EXHIBIT 2.8
Indemnification Agreement
Between
Catalytica, Inc.
and
Catalytica Energy Systems, Inc.
December 15, 2000
TABLE OF CONTENTS
Page
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ARTICLE I. MUTUAL RELEASES; INDEMNIFICATION 1
Section 1.1. Release of Pre-Closing Claims................................................. 1
Section 1.2. Indemnification by CESI....................................................... 2
Section 1.3. Indemnification by Catalytica................................................. 3
Section 1.4. Delivery of Additional CESI Shares............................................ 4
Section 1.5. Procedures for Defense, Settlement and Indemnification of Third Party Claims.. 4
Section 1.6. Additional Matters............................................................ 6
Section 1.7. Survival of Indemnities....................................................... 7
ARTICLE II. MISCELLANEOUS 7
Section 2.1. Entire Agreement.............................................................. 7
Section 2.2. Governing Law................................................................. 7
Section 2.3. Forum Selection; Consent to Jurisdiction...................................... 7
Section 2.4. Notices....................................................................... 7
Section 2.5. Parties in Interest........................................................... 7
Section 2.6. Other Agreements Evidencing Indemnification Obligations....................... 8
Section 2.7. Counterparts.................................................................. 8
Section 2.8. Binding Effect Assignment..................................................... 8
Section 2.9. Severability.................................................................. 8
Section 2.10. Failure or Indulgence Not Waiver.............................................. 8
Section 2.11. Amendment..................................................................... 8
Section 2.12. Interpretation................................................................ 9
Section 2.13. Dispute Resolution............................................................ 9
ARTICLE III. DEFINITIONS 9
Section 3.1. Action........................................................................ 9
Section 3.2. Affiliated Company............................................................ 9
Section 3.3. Ancillary Agreements.......................................................... 9
Section 3.4. Cash Amount................................................................... 9
Section 3.5. Catalytica Group.............................................................. 9
Section 3.6. Catalytica Indemnitees........................................................ 9
Section 3.7. CESI Group.................................................................... 10
Section 3.8. CESI Indemnitees.............................................................. 10
Section 3.9. Contracts..................................................................... 10
Section 3.10. Effective Time................................................................ 10
Section 3.11. Energy Business............................................................... 10
Section 3.12. Governmental Authority........................................................ 10
Section 3.13. Indemnitee.................................................................... 10
Section 3.14. Liabilities................................................................... 10
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TABLE OF CONTENTS
(continued)
Page
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Section 3.15. Non-Energy Subsidiary......................................................... 10
Section 3.16. Person........................................................................ 10
Section 3.17. Separation Agreement.......................................................... 10
Section 3.18. Space Sharing Agreement....................................................... 11
Section 3.19. Subsidiary.................................................................... 11
Section 3.20. Tax Sharing Agreement......................................................... 11
Section 3.21. Taxes......................................................................... 11
Section 3.22. Third Party Claim............................................................. 11
Section 3.23. Transaction Expenses.......................................................... 11
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INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is entered into on
December 15 2000 between Catalytica, Inc., a Delaware corporation
("Catalytica"), and Catalytica Energy Systems, Inc., a Delaware corporation
formerly known as Catalytica Combustion Systems, Inc. ("CESI "). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed to such terms in Article III below.
RECITALS
WHEREAS, Catalytica has entered into the Agreement and Plan of Merger,
dated as of August 2, 2000 (the "Merger Agreement"), with Synotex Company, Inc.
("Synotex") and Synotex Acquisition Corporation pursuant to which, subsequent to
the distribution by Catalytica of its shares of CESI (the "Distribution"),
Synotex Acquisition Corporation will merge with and into Catalytica (the
"Merger"), resulting in Catalytica becoming a wholly owned subsidiary of
Synotex.
WHEREAS, the parties intend in this Agreement to set forth the principal
arrangements between them regarding indemnification.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth below, the parties hereto agree as follows:
ARTICLE I.
MUTUAL RELEASES; INDEMNIFICATION
Section 1.1. Release of Pre-Closing Claims.
