any projects involving battery technology without Evercel's prior
consent.
Section 2.10 CERTAIN MATTERS REGARDING EMPLOYEES
(a) Reference is made to the Option Agreement entered into between ERC and
Jerry D. Leitman ("Leitman"), dated as of August 1, 1997 (the "Option
Agreement"). Pursuant to the terms of the Option Agreement, Evercel agrees to
issue one share of Evercel Common Stock to Leitman for every three shares of ERC
Common Stock which he purchases from ERC from time to time pursuant to his
exercise of options granted by the Option Agreement. The exercise price received
from Leitman with respect to his exercise of options pursuant to the Option
Agreement will be allocated between ERC and Evercel proportionately, based upon
the fair market value of
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shares of each company immediately after the Distribution. Evercel agrees to
register under the Securities Act of 1933, as amended, the shares of Evercel
Common Stock to be issued to Leitman pursuant to the exercise of the options
granted by the Option Agreement.
(b) In addition, Evercel agrees to issue to Leitman a non-transferable
option (the "Evercel Option") to acquire 83,333 shares of Evercel Common Stock
exercisable at the Rights Offering purchase price (currently expected to be
$6.00 per share). Evercel agrees that the Evercel Option will be issued pursuant
to Evercel's 1998 Equity Incentive Plan and will be exercisable during the
Rights Offering and will terminate at the end of the Rights Offering. The
Evercel Option will be exercisable to acquire 33,333 vested shares and 50,000
restricted (unvested) shares. The restricted (unvested) shares acquired pursuant
to the Evercel Option will vest in accordance with the vesting schedule set
forth in the Option Agreement. Evercel further agrees to allow Leitman to
exercise the Evercel Option with respect to the 50,000 restricted (unvested)
shares by issuing to Evercel a nonrecourse note (the "Note") in the amount of
the total exercise price. The Note shall provide that, at such time as these
restricted (unvested) shares would otherwise vest, Leitman may repay the
applicable installment of the Note (i.e. the Note shall be payable in three
installments corresponding to the three remaining vesting dates set forth in the
Option Agreement). However, until the applicable installment of the Note is
repaid, the shares will remain restricted. In the event the Note is not fully
repaid by August 4, 2001, the shares shall be forfeited to the Company for no
consideration.
(c) Evercel agrees to issue to Joseph G. Mahler a non-transferable option
to acquire 16,666 shares of Evercel Common Stock exercisable at the Rights
Offering purchase price (currently expected to be $6.00 per share). Evercel
agrees that this option will be issued pursuant to Evercel's 1998 Equity
Incentive Plan and will vest in 25% installments over a four year period
beginning on December 11, 1999.
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ARTICLE III.
ASSUMPTION AND SATISFACTION OF LIABILITIES
Section 3.01. ASSUMPTION AND SATISFACTION OF LIABILITIES
Except as set forth in the Services Agreement, the Tax Sharing Agreement or
the other Related Agreements, effective as of and after the Distribution Date,
(a) Evercel shall assume, pay, perform and discharge in due course all of the
Evercel Liabilities, and (b) ERC shall pay, perform and discharge in due course
all of the ERC Retained Liabilities.
ARTICLE IV. THE DISTRIBUTION
Section 4.01. COOPERATION PRIOR TO THE DISTRIBUTION
(a) ERC and Evercel shall take all such action as may be necessary or
appropriate under the securities or blue sky laws of states or other political
subdivisions of the United States in connection with the transactions
contemplated by this Agreement and the Related Agreements.
(b) ERC and Evercel shall use all reasonable efforts to obtain any
third-party consents or approvals necessary or desirable in connection with the
transactions contemplated hereby ("Consents").
(c) ERC and Evercel will use all reasonable efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, all things necessary or
desirable under applicable law, to consummate the transactions contemplated
under this Agreement and the Related Agreements.
Section 4.02. ERC BOARD ACTION; CONDITIONS PRECEDENT TO THE DISTRIBUTION
The ERC Board shall, in its discretion, establish any appropriate
procedures in connection with the Distribution. In no event shall the
Distribution occur unless the following conditions shall have been satisfied:
(a) The transactions contemplated by Sections 2.01 and 2.02 shall have been
consummated in all material respects;
(b) ERC and Evercel shall have obtained all Consents, the failure of which
to obtain would not, in the sole judgment of the ERC Board, have a material
adverse effect on ERC or Evercel;
(c) The Registration Statement on Form SB-2 under the Securities Act filed
by Evercel shall have been declared effective by the Commission;
(d) ERC and Evercel shall have entered into the Related Agreements to which
they are a party;
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(e) ERC and the Company shall have received an opinion of counsel
satisfactory to the ERC Board to the effect that the Distribution will qualify
as a tax free spin-off under Sections 355 and 368(a)(1)(D) of the Internal
Revenue Code of 1986, as amended.
PROVIDED, HOWEVER, that (i) any such condition may be waived by the ERC
Board in its sole discretion, and (ii) the satisfaction of such conditions shall
not create any obligation on the part of ERC or any other party hereto to effect
the Distribution or in any way limit ERC's power of termination set forth in
Section 9.07 or alter the consequences of any such termination from those
specified in such Section; and
PROVIDED, FURTHER, that ERC has entered into the Nan Ya License Agreement
and the Three Circles Contracts with certain Chinese and/or Taiwanese entities.
The parties acknowledge that the Joint Venture Contract does require consent,
and the Nan Ya License Agreement and the Three Circles License Agreement may
require consent, of the other parties to such contracts in order for ERC to
transfer them to Evercel. It is understood and agreed by the parties that such
Consents may not be obtained prior to the Transfer Date or the Distribution Date
and such Consents shall not be conditions precedent to the Distribution
Section 4.03. THE DISTRIBUTION
On the Distribution Date, subject to the conditions and rights of
termination set forth in this Agreement, ERC shall deliver to the Agent all of
the then outstanding shares of Evercel Common Stock owned by ERC and shall
instruct the Agent to distribute to the Holders one share of Evercel Common
Stock for every three shares of ERC Common Stock held as of the Distribution
Record Date, provided that such Evercel Common Stock shall be subject to a
restriction such that it may not be sold or otherwise disposed of prior to the
date on which the Rights Agent for the Rights Offering delivers to Evercel final
notice of the number of shares of Evercel Common Stock subscribed for in the
Rights Offering (the "Closing Date"). As soon as practicable following the
Closing Date of the Rights Offering, the Agent shall deliver certificates
representing the Evercel Common Stock to the Holders.
ARTICLE V.
INDEMNIFICATION
Section 5.01. INDEMNIFICATION BY ERC
Except as otherwise expressly set forth in a Related Agreement, ERC shall
indemnify, defend and hold harmless Evercel and its directors, officers,
employees, agents and Affiliates and each of the heirs, executors, successors
and assigns of any of the foregoing (the "Evercel Indemnitees") from and against
the ERC Retained Liabilities and any and all losses, Liabilities, damages,
including, without limitation, the costs and expenses of any and all Actions,
threatened Actions, demands, assessments, judgments, settlements and compromises
relating to the ERC Retained Liabilities and attorneys' fees and any and all
expenses whatsoever reasonably incurred in investigating, preparing or defending
against any such Actions or threatened Actions
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(collectively, "Evercel Indemnifiable Losses" and, individually, an "Evercel
Indemnifiable Loss") of the Evercel Indemnitees arising out of or due to the
failure or alleged failure of ERC or any of its Affiliates (i) prior to or after
the Distribution Date to pay, perform or otherwise discharge in due course any
of the ERC Retained Liabilities, or (ii) comply with the provisions of Section
6.01.
Section 5.02. INDEMNIFICATION BY EVERCEL
Except as otherwise expressly set forth in a Related Agreement, Evercel
shall indemnify, defend and hold harmless ERC and each of its respective
directors, officers, employees, agents and Affiliates and each of the heirs,
executors, successors and assigns of any of the foregoing (the "ERC
Indemnitees") from and against the Evercel Liabilities and any and all losses,
Liabilities, damages, including, without limitation, the costs and expenses of
any and all Actions, threatened Actions, demands, assessments, judgments,
settlements and compromises relating to the Evercel Liabilities and attorneys'
fees and any and all expenses whatsoever reasonably incurred in investigating,
preparing or defending against any such Actions or threatened Actions
(collectively, "ERC Indemnifiable Losses" and, individually, an "ERC
Indemnifiable Loss") of the ERC Indemnitees arising out of or due to the failure
or alleged failure of Evercel or any of its Affiliates (i) prior to or after the
Distribution Date to pay, perform or otherwise discharge in due course any of
the Evercel Liabilities or (ii) comply with the provisions of Section 6.01. The
"Evercel Indemnifiable Losses," and the "ERC Indemnifiable Losses" are
collectively referred to as the "Indemnifiable Losses."
Section 5.03. INSURANCE PROCEEDS
The amount which any party (an "Indemnifying Party") is or may be required
to pay to any other Person (an "Indemnitee") pursuant to Section 5.01 or Section
5.02 shall be reduced (including, without limitation, retroactively) by any
Insurance Proceeds or other amounts actually recovered by or on behalf of such
Indemnitee in reduction of the related Indemnifiable Loss. If an Indemnitee
shall have received the payment required by this Agreement from an Indemnifying
Party in respect of an Indemnifiable Loss and shall subsequently actually
receive Insurance Proceeds, or other amounts in respect of such Indemnifiable
Loss as specified above, then such Indemnitee shall pay to such Indemnifying
Party a sum equal to the amount of such Insurance Proceeds or other amounts
actually received.
