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Exhibit 2.1
ASSIGNMENT AND ASSUMPTION AGREEMENT
-----------------------------------
This Assignment and Assumption Agreement (the "Agreement") is entered into
as of July 25, 1995 (the "Effective Date"), by and between Catalytica Combustion
Systems, Inc. (the "Company"), a Delaware corporation, with its principal place
of business at 430 Ferguson Drive, Mountain View, California 94943-5272 and
Catalytica, Inc., a Delaware corporation (the "Assignor"):
R E C I T A L S
WHEREAS, Assignor has developed and owns certain technology, intellectual
property and other property related to the catalysts, catalytic combustion and
catalytic processes for use in combustion systems for gas turbine burners,
furnaces and the like to improve combustion efficiency and/or reduce pollutants
in the gaseous effluents (collectively, the "Catalytica Combustion Systems Line
of Business"); and to the research and development, manufacture and
commercialization of products, services and processes in the sensor field
(collectively, the "Advanced Sensor Devices Line of Business").
WHEREAS, for valuable consideration, the Company desires to acquire all
right, title and interest in and to the technology, intellectual property and
other property and assume all liabilities related thereto.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the parties agree as follows:
1. Definitions.
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1.1. "Intellectual Property" shall mean any and all ideas,
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procedures, processes, designs, inventions, discoveries, technologies, know-how,
show-how, documents and works of authorship, including without limitation any
and all (i) issued United States and foreign patents, utility models and the
like, applications therefor pending before any relevant authority worldwide, any
patents, utility models and the like issuing from such applications, and any
additions, continuations, continuations-in-part, divisions, reissues or
extensions based thereon, (ii) copyrights and other rights in works of
authorship, (iii) mask work rights, (iv) trade secrets, (v) rights in
trademarks, trade names, service marks or other product or corporate
identifications and (vi) any other intellectual property rights that are in
existence on the Effective Date, in each case specifically related to the
Catalytica Combustion Systems Line of Business and the Advanced Sensor Devices
Line of Business, including without limitation any works of authorship, set
forth in Exhibits 1, 2, 3, and 4 hereto.
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1.2. "Transferred Property" shall mean the assets set forth in
--------------------
Exhibits 1, 2, 3, and 4 hereto.
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2. Assignment.
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2.1. Assignment. Assignor hereby assigns, delivers and conveys to
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Company and its successors and assigns all of his right, title and interest in
and to the Intellectual Property and the Transferred Property, and the Company
hereby accepts such assignment, delivery and conveyance of the Intellectual
Property and Transferred Property and assumes the liabilities related thereto as
described in Exhibits 1, 2, 3, and 4. As part of such assignment, Assignor
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hereby assigns to Company the right to pursue any actions for infringement of
the Intellectual Property which arose prior to the Effective Date.
3. Obligations of Assignor.
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3.1. Further Assurances. Assignor agrees, upon the request and at
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the expense of Company at any time, to take, or cause to be taken, such further
action, including execution and delivery of further instruments of sale,
transfer or assignment, as may be reasonably necessary for Company to obtain the
full benefits of this Agreement and the transactions contemplated hereby,
including without limitation the execution of a Bill of Sale in favor of the
Company in the form attached hereto as Exhibit A.
---------
3.2. Cooperation. Assignor further agrees, without charge to
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Company but at Company's expense, to assist the Company in enforcing and
defending its rights in the Intellectual Property.
3.3. Intellectual Property Prosecutions, Registrations and
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Maintenance. Assignor agrees, without charge to Company but at Company's
-----------
expense, to cooperate with and assist Company in (a) the preparation, filing and
prosecution of United States and foreign patent applications claiming the
Intellectual Property and (b) the preparation and filing of copyright and
trademark registrations with respect to the Intellectual Property, and to
perform such acts, including without limitation the execution, verification,
acknowledgment and delivery of patent applications and other documents, as
Company may lawfully request in order to obtain or maintain patents or copyright
or trademark registrations for the Intellectual Property worldwide.