(a) CESI Release. Except as otherwise provided in this Agreement, as of the
Effective Time, CESI does hereby, for itself and as agent for each member of the
CESI Group, remise, release and forever discharge the Catalytica Indemnitees
from any and all Liabilities whatsoever, whether at law or in equity (including
any right of contribution), whether arising under any contract or agreement, by
operation of law or otherwise, existing or arising from any acts or events
occurring or failing to occur or alleged to have occurred or to have failed to
occur or any conditions existing or alleged to have existed on or before the
Effective Time, including, without limitation, in connection with the
transactions and all other activities to implement any of the Merger and the
Distribution.
(b) Catalytica Release. Except as otherwise provided in this Agreement, as
of the Effective Time, Catalytica does hereby, for itself and as agent for each
member of the Catalytica Group, remise, release and forever discharge the CESI
Indemnitees from any and all Liabilities whatsoever, whether at law or in equity
(including any right of contribution), whether arising under any contract or
agreement, by operation of law or otherwise, existing or arising from any acts
or events occurring or failing to occur or alleged to have occurred or to have
failed to occur or any conditions existing or alleged to have existed on or
before the Effective Time, including, without limitation, in connection with the
transactions and all other activities to implement the Merger.
(c) No Impairment. Nothing contained in Section 1.1(a) or (b) shall impair
any right of any Person to enforce the Separation Agreement or any Ancillary
Agreement (including this Agreement), in each case in accordance with its terms.
(d) No Actions as to Released Claims. CESI agrees, for itself and as agent
for each member of the CESI Group, not to make any claim or demand, or commence
any Action asserting any claim or demand, including any claim of contribution or
any indemnification, against Catalytica or any member of the Catalytica Group,
or any other Person released pursuant to Section 1.1(a), with respect to any
Liabilities released pursuant to Section 1.1(a). Catalytica agrees, for itself
and as agent for each member of the Catalytica Group, not to make any claim or
demand, or commence any Action asserting any claim or demand, including any
claim of contribution or any indemnification, against CESI or any member of the
CESI Group, or any other Person released pursuant to Section 1.1(b), with
respect to any Liabilities released pursuant to Section 1.1(b).
(e) Further Instruments. At any time, at the reasonable request of any
other party, each party shall cause each member of its respective Group to
execute and deliver releases reflecting the provisions hereof.
(f) CESI and Catalytica shall each use their reasonable best efforts to
cause the members of the CESI Group and the Catalytica Group, respectively, to
take such actions as are necessary or appropriate to effect the terms of this
Agreement and to refrain from taking any contrary action.
Section 1.2. Indemnification by CESI. Notwithstanding the provisions of
Section 1.1, CESI shall, for itself and as agent for each member of the CESI
Group, indemnify, defend (or, where applicable, pay the defense costs for) and
hold harmless, in perpetuity, the Catalytica Indemnitees from and against any
and all Liabilities that relate to, arise out of or result from any of the
following items (without duplication):
(i) the Energy Business and the Distribution whether occurring
before, at or after the Effective Time, except as otherwise contemplated in the
Merger Agreement;
(ii) Catalytica (excluding any Liabilities related to the business of
any Non-Energy Subsidiary) if occurring before the Effective Time;
(iii) any severance, termination, change of control or similar
payments or benefits paid or payable to (a) (i) Xxxxx X. Dalla Betta, (ii) Xxxxx
X. Kitchen and (iii) Xxxxxx Xxxxx; or (b) any other executive employee of
Catalytica or any Subsidiary of Catalytica, other than Xxxxxxx X. Xxxxxx and
Xxxxx X. Xxxxxxxxxxxxx, to the extent that aggregate payments to such
individuals in the case of this clause (b) exceed $4,200,000; or (c) the
specified non-executive employees referred to in Section 5.11(b) of the Merger
Agreement to the extent that aggregate payments to such individuals in the case
of this clause (c) exceed $1,150,000;
(iv) any Transaction Expenses not deducted in the calculation of the
Cash Amount;
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(v) any arbitration costs to be paid by CESI pursuant to Section
1.9 of the Merger Agreement;
(vi) any obligation of Catalytica under that certain Lease
Agreement, effective as of January 1, 1993, by and between Xxxx Xxxxxx
Associates and Catalytica, as amended by the First Addendum to Lease, dated
October 23, 1997, and the Second Addendum to Lease, dated June 29, 1998 for any
period at or after the Effective Date except as expressly provided in the Space
Sharing Agreement;
(vii) dispute with City of Glendale relating to the technical
services agreement between GENXON and City of Glendale;
(viii) the Registration Statement (as defined in the Separation
Agreement) and the Proxy Statement (as defined in the Merger Agreement); and
(ix) any breach by CESI or any member of the CESI Group of the
Separation Agreement or any of the Ancillary Agreements (including this
Agreement).
