EXHIBIT 2.5
MASTER CONFIDENTIAL DISCLOSURE AGREEMENT
This Master Confidential Disclosure Agreement (the "Agreement") is
effective as of 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").
WHEREAS, Catalytica has entered into that certain Agreement and Plan
of Merger, dated as of August 2, 2000, with Synotex Company, Inc. and Synotex
Acquisition Corporation, including any amendments and supplements thereto, (the
"Merger Agreement") which contemplates, among other things, the distribution by
Catalytica to all its shareholders of the CESI capital stock held by it and the
execution and delivery of certain other agreements in order to facilitate and
provide for the foregoing; and
WHEREAS, Catalytica and CESI have entered into a Master Separation
Agreement which provides for, among other things: the transfer from Catalytica
to CESI of certain assets and liabilities and to the extent such assets and
liabilities do not currently reside with CESI, for Catalytica to contribute and
transfer to CESI, and for CESI to receive and assume, directly or indirectly,
certain assets and liabilities currently held by Catalytica and associated with
the CESI business; the public distribution of CESI stock; and the execution and
delivery of certain agreements associated therewith; and
WHEREAS, as part of the foregoing, the parties further desire to enter
into this Agreement to provide for the protection of their Confidential
Information (as defined below).
NOW, THEREFORE, in consideration of the mutual promises of the
parties, and of good and valuable consideration, it is agreed by and between the
parties as follows:
ARTICLE 1
DEFINITIONS
For the purpose of this Agreement, the following capitalized terms
shall have the meaning specified herein:
1.1 "Ancillary Agreements" shall have the meaning set forth in the
Master Separation Agreement.
1.2 Confidential Information.
(a) "Confidential Information" means all information concerning a
Disclosing Party, its business and operations in the possession, control or
custody of a Receiving Party (including any information obtained as a
result of the parties'
sharing the use of certain real property as contemplated by the Space
Sharing Agreement of even date herewith between the parties). Confidential
Information may include information relating to, by way of example,
research, products, services, customers, markets, software, developments,
inventions, processes, designs, drawings, engineering, marketing or
finances, and may be in writing, disclosed orally or learned by inspection
of computer programming code, equipment or facilities.
(b) Confidential Information of Third Parties that is known to, in
the possession of or acquired by a Receiving Party pursuant to a
relationship with the Disclosing Party shall be deemed the Disclosing
Party's Confidential Information for purposes herein.
(c) Notwithstanding the foregoing provisions of this Section 1.2,
Confidential Information shall exclude information that: (i) was in the
Receiving Party's possession before receipt from the Disclosing Party and
obtained from a source other than the Disclosing Party and other than
through the prior relationship of the Disclosing Party and the Receiving
Party before the Separation Date; (ii) is or becomes a matter of public
knowledge through no fault of the Receiving Party; (iii) is rightfully
received by the Receiving Party from a Third Party without a duty of
confidentiality; (iv) is independently developed by the Receiving Party; or
(v) is disclosed by the Receiving Party with the Disclosing Party's prior
written approval.
1.3 "Disclosing Party" means the party owning or disclosing the
relevant Confidential Information, including any Subsidiary or affiliate or
Representative of such party or its Subsidiaries.
1.4 "Master Separation Agreement" means that certain Master
Separation Agreement between Catalytica and CESI, entered into on the date
hereof.
1.5 "Person" shall be interpreted broadly to include, without
limitation, 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.
1.6 "Receiving Party" means the recipient of the relevant
Confidential Information, including any Subsidiary or Affiliate or
Representative of such party or its Subsidiaries.
1.7 "Representatives" means, with respect to any Person, the
directors, officers, employees, agents and representatives of such Person and
such Person's advisors (including accountants, attorneys, consultants, financing
sources and financial advisors) and individuals acting in similar capacities on
such Person's behalf.
1.8 "Separation Date" shall have the meaning set forth in the Master
Separation Agreement.
1.9 "Subsidiary" shall have the meaning set forth in the Master
Separation Agreement.
1.10 "Third Party" means a Person other than Catalytica and its
Subsidiaries and Representatives, on the one hand, and CESI and its Subsidiaries
and Representatives, on the other.
1.11 "Transaction Agreements" means the Merger Agreement, the Master
Separation Agreement and the Ancillary Agreements.
ARTICLE 2
CONFIDENTIALITY
2.1 Confidentiality and Non-Use Obligations. Except as required in
connection with the Registration Statement (as defined in the Master Separation
Agreement), the Receiving Party shall (i) protect the Confidential Information
of the Disclosing Party by using the same degree of care, but no less than a
reasonable degree of care, to prevent the unauthorized use, dissemination, or
publication of the Confidential Information as the Receiving Party uses to
protect its own confidential information of a like nature, (ii) not use or
permit the use of such Confidential Information for any purpose except as
expressly provided in any Transaction Agreement, (iii) not disclose such
Confidential Information to any Third Party, except as expressly permitted under
this Agreement, in the other Transaction Agreements or in any other agreements
entered into between the parties in writing, without the prior written consent
of the Disclosing Party and (iv) take reasonable measures to ensure that its
Subsidiaries and Representatives comply with (i), (ii) and (iii) above.
2.2 Compelled Disclosure. In the event the Receiving Party or any of
its Subsidiaries or Representatives is requested or required (by oral questions,
interrogatories, requests for information or documents, subpoena, Civil
Investigative Demand or judicial, administrative or similar process) to disclose
any Confidential Information, the Receiving Party will, or will cause its
Subsidiary or Representative to, provide the Disclosing Party with prompt notice
of such request(s) so that it may seek an appropriate protective order and/or
other appropriate remedy and/or waive compliance with this Agreement. In the
event that such protective order or other remedy is not obtained, or a waiver is
granted hereunder, the party required to provide Confidential Information shall
disclose that information (and only that information) which it determines, after
consultation with counsel, it is legally compelled to disclose and will exercise
commercially reasonable best efforts to obtain reliable assurance that
confidential treatment will be accorded the information so furnished.