3.4. Confidentiality. Assignor will maintain in confidence and will
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not use or disclose to third parties the Intellectual Property. Assignor will
have no obligation hereunder to the extent Assignor can demonstrate that:
(a) the Intellectual Property was publicly known and made generally
available in the public domain prior to the Effective Date; or
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(b) the Intellectual Property becomes publicly known and made
generally available after the Effective Date through no action or inaction of
Assignor, or
(c) the Intellectual Property is received by Assignor after the
Effective Date from a third party without restrictions similar to the terms
hereof on the third party's right to use or disclose.
4. Payment and Acceptance. In payment for the Intellectual Property and
----------------------
Transferred Property and assumption of the liabilities in Exhibits 1, 2, 3 and
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4, the Company hereby agrees to issue to Assignor 7,000,000 shares of its Series
-
A Preferred Stock, 500,000 shares of its Common Stock upon the execution of this
Agreement, and a promissory note in the principal amount of $1,225,000, in
substantially the form attached hereto as Exhibit B.
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5. General Provisions.
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5.1. Counterparts. This Agreement may be executed simultaneously in
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two or more counterparts, each of which will be considered an original, but all
of which together will constitute one and the same instrument.
5.2. Amendments. This Agreement may be amended or supplemented only
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by a writing that is signed by duly authorized representatives of both parties.
5.3. Entire Agreement. This Agreement, including all Exhibits to
----------------
this Agreement, constitute the entire agreement between the parties relating to
this subject matter and supersedes all prior or simultaneous representations,
discussions and agreements, whether written or oral.
5.4. Choice of Law. This Agreement will be governed by and construed
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in accordance with the laws of the United States and the State of California as
applied to agreements entered into and to be performed entirely within
California between California residents.
5.5. Choice of Forum. The parties hereby submit to the jurisdiction
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of, and waive any venue objections against, the United States District Court for
the Northern District of California, San Jose Branch and the Superior and
Municipal Courts of the State of California, Santa Clara County, in any
litigation between the parties arising out of this Agreement.
5.6. Waiver. No term or provision hereof will be considered waived
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by either party, and no breach excused by either party, unless such waiver or
consent is in writing signed on behalf of the party against whom the waiver is
asserted. No consent by either party to, or waiver of, a breach by either party,
whether express or implied, will
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constitute a consent to, waiver of, or excuse of any other different or
subsequent breach by either party.
5.7. Severability. If any part of this Agreement is found invalid or
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unenforceable, (a) the parties shall immediately enter into good faith
negotiations to amend such party to achieve as nearly as possible the same
economic effect as the original provision and (b) the remainder of this
Agreement will remain in full force and effect.
5.8. Publicity. Assignor will not disclose the existence or terms of
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this Agreement unless granted the permission to do so in writing by Company
prior to such disclosure.
5.9. Notice. Any notice provided for or permitted under this
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Agreement will be treated as having been given when (a) delivered personally,
(b) sent by confirmed telex or telecopy, (c) sent by commercial overnight
courier with written verification of receipt, or (d) mailed postage prepaid by
certified or registered mail, return receipt requested, to the party to be
notified, at the address set forth below, or at such other place of which the
other party has been notified in accordance with the provisions of this Section.
If to the Assignor: Catalytica, Inc.
430 Ferguson Drive
Mountain View, California 94943-5272
If to the Company: Catalytica Combustion Systems, Inc.
430 Ferguson Drive
Mountain View, California 94943-5272
Such notice will be treated as having been received upon the earlier of
actual receipt or five (5) days after posting.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
Effective Date.
THE COMPANY: ASSIGNOR:
CATALYTICA COMBUSTION SYSTEMS, INC. CATALYTICA, INC.