If a liability is properly characterized as relating to the Energy Business,
CESI will be obligated to indemnify, defend and hold the Catalytica Indemnitees
harmless without regard to the entity at which the liability is incurred. In
the event that any member of the CESI Group makes a payment to the Catalytica
Indemnitees hereunder, and any of the Catalytica Indemnitees subsequently
diminishes the Liability on account of which such payment was made, either
directly or through a third-party recovery, Catalytica will promptly repay (or
will procure a Catalytica Indemnitee to promptly repay) such member of the CESI
Group the amount by which the payment made by such member of the CESI Group
exceeds the actual cost of the associated indemnified Liability.
Notwithstanding the foregoing, CESI shall not, for itself or as agent for any
member of the CESI Group, indemnify any party for obligations and liabilities
that are otherwise explicitly allocated pursuant to the Merger Agreement and the
Ancillary Agreements.
Section 1.3. Indemnification by Catalytica. Catalytica shall, for itself
and as agent for each member of the Catalytica Group, indemnify, defend (or,
where applicable, pay the defense costs for) and hold harmless, in perpetuity,
the CESI Indemnitees from and against any and all Liabilities that relate to,
arise out of or result from any of the following items (without duplication):
(i) the business of the Non-Energy Subsidiaries, whether occurring
before, at or after the Effective Time;
(ii) the business of Catalytica if occurring at or after the
Effective Time; and
(iii) any breach by Catalytica or any member of the Catalytica Group
of the Separation Agreement or any of the Ancillary Agreements (including this
Agreement).
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(b) If a liability is properly characterized as relating to the business of
any Non-Energy Subsidiary, Catalytica will be obligated to indemnify, defend and
hold the CESI Indemnities harmless without regard to the entity at which the
liability is incurred. In the event that any member of the Catalytica Group
makes a payment to the CESI Indemnitees hereunder, and any of the CESI
Indemnitees subsequently diminishes the Liability on account of which such
payment was made, either directly or through a third-party recovery, CESI will
promptly repay (or will procure a CESI Indemnitee to promptly repay) such member
of the Catalytica Group the amount by which the payment made by such member of
the Catalytica Group exceeds the actual cost of the indemnified Liability.
Notwithstanding the foregoing, Catalytica shall not, for itself or as agent for
any member of the Catalytica Group, indemnify any party for obligations and
liabilities that are otherwise explicitly allocated pursuant to the Merger
Agreement and Ancillary Agreements. The provisions of that certain letter
agreement, dated November 30, 2000, among Synotex Company, Inc., Catalytica and
CESI shall prevail over any contrary term or provision of the Merger Agreement,
this Agreement or any other Ancillary Agreement.
Section 1.4. Delivery of Additional CESI Shares. If, and to the extent,
Catalytica or any Non-Energy Subsidiary is or becomes obligated to deliver any
CESI shares to any person after the Effective Time as a result of any agreement,
right, document, obligation or other instrument of the Catalytica or any of its
Subsidiaries outstanding at any time prior to the Effective Time (other than the
holders of options to purchase common stock of Catalytica), CESI shall provide
the required number of shares to Catalytica or any Non-Energy Subsidiary so that
it may satisfy such obligation.
Section 1.5. Procedures for Defense, Settlement and Indemnification of
Third Party Claims.
(a) Notice of Claims. If a Catalytica Indemnitee or a CESI Indemnitee (as
applicable) (an "Indemnitee") shall receive notice or otherwise learn of the
assertion by a Person (including any Governmental Authority) who is not a member
of the CESI Group or the Catalytica Group, respectively, of any claim or of the
commencement by any such Person of any Action (collectively, a "Third Party
Claim") with respect to which a party (an "Indemnifying Party") may be obligated
to provide indemnification to such Indemnitee pursuant to Section 1.2 or 1.3, or
any other section of the Separation Agreement or any Ancillary Agreement
(including this Agreement), Catalytica and CESI (as applicable) will ensure that
such Indemnitee shall give such Indemnifying Party written notice thereof within
30 days after becoming aware of such Third Party Claim. Any such notice shall
describe the Third Party Claim in reasonable detail. Notwithstanding the
foregoing, the delay or failure of any Indemnitee or other Person to give notice
as provided in this Section 1.5(a) shall not relieve the related Indemnifying
Party of its obligations under this Article I, except to the extent that such
Indemnifying Party is actually and substantially prejudiced by such delay or
failure to give notice. Thereafter, the Indemnitee shall deliver to the
Indemnifying Party, promptly (and in any event within five business days) after
the Indemnitee's receipt thereof, copies of all notices and documents (including
court papers) received by the Indemnitee relating to the Third Party Claim.
