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EXHIBIT 2.9
MASTER TRANSITIONAL SERVICES AGREEMENT
between
Catalytica, Inc.
and
Catalytica Energy Systems, Inc.
December 15, 2000
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TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS............................................. 1
1.1 Additional Services.................................... 1
1.2 Ancillary Agreements................................... 1
1.3 Distribution Date...................................... 1
1.4 Documentation.......................................... 1
1.5 Effective Date......................................... 2
1.6 Impracticable.......................................... 2
1.7 Indemnification Agreement.............................. 2
1.8 Master Confidential Disclosure Agreement............... 2
1.9 Party.................................................. 2
1.10 Person................................................. 2
1.11 Separation Agreement................................... 2
1.12 Separation Date........................................ 2
1.13 Service(s)............................................. 2
1.14 Software Deliverable................................... 2
1.15 Subsidiary............................................. 2
ARTICLE 2 TRANSITION SERVICE SCHEDULES............................ 2
2.1 Services............................................... 2
2.2 Schedules.............................................. 2
ARTICLE 3 SERVICES................................................ 3
3.1 Services Generally..................................... 3
3.2 Service Limitations.................................... 3
3.3 Impracticability....................................... 3
3.4 Additional Resources................................... 3
3.5 Additional Services.................................... 3
3.6 Obligations As To Additional Services.................. 4
ARTICLE 4 TERM.................................................... 4
ARTICLE 5 COMPENSATION............................................ 4
5.1 Charges for Services................................... 4
5.2 Payment Terms.......................................... 5
5.3 Performance Under Ancillary Agreements................. 5
5.4 Error Correction; True-Ups; Accounting................. 5
ARTICLE 6 GENERAL OBLIGATIONS; STANDARD OF CARE................... 5
6.1 Performance Metrics.................................... 5
6.2 Disclaimer of Warranties............................... 5
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6.3 Transitional Nature Of Services; Changes............... 6
6.4 Responsibility For Errors; Delays...................... 6
6.5 Good Faith Cooperation; Consents....................... 6
6.6 Alternatives........................................... 6
6.7 Errors in Data......................................... 6
ARTICLE 7 TERMINATION............................................. 7
7.1 Termination............................................ 7
7.2 Survival............................................... 7
7.3 User IDs, Passwords.................................... 7
ARTICLE 8 RELATIONSHIP BETWEEN THE PARTIES........................ 7
ARTICLE 9 SUBCONTRACTORS.......................................... 8
ARTICLE 10 INTELLECTUAL PROPERTY.................................. 8
10.1 Allocation Of Rights By Ancillary Agreements........... 8
10.2 Existing Ownership Rights Unaffected................... 8
ARTICLE 11 SOFTWARE LICENSE....................................... 8
11.1 Software Deliverable/License........................... 8
11.2 License To Software.................................... 8
11.3 Restrictions........................................... 9
11.4 Copyright Notices...................................... 9
11.5 No Warranty............................................ 9
11.6 Implied Warranty Disclaimer............................ 9
11.7 No Other Obligations................................... 9
ARTICLE 12 CONFIDENTIALITY........................................ 10
ARTICLE 13 LIMITATION OF LIABILITY................................ 10
ARTICLE 14 FORCE MAJEURE.......................................... 10
ARTICLE 15 DISPUTE RESOLUTION..................................... 10
15.1 Resolution............................................. 10
15.2 Continuity of Service and Performance.................. 10
ARTICLE 16 MISCELLANEOUS.......................................... 11
16.1 Entire Agreement....................................... 11
16.2 Governing Law.......................................... 11
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16.3 Termination............................................ 11
16.4 Notices................................................ 11
16.5 Binding Effect; Assignment............................. 11
16.6 Severability........................................... 11
16.7 Injunctive Relief...................................... 12
16.8 Failure or Indulgence Not Waiver; Remedies Cumulative.. 12
16.9 Amendment.............................................. 12
16.10 Authority.............................................. 12
16.11 Interpretation......................................... 12
16.12 Conflicting Agreements................................. 12
16.13 Counterparts........................................... 13
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Exhibit 2.9
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MASTER TRANSITIONAL SERVICES AGREEMENT
This Master Transitional Services Agreement (this "Agreement") is effective
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as of December 15, 2000 (the "Effective Date"), by and between Catalytica, Inc.,
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a Delaware corporation ("Catalytica"), and Catalytica Energy Systems, Inc., a
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Delaware corporation formerly known as Catalytica Combustion Systems, Inc.