Section 5.04. PROCEDURE FOR INDEMNIFICATION
(a) Except as may be set forth in a Related Agreement, if an Indemnitee
shall receive notice or otherwise learn of the assertion by a Person (including,
without limitation, any governmental entity) who is not a party to this
Agreement or to any of the Related Agreements of any claim or of the
commencement by any such Person of any Action (a "Third-Party Claim") with
respect to which an Indemnifying Party may be obligated to provide
indemnification pursuant to this Agreement, such Indemnitee shall give such
Indemnifying Party written notice thereof promptly after becoming aware of such
Third-Party Claim; provided that the failure of any Indemnitee to give notice as
required by this Section 5.04 shall not relieve the Indemnifying
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Party of its obligations under this Article V, except to the extent that such
Indemnifying Party is prejudiced by such failure to give notice.
(b) An Indemnifying Party may elect to defend or to seek to settle or
compromise, at such Indemnifying Party's own expense and by such Indemnifying
Party's own counsel, any Third-Party Claim, provided that the Indemnifying Party
must confirm in writing that it agrees that the Indemnitee is entitled to
indemnification hereunder in respect of such Third-Party Claim. Within 30 days
of the receipt of notice from an Indemnitee in accordance with Section 5.04(a)
(or sooner, if the nature of such Third-Party Claim so requires), the
Indemnifying Party shall notify the Indemnitee of its election whether to assume
responsibility for such Third-Party Claim (provided that if the Indemnifying
Party does not so notify the Indemnitee of its election within 30 days after
receipt of such notice from the Indemnitee, the Indemnifying Party shall be
deemed to have elected not to assume responsibility for such Third-Party Claim),
and such Indemnitee shall cooperate in the defense or settlement or compromise
of such Third-Party Claim. After notice from an Indemnifying Party to an
Indemnitee of its election to assume responsibility for a Third-Party Claim,
such Indemnifying Party shall not be liable to such Indemnitee under this
Article V for any legal or other expenses (except expenses approved in advance
by the Indemnifying Party) subsequently incurred by such Indemnitee in
connection with the defense thereof; provided that if the defendants in any such
claim include both the Indemnifying Party and one or more Indemnitees and in
such Indemnitees' reasonable judgment a conflict of interest between such
Indemnitees and such Indemnifying Party exists in respect of such claim, such
Indemnitees shall have the right to employ separate counsel and in that event
the reasonable fees and expenses of such separate counsel (but not more than one
separate counsel reasonably satisfactory to the Indemnifying Party) shall be
paid by such Indemnifying Party. If an Indemnifying Party elects not to assume
responsibility for a Third-Party Claim (which election may be made only in the
event of a good faith dispute that a claim was inappropriately tendered under
Section 5.01 or 5.02, as the case may be) such Indemnitee may defend or (subject
to the following sentence) seek to compromise or settle such Third-Party Claim.
Notwithstanding the foregoing, an Indemnitee may not settle or compromise any
claim without prior written notice to the Indemnifying Party, which shall have
the option within ten days following the receipt of such notice (i) to
disapprove the settlement and assume all past and future responsibility for the
claim, including reimbursing the Indemnitee for prior expenditures in connection
with the claim, or (ii) to disapprove the settlement and continue to refrain
from participation in the defense of the claim, in which event the Indemnifying
Party shall have no further right to contest the amount or reasonableness of the
settlement if the Indemnitee elects to proceed therewith, or (iii) to approve
the amount of the settlement, reserving the Indemnifying Party's right to
contest the Indemnitee's right to indemnity, or (iv) to approve and agree to pay
the settlement. In the event the Indemnifying Party makes no response to such
written notice from the Indemnitee, the Indemnifying Party shall be deemed to
have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any
Third-Party Claim, the Indemnitee shall make available to such Indemnifying
Party any personnel and any books, records or other documents within its control
or which it otherwise has the ability to make available that are necessary or
appropriate for such defense.
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(d) Notwithstanding anything else in this Section 5.04 to the contrary, an
Indemnifying Party shall not settle or compromise any Third-Party Claim unless
such settlement or compromise contemplates as an unconditional term thereof the
giving by such claimant or plaintiff to the Indemnitee of a written release from
all liability in respect of such Third-Party Claim (and provided further that
such settlement may not provide for any non-monetary relief by Indemnitee
without the written consent of Indemnitee). In the event the Indemnitee shall
notify the Indemnifying Party in writing that such Indemnitee declines to accept
any such settlement or compromise, such Indemnitee may continue to contest such
Third-Party Claim, free of any participation by such Indemnifying Party, at such
Indemnitee's sole expense. In such event, the obligation of such Indemnifying
Party to such Indemnitee with respect to such Third-Party Claim shall be equal
to (i) the costs and expenses of such Indemnitee prior to the date such
Indemnifying Party notifies such Indemnitee of the offer to settle or compromise
(to the extent such costs and expenses are otherwise indemnifiable hereunder)
plus (ii) the lesser of (A) the amount of any offer of settlement or compromise
which such Indemnitee declined to accept and (B) the actual out-of-pocket amount
such Indemnitee is obligated to pay subsequent to such date as a result of such
Indemnitee's continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result
from a Third-Party Claim shall be asserted by written notice given by the
Indemnitee to the applicable Indemnifying Party. Such Indemnifying Party shall
have a period of 15 days after the receipt of such notice within which to
respond thereto. If such Indemnifying Party does not respond within such 15-day
period, such Indemnifying Party shall be deemed to have refused to accept
responsibility to make payment. If such Indemnifying Party does not respond
within such 15-day period or rejects such claim in whole or in part, such
Indemnitee shall be free to pursue such remedies as may be available to such
party under applicable law or under this Agreement.
(f) In addition to any adjustments required pursuant to Section 5.03, if
the amount of any Indemnifiable Loss shall, at any time subsequent to the
payment required by this Agreement, be reduced by recovery, settlement or
otherwise, the amount of such reduction, less any expenses incurred in
connection therewith, shall promptly be repaid by the Indemnitee to the
Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in
connection with any Third-Party Claim, such Indemnifying Party shall be
subrogated to and shall stand in the place of such Indemnitee as to any events
or circumstances in respect of which such Indemnitee may have any right or claim
relating to such Third-Party Claim against any claimant or plaintiff asserting
such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying
Party in a reasonable manner, and at the cost and expense of such Indemnifying
Party, in prosecuting any subrogated right or claim.
Section 5.05. REMEDIES CUMULATIVE
The remedies provided in this Article V shall be cumulative and shall not
preclude assertion by any Indemnitee of any other rights or the seeking of any
and all other remedies against any Indemnifying Party.
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Section 5.06. SURVIVAL OF INDEMNITIES
The obligations of each of ERC and Evercel under this Article V shall
survive the sale or other transfer by it of any assets or businesses or the
assignment by it of any Liabilities with respect to any Indemnifiable Loss of
the other related to such assets, businesses or Liabilities.
ARTICLE VI.
CERTAIN ADDITIONAL MATTERS
Section 6.01. CERTAIN POST-DISTRIBUTION TRANSACTIONS
(a) EVERCEL. Evercel shall comply with each representation and statement
made, or to be made, to any taxing authority in connection with any ruling
obtained, or to be obtained, by ERC and Evercel acting together, from any such
taxing authority with respect to any transaction contemplated by this Agreement.
(b) ERC. ERC shall comply with each representation and statement made, or
to be made, to any taxing authority in connection with any ruling obtained, or
to be obtained, by ERC and Evercel acting together, from any such taxing
authority with respect to any transaction contemplated by this Agreement.
Section 6.02. NOTICES BY ERC
ERC shall provide notice of the Distribution to all holders of its
securities, or options, rights or warrants convertible into its securities, as
may be required by ERC's Certificate of Incorporation or Bylaws or any agreement
to which ERC is a party.
ARTICLE VII.
ACCESS TO INFORMATION AND SERVICES
Section 7.01. PROVISION OF CORPORATE RECORDS
(a) Except as may otherwise be provided in a Related Agreement, ERC shall
deliver to Evercel as soon as practicable following the Distribution Date, to
the extent not previously delivered in connection with the transactions
contemplated in Article II, the Evercel Books and Records in its possession,
except to the extent such items are already in the possession of Evercel. The
Evercel Books and Records shall be the property of Evercel, but shall be
available to ERC for review and duplication until ERC shall notify Evercel in
writing that such records are no longer of use to ERC.
(b) Except as otherwise provided in a Related Agreement, Evercel shall
deliver to ERC as soon as practicable following the Distribution Date, to the
extent not previously delivered in connection with the transactions contemplated
in Article II, the ERC Books and Records in its
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possession, except to the extent such items are already in the possession of
ERC. The ERC Books and Records shall be the property of ERC, but shall be
available to Evercel for review and duplication until Evercel shall notify ERC
in writing that such records are no longer of use to Evercel.
Section 7.02. ACCESS TO INFORMATION
Except as otherwise provided in a Related Agreement, from and after the
Distribution Date, ERC shall afford to Evercel and its authorized accountants,
counsel and other designated representatives reasonable access (including using
reasonable efforts to give access to persons or firms possessing information)
and duplicating rights during normal business hours to all records, books,
contracts, instruments, computer data and other data and information relating to
pre-Distribution operations (collectively, "Information") within ERC's
possession insofar as such access is reasonably required by Evercel for the
conduct of its business, subject to appropriate restrictions for classified or
Privileged Information. Similarly, except as otherwise provided in a Related
Agreement, Evercel shall afford to ERC and their authorized accountants, counsel
and other designated representatives reasonable access (including using
reasonable efforts to give access to persons or firms possessing information)
and duplicating rights during normal business hours to Information within
Evercel's possession, insofar as such access is reasonably required by ERC for
the conduct of its business, subject to appropriate restrictions for classified
or Privileged Information. Information may be requested under this Article VII
for the legitimate business purposes of either party, including, without
limitation, audit, accounting, claims (including claims for indemnification
hereunder), litigation and tax purposes, as well as for purposes of fulfilling
disclosure and reporting obligations and for performing this Agreement and the
transactions contemplated hereby.