By: /s/ Robert L. Garten By: /s/ Ricardo B. Levy
-------------------------------- -----------------------------
Title: President Title:
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EXHIBITS 1 AND 2
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DESCRIPTION OF THE INTELLECTUAL PROPERTY
AND THE TRANSFERRED PROPERTY
10. 1,864,206 shares of Common Stock of Advanced Sensor Devices, a
California corporation.
11. Also see items listed on Exhibits 1, 2, 3 and 4 attached hereto.
----------------------
DESCRIPTION OF ASSUMED LIABILITIES
Any and all liabilities whether accrued or contingent, known or unknown,
and arising before or after the date hereof relating to the items listed on
Exhibits 1, 2, 3 and 4 hereto.
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1 of 1
EXHIBIT 1
Description of Contracts
------------------------
1. Letter of Intent between Allison Engine Company and Catalytica, Inc. dated
January 11, 1993.
2. Purchase Order Agreements between Allison Engine Company and Catalytica,
Inc. dated August 11, 1994 and December 21, 1994, including Amendment No. 1
dated February 21, 1995 to the December 21, 1994 Purchase Order Agreement.
3. Agreement between Tanaka Kikinzoku Kogyo K.K. and Catalytica, Inc. dated
January 31, 1995.
4. Joint Test Agreement among General Electric Company, Tanaka Kikinzoku Kogyo
K.K. and Catalytica, Inc. dated November 21, 1990 and amendments thereto.
5. Agreement among Honda R&D Company, Tanaka Kikinzoku Kogyo K.K. and
Catalytica, Inc. dated November 26, 1991.
6. Loan Agreement between Tanaka Kikinzoku Kogyo K.K. and Catalytica, Inc.
dated November 27, 1991.
7. Service Agreement between Pittiglio, Rubin, Todd and McGrath and
Catalytica, Inc. dated April 28, 1994.
8. Addendum to Purchase Order HD 9405646 between Solar Turbines Incorporated
and Catalytica, Inc. dated September 2, 1994.
9. Confirmation Agreement Regarding Amendment of the Agreement with Honda
Technical Research Institute K.K. dated November 26, 1991 between Tanaka
Kikinzoku Kogyo K.K. and Catalytica, Inc.
10. Cooperative Research and Development Agreement No. TSB-841-94 between The
Regents for the University of California, Lawrence Livermore National
Laboratory and Catalytica, Inc. dated (last signed) January 20, 1995.
11. Marketing Communications Program Agreement between Michael Scott Studios
and Catalytica, Inc. dated March 22, 1995.
12. Collaboration Agreement among AGC Project Development, Inc., Tanaka
Kikinzoku Kogyo K.K. and Catalytica, Inc. dated November 2, 1993.
13. Various Confidential Disclosure Agreements and Consulting Agreements
relating to Catalytica Combustion Systems, Inc.'s business.
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EXHIBIT 2
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DESCRIPTION OF THE INTELLECTUAL PROPERTY
AND THE TRANSFERRED PROPERTY
1. Patents and Patent Applications
-------------------------------
<TABLE>
<CAPTION>
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Title Patent or Patent Country Owned or Licensed
Application No.
--------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Graded Palladium-Containing U.S. Co-owned w/TKK
Partial Combustion Catalyst 5,258,349
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Graded Palladium-Containing U.S. Co-owned w/TKK
Partial Combustion Catalyst
and a Process for Using It 5,248,251
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Catalyst Structure Having U.S. Co-owned w/TKK
Integral Heat Exchange 5,250,489
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Catalyst Structure Having Canada Co-owned w/TKK
Integral Heat Exchange 2,096,950
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Catalyst Structure Having China Co-owned w/TKK
Integral Heat Exchange 911112146
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Catalyst Structure Having EPO Co-owned w/TKK
Integral Heat Exchange 92902350
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Catalyst Structure Having Japan Co-owned w/TKK
Integral Heat Exchange 04502665
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Catalyst Structure Having Korea Co-owned w/TKK
Integral Heat Exchange 93701567
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Catalyst Structure Having Russia Co-owned w/TKK
Integral Heat Exchange 9304314600
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Catalyst Structure Having Taiwan Co-owned w/TKK
Integral Heat Exchange 81104052
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A Partial Combustion Process U.S. Co-owned w/TKK
and a Catalyst Structure for
Use in the Process 5,326,253
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</TABLE>
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<TABLE>
<CAPTION>
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Title Patent or Patent Country Owned or Licensed
Application No.