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(b) Defense By Indemnifying Party. If a Third Party Claim is made against
an Indemnitee, the Indemnifying Party shall be entitled to participate in the
defense thereof and, if it so chooses and acknowledges in writing its obligation
to indemnify the Indemnitee therefor, to assume the defense thereof with counsel
selected by the Indemnifying Party and reasonably acceptable to the Indemnitee.
Should the Indemnifying Party so elect to assume the defense of a Third Party
Claim, the Indemnifying Party shall, within 30 days (or sooner if the nature of
the Third Party Claim so requires), notify the Indemnitee of its intent to do
so, and the Indemnifying Party shall thereafter not be liable to the Indemnitee
for legal or other expenses subsequently incurred by the Indemnitee in
connection with the defense thereof; provided, that the Indemnitee shall have
the right to employ separate counsel if, in the Indemnitee's reasonable judgment
after consultation with counsel, a conflict of interest between the Indemnitee
and the Indemnifying Party exists in respect of such claim which would make
representation of both parties by one counsel inappropriate, and in such event
the fees and expenses of such separate counsel shall be paid by the Indemnifying
Party. If the Indemnifying Party assumes such defense, the Indemnitee shall have
the right to participate therein and to employ counsel, subject to the proviso
of the preceding sentence, at its own expense, separate from the counsel
employed by the Indemnifying Party, it being understood that the Indemnifying
Party shall control such defense. The Indemnifying Party shall be liable for the
fees and expenses of counsel employed by the Indemnitee for any period during
which the Indemnifying Party has failed to assume the defense thereof. If the
Indemnifying Party so elects to assume the defense of any Third Party Claim, all
of the Indemnitees shall cooperate with the Indemnifying Party in the defense or
prosecution thereof, including by providing or causing to be provided, records
and witnesses as soon as reasonably practicable after receiving any request
therefor from or on behalf of the Indemnifying Party.
If the Indemnifying Party acknowledges in writing its obligation to
indemnify the Indemnitee with respect to a Third Party Claim, then in no event
will the Indemnitee admit any liability with respect to, or settle, compromise
or discharge, any such Third Party Claim without the Indemnifying Party's prior
written consent; provided, however, that the Indemnitee shall have the right to
settle, compromise or discharge such Third Party Claim without the consent of
the Indemnifying Party if the Indemnitee releases the Indemnifying Party from
its indemnification obligation hereunder with respect to such Third Party Claim
and such settlement, compromise or discharge would not otherwise adversely
affect the Indemnifying Party. If the Indemnifying Party acknowledges in
writing its obligation to indemnify the Indemnitee with respect to a Third Party
Claim, the Indemnitee will agree to any settlement, compromise or discharge of a
Third Party Claim that the Indemnifying Party may recommend and that by its
terms obligates the Indemnifying Party to pay the full amount of the liability
in connection with such Third Party Claim and releases the Indemnitee completely
in connection with such Third Party Claim and that would not otherwise adversely
affect the Indemnitee; provided, however, that the Indemnitee may refuse to
agree to any such settlement, compromise or discharge if the Indemnitee agrees
that the Indemnifying Party's indemnification obligation with respect to such
Third Party Claim shall not exceed the amount that would be required to be paid
by or on behalf of the Indemnifying Party in connection with such settlement,
compromise or discharge. If an Indemnifying Party elects not to assume the
defense of a Third Party Claim, or fails to notify an Indemnitee of its election
to do so as provided herein, such Indemnitee may compromise, settle or defend
such Third Party Claim.