Section 7.03. PRODUCTION OF WITNESSES
At all times from and after the Distribution Date, each of ERC and Evercel
shall use reasonable efforts to make available to the others, upon written
request, its and its Subsidiaries officers, directors, employees and agents as
witnesses to the extent that such persons may reasonably be required in
connection with any Action.
Section 7.04. REIMBURSEMENT
Except to the extent otherwise contemplated in any Related Agreement, a
party providing Information or witness services to another party under this
Article VII shall be entitled to receive from the recipient, upon the
presentation of invoices therefor, payments of such amounts, relating to
supplies, disbursements and other out-of-pocket expenses (at cost) and direct
and indirect expenses of employees who are witnesses or otherwise furnish
assistance (at cost), as may be reasonably incurred in providing such
Information or witness services.
Section 7.05. RETENTION OF RECORDS
Except as otherwise required by law or agreed to in a Related Agreement or
otherwise in writing, each of ERC and Evercel may destroy or otherwise dispose
of any of the Information,
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which is material Information and is not contained in other Information retained
by ERC or Evercel, as the case may be, at any time after the sixth anniversary
of this Agreement, provided that, prior to such destruction or disposal, (a) it
shall provide no less than 90 or more than 120 days prior written notice to the
other, specifying in reasonable detail the Information proposed to be destroyed
or disposed of and (b) if a recipient of such notice shall request in writing
prior to the scheduled date for such destruction or disposal that any of the
Information proposed to be destroyed or disposed of be delivered to such
requesting party, the party proposing the destruction or disposal shall promptly
arrange for the delivery of such of the Information as was requested at the
expense of the party requesting such Information.
Section 7.06. CONFIDENTIALITY
Each of ERC, Evercel and their respective Subsidiaries shall hold, and
shall cause its employees, consultants and advisors to hold, in strict
confidence, all Information concerning the other parties hereto in its
possession or furnished by the other parties or the other parties'
representatives pursuant to this Agreement (except to the extent that such
Information has been (i) in the public domain through no fault of such party or
(ii) later lawfully acquired from other sources by such party), and subject to
Section 7.07, each party shall not release or disclose such Information to any
other person, except its auditors, attorneys, financial advisors, rating
agencies, bankers and other consultants and advisors, unless compelled to
disclose by judicial or administrative process or, as reasonably advised by its
counsel or by other requirements of law, or unless such Information is
reasonably required to be disclosed in connection with (x) any litigation with
any third-parties or litigation between ERC and Evercel or any of them, (y) any
contractual agreement to which ERC or Evercel or any of them are currently
parties, or (z) in exercise of any party's rights hereunder.
Section 7.07. PRIVILEGED MATTERS
ERC and Evercel recognize that legal and other professional services that
have been and will be provided prior to the Distribution Date have been and will
be rendered for the benefit of each of ERC and Evercel and that each of ERC and
Evercel should be deemed to be the client for the purposes of asserting all
Privileges. To allocate the interests of each party in the Privileged
Information, the parties agree as follows:
(a) ERC shall be entitled, in perpetuity, to control the assertion or
waiver of all Privileges in connection with Privileged Information which relates
solely to the ERC Retained Business, whether or not the Privileged Information
is in the possession of or under the control of ERC or Evercel. ERC shall also
be entitled, in perpetuity, to control the assertion or waiver of all Privileges
in connection with Privileged Information that relates solely to the subject
matter of any claims constituting ERC Retained Liabilities, now pending or which
may be asserted in the future, in any lawsuits or other proceedings initiated
against or by ERC, whether or not the Privileged Information is in the
possession of or under the control of ERC or Evercel.
(b) Evercel shall be entitled, in perpetuity, to control the assertion or
waiver of all Privileges in connection with Privileged Information which relates
solely to the Evercel Business, whether or not the Privileged Information is in
the possession of or under the control of
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ERC or Evercel. Evercel shall also be entitled, in perpetuity, to control the
assertion or waiver of all Privileges in connection with Privileged Information
which relates solely to the subject matter of any claims constituting Evercel
Liabilities, now pending or which may be asserted in the future, in any lawsuits
or other proceedings initiated against or by Evercel, whether or not the
Privileged Information is in the possession of Evercel or under the control of
ERC or Evercel.
(c) ERC and Evercel agree that they shall have a shared Privilege, with
equal right to assert or waive, subject to the restrictions in this Section
7.07, with respect to all Privileges not allocated pursuant to the terms of
Sections 7.07(a) and (b). All Privileges relating to any claims, proceedings,
litigation, disputes or other matters which involve each of ERC and Evercel in
respect of which ERC and Evercel retain any responsibility or liability under
this Agreement shall be subject to a shared Privilege.
(d) No party may waive any Privilege which could be asserted under any
applicable law, and in which any other party has a shared Privilege, without the
consent of the other party, except to the extent reasonably required in
connection with any litigation with third-parties or as provided in subsection
(e) below. Consent shall be in writing, or shall be deemed to be granted unless
written objection is made within 20 days after notice upon the other party
requesting such consent.
(e) In the event of any litigation or dispute between ERC and Evercel, or
any of them, any party may waive a Privilege in which any other party has a
shared Privilege, without obtaining the consent of the other party, provided
that such waiver of a shared Privilege shall be effective only as to the use of
Information with respect to the litigation or dispute between such parties, and
shall not operate as a waiver of the shared Privilege with respect to
third-parties.
(f) If a dispute arises between the parties regarding whether a Privilege
should be waived to protect or advance the interest of any party, each party
agrees that it shall negotiate in good faith, shall endeavor to minimize any
prejudice to the rights of the other parties, and shall not unreasonably
withhold consent to any request for waiver by the other parties. Each party
specifically agrees that it will not withhold consent to waiver for any purpose
except to protect its own legitimate interests.
(g) Upon receipt by any party of any subpoena, discovery or other request
which arguably calls for the production or disclosure of Information subject to
a shared Privilege or as to which any other party has the sole right hereunder
to assert a Privilege, or if any party obtains knowledge that any of its current
or former directors, officers, agents or employees have received any subpoena,
discovery or other requests which arguably calls for the production or
disclosure of such Privileged Information, such party shall promptly notify the
other party of the existence of the request and shall provide the other party a
reasonable opportunity to review the Information and to assert any rights it may
have under this Section 7.07 or otherwise to prevent the production or
disclosure of such Privileged Information.
(h) The transfer of the Evercel Books and Records and the ERC Books and
Records and other Information between ERC, Evercel and their respective
Subsidiaries is made in reliance on the agreement of ERC and Evercel, as set
forth in Sections 7.06 and 7.07, to maintain
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the confidentiality of Privileged Information and to assert and maintain all
applicable Privileges. The access to information being granted pursuant to
Sections 7.01 and 7.02, the agreement to provide witnesses and individuals
pursuant to Section 7.03 and the transfer of Privileged Information between ERC,
Evercel and their respective Subsidiaries pursuant to this Agreement shall not
be deemed a waiver of any Privilege that has been or may be asserted under this
Agreement or otherwise.
ARTICLE VIII.
INSURANCE
Section 8.01. POLICIES AND RIGHTS INCLUDED WITHIN THE EVERCEL ASSETS
Without limiting the generality of the definition of the Evercel Assets set
forth in Section 2.01 or the effect of Section 2.01, the Evercel Assets shall
include (a) any and all rights of an insured party under each of the Shared
Policies, specifically including rights of indemnity and the right to be
defended by or at the expense of the insurer, with respect to all injuries,
losses, liabilities, damages and expenses incurred or claimed to have been
incurred on or prior to the Distribution Date by any party in or in connection
with the conduct of the Evercel Business or, to the extent any claim is made
against Evercel or any of its Subsidiaries, the ERC Retained Business, and which
injuries, losses, liabilities, damages and expenses may arise out of insured or
insurable occurrences or events under one or more of the Shared Policies;
PROVIDED, HOWEVER, that nothing in this Section 8.01 shall be deemed to
constitute (or to reflect) the assignment of the Shared Policies, or any of
them, to Evercel, and (b) the Evercel Policies.
Section 8.02. POST-DISTRIBUTION DATE CLAIMS
If, subsequent to the Distribution Date, any person, corporation, firm or
entity shall assert a claim against Evercel with respect to any injury, loss,
liability, damage or expense incurred or claimed to have been incurred on or
prior to the Distribution Date in or in connection with the Distribution or the
conduct of the Evercel Business or, to the extent any claim is made against
Evercel or any of its Subsidiaries, the ERC Retained Business, and which injury,
loss, liability, damage or expense may arise out of insured or insurable
occurrences or events under one or more of the Shared Policies, ERC shall at the
time such claim is asserted be deemed to assign, without need of further
documentation, to Evercel any and all rights of an insured party under the
applicable Shared Policy with respect to such asserted claim, specifically
including rights of indemnity and the right to be defended by or at the expense
of the insurer; provided, however, that nothing in this Section 8.02 shall be
deemed to constitute (or to reflect) the assignment of the Shared Policies, or
any of them, to Evercel.
Section 8.03. ADMINISTRATION AND RESERVES
(a) Notwithstanding the provisions of Article III, but subject to any
contrary provisions of any Related Agreement, from and after the Distribution
Date:
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(i) Evercel shall be entitled to any reserves established by ERC or any
of its Subsidiaries, or the benefit of reserves held by any insurance carrier,
with respect to the Evercel Liabilities; and
(ii) ERC shall be entitled to any reserves established by ERC or any of
its Subsidiaries, or the benefit of reserves held by any insurance carrier, with
respect to the ERC Retained Liabilities.