("CESI").
----
RECITALS
WHEREAS, Catalytica by certain other instruments of even date herewith
transfers or will transfer to CESI effective as of the Separation Date,
substantially all of the business and assets of the CESI Business owned by
Catalytica in accordance with the Master Separation Agreement dated as of
December 15, 2000 between the Catalytica and CESI (the "Separation Agreement").
--------------------
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, in connection
with to the distribution by Catalytica of its shares of CESI, Synotex
Acquisition Corporation will merge with and into Catalytica (the "Merger"),
------
resulting in Catalytica becoming a wholly-owned subsidiary of Synotex.
WHEREAS, for a limited period of time following the Separation Date and for
the sole purpose of ensuring the orderly and effective separation of Catalytica
and CESI, the parties desire to receive from each other certain services which
require assets or employees of each other.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
For the purpose of this Agreement, the following capitalized terms shall
have the following meanings:
1.1 "Additional Services" shall have the meaning set forth in Section 3.5.
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1.2 "Ancillary Agreements" shall have the meaning set forth in the
--------------------
Separation Agreement.
1.3 "Distribution Date" shall have the meaning set forth in the Separation
-----------------
Agreement.
1.4 "Documentation" shall mean the manuals and other documentation
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provided by Catalytica to CESI in connection with the Services, including any
items listed and described in the relevant Transition Service Schedule hereto.
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1.5 "Effective Date" shall have the meaning set forth in the preamble to
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this Agreement.
1.6 "Impracticable" shall have the meaning set forth in Section 3.3.
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1.7 "Indemnification Agreement" shall mean that certain Indemnification
-------------------------
Agreement by and between CESI and Catalytica dated of even date herewith.
1.8 "Master Confidential Disclosure Agreement" shall mean that certain
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Master Confidential Disclosure Agreement by and between CESI and Catalytica
dated of even date herewith.
1.9 "Party" means either: (i) CESI or (ii) Catalytica, as the case may be.
-----
1.10 "Person" shall mean any natural person, firm, individual,
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corporation, limited liability company, partnership, association, joint venture,
company, business trust, trust or any other entity or organization, whether
incorporated or unincorporated, including a government or political subdivision
or any agency or instrumentality thereof.
1.11 "Separation Agreement" shall mean that certain Master Separation
--------------------
Agreement by and between CESI and Catalytica dated of even date herewith.
1.12 "Separation Date" shall have the meaning set forth in the Separation
---------------
Agreement.
1.13 "Service(s)" shall have the meaning set forth in Section 3.1.
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1.14 "Software Deliverable" shall mean a software program(s) and other
--------------------
materials as defined in Section 11.1 provided by Catalytica to CESI and listed
and described in the relevant Transition Service Schedule.
1.15 "Subsidiary" shall have the meaning set forth in the Separation
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Agreement.
ARTICLE 2
TRANSITION SERVICE SCHEDULES
2.1 Services. This Agreement will govern the transitional services as
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requested by one Party and provided to it by the other Party, the details of
which are set forth in the Transition Service Schedules attached to this
Agreement, or otherwise agreed to in writing by the Parties.
2.2 Schedules. Each Service shall be covered by this Agreement upon
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execution of a Transition Service Schedule in the form attached hereto as
Exhibit A and subsequently attached as Exhibit B-1, Exhibit B-2, etc. (each
transition service schedule, a "Transition Service Schedule"). For each Service,
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the Parties shall set forth in the Transition Service Schedule, among other
things, the time period during which the Service will be provided if different
from the term of this Agreement determined pursuant to ARTICLE 4 hereof, a
summary of the Service to be provided; a description of the Service; and the
estimated charge, if any, for the Service and any other terms
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applicable thereto. The term "Agreement" shall include all the Transition
Service Schedules. Notwithstanding the foregoing the Parties acknowledge and
agree that it may not be practicable to describe each Service in detail and
that, therefore, a Service, when generally agreed upon by the Parties will be
provided and paid for in accordance with the applicable terms of this Agreement
even where such Service is not described in detail in a Schedule.