--------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Palladium Partial Combustion Canada Co-owned w/TKK
Catalysts and a Process for
Using Them 2,096,949
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Palladium Partial Combustion EPO Co-owned w/TKK
Catalysts and a Process for
Using Them 929059228
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Palladium Partial Combustion Japan Co-owned w/TKK
Catalysts and a Process for
Using Them 04505668
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Palladium Partial Combustion Korea Co-owned w/TKK
Catalysts and a Process for
Using Them 93701566
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Palladium Partial Combustion Russia Co-owned w/TKK
Catalysts and a Process for
Using Them 9303997100
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Partial Combustion Process U.S. Co-owned w/TKK
and Catalyst Structure for
Use in the Process 08/371,561
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Multistage Process for U.S. Co-owned w/TKK
Combusting Fuel Mixtures
Using Oxide 5,232,357
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Process for Burning U.S. Co-owned w/TKK
Combustible Mixtures 5,425,632
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Partial Combustion Catalyst of U.S. Co-owned w/TKK
Palladium on a Zirconia
Support and a Process for
Using It 5,259,754
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</TABLE>
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<TABLE>
<CAPTION>
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Title Patent or Patent Country Owned or Licensed
Application No.
--------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Partial Combustion Catalyst of U.S. Co-owned w/TKK
Palladium on a Zirconia
Support and a Process for
Using It 5,405,260
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Mixed Metal Partial U.S. Co-owned w/TKK
Combustion Catalyst
Containing Palladium and a
Process for Using It 08/367,674
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Two-stage Process for U.S. Co-owned w/TKK
Combusting Fuel Mixtures 5,183,401
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Cooled Support Structure U.S. Co-owned w/TKK
for a Catalyst 08/165,966
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Cooled Support Structure PCT Co-owned w/TKK
for a Catalyst PCT/US94/14153
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Cooled Support Structure EPO Co-owned w/TKK
for a Catalyst 84100544
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Improved Catalyst Structure U.S. Co-owned w/TKK
Employing Integral Heat
Exchange 08/205,279
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Improved Catalyst Structure PCT Co-owned w/TKK
Employing Integral Heat
Exchange PCT/US95/01903
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Improved Catalyst Structure Taiwan Co-owned w/TKK
Employing Integral Heat
Exchange 84102752
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Multistage Process for U.S. Co-owned w/TKK
Combusting Fuel Mixtures 5,281,128
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Multistage Process for Canada Co-owned w/TKK
ombusting Fuel Mixtures 2,096,951
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Multistage Process for EPO Co-owned w/TKK
Combusting Fuel Mixtures 29021145
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Multistage Process for Japan Co-owned w/TKK
Combusting Fuel Mixtures 04502666
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</TABLE>
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<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------
Title Patent or Patent Country Owned or Licensed
Application No.
--------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Multistage Process for Korea Co-owned w/TKK
Combusting Fuel Mixtures 3701568
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Multistage Process for Russia Co-owned w/TKK
Combusting Fuel Mixtures 93043040200
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Improved Process and Catalyst U.S. Co-owned w/TKK
Structure Employing Integral
Heat Exchange with Optional
Downstream Flameholder 08/378,206
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Improved Process and Catalyst PCT Co-owned w/TKK
Structure Employing Integral
Heat Exchange with Optional
Downstream Flameholder PCT/US95/01989
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Improved Process and Catalyst 84102753 Taiwan Co-owned w/TKK
Structure Employing Integral Heat
Exchange with Optional Downstream
Flameholder
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Improved Support Structure U.S. Co-owned w/TKK
for a Catalyst 08/462,639 and GE
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</TABLE>
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EXHIBIT 3
Description of Contracts
------------------------
1. Service Agreement between Logical Services, Incorporated and Catalytica,
Inc. dated June 10, 1994.