(b) INSURANCE PREMIUMS. Evercel shall have the right but not the obligation
to pay the premiums, to the extent that ERC does not pay premiums with respect
to the ERC Retained Liabilities (retrospectively-rated or otherwise), with
respect to Shared Policies and the Evercel Policies, as required under the terms
and conditions of the respective Policies, whereupon ERC shall forthwith
reimburse Evercel for that portion of such premiums paid by Evercel as are
attributable to the ERC Retained Liabilities.
(c) ALLOCATION OF INSURANCE PROCEEDS. Insurance Proceeds received with
respect to claims, costs and expenses under the Policies shall be paid to
Evercel with respect to the Evercel Liabilities and to ERC with respect to the
ERC Retained Liabilities. Payment of the allocable portions of indemnity costs
of Insurance Proceeds resulting from the liability policies will be made to the
appropriate party upon receipt from the insurance carrier. In the event that the
aggregate limits on any Shared Policies are exceeded, the parties agree to
provide an equitable allocation of Insurance Proceeds received after the
Distribution Date based upon their respective bona fide claims. The parties
agree to use their best efforts to cooperate with respect to insurance matters.
Section 8.04. AGREEMENT FOR WAIVER OF CONFLICT AND SHARED DEFENSE
In the event that Insured Claims of ERC and Evercel exist relating to the
same occurrence, such parties agree to jointly defend and to waive any conflict
of interest necessary to the conduct of that joint defense. Nothing in this
Section 8.04 shall be construed to limit or otherwise alter in any way the
indemnity obligations of the parties to this Agreement, including those created
by this Agreement, by operation of law or otherwise.
ARTICLE IX.
MISCELLANEOUS
Section 9.01. COMPLETE AGREEMENT; CONSTRUCTION
This Agreement, including the Schedules and Exhibits and the Related
Agreements and other agreements and documents referred to herein, constitutes
the entire agreement and supersedes all prior agreements, understandings,
negotiations and discussions, whether written or oral, between the parties
hereto with respect to the subject matter hereof, so that no such external or
separate agreement relating to the subject matter of this Agreement shall have
any effect or be
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<PAGE>
binding, unless the same is referred to specifically in this Agreement or is
executed by the parties after the date hereof. Notwithstanding any other
provisions in this Agreement to the contrary, in the event and to the extent
that there shall be a conflict between the provisions of this Agreement and the
provisions of the Related Agreements, the Related Agreements shall control.
Section 9.02. EXPENSES
Except as otherwise set forth in this Agreement or any Related Agreement,
all costs and expenses in connection with the preparation, execution, delivery
and implementation of this Agreement, the Distribution and with the consummation
of the transactions contemplated by this Agreement shall be charged to the party
for whose benefit the expenses are incurred, with any expenses which cannot be
allocated on such basis to be split equally between the parties. Notwithstanding
the foregoing, Evercel agrees to pay and/or reimburse ERC for any and all
expenses incurred by ERC pursuant to the License Assistance Agreement.
Section 9.03. GOVERNING LAW
This Agreement and the rights and obligations of the parties hereunder
shall be governed by the laws of the State of Connecticut, without regard to the
principles of choice of law thereof, except with respect to matters of law
concerning the internal corporate affairs of any corporate entity which is a
party to or subject of this Agreement, and as to those matters the law of the
jurisdiction under which the respective entity derives its powers shall govern.
Section 9.04. NOTICES
Notices shall be sent to the parties at the following addresses:
Energy Research Corporation
3 Great Pasture Road
Danbury, Connecticut 06813
Evercel, Inc.
3 Great Pasture Road
Danbury, Connecticut 06813
Notices may be hand-delivered or sent by certified mail, return receipt
requested, Federal Express or comparable overnight delivery service, or
facsimile. Notice shall be deemed received at the time delivered by hand, on the
fourth business day following deposit in the U.S. mail, and on the first
business day following deposit with Federal Express or other delivery service,
or upon transmission by facsimile. Any party to this Agreement may change its
address for notice by giving written notice to the other party at the address
and in accordance with the procedures provided above.
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Section 9.05. AMENDMENTS; WAIVERS
No termination, cancellation, modification, amendment, deletion, addition
or other change in this Agreement, or any provision hereof, or waiver of any
right or remedy herein provided, shall be effective for any purpose unless such
change or waiver is specifically set forth in a writing signed by the party or
parties to be bound thereby. The waiver of any right or remedy with respect to
any occurrence on one occasion shall not be deemed a waiver of such right or
remedy with respect to such occurrence on any other occasion.
Section 9.06. SUCCESSORS AND ASSIGNS
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns. This Agreement shall
not be assigned without the express written consent of each of the parties
hereto.
Section 9.07. TERMINATION
This Agreement may be terminated and the Distribution abandoned at any time
prior to the Distribution Date by and in the sole discretion of the ERC Board
without the approval of Evercel. In the event of such termination, no party
shall have any liability to any other party pursuant to this Agreement.
Section 9.08. NO THIRD-PARTY BENEFICIARIES
Except for the provisions of Article V relating to Indemnities, this
Agreement is solely for the benefit of the parties hereto and their respective
Subsidiaries and Affiliates and should not be deemed to confer upon
third-parties any remedy, claim, Liability, reimbursement, claim of action or
other right in excess of those existing without reference to this Agreement.
Section 9.09. TITLES AND HEADINGS
Titles and headings to sections herein are inserted for the convenience of
reference only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement.
Section 9.10. EXHIBITS AND SCHEDULES
The Exhibits and Schedules shall be construed with and as an integral part
of this Agreement to the same extent as if the same had been set forth verbatim
herein.
Section 9.11. LEGAL ENFORCEABILITY
In the event that one or more of the terms or provisions of this Agreement
or the application thereof to any person(s) or in any circumstance(s) shall, for
any reason and to any extent be found by a court of competent jurisdiction to be
invalid, illegal or unenforceable, such court shall have the power, and hereby
is directed, to substitute for or limit such invalid term(s), provision(s) or
application(s) and to enforce such substituted or limited terms or provisions,
or the application thereof. Subject to the foregoing, the invalidity, illegality
or enforceability of any
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one or more of the terms or provisions of this Agreement, as the same may be
amended from time to time, shall not affect the validity, legality or
enforceability of any other term or provision hereof. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. Without prejudice
to any rights or remedies otherwise available to any party hereto, each party
hereto acknowledges that damages would be an inadequate remedy for any breach of
the provisions of this Agreement and agrees that the obligations of the parties
hereunder shall be specifically enforceable.
Section 9.12. ARBITRATION OF DISPUTES
(a) Any controversy or claim arising out of this Agreement, or any breach
of this Agreement, including any controversy relating to a determination of
whether specific assets constitute Evercel Assets or ERC Retained Assets or
whether specific Liabilities constitute Evercel Liabilities or ERC Retained
Liabilities, shall be settled by arbitration in accordance with the Rules of the
American Arbitration Association then in effect, as modified by this Section
9.12 or by the further agreement of the parties.
(b) Such arbitration shall be conducted in Connecticut.
(c) Any judgment upon the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof. The arbitrators shall have the
authority to award to the prevailing party its attorneys' fees and costs
incurred in such arbitration. The arbitrators shall not, under any
circumstances, have any authority to award punitive, exemplary or similar
damages, and may not, in any event, make any ruling, finding or award that does
not conform to the terms and conditions of this Agreement.
(d) Nothing contained in this Section 9.12 shall limit or restrict in any
way the right or power of a party at any time to seek injunctive relief in any
court and to litigate the issues relevant to such request for injunctive relief
before such court (i) to restrain any other party from breaching this Agreement
or (ii) for specific enforcement of this Section 9.12. The parties agree that
any legal remedy available to a party with respect to a breach of this Section
9.12 will not be adequate and that, in addition to all other legal remedies,
each party is entitled to an order specifically enforcing this Section 9.12.
(e) The parties hereby consent to the jurisdiction of the federal courts
located in Hartford, Connecticut for all purposes under this Agreement.
(f) Neither the parties nor the arbitrators may disclose the existence or
results of any arbitration under this Agreement or any evidence presented during
the course of the arbitration without the prior written consent of the parties,
except as required to fulfill applicable disclosure and reporting obligations,
or as otherwise required by law.
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(g) Except as provided in Section 9.12(c), each party shall bear its own
costs incurred in the arbitration. If any party refuses to submit to arbitration
any dispute required to be submitted to arbitration pursuant to this Section
9.12, and instead commences any other proceeding, including, without limitation,
litigation, then the party who seeks enforcement of the obligation to arbitrate
shall be entitled to its attorneys' fees and costs incurred in any such
proceeding.
Section 9.13. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which
together shall be deemed to be an original and all of which together shall be
deemed to constitute one and the same agreement.
Section 9.14. RELATIONSHIP OF PARTIES
Nothing in this Agreement shall be deemed or construed by the parties or
any third party as creating the relationship of principal and agent, partnership
or joint venture between the parties, it being understood and agreed that no
provision contained herein, and no act of the parties, shall be deemed to create
any relationship between the parties other than the relationship set forth
herein.
Section 9.15. FURTHER ACTION
Evercel and ERC each shall cooperate in good faith and take such steps and
execute such papers as may be reasonably requested by the other party to
implement the terms and provisions of this Agreement.
