Exhibit 10.1
DISTRIBUTION AGREEMENT
BY AND BETWEEN
ENERGY RESEARCH CORPORATION
AND
EVERCEL, INC.
DATED AS OF
, 1999
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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..........................................................11
SECTION 3.01. ASSUMPTION AND SATISFACTION OF LIABILITIES........................................................11
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........................................................................13
SECTION 5.03. INSURANCE PROCEEDS................................................................................14
SECTION 5.04. PROCEDURE FOR INDEMNIFICATION.....................................................................14
SECTION 5.05. REMEDIES CUMULATIVE...............................................................................16
SECTION 5.06. SURVIVAL OF INDEMNITIES...........................................................................16
ARTICLE VI. CERTAIN ADDITIONAL MATTERS...........................................................................17
SECTION 6.01. CERTAIN POST-DISTRIBUTION TRANSACTIONS............................................................17
SECTION 6.02. NOTICES BY ERC....................................................................................17
ARTICLE VII. ACCESS TO INFORMATION AND SERVICES..................................................................17
SECTION 7.01. PROVISION OF CORPORATE RECORDS....................................................................17
SECTION 7.02. ACCESS TO INFORMATION.............................................................................18
SECTION 7.03. PRODUCTION OF WITNESSES...........................................................................18
SECTION 7.04. REIMBURSEMENT.....................................................................................18
SECTION 7.05. RETENTION OF RECORDS..............................................................................18
SECTION 7.06. CONFIDENTIALITY...................................................................................19
SECTION 7.07. PRIVILEGED MATTERS................................................................................19
ARTICLE VIII. INSURANCE..........................................................................................21
SECTION 8.01. POLICIES AND RIGHTS INCLUDED WITHIN THE EVERCEL ASSETS............................................21
SECTION 8.02. POST-DISTRIBUTION DATE CLAIMS.....................................................................21
SECTION 8.03. ADMINISTRATION AND RESERVES.......................................................................21
SECTION 8.04. AGREEMENT FOR WAIVER OF CONFLICT AND SHARED DEFENSE...............................................22
ARTICLE IX. MISCELLANEOUS........................................................................................22
SECTION 9.01. COMPLETE AGREEMENT; CONSTRUCTION..................................................................22
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SECTION 9.02. EXPENSES..........................................................................................23
SECTION 9.03. GOVERNING LAW.....................................................................................23
SECTION 9.04. NOTICES..........................................................................................23
SECTION 9.05. AMENDMENTS; WAIVERS...............................................................................23
SECTION 9.06. SUCCESSORS AND ASSIGNS............................................................................24
SECTION 9.07. TERMINATION.......................................................................................24
SECTION 9.08. NO THIRD-PARTY BENEFICIARIES......................................................................24
SECTION 9.09. TITLES AND HEADINGS...............................................................................24
SECTION 9.10. EXHIBITS AND SCHEDULES............................................................................24
SECTION 9.11. LEGAL ENFORCEABILITY..............................................................................24
SECTION 9.12. ARBITRATION OF DISPUTES...........................................................................25
SECTION 9.14. COUNTERPARTS......................................................................................26
SECTION 9.15. RELATIONSHIP OF PARTIES...........................................................................26
SECTION 9.16. FURTHER ACTION....................................................................................26
SECTION 9.17. PREDECESSORS AND SUCCESSORS.......................................................................26
SCHEDULES........................................................................................................28
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 _____
day of _______________, 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
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 [______________], 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 _____________ ___, 1999, subject to the fulfillment on or before
__________, 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 Xxxxx 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 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 Xxxxx X. Xxxxxxx ("Xxxxxxx"), 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 Xxxxxxx for every three shares of ERC
Common Stock which he purchases from ERC from time
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to time pursuant to his exercise of options granted by the Option Agreement. The
exercise price received from Xxxxxxx 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 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 Xxxxxxx pursuant to the exercise of the options granted by the Option
Agreement.
(b) In addition, Evercel agrees to issue to Xxxxxxx 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 Xxxxxxx 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, Xxxxxxx 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 1, 2001, the shares shall be forfeited to the Company for no
consideration.
(c) Evercel agrees to issue to Xxxxxx X. Xxxxxx 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.
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.
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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;
(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
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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
closing of the Rights Offering. As soon as practicable following the closing 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 (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,
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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 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
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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.
(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
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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.
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.
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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 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.
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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, 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
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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 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.