ARTICLE 3
SERVICES
3.1 Services Generally. Except as otherwise provided herein, for the term
------------------
determined pursuant to ARTICLE 4 hereof, the specified Party shall provide or
cause to be provided to the other the service(s) described in the Transition
Service Schedule(s) attached hereto or later executed by the Parties from time
to time. Executed Transition Service Schedules are attached hereto as Exhibits
B-1, B-2, etc. The service(s) described on a single Transition Service Schedule
shall be referred to herein as a "Service." Collectively, the services
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described on all the Transition Service Schedules (including Additional
Services) shall be referred to herein as "Services."
3.2 Service Limitations. Except as provided in a Transition Service
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Schedule for a specific Service: (i) the Service provider therein shall not be
required to provide the Services except to the extent and only at the locations
such Services are being provided by such Service provider's business prior to
the Separation Date or the performance of such Service requires assets that will
be owned by it following the Separation Date; and (ii) the Services will be
available only for purposes of conducting the business of the Service recipient
substantially in the manner it was conducted by the Service recipient prior to
the Separation Date.
3.3 Impracticability. Neither Party shall be required to provide any
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Service to the extent the performance of such Service becomes "Impracticable" as
a result of a cause or causes outside the reasonable control of the Party
providing such Service including unfeasible technological requirements, or to
the extent the performance of such Services would require the Service provider
to violate any applicable laws, rules or regulations or would result in the
breach of any confidentiality or non-disclosure obligations, software license or
other applicable contract.
3.4 Additional Resources. Except as provided in a Transition Service
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Schedule for a specific Service, in providing the Services, the Service provider
shall not be obligated to: (i) hire any additional employees; (ii) maintain the
employment of any specific employee; (iii) purchase, lease or license any
additional equipment or software; (iv) pay any costs related to the transfer or
conversion of CESI's data; or (v) engage any alternate supplier of Services.
Unless otherwise specified in the relevant Transition Services Schedule, the
Service provider shall not be required to purchase or deliver to the other Party
additional equipment or materials required to perform the relevant Service
unless, the other Party shall reimburse the Service provider for such equipment
or materials in accordance with ARTICLE 5.
3.5 Additional Services. From time to time after the Effective Date, the
-------------------
Parties may identify additional services that one Party will provide to the
other in accordance with the terms of
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this Agreement (the "Additional Services"). Accordingly, the Parties shall
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execute additional Transition Service Schedules for such Additional Services
pursuant to ARTICLE 2. Except as set forth in Section 3.6, the Parties may agree
in writing on Additional Services during the term of this Agreement.
3.6 Obligations As To Additional Services. Except as set forth in the next
-------------------------------------
sentence, the Service provider shall perform, at a charge determined using the
principles for determining fees under Section 5.1, any Additional Service that:
(a) was provided at a location occupied by, or by the business constituting, the
other Party immediately prior to the Separation Date and that was inadvertently
or unintentionally omitted from the list of Services, (b) is based on the use of
assets owned, or employees employed, by the Service provider as a result of the
Separation Date, or (c) is reasonably necessary to effectuate an orderly
transition under the Separation Agreement unless such performance would
significantly disrupt the Service provider's operations or materially increase
the scope of its responsibility under this Agreement. If a Party reasonably
believes the performance of Additional Services required under subparagraphs
(a), (b) or (c) would significantly disrupt its operations or materially
increase the scope of its responsibility under this Agreement, the Parties shall
negotiate in good faith to establish terms under which such Additional Services
may be provided.
ARTICLE 4
TERM
The term of this Agreement shall commence on the Effective Date and shall
remain in effect for six (6) months after the Effective Date (the "Expiration
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Date"), unless earlier terminated under ARTICLE 7. This Agreement may be
----
extended by the Parties in writing, either in whole or with respect to one or
more of the Services; provided, however, that such extension shall only apply to
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the Services for which the Agreement was extended. The Parties shall be deemed
to have extended this Agreement with respect to a specific Service if the
Transition Service Schedule for such Service specifies a completion date beyond
the aforementioned Expiration Date. The Parties may agree on an earlier
expiration date respecting a specific Service by specifying such date on the
Transition Service Schedule for that Service. Services shall be provided up to
and including the date set forth in the applicable Transition Service Schedule,
subject to earlier termination as provided herein.
ARTICLE 5
COMPENSATION
5.1 Charges for Services. The Service recipient shall pay to the providing
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Party the charges, if any, set forth on the Transition Service Schedules for
each of the Services listed therein as adjusted, from time to time, in
accordance with the process and procedures established under Section 5.4 hereof.
