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EXHIBIT 5.1
[Letterhead of Heller Ehrman White & McAuliffe LLP]
December 27, 2000
2500 Sand Hill Road, Suite 100
Menlo Park, CA 94025-7063
Main (650) 234-4200
Fax (650) 234-4299
37030.0002
Catalytica Energy Systems, Inc.
430 Ferguson Drive
Mountain View, CA 94043-5273
Ladies and Gentlemen:
We have acted as counsel to Catalytica Energy Systems, Inc., a Delaware
corporation (the "Corporation"), in connection with the Registration Statement
on Form S-8 (the "Form S-8 Registration Statement") to be filed by the
Corporation with the Securities and Exchange Commission on or about December 27,
2000, in connection with the registration under the Securities Act of 1933, as
amended, of 3,500,000 shares of the Corporation's Common Stock, par value $0.001
per share (the "Shares"), reserved for issuance under the Corporation's 1995
Stock Plan (as amended and restated October 26, 2000) and the Corporation's 2000
Employee Stock Purchase Plan (collectively, the "Plans").
We have assumed the authenticity of all records, documents and instruments
submitted to us as originals, the genuineness of all signatures, the legal
capacity of natural persons and the conformity to the originals of all records,
documents and instruments submitted to us as copies.
In rendering our opinion we have examined the following records, documents
and instruments:
1. The Amended and Restated Certificate of Incorporation of the
Corporation certified by the Delaware Secretary of State as of December
26, 2000 and certified to us by an officer of the Corporation as being
complete and in full force as of the date hereof;
2. The Amended and Restated Bylaws of the Corporation certified to us by
an officer of the Corporation as being the bylaws of the Corporation in
full force and effect as of the date hereof;
3. A Certificate of an officer of the Corporation: (a) attaching records
certified to us as constituting all records of proceedings and actions
of the Board of Directors, including any committee thereof, and
stockholders of the Corporation relating to the Shares and the approval
of the Plan; and (b) certifying as to certain factual matters;
4. The Form S-8 Registration Statement;
5. The Plans; and
6. A letter from Chase Mellon Shareholder Services, Inc., the Corporation's
transfer agent dated December 26, 2000, as to the number of Shares of
the Corporation's Common Stock that were outstanding on December 22,
2000.
This opinion is limited to the federal law of the United States of America
and the General Corporation Law of the State of Delaware, and we disclaim any
opinion as to the laws of any other jurisdiction. We further disclaim any
opinion as to any other statute, rule, regulation, ordinance, order or other
promulgation of any other jurisdiction or any regional or local governmental
body or as to any related judicial or administrative opinion.
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To Catalytica Energy Systems, Inc.
December 27, 2000
Page 2
Based upon the foregoing and our examination of such questions of law as we
have deemed necessary or appropriate for the purpose of this opinion, and
assuming that: (i) the Form S-8 Registration Statement becomes and remains
effective during the period when the Shares are offered, issued and sold, (ii)
the Shares to be sold are issued in accordance with the terms of the Plans,
(iii) the Corporation receives the full consideration for the Shares as stated
in the Plans, and (iv) all applicable securities laws are complied with, it is
our opinion that the Shares covered by the Form S-8 Registration Statement, when
issued and sold by the Corporation, after payment therefor in the manner
provided in the Plans and the Form S-8 Registration Statement, will be legally
issued, fully paid and nonassessable.
This opinion is rendered to you in connection with the distribution of the
Shares pursuant to the Form S-8 Registration Statement and is solely for your
benefit. This opinion may not be relied upon by you for any other purpose, or
relied upon by any other person, firm, corporation or other entity for any
purpose, without our prior written consent. We disclaim any obligation to
advise you of any change of law that occurs, or any facts of which we may become
aware, after the date of this opinion.
Very truly yours,
/s/ Heller Ehrman White & McAuliffe LLP