2.3 No Restriction on Disclosing Party. Nothing in this Agreement
shall restrict the Disclosing Party from using, disclosing, or disseminating its
own Confidential Information in any way.
2.4 No Restriction on Reassignment. This Agreement shall not
restrict reassignment of either party's employees to be an employee of the
other.
2.5 Third-Party Restrictions. Nothing in the Agreement supersedes
any restriction imposed by Third Parties on their Confidential Information, and
there is no obligation on the Disclosing Party to conform Third Party agreements
to the terms of this Agreement.
ARTICLE 3
WARRANTY DISCLAIMER
EACH PARTY ACKNOWLEDGES AND AGREES THAT ALL CONFIDENTIAL INFORMATION IS PROVIDED
OR OBTAINED ON AN "AS IS, WHERE IS" BASIS AND THAT NEITHER PARTY NOR ANY OF ITS
SUBSIDIARIES HAS MADE OR WILL MAKE ANY WARRANTY WHATSOEVER, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ENFORCEABILITY OR NON-
INFRINGEMENT.
ARTICLE 4
CONFIDENTIALITY OF AGREEMENT
Each party agrees that the terms and conditions of the Transaction
Agreements that have not been made publicly available shall be treated as
Confidential Information and that neither party will disclose such terms or
conditions to any Third Party without the prior written consent of the other
party, provided, however, that each party may disclose the terms and conditions
of such agreements:
(a) in accordance with Article 2;
(b) in confidence to banks, investors and other financing sources and
their advisors;
(c) in connection with the enforcement of any Transaction Agreement
or rights under any Transaction Agreement; or
(d) in confidence, in connection with an actual or prospective merger
or acquisition or similar transaction.
ARTICLE 5
TERM AND TERMINATION
5.1 Term. This Agreement shall remain in full force and effect unless
and until terminated by the mutual written agreement of the parties.
ARTICLE 6
DISPUTE RESOLUTION
6.1 Mediation. 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 Master
Separation Agreement.
ARTICLE 7
MISCELLANEOUS PROVISIONS
7.1 Export Restrictions. Both parties shall adhere to all applicable
laws, regulations and rules relating to the export of technical data, and shall
not export or reexport any technical data, any products received from Disclosing
Party, or the direct product of such technical data, to any proscribed country
listed in such applicable laws, regulations and rules unless properly
authorized.
7.2 No Implied Licenses. Nothing contained in this Agreement shall be
construed as conferring any rights by implication, estoppel or otherwise, under
any intellectual property right, other than the rights expressly granted in this
Agreement with respect to Confidential Information. Neither party is required
hereunder to furnish or disclose to the other any technical or other
information.
7.3 Infringement Suits. Neither party shall have any obligation
hereunder to institute any action or suit against Third Parties for
misappropriation of any of its Confidential Information or to defend any action
or suit brought by a Third Party that alleges infringement of any intellectual
property rights by the Receiving Party's authorized use of the Disclosing
Party's Confidential Information.
7.4 No Other Obligations. Neither party assumes any responsibilities
or obligations whatsoever, other than the responsibilities and obligations
expressly set forth in this agreement or a separate written agreement between
the parties.
7.5 Entire Agreement. This Agreement, the Merger Agreement, the
Master Separation Agreement and the other Ancillary Agreements and the Exhibits
and Schedules referenced or attached hereto and thereto constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and shall supersede all prior written and oral and all contemporaneous
oral agreements and understandings with respect
to the subject matter hereof and thereof. Notwithstanding the foregoing, the
parties agree that any agreements entered into between them on or after the
Separation Date for the protection of specific Confidential Information shall
supersede the terms of this Agreement with respect to such Confidential
Information.
7.6 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.
7.7 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.
7.8 Interpretation. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
7.9 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
Master Separation Agreement.
7.10 Nonassignability. Neither party may, directly or indirectly, in
whole or in part, whether by operation of law or otherwise, assign or transfer
this Agreement, without the other party's prior written consent, and any
attempted assignment, transfer or delegation without such prior written consent
shall be voidable at the sole option of such other party. Notwithstanding the
foregoing, each party (or its permitted successive assignees or transferees
hereunder) may assign or transfer this Agreement as a whole without consent to a
Person that succeeds to all or substantially all of the business or assets of
such party as long as such Person agrees to accept all the terms and conditions
set forth herein. Without limiting the foregoing, this Agreement will be binding
upon and inure to the benefit of the parties and their permitted successors and
assigns. 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.
7.11 Severability. If any term or other provision of this Agreement is
determined 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 either 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.
7.12 Failure or Indulgence Not Waiver; Remedies Cumulative. 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 any other right. All rights and remedies existing
under this Agreement or the Exhibits attached hereto are cumulative to, and not
exclusive of, any rights or remedies otherwise available.
7.13 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
such agreement.
7.14 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.
WHEREFORE, the parties have signed this Master Confidential Disclosure
Agreement effective as of the date first set forth above.
CATALYTICA, INC. CATALYTICA ENERGY SYSTEMS, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Kitchen
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Name: Xxxxxxxx X. Xxxxxxx Name: Xxxxx X. Kitchen
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Title: Chief Financial Officer Title: President and Chief
---------------------------- Executive Officer
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