Section 9.16. PREDECESSORS AND SUCCESSORS
To the extent necessary to give effect to the purposes of this Agreement,
any reference to any corporation shall also include any predecessor or successor
thereto, by operation of law or otherwise.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
ENERGY RESEARCH CORPORATION
By: /s/ Jerry D. Leitman
----------------------
Name: Jerry D. Leitman
Title: President & Chief Executive Officer
EVERCEL, INC.
By: /s/ Allen Charkey
----------------------
Name: Allen Charkey
Title: Executive Vice President and Chief
Operating Officer
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SCHEDULES
Schedule 1.01(a): ERC Personal Property Assets
Schedule 1.01(b): ERC Contracts
Schedule 1.01(c): Evercel Liabilities
Schedule 1.01(d): ERC Intellectual Property Assets
Schedule 1.01(e): Evercel Employees
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SCHEDULE 1.01(a)
ERC PERSONAL PROPERTY ASSETS
Description Acquisition Date
----------- ----------------
HP 6291A Power Supply 01/01/79
HP 6296A Power Supply 01/01/79
Mettler PC 4400 Balance 06/01/80
Dispatch Oven 01/01/79
Potentiostat Model 371 01/01/79
Polarographic Analyzer System 11/01/82
Power Supply DCR20-115B 11/01/82
Drying Racks 08/01/82
Mettler Balance Model PN1210 11/01/82
RE0091 X-Y Recorder 10/01/84
EG&G Par C MD 175 Programmer 11/01/82
Simpson 462 Digital Multimeter 01/01/79
Omega RD-115-T-AR12 Chart Recorder 08/01/87
HP 6263B Power Supply 01/01/75
Potentiostat/Galvanostat 11/01/82
Omega 595 Strip Chart Recorder 06/01/84
DCR 60-30B Power Supply 01/01/79
Unitron TM-25-544 Microscope 01/01/79
Thermolyne Oven 124 01/01/79
QRD 40-75 Power Supply 01/01/79
HP 6260B Power Supply 01/01/75
Linear 595 Chart Recorder 03/01/82
Omega Chart Recorder Model 595 04/01/88
Omega Chart Recorder 09/01/86
Diarco Shear #1 01/01/79
Power Supply DCR60-45B 11/01/82
HP Mod 6433B DC Power Supply 01/01/72
Power Supply QRD 15-2 11/01/82
QRD15-2 Power Supply 01/01/79
<PAGE>
Description Acquisition Date
----------- ----------------
Large Dough Mixer 01/01/79
Digital Multimeter 01/01/79
Linear 595 Chart Recorder 08/01/84
HP 6267B Power Supply 02/01/89
Model 461-2 Digital Multimeter 01/01/79
Fluke 75 Multimeter 01/01/79
Omega RD115-T AR12 Recorder 01/01/79
K-Tron Model LWF Loss In Feed 06/01/89
Kneader/Extruder w/Heat, Dies 02/01/83
Upgrade Buss Extruder 12/01/87
Dispatch Oven 01/01/79
Dispatch Oven 01/01/79
Rolling Mill 07/01/76
16" Electrode Rolling Mill 12/01/78
16" Electrode Rolling Mill 12/01/79
Revise 16" Rolling Mill to 20" 06/01/87
Control System for Rolling Mill 12/01/80
Oil Seals/Lab on Rolling Mill 02/01/80
Modify 20" Rolling Mill 01/01/90
Diarco #3 Shear 01/01/79
Linear 595 3 Pen Chart Recorder 01/01/79
Fluke 77 Multimeter 01/01/79
Weighing Scale and Scoop 02/01/76
Rolling Mill 01/01/79
Rolling Mill 01/01/79
Double Arm Sigma Blade Mixer 11/01/75
Ross Double Planetary Mixer 06/01/73
Rolling Mill 01/01/79
Rolling Mill 01/01/79
Photo Meter Digital 08/01/79
Illuminance Probe 11/01/79
DCB 40-125A Power Supply 01/01/79
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Description Acquisition Date
----------- ----------------
Steromicroscope, Wild 01/01/79
Power Supply DCR40-13B 10/01/85
179A Trms Multimeter 01/01/79
Power Supply DCR40-13B 10/01/85
Model 177 Digital Multimeter 12/01/85
Schulz Power Supply 01/01/79
ACDC Mod EL 750 Electronic Load 01/01/79
ACDC Mod EL750 Electronic Load 01/01/79
Power Supply QRD15-2 Sorensen 11/01/82
Thelco Lab Oven Model 4 01/01/79
DCR40-13B Power Supply 01/01/79
Digital Multimeter Data Precis. 01/01/79
Fluke 8050A Digital Multimeter 01/01/79
HP DC Power Supply 09/01/84
Sorensen Power Supply DCR80-6B 02/01/85
Power Supply DCR10-170B 11/01/82
Omega Chart Recorder Model 595 04/01/88
Linear 595 Chart Recorder 03/01/82
Fluke 8050A O M M 01/01/79
Diarco #2 Hand Notcher 12/01/78
Benchmaster Press #151 08/01/78
Benchmaster Punch Press #152 01/01/79
Diarco #4 Shear 01/01/79
Gruenberg 400 C Oven 01/01/79
Stock Stand Model P-10 09/01/84
2 Ft Shear #4, Dedgro 09/01/76
Profab Corner Radius Mach #900 08/01/85
Rosenthal Variable Shelter 10/01/85
Punch Press 09/01/76
Rolling Mill 01/01/79
Crosshead Extruder for Buss 02/01/84
80-12B Power Supply 01/01/79
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<PAGE>
Description Acquisition Date
----------- ----------------
Continuous Piercing Machine 04/01/87
Two Roll Amil Milder Calander 01/01/72
Calander Tension Stand 02/01/86
80 Ton Press 01/01/74
J. H. Wood 80 Ton Press 12/01/77
Hydraulic Cylinder for Press 10/01/81
Vertrod Heat Sealer 12" 01/01/79
High Speed Twin Shell Blender 02/01/76
Potentiostat/Galvanostat M 273 06/01/86
HP 4328A Milliohm Meter 12/01/87
4 1/2 Digit Multimeter 09/01/76
Expansion of Government Piercer 10/01/83
HP 3476A Multimeter 01/01/79
Modify Battery Cycler 10/01/91
Chart Recorder 3 Channel 11/01/90
Grieve 5A550 Shelf Oven 03/01/91
Electrode Rinsing System 10/27/92
Pneumatic Hopper for Electrode 10/31/92
Cool Flow Refrig Recirculator 12/31/92
Cell Cycler 04/01/94
2-10 Input Hybrid Bench Recorder 06/01/95
Welder and Accessories 07/01/95
Battery Testing System 10/01/95
Display Cabinet Battery Parts 12/01/95
Battery Testing Freezer 03/01/96
Voltage Monitoring Test Stand 10/01/96
Piercing Machine and Mods 05/01/97
Champ Bench Scale 09/01/97
Arbin Test System 4 Indp Chan 09/01/97
Ultrasonic 3000 Watt Welder 05/01/97
Horn Anvil Top and Bottom Cutter 01/01/97
Arbin Test System Mod #149268 05/01/97
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Description Acquisition Date
----------- ----------------
2 Sorensen Power Supply 0-80V 03/01/98
Solvent Pump Delivery System 03/01/98
Ph Adjustment System 03/01/98
Aluminum Welded Dry Cabinet 03/01/98
Electric Scooter and Cycle 03/01/98
25241-0045 Model 45 Vacuum Pump 06/01/98
1500 Lb Trailer/Ramps and Lights 06/01/98
Install/Access for Battery Cycler 03/01/89
4 Post Car Lift and Cement Pad 06/01/98
Power Supply 0-6V DC 06/01/95
Battery Display Cabinet 03/01/97
Replace Transmission Frnch Mil 01/01/97
Bookcase w/Glass Doors, Black 01/01/79
Side Arm Chair, Black 04/01/83
Side Arm Chair, Black 04/01/83
Steelcase 5 Drawer File Cabinet 04/01/83
Work Table, Black w/Walnut 01/01/79
Bookcase, Black 01/01/79
Bookcase, Black 01/01/79
Drafting Board 01/01/79
Executive Desk, Black w/Walnut 01/01/79
Bookcase, Walnut 04/01/88
Highback Swivel Tilt Chair 04/01/88
Executive Desk, Black w/Walnut 01/01/79
4 Drawer File Cabinet, Black 01/01/79
Bookcase, Black 01/01/79
Folding Table, Oak Top 08/01/88
4 Drawer File Cabinet, Black 01/01/79
Lab Stool, Upholstered w/Casters 01/01/86
Storage Cabinet, Grey 01/01/79
Safety Storage Cabinet, Yellow 01/01/79
Storage Cabinet, Grey 01/01/79
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Description Acquisition Date
----------- ----------------
Storage Cabinet, Black 08/01/83
4 Drawer File Cabinet, Black 01/01/79
Captain Chair 01/01/91
Captain Chair 01/01/91
Captain Chair 01/01/91
Captain Chair 01/01/91
Captain Chair 01/01/91
Captain Chair 01/01/91
Captain Chair 01/01/91
Captain Chair 01/01/91
Captain Chair 01/01/91
Captain Chair 01/01/91
Office Furniture, Battery Area 06/01/98
Office Furniture, C. Huang 06/01/98
Office Furniture, K. Bates 04/01/98
Cell Case and Cover Mold 06/01/78
Tooling for Cell Case and Cover 12/01/77
Tooling Ni-Cd Miners Battery 06/01/82
Tooling Ni-Cd Miners Battery 12/01/79
Battery Case Injection Mold 10/01/82
Battery Cover Injection Mold 10/01/82
Special Znbr Tooling at Vendor 11/01/82
Steel Rule Die 11/01/82
3 Cavity Molds/Miners Battery 02/01/84
Cavity Mold/30 AH Cell Case 07/01/83
Case Mold 07/01/77
2 Single Cavity Injection Molds 04/01/86
Steel Stamp Tool/Miners Ni-Cd 01/01/85
Tooling/Stamp Tabs Ni-Cd Battery 04/01/85
Mod/Case/Cover Mold Miners Battery 05/01/85
Single Cavity Injection Mold 04/01/86
Tooling 8000 AG Ni-Cd Tabs 12/01/86
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Description Acquisition Date
----------- ----------------
Injection Mold/Zinc Battery 04/01/89
Compression Mold/Bipolm Plates 05/01/89
Mold/Battery Flash Arrestor Ni 01/01/89
Battery Case and Cover Mold 08/01/95
Panasonic KX-P1091 Printer 01/01/79
Personal Computer and Monitor 08/31/92
Hirez VGA and DeskJet 500C Printer 10/31/92
Gateway P5-75 09/01/95
Gateway P5-120 PC 01/01/96
Gateway 2000 P-5 133 PC 09/01/96
Gateway 300MHz PC InkJet Printer 06/01/98
Gateway GP6-300 PC 06/01/98
Monitor 08/01/98
Gateway G6-300 PC 06/01/98
Install 1 4000 Amp Trans Switch 12/01/93
Map Assist Software 09/01/91
Elec Hook Up EV Battery Test 06/01/98
Mettler Top Loading Elec Scale 04/01/98
Battery Insulation Test 04/01/98
Rosenthal Sheeting System 06/01/98
Kras VSK083 Press 06/01/98
AU50R Pneumatic Torque/Screw 06/01/98
Helium Leak Test System 06/01/98
BT2043 Computer Control Cycler 06/01/98
19 Cubic Ft Incubator 08/01/98
20KHz Titanium Bar Horn 09/01/98
Inert Atmosphere Furnace, Small 09/01/98
Two Dry Material Blenders 10/01/98
Miniflex and Portable XRD System 09/01/98
3 Gateway GP6-400MHz PCs 10/01/98
Surftest Test 10/01/98
Appro # 151102 07/01/98
-7-
<PAGE>
Description Acquisition Date
----------- ----------------
Appro # 151-126 10/01/98
Appro # 151-104 08/01/98
Appro # 151106 07/01/98
Appro # 151-109 07/01/98
Appro # 151-055 10/01/98
Appro # 151-130 10/01/98
Appro # 151-096 09/01/98
Appro # 151-143 SB 151-143 10/01/98
Appro # 153-111 10/01/98
Appro # 154054 07/01/98
Two Modular Work Stations 10/01/98
-8-
<PAGE>
SCHEDULE 1.01(b)
ERC CONTRACTS
Technology Transfer and License Agreement for Ni-Zn Battery Technology among
Xiamen Three Circles Co., Ltd. (formerly Xiamen Daily-Used Chemicals Co., Ltd.),
Nan Ya Plastics Corporation and ERC dated February 21, 1998.