Such fees shall include the direct costs, as determined using the process
described in such Transition Service Schedule, indirect costs of providing the
Services and a 5% administrative fee unless specifically indicated otherwise on
a Transition Service Schedule. The
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Parties shall use good faith efforts to discuss any situation in which the
actual charge for a Service is reasonably expected to exceed the estimated
charge, if any, set forth on a Transition Service Schedule for a particular
Service; provided, however, that the incurrence of charges in excess of any such
estimate on such Transition Service Schedule shall not justify stopping the
provision of, or payment for, Services under this Agreement.
5.2 Payment Terms. The Service provider shall invoice the other Party
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monthly for all charges pursuant to this Agreement. Such invoices shall be
accompanied by reasonable documentation or other reasonable explanation
supporting such charges. Invoices shall be due and payable within thirty (30)
days after receipt. Late payments shall bear interest at the lesser of 12% on an
annualized basis or the maximum rate allowed by law. Either Party, if owing the
greater amount in any payment period may pay to the other Party the net amount
by which its payment exceeds the payment due to it for such period.
5.3 Performance Under Ancillary Agreements. Notwithstanding anything to
--------------------------------------
the contrary contained herein, neither Party shall be charged under this
Agreement for any obligations that are specifically required to be performed
under the Separation Agreement or any other Ancillary Agreement and any such
other obligations shall be performed and charged for (if applicable) in
accordance with the terms of the Separation Agreement or such other Ancillary
Agreement.
5.4 Error Correction; True-Ups; Accounting. The Parties shall reasonably
--------------------------------------
agree on a process and procedure for making adjustments to charges as a result
of the movement of employees and functions between Parties, the discovery of
errors or omissions in charges, as well as a true-up of amounts owed. In no
event shall such processes and procedures extend beyond 180 days after
completion of a Service.
ARTICLE 6
GENERAL OBLIGATIONS; STANDARD OF CARE
6.1 Performance Metrics. Subject to Sections 3.3 and 3.4 and any other
-------------------
terms and conditions of this Agreement, the Service provider shall maintain
sufficient resources to perform its obligations hereunder. Specific performance
metrics for a specific Service may be set forth in the corresponding Transition
Service Schedule. Where none is set forth, the Service provider shall use
reasonable efforts to provide Services in accordance with the policies,
procedures and practices in effect before the Separation Date and shall exercise
the same care and skill as it exercises in performing similar Services for
itself. The Service recipient shall provide sufficient resources and timely
decisions, approvals and acceptances in order that the Service provider may
accomplish its obligations hereunder in a timely manner.
6.2 Disclaimer of Warranties. Neither Party makes any warranties, express,
------------------------
implied or statutory, including but not limited to the implied warranties of
merchantability, business continuity or fitness for a particular purpose, with
respect to the Services which may be provided hereunder.
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6.3 Transitional Nature Of Services; Changes. The Parties acknowledge the
----------------------------------------
transitional nature of the Services and that the Service provider may make
changes from time to time in the manner of performing such Services if such
Party is making similar changes in performing similar services for itself
provided that such Party furnishes to the other reasonable advanced written
notice regarding such changes.
6.4 Responsibility For Errors; Delays. The Service provider's
---------------------------------
responsibility to the Service recipient with respect to Services are as follows:
(a) for errors or omissions in Services, shall be to furnish correct
information, payment and/or adjustment in the Services, at no additional cost or
expense; provided, the Service recipient must promptly advise the Service
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provider of any such error or omission of which it becomes aware after having
used reasonable efforts to detect any such errors or omissions in accordance
with the standard of care set forth in Section 6.1; and
(b) for failure to deliver any Service because of Impracticability,
shall be to use reasonable efforts, subject to Section 3.3, to make the Services
available and/or to resume performing the Services as promptly as reasonably
practicable.
6.5 Good Faith Cooperation; Consents. The Parties will use good faith
--------------------------------
efforts to cooperate with each other in all matters relating to the provision
and receipt of Services. Such cooperation shall include exchanging information,
performing true-ups and adjustments, and obtaining all third party consents,
licenses, sublicenses or approvals necessary to permit each Party to perform its
obligations hereunder (including, rights to use third party software needed for
the performance of Services). Unless otherwise provided in the relevant
Transition Services Schedule, the costs of obtaining such third party consents,
licenses, sublicenses or approvals shall be borne by the Service recipient. The
Parties will maintain in accordance with their standard document retention
procedures, documentation supporting the information relevant to cost
calculations contained in the Transition Service Schedules and cooperate with
each other in making such information available as needed in the event of a tax
audit, whether in the United States or any other country.
