AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 7, 2000
REGISTRATION NO. 333-_________
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
EVERCEL, INC.
(Exact Name of Registrant as Specified in Its Charter)
------------------------------
DELAWARE 06-1528142
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Identification Number)
Organization)
2 LEE MAC AVENUE
DANBURY, CONNECTICUT 06810
(203) 825-3900
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
------------------------------
ROBERT L. KANODE, PRESIDENT AND CHIEF EXECUTIVE OFFICER
EVERCEL, INC.
2 LEE MAC AVENUE
DANBURY, CONNECTICUT 06810
(203) 825-3900
(Name, Address Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
<PAGE>
COPY TO:
RICHARD A. KRANTZ, ESQ.
ROBINSON & COLE llp
FINANCIAL CENTRE
695 EAST MAIN STREET
Stamford, ct 06904-2305
(203) 462-7500
--------------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this registration statement.
--------------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
-------------------------------------------------------------------------------------------------------------------------------
Title of each Class of Amount to be Proposed Maximum Proposed Maximum Amount of Registration
Securities to be Registered (1) Offering Price per Aggregate Offering Fee
Registered Share (2) Price (2)
-------------------------------------------------------------------------------------------------------------------------------
Common Stock, par
value $0.01 per share 1,555,200 shares $16.00 $24,883,200 $6,569
-------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Includes 960,000 shares of common stock which may be issued upon the
conversion of the Series A Cumulative Convertible Preferred Stock of
Evercel, Inc. and an additional 595,200 shares of common stock which
may be issued upon the exercise of the related warrants.
(2) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(c) under the Securities Act of
1933, as amended, on the basis of the average high and low sale prices
of the registrant's Common Stock on September 6, 2000, as reported by
Nasdaq.
------------------------------
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this registration statement shall become
effective on such date as the SEC, acting pursuant to said Section 8(a), may
determine.
------------------------------
<PAGE>
PROSPECTUS
EVERCEL, INC.
1,555,200 Shares Common Stock, par value $.01 per share
This prospectus constitutes a prospectus of Evercel, Inc., a Delaware
corporation (the "Company"), with respect to the registration for resale under
the Securities Act of 1933, as amended (the "1933 Act"), of an aggregate of up
to 1,555,200 shares of the Common Stock, par value $.01 per share of the Company
(the "Common Stock"), consisting of 960,000 shares which may be issued by the
Company upon the conversion of the Company's Series A Cumulative Convertible
Preferred Stock and an additional 595,200 shares which may be issued by the
Company upon exercise of the related warrants.
The shares of Common Stock of the Company offered hereby (the "Shares") may
be sold from time to time by the holders thereof (the "Selling Shareholders") in
brokers' transactions at prices prevailing at the time of sale or as otherwise
described in "Plan of Distribution." The Company will not receive any of the
proceeds from the sale of the Shares. Expenses of the registration of the
Shares, including legal and accounting fees of the Company, will be paid by the
Company. The Selling Shareholders may pay usual and customary brokers'
commissions.
This Prospectus has been prepared for the purpose of registering the Shares
under the 1933 Act to allow future sales by the Selling Shareholders without
restriction. To the knowledge of the Company, the Selling Shareholders have made
no arrangement with any brokerage firm for the sale of the Shares. A Selling
Shareholder may be deemed to be an "underwriter" within the meaning of the 1933
Act. Any commissions received by a broker or dealer in connection with sales of
the Shares may be deemed to be underwriting commissions or discounts under the
1933 Act.
The Shares have not been registered for sale under the securities laws of
any state or jurisdiction as of the date of this Prospectus. Brokers or dealers
effecting transactions in the Shares should confirm the registration thereof
under the securities laws of the states in which such transactions occur, or the
existence of an exemption from registration.
The Common Stock of the Company, including the Shares, is listed on the
NASDAQ National Market (the "NASDAQ"). The last reported sale price on the
NASDAQ on September 6, 2000, was $16.00 per share.