Employment Agreement by and between ERC and Allen Charkey, dated as of December
15, 1998.
BATTERY GROUP CONFIDENTIALITY AGREEMENTS
(BY DATE)
NAME EFFECTIVE DATE
- ----
Proslovia Inc. 7/7/98
Talisman International of Ohio 6/6/98
Currie Technologies 5/26/98
Dukane Corp. 5/15/98
Bell Technologies 5/5/98
BM - Battery Machinw 4/30/98
G.E. Schmidt 4/16/98
Miyachi Corp 4/7/98
Audi AG 4/3/98
Electro Energy Inc. 3/31/98
Orbel Corp. 3/30/98
Texmax 3/23/98
Arbin Inc. 3/23/98
Lewis Corp. 3/18/98
Hibar Systems Limited 3/17/98
IMD Corp. 3/17/98
Charles Ross & Son 3/17/98
Despatch Industries 3/17/98
Bodine Assemble & Test System 2/23/98
Zentrum For Sonnergie-und Wasserstroff 2/16/98
<PAGE>
Beacon Group 2/10/98
BST Systems Corp. 12/19/97
Nan Ya Plastics Co. 11/14/97
Danstep Associates 2/11/97
Courtaulds Fibres 06/17/96
Eveready Battery Co., Inc. 11/26/96
MATEC/BEWAG, Berlin 11/25/98
MATEC/GEW, Wilhelmshaven 11/25/98
MATEC/Wilhelmshaven 11/25/98
MATEC/VASA Energy, Hamburg 11/25/98
INMETCO 11/17/98
City of Xiamen, City 11/14/98
Rechargable Battery Corp. 11/11/98
Richel Inc. 11/6/98
Electro Energy Inc. 11/6/98
Yardney Technical Products 11/2/98
Garlock Inc. 10/30/98
Jaygo Inc. 10/30/98
CELGARD LLC 10/27/98
The Guest Co. 10/22/98
Maccor Inc. 10/22/98
Mauricio Rizikow 10/22/98
Jet Puverizer 10/22/98
Firing Circuits Inc. 10/15/98
Vernay Laboratories 8/18/98
Aero Vironment Inc. 9/17/98
Computer Aided Engineering 8/13/98
Straton Industries 8/13/98
H.C. Starck Business Group 8/7/98
All Battery consultants 8/7/98
Celgard 8/6/98
-2-
<PAGE>
Mitsubishi Bank & Trust Corp. 7/7/98
BATTERY TEST AGREEMENTS
(BY DATE)
NAME EFFECTIVE DATE
- ----
NEOCON Technologies Inc. 11/30/98
Honda R&D Americas 10/13/98
Center for Hydrogen & Solar Research 7/28/98
ZAP Power System 7/22/98
EV Global Motors Co. 6/15/98
Charger Electric Bicycle Co. 6/17/98
Currie Technologies 5/26/98
Cannondale Corp. 8/5/98
PIVCO 3/3/98
Bodine Assembly & Test Systems 3/3/98
Bay Resource Corporation 2/26/98
Daimler Benz AG 8/7/97
Aero Vironment Inc. 9/17/96
Toro MFG. Corp. 9/12/96
Alvin J. Salkind 4/12/95
Electric Bicycle Co. 7/25/93
BATTERY SERVICE AGREEMENTS
(BY DATE)
NAME EFFECTIVE DATE
MATEC (Marketing and Techology Consult GmbH) 10/6/98
BATTERY MEMORANDUM OF UNDERSTANDING
(BY DATE)
NAME EFFECTIVE DATE
TRAPOS (Transport Systemetecnic AG) 10/27/98
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<PAGE>
SCHEDULE 1.01(c)
EVERCEL LIABILITIES
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<PAGE>
SCHEDULE 1.01(d)
ERC INTELLECTUAL PROPERTY ASSETS
U.S. PATENTS AND PENDING U.S. PATENT APPLICATIONS
Patent No. Issue Date File No.
- ---------- ---------- --------
4,415,636 November 11, 1983 30512
4,546,058 October 8, 1985 32984
4,661,759 April 28,1987 40006
4,810,598 March 7, 1987 40067
4,976,904 December 11, 1990 40066
5,023,155 June 11, 1991 40110
5,264,305 November 23, 1993 B429-001
5,460,899 October 24, 1995 B429-010
5,556,720 September 17, 1996 B429-010 CIP
5,658,694 August 19, 1997 B429-021
Patent Appln. No. Filing Date File No.
- ----------------- ----------- --------
08/722,605 September 27, 1996 B429-019
08/828,801 March 27, 1997 B429-026
09/148,451 September 4, 1998 B429-029
<PAGE>
SCHEDULE 1.01(e)
EVERCEL EMPLOYEES
Permanent Employees Temporary Employees
- ------------------- -------------------
Kathy Bates Steve Elam
Fernando Bico Maria Quiroz
Allen Charkey Jeff Gardner
William Clark Vincent Marra
Elio Ferreira George Tirado
Lieng Nguyen Elaine Vargas
Jacqueline Nguyen Estelle Barnes
John Rotondo
Glen Bowling
Olivia Saraiva
Mike Nyce
Keith Williams
Virgil Handberry
James DeCarvalho
Phil Napoli
Richard Howard
<PAGE>
EXHIBITS
Exhibit A: Form of Services Agreement
Exhibit B: Form of Tax Sharing Agreement
Exhibit C: Form of License Assistance Agreement
<PAGE>
EXHIBIT A
FORM OF SERVICES AGREEMENT
<PAGE>
EXHIBIT B
FORM OF TAX SHARING AGREEMENT
<PAGE>
EXHIBIT C
FORM OF LICENSE ASSISTANCE AGREEMENT
C-2
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of the 23 day of March, 1999
between EVERCEL, INC., a Delaware corporation (the "Company"), and ROBERT L.
KANODE, an individual with a current mailing address at 67 Lincoln Lane,
Ridgefield, Connecticut 06877, (the "the Employee"). Unless the context
otherwise requires, the term "Company", shall include the Company and each of
its subsidiaries.
W I T N E S E T H
WHEREAS, the Company desires to employ the Employee as its President and
Chief Executive Officer and the Employee desires to be employed in such
capacities in accordance with the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the covenants, conditions, undertakings
and premises contained herein, the sufficiency which is hereby acknowledged, the
Company and the Employee agree follows:
ARTICLE 1
EMPLOYMENT AND DUTIES
Employment; Duties
Subject to the terms and conditions set forth herein, commencing April 19,
1999 (the "Commencement Date") the Company agrees to employ the Employee and the
Employee agrees to be employed as President and Chief Executive Officer of the
Company. In such position, the Employee shall perform such duties as are or may
be assigned to the Employee by the Board of Directors of the Company (the "Board
of Directors") from time to time. In connection therewith, the Employee shall
report to and be subject to the supervision of the Executive Committee of the
Board of Directors.
