EXHIBIT 2.9
Indemnification Agreement
Among
Catalytica, Inc.
and
Catalytica Energy Systems, Inc.
__________, 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........................................ 3
Section 1.5. Procedures for Defense, Settlement and Indemnification of
Third Party Claims................................................... 3
Section 1.6. Additional Matters........................................................ 4
Section 1.7. Survival of Indemnities................................................... 5
ARTICLE II. MISCELLANEOUS........................................................................... 5
Section 2.1. Entire Agreement.......................................................... 5
Section 2.2. Governing Law............................................................. 5
Section 2.3. Notices................................................................... 6
Section 2.4. Parties in Interest....................................................... 6
Section 2.5. Other Agreements Evidencing Indemnification Obligations................... 6
Section 2.6. Counterparts.............................................................. 6
Section 2.7. Binding Effect Assignment................................................. 7
Section 2.8. Severability.............................................................. 7
Section 2.9. Failure or Indulgence Not Waiver.......................................... 7
Section 2.10. Amendment................................................................. 7
Section 2.11. Interpretation............................................................ 7
ARTICLE III. DEFINITIONS............................................................................ 8
Section 3.1. Action.................................................................... 8
Section 3.2. Affiliated Company........................................................ 8
Section 3.3. Ancillary Agreements...................................................... 8
Section 3.4. Cash Amount............................................................... 8
Section 3.5. Catalytica Group.......................................................... 8
Section 3.6. Catalytica Indemnitees.................................................... 8
Section 3.7. CESI Group................................................................ 8
Section 3.8. CESI Indemnitees.......................................................... 8
Section 3.9. Contracts................................................................. 8
Section 3.10. Effective Time............................................................ 8
Section 3.11. Energy Business........................................................... 8
Section 3.12. Governmental Authority.................................................... 9
Section 3.13. Indemnitee................................................................ 9
Section 3.14. Liabilities............................................................... 9
Section 3.15. Non-Energy Subsidiary..................................................... 9
Section 3.16. Person.................................................................... 9
Section 3.17. Separation Agreement...................................................... 9
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TABLE OF CONTENTS
(continued)
Page
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Section 3.18. Subsidiary................................................................ 9
Section 3.19. Tax Sharing Agreement..................................................... 9
Section 3.20. Taxes..................................................................... 9
Section 3.21. Third Party Claim......................................................... 9
Section 3.22. Transaction Expenses...................................................... 9
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INDEMNIFICATION AGREEMENT
This Indemnification and Insurance Matters Agreement (this "Agreement") is
entered into on _________, 2000 among Catalytica, Inc., a Delaware corporation
("Catalytica"), and Catalytica Energy Systems, Inc., a Delaware corporation
("CESI"). Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to such terms in the Article III below.
RECITALS
WHEREAS, Catalytica has entered into the Agreement and Plan of Merger and
Reorganization, dated as of August 2, 2000 (the "Merger Agreement"), with
Synotex Company, Inc. ("Synotex") pursuant to which Catalytica will merge with
and into Synotex (the "Merger"), contingent on the sale or distribution by
Catalytica of the Energy Business;
WHEREAS, the parties intend in this Agreement, including the Exhibits and
Schedules hereto, to set forth the principal arrangements between them regarding
indemnification.
NOW, THEREFORE, in consideration of the foregoing and the 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 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 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 request of any other party,
each party shall cause each member of its respective Group to execute and
deliver releases reflecting the provisions hereof.
Section 1.2. Indemnification by CESI. 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 any third
party seeks to impose upon the Catalytica Indemnitees, or which are imposed upon
the Catalytica Indemnitees, and 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 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, (d) any Transaction Expenses not deducted
in the calculation of the Cash Amount and (e) any arbitration costs to be paid
by CESI pursuant to Section 1.9 of the Merger Agreement; and
(iv) any breach by CESI or any member of the CESI Group of the
Separation Agreement or any of the Ancillary Agreements (including this
Agreement).
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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.
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 any third
party seeks to impose upon the CESI Indemnitees, or which are imposed upon the
CESI Indemnitees, and 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) 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).
(b) 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.
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 Catalytica Group or the CESI Group 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
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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.
(b) Defense By Indemnifying Party. An Indemnifying Party will manage the
defense of and may settle or compromise any Third Party Claim. Within 30 days
after the receipt of notice from an Indemnitee in accordance with Section 1.4(a)
(or sooner, if the nature of such Third Party Claim so requires), the
Indemnifying Party shall notify the Indemnitee that the Indemnifying Party will
assume responsibility for managing the defense of such Third Party Claim, which
notice shall specify any reservations or exceptions.