-------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is September 7, 2000
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and, in accordance therewith,
files, reports, proxy statements and other information with the Securities and
Exchange Commission ( the "Commission"). Such reports, proxy statements and
other information filed by the Company may be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549, and at the following Regional Office of the
Commission: New York Regional Office, 7 World Trade Center, Suite 1300, New
York, New York 10048. Copies of such material may also be obtained at prescribed
rates from the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington D.C. 20549. The Company files its reports, proxy statements and
other information with the Commission electronically. The Commission maintains a
Web site that contains reports, proxy and information statements and other
information on issuers that file electronically with the Commission. The address
of such Web site is "http://www.sec.gov". The Company's Common Stock is listed
on the NASDAQ. Reports and other information concerning the Company can be
inspected and copied at the NASDAQ office at 1735 K Street N.W., Washington D.C.
20008.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed by the Company with the Commission pursuant
to the 1934 Act, are hereby incorporated by reference:
1. The Company's Annual Report on Form 10-K filed on March 30, 2000; and
2. The description of the Company's Common Stock contained in the Registration
Statement on Form 8-A of the Company, filed pursuant to Section 12 of the
1934 Act (Commission File No. 1-14919 and 0-25411).
Each document filed subsequent to the date of this Prospectus pursuant to
Section 13(a), 13(c), 14 or 15(d) of the 1934 Act prior to the termination of
the offering made by this Prospectus shall be deemed to be incorporated by
reference in this Prospectus and shall be part hereof from the date of filing of
such document; provided, however, that the documents enumerated above or
subsequently filed by the Company pursuant to Section 13 of the 1934 Act prior
to the filing with the Commission of the Company's most recent Annual Report on
Form 10-K shall not be incorporated by reference in this Prospectus or be a part
from and after the filing of such Annual Report on Form 10-K.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company has filed with the Commission a Registration Statement
(together with any amendments thereto, the "Registration Statement") under the
1933 Act, with respect to the shares of Common Stock offered hereby. This
prospectus does not contain all of the information set forth in the Registration
Statement and the exhibits and schedules thereto. Such additional information
may be obtained from the Commission's principal office in Washington, D.C.
Statements contained in this prospectus or in any document incorporated by
reference in this prospectus as to the contents of any contract or other
document referred to herein or therein are not necessarily complete, and in each
instance reference is made
-2-
<PAGE>
to the copy of such contract or other document filed as an exhibit to the
Registration Statement or such other document, each such statement being
qualified in all respects by such references.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of any such person, a copy of any document referred to
above which has been or may be incorporated in this Prospectus by reference,
other than exhibits to such documents (unless such exhibits are specifically
incorporated by reference into such documents). Requests for such copies should
be directed to: Secretary, Evercel, Inc., 2 Lee Mac Avenue, Danbury, Connecticut
06810, (203) 825-3900.
THE COMPANY
We have developed the first rechargeable nickel-zinc battery with
commercially acceptable cycle life. We believe that our patented, independently
tested and proven technology is superior to the competing battery technologies
in our target markets. We intend to manufacture and sell our batteries in two
premium markets. We benefit from a joint venture (the "Joint Venture") in the
Peoples Republic of China that produces batteries for the scooter market. We
will also produce batteries in a domestic manufacturing facility for the
electric trolling motor market, used in sportfishing boats. The Joint Venture
has received its first order to supply batteries for 1,500 scooters.
Our proprietary nickel-zinc battery is the result of over 30 years and a
substantial investment in research and development in advanced battery
technologies. We believe that our technology has created significant barriers of
entry into our targeted markets. Our manufacturing process and patented
technology allow us to produce batteries with a unique combination of
characteristics including high power, low weight, low maintenance, environmental
acceptance and low lifetime cost when compared to other technologies in our
markets.
Our goal is to commercially introduce our battery technology to the motive
power market. We intend to reach this goal by:
o Establishing Evercel as a premium brand name;
o Creating a manufacturing and distribution network with global reach;
o Selling scooter batteries directly to equipment manufacturers;
o Selling trolling motor batteries to the consumer and premium boat
manufacturers;
o Expanding our strategic alliances to access additional markets for our
batteries; and
o Maintaining our technical leadership through continued research and
development.
