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 0 Xxxxx Xxxxxxx
Xxxx, Xxxxxxx, Xxxxxxxxxxx, 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");
(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 Xxxxx X.
Xxxxxxx and Xxxxxx X. Xxxxxx 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
0 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Chief Financial Officer
if to Evercel:
Evercel, Inc.
0 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
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/ Xxxxx X. Xxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
EVERCEL, INC.
By: /s/ Xxxxx Xxxxxxx
----------------------
Name: Xxxxx Xxxxxxx
Title: Executive Vice President and Chief
Operating Officer