2. Service Agreement between MQA and Catalytica, Inc. dated June 10, 1994.
3. Contract for Research between Gas Research Institute and Catalytica, Inc.
dated November 5, 1991 and amendments thereto.
4. Cooperative Research and Development Agreement between Naval Research
Laboratory and Catalytica, Inc. dated (last signed) March 2, 1994.
5. Field Test Agreement between Shell Development Company and Catalytica, Inc.
dated January 31, 1994.
6. Field Test Agreement between Occidental Chemical Corporation and
Catalytica, Inc. dated (effective date) December 15, 1994.
7. Contract No. 9027594 between Pacific Gas Transmission Company and
Catalytica, Inc. dated November 14, 1994.
8. Field Test Agreement among Southern California Gas Company, Central Plants,
Inc. and Catalytica, Inc. dated November 4, 1994.
9. Field Test Agreement between Texas Eastern Transmission Corporation and
Catalytica, Inc. dated (last signed) October 18, 1994.
10. Vendor Leasing and Remarketing Agreement between Trinity Capital
Corporation and Catalytica, Inc. dated January 26, 1995.
11. Various Confidential Disclosure Agreements and Consulting Agreements
relating to Advanced Sensor Devices Inc.'s business.
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EXHIBIT 4
Description of the Intellectual Property
-------------- -------------------------
and the Transferred Property
----------------------------
1. Patents and Patent Applications
-------------------------------
<TABLE>
<CAPTION>
Patent or Patent Owned or
---------------------------------------- Application No. Country Licensed
Title ---------------- ---------- --------
----------------------------------------
<S> <C> <C> <C>
NOx Sensor Assembly 08/080,679 U.S. Owned
NOx Sensor Assembly 919117051 EPO(1) Owned
NOx Sensor Assembly 3511506 Japan Owned
NOx Sensor Assembly 80109877 Taiwan Owned
NOx Sensor Assembly and Process for 5,314,828 U.S. Owned
Detecting NOx
NOx Sensor Assembly and Process for 911096175 China Owned
Detecting NOx
NOx Sensor Assembly and Process for 919122218 EPO(2) Owned
Detecting NOx
NOx Sensor Assembly and Process for 3511510 Japan Owned
Detecting NOx
NOx Sensor Assembly and Process for 92703214 Korea Owned
Detecting NOx
NOx Sensor Assembly and Process for 80109878 Taiwan Owned
Detecting NOx
SOx Sensor and Process for Detecting SOx 5,338,515 U.S. Owned
</TABLE>
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(1) EPO Application (designated states: Austria, Belgium, Denmark, France,
Germany, Great Britain, Greece, Italy, Luxembourg, Netherlands, Spain, Sweden
and Switzerland).
(2) Same as "1" above.
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EXHIBIT A
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BILL OF SALE
Catalytica, Inc. ("Catalytica"), for good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, does hereby grant,
bargain, sell, convey, transfer, assign, set over and deliver to Catalytica
Combustion Systems, Inc., a Delaware corporation, its successors and assigns,
all of the right, title and interest of Catalytica in and to the tangible assets
listed on Exhibits 1, 2, 3 and 4 hereto.
----------------------
IN WITNESS WHEREOF, the undersigned has executed and delivered this
instrument, effective as of the 25th day of July, 1995.
CATALYTICA, INC
By: /s/ Ricardo B. Levy
--------------------------------
Title:
-----------------------------
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