We operated as the battery business group of FuelCell Energy, Inc.
("FuelCell"), formerly known as Energy Research Corporation, between 1970 and
1999. During that time, FuelCell focused primarily on the development and
engineering of electricity production and storage by electrochemical means. On
February 22, 1999, we were spun-off from FuelCell. At that time, FuelCell
transferred to Evercel the intellectual property and principal assets related to
the battery business group and certain liabilities related to those assets.
We are a Delaware corporation incorporated on June 22, 1998. Our principal
executive offices are located at 2 Lee Mac Avenue, Danbury, Connecticut 06810
and our telephone number is (203) 825-3900.
-3-
<PAGE>
SELLING SHAREHOLDERS
The following table lists the Selling Shareholders, the number of shares of
Common Stock of the Company beneficially owned by such Selling Shareholders as
of the date of this Prospectus, the number of shares to be offered by each of
the Selling Shareholders and the number of outstanding shares to be owned by
each of the Selling Shareholders after the sale. All information in this table
assumes that all shares of the Company's Series A Convertible Cumulative
Preferred Stock have been converted into shares of Common Stock and that each of
the related warrants has been exercised in full.
For each Selling Shareholder (other than the Selling Shareholders listed
under the heading "Transferees of Burnham Securities Inc."), 960,000 of the
Shares to be offered may be acquired upon conversion of Series A Convertible
Cumulative Preferred Stock and 528,000 Shares may be acquired upon exercise of
the related warrants at $8.25 per share. The Selling Shareholders listed under
the heading "Transferees of Burnham Securities" may acquire from the Company
67,200 Shares to be offered hereunder upon exercise of warrants at $10.50 per
share.
Selling Shares
Shareholder Offered Hereby
ANB Associates 11,272
Delaware Charter Guarantee & TR CO 33,818
C/F James W. Armour Jr. IRA
Blum, Andrew 2,818
Bordiga, Josette A. 22,545
Willow Creek Offshore Fund 56,363
Willow Creek Capital Partners, LP 56,363
Brewer, David M. & Andrea 11,272
Burnham Asset Management 5,636
Cavalieri, Vivian 18,036
John W. Fisher IRA Rollover #2 11,272
Delaware Charter GTY & TR CO TTEE
Fitzgerald, Paul H. 5,636
Forum Capital Offshore Fund Ltd. 16,909
Forum Capital 2, Ltd. 112,727
Freedman, Richard 11,272
Fuld, Margo 5,636
Galloway, Bruce 22,545
Delaware Charter Guarantee & TR CO 22,545
C/F Bruce Galloway IRA Rollover
Gelfenbein Family LP 11,272
Gellert, Michael E. 22,545
Gerson, James D. (1) 90,818
Gerson, Barbara c/f Fred Gerson (1) 11,272
Gerson, Barbara c/f Simon Gerson (1) 11,272
Goren Brothers LTD. 22,545
------------------------
(1) Mr. Gerson is a director of the Company and FCE. Barbara Gerson is his wife
and Fred and Simon Gerson are his sons.