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Notwithstanding the foregoing, the Indemnifying Party shall not be entitled
to assume the defense of any Third Party Claim (and shall be liable for the
reasonable fees and expenses of counsel incurred by the Indemnitee in defending
such Third Party Claim) if the Third Party Claim seeks an order, injunction or
other equitable relief or relief for other than money damages against the
Indemnitee which the Indemnitee reasonably determines, after conferring with its
counsel, cannot be separated from any related claim for money damages; provided,
however, that the Indemnitee shall not settle any related claim for money
damages without the prior written consent of the Indemnifying Party, which
consent shall out be unreasonably withheld. If such equitable relief or other
relief portion of the Third Party Claim can be so separated from that for money
damages, the Indemnifying Party shall be entitled to assume the defense of the
portion relating to money damages.
Section 1.6. Additional Matters.
(a) Cooperation in Defense and Settlement. Subject to the provisions of
Section 1.5, with respect to any Third Party Claim that implicates both CESI and
Catalytica in a material fashion due to the allocation of Liabilities,
responsibilities for management of defense and related indemnities set forth in
the Separation Agreement, this Agreement or any of the Ancillary Agreements, the
parties agree to cooperate fully and, to the extent reasonably practicable and
not to the disadvantage of either party, maintain a joint defense (in a manner
that will preserve the attorney-client or work-product privilege with respect
thereto) so as to minimize such Liabilities and defense costs associated
therewith. The party that is not responsible for managing the defense of such
Third Party Claims shall, upon reasonable request, be consulted with respect to
significant matters relating thereto and may, if necessary or helpful, retain
counsel to assist in the defense of such claims.
(b) Substitution. In the event of an Action in which the Indemnifying Party
is not a named defendant, if either the Indemnitee or the Indemnifying Party
shall so request, the parties shall endeavor to substitute the Indemnifying
Party for the named defendant. If such substitution or addition cannot be
achieved for any reason or is not requested, the rights and obligations of the
parties regarding indemnification and the management of the defense of claims as
set forth in this Article I shall not be altered.
(c) Subrogation. In the event of payment by or on behalf of any
Indemnifying Party to or on behalf of 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, in whole or in part based upon whether
the Indemnifying Party has paid all or only part of the Indemnitee's Liability,
as to any events or circumstances in respect of which such Indemnitee may have
any right, defense or claim relating to such Third Party Claim against any
claimant or plaintiff asserting such Third Party Claim or against any other
person. 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, defense or claim.
(d) Not Applicable to Taxes. This Agreement shall not apply to Taxes (which
are covered by the Tax Sharing Agreement).
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(e) Rights Cumulative. The remedies provided in this Article I 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.
(f) Indemnification Payments. Indemnification required by this Article I
shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as and when bills are received or loss, liability,
claim, damage or expense is incurred.
Section 1.7. Survival of Indemnities. Subject to Section 3.7, the rights
and obligations of the members of the Catalytica Group and the CESI Group under
this Article I shall survive the sale or other transfer by any party of any
assets or businesses or the assignment by it of any Liabilities or the sale by
any member of the Catalytica Group or the CESI Group of the capital stock or
other equity interests of any Subsidiary or Affiliated Company to any Person.
ARTICLE II.
MISCELLANEOUS
Section 2.1. Entire Agreement. This Agreement, the Separation Agreement,
the other Ancillary Agreements and the Exhibits and Schedules attached hereto
and thereto, constitutes the entire agreement between the parties with respect
to the subject matter hereof and shall supersede all prior written and oral and
all contemporaneous oral agreements and understandings with respect to the
subject matter hereof.
Section 2.2. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware (regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof) as to all matters, including, but not limited to, matters of
validity, construction, effect, performance and remedies.
Section 2.3. Forum Selection; Consent to Jurisdiction. All disputes arising
out of or in connection with this Agreement shall be solely and exclusively
resolved by a court of competent jurisdiction in the State of Delaware. The
parties hereby consent to the jurisdiction of the courts of the State of
Delaware and the United States District Court of the District of Delaware and
waive any objections or rights as to forum non conveniens, lack of personal
jurisdiction or similar grounds with respect to any dispute relating to this
Agreement.
Section 2.4. Notices. Any notice, demand, offer, request or other
communication required or permitted to be given by either party pursuant to the
terms of this Agreement shall be made in accordance with Section 6.6 of the
Separation Agreement.