(c) Defense By Indemnitee. If an Indemnifying Party fails to assume
responsibility for managing the defense of a Third Party Claim, or fails to
notify an Indemnitee that it will assume responsibility as provided in Section
1.4(b), such Indemnitee may manage the defense of such Third Party Claim;
provided, however, that the Indemnifying Party shall reimburse all such costs
and expenses in the event it is ultimately determined that the Indemnifying
Party is obligated to indemnify the Indemnitee with respect to such Third Party
Claim.
(d) No Settlement By Indemnitee Without Consent. Unless the Indemnifying
Party has failed to manage the defense of the Third Party Claim in accordance
with the terms of this Agreement, no Indemnitee may settle or compromise any
Third Party Claim without the consent of the Indemnifying Party.
(e) No Consent to Certain Judgments or Settlements Without Consent.
Notwithstanding Section 1.4(b) above, no party shall consent to entry of any
judgment or enter into any settlement of a Third Party Claim without the consent
of the other party (such consent not to be unreasonably withheld) if the effect
of such judgment or settlement is to (A) permit any injunction, declaratory
judgment, other order or other nonmonetary relief to be entered, directly or
indirectly, against the other party or (B) affect the other party in a material
fashion due to the allocation of Liabilities and related indemnities set forth
in the Separation Agreement, this Agreement or any other Ancillary Agreement.
Section 1.6. Additional Matters.
(a) Cooperation in Defense and Settlement. 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 maintain a
joint defense (in a manner that will preserve the attorney-client privilege with
respect thereto) so as to minimize such Liabilities and defense costs associated
therewith. The party that is
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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, associate 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).
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 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 California as to all
matters regardless of the laws that might otherwise govern under principles of
conflicts of laws applicable thereto.
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Section 2.3. Notices. Any Notices, offers, requests or other
communications required or permitted to be given by either party pursuant to the
terms of this Agreement shall be given in writing to the respective parties to
the following addresses:
if to Catalytica: Catalytica, Inc.
000 Xxxxxxxx Xxxxx, Xxxxxxxx 0
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: President
Fax: (000) 000-0000
if to CESI: Catalytica Energy Systems, Inc.
000 Xxxxxxxx Xxxxx, Xxxxxxxx 0
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Fax: (000) 000-0000
or to such other address as the party to whom notice is given may have
previously furnished to the other in writing as provided herein. Any notice
involving non-performance, termination, or renewal shall be sent by hand
delivery, recognized overnight courier or, within the United States, may also be
sent via certified mail, return receipt requested. All other notices may also be
sent by fax, confirmed by first class mail. All notices shall be deemed to have
been given and received on the earlier of actual delivery or three (3) days from
the date of postmark..
Section 2.4. 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 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 2.5. 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 2.6. Counterparts. This Agreement, including the Ancillary
Agreement and the Exhibits and Schedules hereto and thereto and the other
documents referred to herein or therein, 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.
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Section 2.7. 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. This Agreement may
be enforced separately by each member of the Catalytica Group and each member of
the CESI Group. 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 assign
this Agreement to a successor entity in conjunction with such party's
reincorporation.
Section 2.8. Severability. If any term or other provision of this
Agreement or the Schedules or Exhibits attached hereto 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 2.9. 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 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 2.10. 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 2.11. Interpretation. The headings contained in this Agreement, in
any Exhibit or Schedule hereto and in the table or contents to this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Any capitalized term used in any Schedule or
Exhibit but not otherwise defined therein, shall have the meaning assigned to
such term in this Agreement. When a reference is made in this Agreement to an
Article or a Section, Exhibit or Schedule, such reference shall be to an Article
or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise
indicated.
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ARTICLE III.
DEFINITIONS
Section 3.1. Action. "Action" means any demand, action, suit,
countersuit, arbitration, inquiry, proceeding or investigation by or before any
federal, state, local, foreign or international 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 and employees.
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 and
employees.
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 and any direct or indirect subsidiaries of CESI on the
date hereof.
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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, cost or expense
or claim therefor and any amounts paid in settlement thereof imposed on or
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 and a governmental
entity or any department, agency or political subdivision thereof.
Section 3.17. Separation Agreement. "Separation Agreement" means the
Master Separation and Distribution Agreement dated as of the date hereof, of
which this is an Exhibit thereto.
Section 3.18. 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 3.19. Tax Sharing Agreement. "Tax Sharing Agreement" means the Tax
Sharing Agreement, attached as Exhibit __ to the Separation Agreement.
Section 3.20. Taxes. "Taxes" has the meaning set forth in the Tax Sharing
Agreement.
Section 3.21. Third Party Claim. "Third Party Claim" has the meaning set
forth in Section 1.5(a) of this Agreement.
Section 3.22. Transaction Expenses. "Transaction Expenses" has the meaning
set forth in the Merger Agreement.
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[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:_________________________________
Name:_______________________________
Title:______________________________
CATALYTICA ENERGY SYSTEMS, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