-4-
<PAGE>
Selling Shares
Shareholder Offered Hereby
Gutfreund, John (2) 11,272
Haff Partners LP 11,272
Humes, Graham 22,545
Van Eck Emerging Market Opportunity 22,545
Portfolio
Jacombs Trading 22,545
Joffe, Ruth 22,545
Kaplan, Stanley & Eileen 11,272
Kempner, Carl 16,909
Kanode, Robert L. IRA Rollover (3) 6,763
Delaware Charter GTY & TR TTEE
LAMBDA IV, LLC 28,181
Lamport, Aaron M. 4,509
Laurence, Sarah W. 3,381
Langner, Ellen V. 11,272
Langner, Jay B. 11,272
Lewis, Dan 56,363
Daniel Lewis IRA 16,909
Delaware Charter GTY & TR TTEE
Lewis, Michael 11,272
Richard Lewisohn III IRA R/O #2 6,200
Delaware Charter GTY & TR TTEE
Linclau, Joan R. 45,090
Lytton, Laurence W. 22,545
Lowenthal, Albert G. 16,909
Fahnestock & Co., Inc. 78,909
Pruzan, Lisa Ann 5,636
Lowenthal, Daryl E. 5,636
Lowenthal, Robert S. 5,636
Mangin Family Limited Partnership 22,545
Manthos, Dimitri A. 11,272
Mayer, Clinton 11,272
Mittleman, Robert 5,636
Mogen Investment 11,272
Nagelberg, Jeff & Audrey 16,909
NTS Financial Services 22,545
O'Connell, Jerry W. 22,545
Oliver, Ann 11,272
Oppenheimer, Martin 11,272
Pakula, Sheila & Gerson 11,272
------------------------
(2) Mr. Gutfreund is a director of the Company.
(3) Mr. Kanode is the President and a director of the Company.
-5-
<PAGE>
Selling Shares
Shareholder Offered Hereby
Plaine, Leonard & Gillis 11,272
Pollak, Richard 11,272
Rosenthal, Jacqueline 22,545
Rosenthal, John P. 82,290
Singer, Sidney 33,818
Sontek Industries Inc. 22,545
Sorrentino, Ralph J. 22,545
Strauss, Peter 11,272
Thompson, Richard M.H. 11,272
Weiselberg, Jack & Jane 11,272
Wiener, Andrew & Allyson 5,636
Wiener, Howard L. & Freya D. 11,272
Transferees of Burnham Securities Inc.
John P. Rosenthal 14,382
Andrew W. Wiener 14,382
Bruce Galloway 4,030
Ron Geffen 2,000
Richard Lewisohn 6,406
Burnham Securities Inc. 26,000
-6-
<PAGE>
EXPERTS
The financial statements of the Company as of December 31, 1999 and October
31, 1999 and 1998 and for the two-month period ended December 31, 1999 and for
each of the years in the three-year period ended October 31, 1999 have been
incorporated by reference in the Prospectus in reliance upon the report of KPMG
LLP, independent public accountants, incorporated by reference and upon the
authority of that firm as experts in accounting and auditing.
LEGAL MATTERS
The legality of the Shares has been passed upon for the Company by Robinson
& Cole LLP, Stamford, Connecticut, counsel for the Company.
PLAN OF DISTRIBUTION
The Shares to be offered pursuant to this Prospectus will be, when issued,
fully paid and nonassessable and will be offered and sold by the Selling
Shareholders for their own accounts. The Company will not receive any of the
proceeds from these sales.
The Selling Shareholders may offer and sell the Shares from time to time in
transactions at market prices prevailing at the time of sale, at negotiated
prices or otherwise. Sales may be made to or through broker-dealers who may
receive compensation in the form of discounts, concessions or commissions from
the Selling Shareholders and/or the purchasers of Shares for whom such
broker-dealers may act as agents and/or to whom they may sell as principals, or
both (which compensation as to a particular broker-dealer may be in excess of
customary commissions).
If required, this Prospectus will be supplemented to set forth a
particular offering of Shares to be made, the number of Shares so offered for
the Selling Shareholder's account and, if an offering is to be made by or
through underwriters or dealers, the names of the underwriters or dealers and
the principal terms of the arrangements between the underwriters or dealers and
the Selling Shareholders.
The Selling Shareholders and any broker-dealers acting in connection
with the sale of the Shares hereunder may be deemed to be "underwriters" within
the meaning of Section 2(11) of the 1933 Act, and any commissions received by
them and any profit realized by them on the resale of Shares as principals may
be deemed underwriting compensation under the 1933 Act.
INDEMNIFICATION
The Company's Certificate of Incorporation provides that the Company's
directors have the authority to provide in the Company's By-laws for the
indemnification of directors and officers to the fullest extent permitted by
law.