Section 2.5. Parties in Interest. This Agreement, including the Schedules
and Exhibits hereto, and the other documents referred to herein, shall be
binding upon Catalytica, Catalytica's Subsidiaries, CESI and CESI's Subsidiaries
and inure solely to the benefit of the CESI Indemnitees and the Catalytica
Indemnitees and their respective permitted assigns, and nothing in this
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Agreement, express or implied, is intended to confer upon any other Person any
rights or remedies of any nature whatsoever under or by reason of this
Agreement.
Section 2.6. Other Agreements Evidencing Indemnification Obligations.
Catalytica hereby agrees to execute, for the benefit of any CESI Indemnitee,
such documents as may be reasonably requested by such CESI Indemnitee,
evidencing Catalytica's agreement that the indemnification obligations of
Catalytica set forth in this Agreement inure to the benefit of and are
enforceable by such CESI Indemnitee. CESI hereby agrees to execute, for the
benefit of any Catalytica Indemnitee, such documents as may be reasonably
requested by such Catalytica Indemnitee, evidencing CESI's agreement that the
indemnification obligations of CESI's set forth in this Agreement inure to the
benefit of and are enforceable by such Catalytica Indemnitee.
Section 2.7. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original but all of which shall
constitute one and the same agreement.
Section 2.8. Binding Effect Assignment. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective legal
representatives and successors, and nothing in this Agreement, express or
implied, is intended to confer upon any other Person any rights or remedies of
any nature whatsoever under or by reason of this Agreement. Neither party may
assign this Agreement or any rights or obligations hereunder, without the prior
written consent of the other party, and any such assignment shall be void;
provided, however, either party may, subject to the following sentence, assign
this Agreement to a successor entity in conjunction with a merger of such party
with another Person or such party's reincorporation. Neither party shall engage
in any transaction or series of transactions in which another entity becomes the
owner of 50% or more of the equity securities of such party unless the acquiror
and any ultimate parent entity shall have executed and delivered to the other
party an agreement confirming that such acquiror and/or ultimate parent entity
shall, upon consummation of such transaction or series of transactions, cause
the relevant party to continue to perform under the terms of this Agreement and
each Ancillary Agreement.
Section 2.9. Severability. If any term or other provision of this
Agreement is determined by a nonappealable decision by a court, administrative
agency or arbitrator to be invalid, illegal or incapable of being enforced by
any rule of law or public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner to the end that transactions contemplated
hereby are fulfilled to the fullest extent possible.
Section 2.10. Failure or Indulgence Not Waiver. No failure or delay on the
part of either party hereto in the exercise of any right hereunder shall impair
such right or be construed to be a waiver of, or acquiescence in, any breach of
any representation, warranty or agreement herein, nor shall any single or
partial exercise of any such right preclude other or further exercise thereof or
of
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any other right. All rights and remedies existing under this Agreement or
the Exhibits or Schedules attached hereto are cumulative to, and not exclusive
of, any rights or remedies otherwise available.
Section 2.11. Amendment. No change or amendment will be made to this
Agreement except by an instrument in writing signed on behalf of each of the
parties to this Agreement.
Section 2.12. Interpretation. The headings contained in this Agreement and
in the table of contents to this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.
When a reference is made in this Agreement to an Article or a Section, such
reference shall be to an Article or Section of this Agreement unless otherwise
indicated.
Section 2.13. Dispute Resolution. Any dispute, controversy or claim
("Dispute") arising between the parties relating to the interpretation or
performance of this Agreement shall be resolved in the manner specified in
Section 5.6 of the Separation Agreement.
ARTICLE III.
DEFINITIONS
Section 3.1. Action. "Action" means any demand, action, suit,
countersuit, arbitration, inquiry, proceeding or investigation including by or
before any federal, state, local, foreign or international court, governmental
authority or any arbitration or mediation tribunal.
Section 3.2. Affiliated Company. "Affiliated Company" means, with respect
to Catalytica, any entity in which Catalytica holds a 50% or less ownership
interest and, with respect to CESI, any entity in which CESI holds a 50% or less
ownership interest.
Section 3.3. Ancillary Agreements. "Ancillary Agreements" means
agreements attached as exhibits to the Separation Agreement.
Section 3.4. Cash Amount. "Cash Amount" shall have the meaning set forth
in the Merger Agreement.