1.2 Full Time
The Employee shall devote his full working time, attention, energies,
skills and best efforts exclusively to the performance of his duties hereunder.
The Employee shall not during the term of this Agreement engage in any other
business activity whether or not such activity is pursued for gain, profit or
other pecuniary advantage, except that the Employee, on his own time, (a) may
manage his own investments, and those of his immediate family, and (b) may serve
as a member of the board of directors of other corporations subject to the
restrictions set forth in Section 5.1, so long as such activity (as described in
either clause (a) or (b) above), does not, in the reasonable judgment of the
Company's Board of Directors, adversely affect the performance of his duties
hereunder.
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<PAGE>
1.3 Board Membership
The Employee, effective upon the Commencement Date, shall become a member
of the Board of Directors and its Executive Committee. Thereafter, for so long
as the Employee is serving as Chief Executive Officer of the Company, the
Company will nominate the Employee for re-election as a management nominee of
the Board of Directors and use its reasonable best efforts to cause the Employee
to be so re-elected and, if so elected, to appoint the Employee as a member of
the Executive Committee of the Board of Directors. If at any time the Employee
ceases to serve as President and Chief Executive Officer of the Company, if the
Board of Directors so requests, the Employee shall immediately tender his
resignation from the Board of Directors and shall automatically be deemed to
have so resigned whether or not such resignation is tendered.
ARTICLE 2
2.1 Term
The term of the Employee's employment by the Company hereunder shall
commence on the Commencement Date and, except as otherwise provided in this
Agreement with respect to earlier termination, shall continue until terminated
by either party pursuant to Article 7.
ARTICLE 3
COMPENSATION
3.1 Base Salary
For all service to be rendered by the Employee under this Agreement,
including services as an officer, director and member of any committee, and such
other duties as the Board of Directors or the Executive Committee may assign to
him in accordance with Section 1.1 hereof, the Company agrees to pay the
Employee a base salary of $250,000 per annum. The Employee's base salary shall
be subject to periodic review and adjustment by the Board of Directors in its
sole discretion, provided that the base salary may not be reduced below $250,000
per year. The base salary shall be payable at such times as is customary for
employees of the Company and in accordance with the normal payroll practices of
the Company.
3.2 Incentive Compensation
The Employee shall be a participant in the Company's incentive compensation
plan generally made available to executive officers as it may be in effect and
revised from time to time. Employee's target bonus under such plan will be forty
percent (40%) of his base salary (prorata for part of the fiscal year). The
Employee understands and agrees that the
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<PAGE>
implementation of an incentive compensation plan for the Employee and other
executive officers will be subject to the review and approval of the
Compensation Committee of the Board of Directors.
3.3 Expenses
(a) General. In addition to base salary and incentive compensation, the
Company shall reimburse the Employee for all reasonable and necessary business
expenses actually incurred by him in the performance of his duties, including,
without limitation, expenses for travel, meals, entertainment and other
miscellaneous business expenses, in accordance with the Company's policies and
practices as may be in effect from time to time.
(b) Relocation. It is understood that no relocation by Employee is
required or offered.
(c) Signing Bonus. To assist employee in covering expenses relating to his
employment (e.g., an automobile), the Company will provide employee
with a one-time payment of $20,000, half payable on his first day of
employment at the Company and half 30 days later.
ARTICLE 4
COMPANY BENEFITS
4.1 Vacation
The Employee shall be entitled to receive four weeks of paid vacation per
calendar year (pro rated for any partial year), which shall be taken at such
time or times as will not unreasonably hinder or interfere with the Company's
business or operations.
4.2 Severance Benefit
If during the Employee's employment pursuant to this Agreement, the
Employee ceases to be employed by the Company as a result of the Company's
termination of the Employee without cause pursuant to Section 7.4 (which shall
not include any termination that is otherwise within Article 6) or the
Employee's termination of his employment for good reason pursuant to Section
7.1, the Company shall pay the Employee as a severance benefit, (a) his then
base salary plus (b) an amount equal to the Employee's bonus from the Company,
if any, for the immediately preceding year. This severance benefit shall be
payable by the Company through (i) the continuation of the Employee's base
salary for a period of one year and (ii) the payment of the balance in four
equal quarterly installments, with the first such payment due three months after
the termination and the final payment due one year after the termination. The
severance obligation set forth in this Section 4.2 shall be in lieu of and not
in addition to any other severance benefits made available to other employees of
the Company.
-3-
<PAGE>
4.3 Stock Options
Effective on the execution of this Agreement, the Company shall issue to
the Employee an option to purchase 100,000 shares of the Company's Common Stock
with an exercise price equal to $6.00, pursuant to the Company's standard form
of Option Agreement, subject to the following provisions. The option shall vest
over a four year period at 25% per year (25,000 shares) on each anniversary date
of the Commencement Date; provided however, if the Employee's employment
hereunder is terminated without cause by the Company or for good reason by the
Employee prior to the first anniversary date of the Commencement Date, the
options to purchase the first 25,000 shares of the Company's Common Stock will
automatically vest. The options will also fully vest upon a change of control of
the Company.
4.4 Other Benefit Plans
The Employee shall further be entitled to participate in and receive
benefits under any retirement, life insurance, accident, disability, health and
dental insurance, profit sharing, or similar plans generally made available to
its employees.
4.5 Indemnification
The Company agrees to defend and shall indemnify and hold the Employee
harmless to the fullest extent permitted by law from any and all liability,
costs, and expenses which may be assessed against the Employee by reason of the
performance of his responsibilities and duties under the terms of this
Agreement, provided such liability does not result from willful misconduct or
gross negligence of the Employee.
ARTICLE 5
RESTRICTIONS
5.1 Non-Competition
(a) So long as the Employee is employed by the Company, serving as a
Director or is receiving payments hereunder (whether in connection with the
Employee's employment or as a result of the termination of the Employee's
employment hereunder) and for a period of two years thereafter (the
"Noncompetition Period"), the Employee shall not, directly or indirectly,
whether as owner, partner, shareholder, director, consultant, agent, employee,
guarantor, surety or otherwise, or through any person, consult with or in any
way aid or assist any competitor of the Company or engage or attempt to engage
in any employment, consulting or other activity which directly or indirectly
competes with the Business of the Company. For purposes of this Agreement, the
term "employment" shall include the performance of services by Employee as an
employee, consultant, agent, independent contractor or otherwise and the term
"Business" shall mean the research, development, manufacture, sale or
distribution of fuel cells, batteries or related products and any other business
engaged in, planned or under development by the
-4-
<PAGE>
Company with respect to which the Employee has had access to Company
confidential information during the Noncompetition Period. The Employee
acknowledges that his participation in the conduct of any such Business alone or
with any person other than the Company will materially impair the Business and
prospects of the Company.
(b) In addition to and without limiting the foregoing, during the
Noncompetition Period, Employee shall not knowingly do, attempt to or assist any
other person in doing or attempting to do any of the following: (i) hire any
director, officer, employee, or agent of the Company (a "Company Employee") or
encourage any such person to terminate such relationship with the Company, as
the case may be (for purposes hereof, the Employee shall be deemed to have so
encouraged a Company Employee to terminate such relationship with the Company if
the Employee hires or otherwise assists any person in hiring any such Company
Employee within six months after the Company Employee terminates his or her
relationship with the Company), (ii) encourage any customer, client, supplier or
other business relationship of the Company to terminate or alter such
relationship, whether contractual or otherwise, to the disadvantage of the
Company; (iii) encourage any prospective customer or supplier not to enter into
a business relationship with the Company; (iv) impair or attempt to impair any
relationship, contractual or otherwise, written or oral, between the Company and
any customer, supplier or other business relationship of the Company; or (v)
sell or offer to sell or assist in or in connection with the sale to any
customer or prospective customer of the Company any products of the type sold or
rendered by the Company.
(c) Nothing in this Agreement shall preclude Employee from making passive
investments of not more than 2% of a class of securities of any business
enterprise registered under the Securities Exchange Act of 1934.
5.2 Intellectual Property
Upon execution of this Agreement, the Employee shall execute the Evercel,
Inc. Agreement for Assignment, Confidentiality and Nonsolicitation, which
agreement is hereby incorporated herein by reference.
5.3 Injunctive Relief
The Employee acknowledges that the restrictions contained in this Article
are reasonable in view of the nature of the business in which the Company is
engaged and his position with the Company which will provide him with extensive
knowledge of the business.
The Company and the Employee mutually agree that the Employee's obligations
under this Article are of a special and unique character which gives them a
peculiar value, and the Company cannot be reasonably or adequately be
compensated in damages in an action at law in the event the Employee breaches
such obligations. The Employee therefore expressly agrees that, in addition to
any other rights or remedies which the Company may possess, the Company shall be
entitled to injunctive and other equitable relief to prevent a breach of this
Article by the Employee, including a temporary restraining order or temporary
injunction from any court of
-5-
<PAGE>
competent jurisdiction restraining any threatened or actual violation, and each
party hereby consents to the entry of such order and injunctive relief and
waives the making of a bond as a condition for obtaining such relief. Such
rights shall be cumulative and in addition to any other legal or equitable
rights and remedies the Company may have.
5.4 Survival Enforceability
It is expressly agreed by the parties hereto that the provisions of this
Article shall survive the termination of this Agreement.
If any one or more of the provisions contained in this Article shall for
any reason in any jurisdiction be held to be excessively broad as to the time,
duration, geographical scope, activity or subject, it shall be construed with
respect to such jurisdiction, by limiting or reducing it, so as to be
enforceable to the extent compatible with the applicable law of such
jurisdiction as it shall then appear.