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(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 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
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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:
(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
-21-
(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 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.
-22-
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
0 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Evercel, Inc.
0 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
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.
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.
-23-
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 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
-24-
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.
(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.
-25-
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-
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:
----------------------------
Name:
Title:
EVERCEL, INC.
By:
----------------------------
Name:
Title:
-27-
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
-28-
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
Xxxxxxx 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
Xxxxxxx Balance Model PN1210 11/01/82
RE0091 X-Y Recorder 10/01/84
EG&G Par C MD 175 Programmer 11/01/82
Xxxxxxx 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
Xxxxxxx XX-00-000 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
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 Xxxx 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
Xxxx 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-
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
Xxxxxx 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 Xxxxxxxx 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
Xxxxxxxx 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
Xxxxxxxxx 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
Xxxxxxxxx Variable Shelter 10/01/85
Punch Press 09/01/76
Rolling Mill 01/01/79
Crosshead Extruder for Xxxx 02/01/84
80-12B Power Supply 01/01/79
-3-
DESCRIPTION ACQUISITION DATE
----------- ----------------
Continuous Piercing Machine 04/01/87
Two Roll Xxxx Xxxxxx Calander 01/01/72
Calander Tension Stand 02/01/86
80 Ton Press 01/01/74
X. X. Xxxx 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 Xxxxxx 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-
DESCRIPTION ACQUISITION DATE
----------- ----------------
2 Xxxxxxxx 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-
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, X. Xxxxx 06/01/98
Office Furniture, X. Xxxxx 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-
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
Xxxxxxx Top Loading Elec Scale 04/01/98
Battery Insulation Test 04/01/98
Xxxxxxxxx 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 Xxx Xxxx 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
0 Xxxxxxx XX0-000XXx PCs 10/01/98
Surftest Test 10/01/98
Appro # 151102 07/01/98
-7-
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-
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.
Employee Agreement by and between ERC and Xxxxx Xxxxxxx, 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
Xxxxxx Technologies 5/26/98
Dukane Corp. 5/15/98
Xxxx Technologies 5/5/98
BM - Battery Machinw 4/30/98
X.X. Xxxxxxx 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
Xxxxx Corp. 3/18/98
Hibar Systems Limited 3/17/98
IMD Corp. 3/17/98
Xxxxxxx Xxxx & Son 3/17/98
Despatch Industries 3/17/98
Xxxxxx Assemble & Test System 2/23/98
Zentrum For Sonnergie-und Wasserstroff 2/16/98
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
Xxxxxxx 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
Xxxxxxxx Xxxxxxx 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
X.X. Xxxxxx Business Group 8/7/98
All Battery consultants 8/7/98
Celgard 8/6/98
Mitsubishi Bank & Trust Corp. 7/7/98
-2-
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
Xxxxxx Technologies 5/26/98
Cannondale Corp. 8/5/98
PIVCO 3/3/98
Xxxxxx 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
Xxxxx X. Xxxxxxx 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-
SCHEDULE 1.01(c)
EVERCEL LIABILITIES
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
SCHEDULE 1.01(e)
EVERCEL EMPLOYEES
PERMANENT EMPLOYEES TEMPORARY EMPLOYEES
------------------- -------------------
Xxxxx Xxxxx Xxxxx Xxxx
Xxxxxxxx Xxxx Xxxxx Xxxxxx
Xxxxx Xxxxxxx Xxxx Xxxxxxx
Xxxxxxx Xxxxx Xxxxxxx Xxxxx
Xxxx Xxxxxxxx Xxxxxx Xxxxxx
Xxxxx Xxxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx Xxxxxx Xxxxxxx Xxxxxx
Xxxx Xxxxxxx
Xxxx Xxxxxxx
Xxxxxx Xxxxxxx
Xxxx Xxxx
Xxxxx Xxxxxxxx
Xxxxxx Xxxxxxxxx
Xxxxx XxXxxxxxxx
Xxxx Xxxxxx
Xxxxxxx Xxxxxx
EXHIBITS
Exhibit A: Form of Services Agreement
Exhibit B: Form of Tax Sharing Agreement
Exhibit C: Form of License Assistance Agreement
EXHIBIT A
FORM OF SERVICES AGREEMENT
EXHIBIT B
FORM OF TAX SHARING AGREEMENT
EXHIBIT C
FORM OF LICENSE ASSISTANCE AGREEMENT
C-2