The Company's By-laws provide that: The Company shall indemnify any present
or former officer or director of the Company or the personal representatives
thereof, made or threatened to be made a party in any civil or criminal action
or proceeding by reason of the fact that he, his testator or intestate is or was
a director or officer of the Company, or served any other corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise in
any capacity at the request of the Company, against judgments, fines (including
excise tax assessed on such a person in connection with service to an employee
benefit plan), amounts paid in settlement and reasonable expenses, including
without limitation, court costs, attorneys' fees and disbursements and those of
accountants and other experts and consultants incurred as a result of such
-7-
<PAGE>
action or proceeding or any appeal therein, all of which expenses as incurred
shall be advanced by the Company pending the final disposition of such action or
proceeding. Such required indemnification shall be subject only to the exception
that no indemnification may be made to or on behalf of any director or officer
in the event and to the extent that a judgment or other final adjudication
adverse to the director or officer establishes that his acts were committed in
bad faith or were the result of active and deliberate dishonesty and were
material to the cause of action so adjudicated, or that he personally gained in
fact a financial profit or other advantage to which he was not legally entitled
(provided, that indemnification shall be made upon any successful appeal of any
such adverse judgment or final adjudication). For purposes of indemnification,
the Company shall be deemed to have requested such present or former officer or
director to serve an employee benefit plan where the performance by such person
of his duties to the Company also imposes duties on, or otherwise involves
services by, such person to the plan or participants or beneficiaries of the
plan. The foregoing right of indemnification shall not be deemed exclusive of
any and other rights to which any such person, his testator or interstate, may
be entitled apart from this provision.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the 1933 Act and
is, therefore, unenforceable.
-8-
<PAGE>
TABLE OF CONTENTS
Page
Available Information.........................................................2
Incorporation of Certain Documents by Reference ..............................2
The Company ..................................................................3
Selling Shareholders .........................................................4
Experts 7
Legal Matters ................................................................7
Plan of Distribution .........................................................7
Indemnification ..............................................................7
-9-
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses in connection with the issuance and distribution of the
securities being registered are:
Filing Fee - Securities and Exchange Commission .....................$6,570
Fee of Company's legal counsel*......................................$2,500
Independent Accountants' fees*.......................................$2,500
Miscellaneous expenses*..............................................$5,000
*Total..............................................................$16,570
* Estimated
The Company will be responsible for the payment of all of the foregoing
fees.
Item 15. Indemnification of Directors and Officers.
The Company's Restated Certificate of Incorporation provides that the
Company's directors have the authority to provide in the Company's By-laws for
the indemnification of directors and officers to the fullest extent permitted by
law.
The Company's By-laws provide that: The Company shall indemnify any present
or former officer or director of the Company or the personal representatives
thereof, made or threatened to be made a party in any civil or criminal action
or proceeding by reason of the fact that he, his testator or intestate is or was
a director or officer of the Company, or served any other corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise in
any capacity at the request of the Company, against judgments, fines (including
excise tax assessed on such a person in connection with service to an employee
benefit plan), amounts paid in settlement and reasonable expenses, including
without limitation, court costs, attorneys' fees and disbursements and those of
accountants and other experts and consultants incurred as a result of such
action or proceeding or any appeal therein, all of which expenses as incurred
shall be advanced by the Company pending the final disposition of such action or
proceeding. Such required indemnification shall be subject only to the exception
that no indemnification may be made to or on behalf of any director or officer
in the event and to the extent that a judgment or other final adjudication
adverse to the director or officer establishes that his acts were committed in
bad faith or were the result of active and deliberate dishonesty and were
material to the cause of action so adjudicated, or that he personally gained in
fact a financial profit or other advantage to which he was not legally entitled
(provided, that indemnification shall be made upon any successful appeal of any
such adverse judgment or final adjudication). For purposes of indemnification,
the Company shall be deemed to have requested such present or former officer or
director to serve an employee benefit plan where the performance by such person
of his duties to the Company also imposes duties on, or otherwise involves
services by, such person to the plan or participants or beneficiaries of the
plan. The foregoing right of indemnification shall not be deemed exclusive of
any and other rights to which any such person, his testator or interstate, may
be entitled apart from this provision.