ARTICLE 6
DEATH; DISABILITY
6.1 Death
If the Employee dies while employed under this Agreement, this Agreement
shall terminate immediately. The Company will pay to the Employee's estate his
base salary under Section 3.1 through the last day of the calendar month in
which he dies, plus any incentive compensation awarded to the Employee under the
Incentive Compensation Plan, but not yet paid, and such death benefits as may be
provided pursuant to Section 4.4.
6.2 Disability
If the Employee fails to perform his duties under this Agreement due to
"Disability", as defined below, the Company may terminate this Agreement upon 30
days written notice to him. In that event, the Company shall pay the Employee
his base salary under Section 3.1 through the date of termination; provided,
however, that to the extent the Employee is receiving disability benefits
pursuant to the Company's disability insurance policy, the amount of such
benefits shall be credited against the Employee's base salary during the period
prior to the date of termination. In addition, upon any termination based upon
Disability, the Company shall pay to the Employee any incentive compensation
awarded to the Employee under the Incentive Compensation Plan but not yet paid.
The term "Disability" shall mean the inability of the Employee to perform for
the Company the duties specified in Section 1.1 by reason of any medically
determinable physical or mental impairment for (i) a period of four consecutive
months, (ii) for shorter periods aggregating five months in any 12-month period
or (iii) if the Board of Directors determines that it is probable that the
Disability will continue for a length of time so as to constitute a Disability
under clauses (i) or (ii) above. The determination of whether the Employee is
Disabled shall be made
-6-
<PAGE>
by the Board of Directors on the basis of written medical evidence reasonably
satisfactory to it. Notwithstanding anything to the contrary in the foregoing,
in the event of a termination of the Employee pursuant to clause (iii), the
Company will pay the Employee a minimum of four months base salary following
such termination; provided, however, that to the extent the Employee is
receiving disability benefits pursuant to the Company's disability insurance
policy, the amount of such benefits shall be credited against the Employee's
base salary.
ARTICLE 7
TERMINATION
7.1 Termination by the Employee for Good Reason
The Employee may terminate this Agreement for good reason upon ninety (90)
days written notice to the Company setting forth with specificity the grounds
for termination upon the occurrence of any of the following: (a) the failure of
the Company to observe or comply with any of its material obligations under this
Agreement, if such failure has not been cured within 30 days after written
notice thereof has been given by the Employee to the Company; (b) the
dissolution of the Company; or (c) any merger in which the Company is not the
surviving corporation and in which the stockholders of the Company own less than
50% of the voting securities of the merged entity upon the effectiveness of the
merger, or any consolidation, sale of substantially all of the assets of the
Company or change of control of the Company, provided the Employee has not
approved the transaction by voting for it either as a director or shareholder.
For purposes of clause (a) a material breach by the Company shall include a
material change in the reporting responsibilities of the Employee such that the
Employee is no longer effectively serving as the President and Chief Executive
Officer of the Company, a material reduction in benefits or other perquisites of
office such that the Employee is not receiving the benefits set forth herein or
the benefits and other perquisites generally granted for executive positions
within the Company. For purposes of clause (c) above, a "change of control"
shall be presumed to have occurred if within any 12-month period a single person
or entity, or related group of persons or entities, acquires 50% or more of the
outstanding voting stock of the Company. In the event of a termination for good
reason under this Section, the Company shall pay the Employee (i) his base
salary as then in effect under Section 3.1 through the date of termination, (ii)
any incentive compensation awarded to the Employee under the Incentive
Compensation Plan, but not yet paid, and (iii) the severance benefit set forth
in Section 4.2.
7.2 Termination by the Company for Cause
The Company may terminate this Agreement for cause in the manner set forth
below. For purposes of this Section, "cause" shall mean (a) a material breach by
the Employee of the terms of this Agreement, including without limitation
failure by the Employee to perform a material portion of his duties hereunder
(not otherwise excused by the disability of the Employee) (b) criminal
misconduct or unethical conduct, whether or not in relation to the Company's
affairs or business, which reflects adversely upon Employee's honesty or
integrity in the performance of his duties as an employee of the Company, or
which otherwise is materially
-7-
<PAGE>
detrimental to the interests of the Company; (c) if the Employee is found guilty
or pleads nolo contendere to the commission of a crime classified as a felony
under any Federal, state or local law; and (d) commission by the Employee of an
act of gross incompetence in the course of his employment hereunder. The term
"cause" as used in the preceding sentence does not include the Employee's
erroneous judgment or judgments of a technical, scientific, financial, legal
and/or environmental nature which were, although erroneous, nevertheless
reasonable at the time and under the circumstances in which they were made. In
the event of termination under this Section, the Company shall pay to the
Employee his base salary under Section 3.1 through the date of termination
stated in the notice plus any incentive compensation awarded to the Employee
under the Incentive Compensation Plan but not yet paid, and the Employee shall,
if so requested by the Board of Directors, perform his duties under Article 1
through the date of termination stated in the notice.
7.3 Termination by the Company for Cause-Procedure
Notwithstanding anything to the contrary set forth herein, the Employee
shall not be deemed to have been terminated for cause without (i) delivery to
the Employee of written notice setting forth the reasons for the Company's
intention to terminate for cause, (ii) an opportunity for the Employee, together
with his counsel, to be heard before the Board of Directors and (iii) delivery
to the Employee of a notice of termination from the Board of Directors stating
that a majority of the members of the Board have determined in good faith that
the Employee was guilty of conduct that supports the termination for cause,
specifying the conduct which gave rise to such termination.
7.4 Termination by the Company or the Employee Without Cause
Either the Company or the Employee may terminate this Agreement for reasons
other than as set forth above in Section 7.1 or Section 7.2 and which are not
otherwise within Article 6 upon 30 days written notice by the Company or 90 days
written notice by the Employee. Upon such termination, the Company shall pay the
Employee his base salary under Section 3.1 through the date of termination
(provided, however, that the Employee continues to be available to perform the
services required under Section 1.1 through the date of termination), plus any
incentive compensation awarded to the Employee under the Incentive Compensation
Plan, but not yet paid, and any accrued vacation. In addition, upon the
Company's termination of the Employee without cause, the Company shall be
required to pay the Employee the severance benefit set forth in Section 4.2.
Nothing herein shall prohibit the Company from relieving the Employee of any or
all of his duties hereunder pending the expiration of the 30-day notice period.
7.5 Termination of Duties
Notwithstanding anything to the contrary set forth herein, at any time on
or after delivery of written notice to the Employee, the Company may relieve the
Employee of all of his duties and responsibilities hereunder and may relieve the
Employee of authority to act on behalf of, or legally bind, the Company;
provided, however, that any such action by the Company shall not
-8-
<PAGE>
relieve the Company of its obligation to pay to the Employee all compensation
and benefits otherwise provided for in this Agreement.
ARTICLE 8
MISCELLANEOUS
8.1 No Conflicting Agreements.
The Employee represents and warrants to the Company, that the Employee is
not under any obligation to any person or entity which is inconsistent with or
in conflict with any of the terms of this Agreement or which would prevent,
limit or impair in any way the Employee's performance of all the terms of this
Agreement and the Employee agrees not to enter into any agreement, either
written or oral, in conflict herewith.
8.2 Entire Agreement
This Agreement contains the entire understanding and agreement between the
Company and the Employee and cannot be amended, modified, or supplemented in any
respect except by subsequent written agreement entered into by both parties.
8.3 Successors of the Company
This Agreement shall inure to the benefit of and be binding upon the
Company, its successors and assigns, including, without limitation, any person,
firm, corporation or other entity which may acquire all or substantially all of
the Company's assets and business, or with or into which the Company may be
consolidated or merged, and this provision shall apply in the event of any
subsequent merger, consolidation or transfer. In every respect, this Agreement
shall inure to the benefit of and be binding upon the Employee, his heirs,
executors and personal representatives and, being personal in nature, shall not
be assignable by the Employee.
8.4 Effect of Waiver
The waiver by either party of a breach of any provision of this Agreement
shall not operate as or be construed as a waiver of any subsequent breach.
8.5 Notices
Any notice, request, demand or other communication in connection with this
Agreement must be in writing and shall be deemed to have been given and received
three days after a certified or registered letter containing such notice,
properly addressed, with postage prepaid, is deposited in the United States
mail; and, if given otherwise than by registered or certified mail, it shall not
be deemed to have been given until actually delivered to and received by the
party to whom it is addressed.
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<PAGE>
A. Notice to the Company shall be given at its principal mailing
address, which at the time of execution of this Agreement is 3
Great Pasture Road, Danbury, Connecticut, 06813, Attention:
Chairman of the Board of Directors, or at such other address as
it may designate.
B. Notice to the Employee shall be given at his home address, which
at the time of execution of this Agreement is the address set
forth in the heading of this Agreement, or at such other address
as he may designate.
8.6 Counterparts
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
8.7 Severability
If, in any jurisdiction, any provision of this Agreement or its application
to any party or circumstances is restricted, prohibited or unenforceable, such
provision shall, as to such jurisdiction, be ineffective only to the extent of
such restriction, prohibition or unenforceability without invalidating the
remaining provisions hereof and without affecting the validity or enforceability
of such provision in any other jurisdiction or its application to other parties
or circumstances.
8.8 Survival
Each of the terms and provision of this Agreement which are expressly or
impliedly so intended shall survive the termination of this Agreement.
8.9 Applicable Law
This Agreement shall be governed by and construed according to the laws of
the State of Connecticut.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first stated above.
EVERCEL, INC.
By: /s/ Jerry Leitman
---------------------
Jerry Leitman
Chairman of the Board
/s/ Robert L. Kanode
--------------------
Robert L. Kanode
-10-
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