Section 3.5. Catalytica Group. "Catalytica Group" means Catalytica, each
Subsidiary and Affiliated Company of Catalytica (other than any member of the
CESI Group) immediately after the Effective Time and each Person that becomes a
Subsidiary or Affiliate Company of Catalytica after the Effective Time.
Section 3.6. Catalytica Indemnitees. "Catalytica Indemnitees" means
Catalytica, each member of the Catalytica Group and each of their respective
directors, officers, employees, agents and representatives.
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Section 3.7. CESI Group. "CESI Group" means CESI, each Subsidiary and
Affiliated Company of CESI immediately after the Effective Time and each Person
that becomes a Subsidiary or Affiliate Company of CESI after the Effective Time.
Section 3.8. CESI Indemnitees. "CESI Indemnitees" means CESI, each member
of the CESI Group and each of their respective directors, officers, employees,
agents and representatives.
Section 3.9. Contracts. "Contracts" means any contract, agreement, lease,
license, sales order, purchase order, instrument or other commitment that is
binding on any Person or any part of its property under applicable law.
Section 3.10. Effective Time. "Effective Time" means the Effective Time of
the Merger as set forth in the Merger Agreement.
Section 3.11. Energy Business. "Energy Business" shall mean the business
and operations of CESI (including the business and operations of Catalytica
Advanced Technologies, Inc, which was merged with and into CESI on December 15,
2000) and any direct or indirect subsidiaries of CESI on the date hereof.
Section 3.12. Governmental Authority. "Governmental Authority" means any
federal, state, local, foreign or international court, government, department,
commission, board, bureau, agency, official or other regulatory, administrative
or governmental authority.
Section 3.13. Indemnitee. "Indemnitee" has the meaning set forth in
Section 1.5(a) hereof.
Section 3.14. Liabilities. "Liabilities" means any actual liability
(including, without limitation, environmental liabilities), damage, loss,
obligation, demand, judgment, fine, penalty, cost or expense, including
reasonable attorneys' fees and expenses, and the costs of investigation incurred
in defending against or settling such liability, damage, loss, obligation,
demand, judgment, fine, penalty, cost or expense or claim therefor and any
amounts paid in settlement thereof imposed or, in the case of an expense,
reasonably incurred.
Section 3.15. Non-Energy Subsidiary. "Non-Energy Subsidiary" shall have the
meaning set forth in the Merger Agreement.
Section 3.16. Person. "Person" means an individual, a partnership, a
corporation, a limited liability company, an association, a joint stock company,
a trust, a joint venture, an unincorporated organization, a governmental entity
or any department, agency or political subdivision thereof.
Section 3.17. Separation Agreement. "Separation Agreement" means the
Master Separation Agreement dated as of the date hereof, of which this is an
Exhibit thereto.
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Section 3.18. Space Sharing Agreement. "Space Sharing Agreement" means the
Space Sharing Agreement which is attached as Exhibit C to the Real Estate
Matters Agreement, which is attached as Exhibit D to the Separation Agreement.
Section 3.19. Subsidiary. "Subsidiary" means with respect to any specified
Person, any corporation, any limited liability company, any partnership or other
legal entity of which such Person or its Subsidiaries owns, directly or
indirectly, more than 50% of the stock or other equity interest entitled to vote
on the election of the members of the board of directors or similar governing
body. Unless context otherwise requires, reference to Catalytica and its
Subsidiaries shall not include the subsidiaries of Catalytica that will be
transferred to CESI after giving effect to the Distribution.
Section 3.20. Tax Sharing Agreement. "Tax Sharing Agreement" means the Tax
Sharing Agreement, attached as Exhibit G to the Separation Agreement.
Section 3.21. Taxes. "Taxes" has the meaning set forth in the Tax Sharing
Agreement.
Section 3.22. Third Party Claim. "Third Party Claim" has the meaning set
forth in Section 1.5(a) of this Agreement.
Section 3.23. Transaction Expenses. "Transaction Expenses" has the meaning
set forth in the Merger Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, each of the parties has caused this Indemnification
Agreement to be executed on its behalf by its officers thereunto duly authorized
on the day and year first above written.
CATALYTICA, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
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Title: Chief Financial Officer
---------------------------------
CATALYTICA ENERGY SYSTEMS, INC.
By: /s/ Xxxxx X. Kitchen
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Name: Xxxxx X. Kitchen
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Title: President and Chief Executive Officer
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