II-1
<PAGE>
Item 16. Exhibits
5 Opinion and Consent of Robinson & Cole LLP.
23(a) Consent of Independent Auditors.
23(b) Consent of Robinson & Cole LLP is contained in Exhibit 5.
24 Power of Attorney (see page II-3).
Item 17. Undertakings
(a) The undersigned small business issuer hereby undertakes:
(1) To file, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement to include any
additional or changed material information on the plan of
distribution.
(2) That, for determining any liability under the Securities Act of 1933,
to treat each post-effective amendment as a new registration statement
of the securities offered, and the offering of the securities at that
time to be the initial bona fide offering.
(3) To file a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
(b) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the small business issuer pursuant to the foregoing provisions,
or otherwise, the small business issuer has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the small business issuer of
expenses incurred or paid by a director, officer or controlling person of
the small business issuer in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the small business issuer
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
(c) The undersigned registrant hereby undertakes that:
(1) For determining any liability under the Securities Act, to treat the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the small business issuer pursuant to Rule
424(b)(1), or (4) or 497(h) under the Securities Act as part of this
registration statement as of the time the Commission declared it
effective.
II-2
<PAGE>
(2) For determining any liability under the Securities Act, to treat each
post-effective amendment that contains a form of prospectus as a new
registration statement for the securities offered in the registration
statement, and that offering of the securities at that time as the
initial bona fide offering of those securities.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Danbury, state of Connecticut, on August 31, 2000.
EVERCEL, INC.
(Registrant)
By: /s/ Robert L. Kanode
Name: Robert L. Kanode
Title: President and Chief Executive Officer
We, the undersigned directors and officers of Evercel, Inc., do hereby
constitute and appoint each of Mr. Robert L. Kanode and Mr. Daniel J. Samela,
each with full power of substitution, our true and lawful attorney-in-fact and
agent, to do any and all acts and things in our names and on our behalf in our
capacities stated below, which acts and things either of them may deem necessary
or advisable to enable Evercel, Inc. to comply with the Securities Act of 1933,
and any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with this registration statement, including
specifically, but not limited to, power and authority to sign for any and all of
us in our names, in the capacities stated below, any and all amendments
(including post-effective amendments) hereto and any subsequent registration
statement filed pursuant to Rule 462(b) under the Securities Act of 1933, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission; and we do hereby ratify
and confirm all that they shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
/s/ Robert L. Kanode
----------------------------------------------
Name: Robert L. Kanode Date: 8/31/2000
Title: President, Chief Executive
Officer and Director
/s/ Allen Charkey
----------------------------------------------
Name: Allen Charkey Date: 8/31/2000
Title: Executive Vice President and Chief
Operating Officer and Director
/s/ Daniel J. Samela
----------------------------------------------
Name: Daniel J. Samela Date: 8/31/2000
Title: Chief Financial and Accounting Officer
II-4
<PAGE>
/s/ Jerry D. Leitman
----------------------------------------------
Name: Jerry D. Leitman Date: 8/31/2000
Title: Chairman of the Board of Directors
/s/Thomas L. Kempner
----------------------------------------------
Name: Thomas L. Kempner Date: 8/31/2000
Title: Director
----------------------------------------------
Name: William A. Lawson Date: 8/__/2000
Title: Director
/s/ Warren D. Bagatelle
----------------------------------------------
Name: Warren D. Bagatelle Date: 8/31/2000
Title: Director
/s/ James D. Gerson
----------------------------------------------
Name: James D. Gerson Date: 8/31/2000
Title: Director
/s/ Robert Gable
----------------------------------------------
Name: Robert Gable Date: 8/31/2000
Title: Director
/s/ John H. Gutfreund
----------------------------------------------
Name: John H. Gutfreund Date: 8/31/2000
Title: Director
II-5