6.6 Alternatives. If a Party reasonably believes it is unable to provide a
------------
Service because of a failure to obtain necessary consents, licenses, sublicenses
or approvals pursuant to Section 6.5 or because such Service is Impracticable,
the Parties shall cooperate to determine the best alternative approach. Until
such alternative approach is found or the problem otherwise resolved to the
satisfaction of the Parties, Service provider shall use reasonable efforts,
subject to Section 3.3 and Section 3.4, to continue providing the Service. To
the extent an agreed upon alternative approach requires payment above and beyond
that which is included in the Service provider's charge specified in the
Transition Service Schedule for the Service in question, the Service recipient
shall make any such payment unless the Parties otherwise agree in writing.
6.7 Errors in Data. In the event any data or information provided by or on
--------------
behalf of a Service recipient to a Service provider for the purpose of providing
Services hereunder is damaged, incorrect or corrupt, the Service recipient shall
indemnify, defend and hold harmless the Service
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provider from and against any actual damages incurred (including costs of
replacing Service provider data) by it as a result of receipt from the Service
recipient of damaged, incorrect or corrupt data for use in providing Services
pursuant to this Agreement.
ARTICLE 7
TERMINATION
7.1 Termination. The Parties may terminate this Agreement at any time by
-----------
mutual consent. The Service recipient may terminate this Agreement with respect
to any one or more of the Services provided to it hereunder, for any reason or
for no reason, at any time upon thirty (30) days prior written notice to the
Service provider. In addition, subject to the provisions of ARTICLE 15, either
Party may terminate this Agreement with respect to a specific Service if the
other Party materially breaches a material provision with regard to that
particular Service and does not cure such breach (or does not take reasonable
steps required under the circumstances to cure such breach going forward) within
thirty (30) days after being given written notice of such breach; provided,
--------
however, that the non-terminating Party may request that the Parties engage in a
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dispute resolution negotiation as specified in ARTICLE 15 below prior to
termination for breach.
7.2 Survival. Those Sections of this Agreement that, by their nature, are
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intended to survive termination will survive in accordance with their terms.
Notwithstanding the foregoing, in the event of any termination with respect to
one or more, but less than all Services, this Agreement shall continue in full
force and effect with respect to any Services not terminated hereby.
7.3 User IDs, Passwords. The Parties shall use good faith efforts at the
-------------------
termination or expiration of this Agreement or any specific Service hereto to
ensure that all applicable user IDs and passwords are canceled.
ARTICLE 8
RELATIONSHIP BETWEEN THE PARTIES
The relationship between the Parties established under this Agreement is
that of independent contractors and neither Party is an employee, agent,
partner, or joint venturer of or with the other. The Service provider will be
solely responsible for any employment-related taxes, insurance premiums or other
employment benefits respecting its personnel's performance of Services under
this Agreement. The Service recipient agrees to grant to the Service provider's
personnel access to sites, systems and information (subject to the provisions of
confidentiality stated below) as necessary for the Service provider to perform
its obligations hereunder. Each Party's personnel shall agree to obey any and
all security regulations and other published policies of the other relevant to
the provision or receipt of the Services.
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ARTICLE 9
SUBCONTRACTORS
A providing Party may engage a subcontractor to perform all or any portion
of its duties under this Agreement provided that any such subcontractor agrees
in writing to be bound by confidentiality obligations at least as protective as
the terms of this Agreement regarding confidentiality, and provided further that
Service provider remains responsible for the performance of such subcontractor.
As used in this Agreement, "subcontractor" will mean any individual,
partnership, corporation, firm, association, unincorporated organization, joint
venture, trust or other entity engaged to perform hereunder.
ARTICLE 10
INTELLECTUAL PROPERTY
10.1 Allocation Of Rights By Ancillary Agreements. This Agreement and the
--------------------------------------------
performance of this Agreement will not affect the ownership of any intellectual
property rights allocated in the Ancillary Agreements.
10.2 Existing Ownership Rights Unaffected. Neither Party will gain, by
------------------------------------
virtue of this Agreement, any rights of ownership of copyrights, patents, trade
secrets, trademarks or any other intellectual property rights owned by the
other.
ARTICLE 11
SOFTWARE LICENSE
11.1 Software Deliverable/License. Unless otherwise agreed by the Parties
----------------------------
under the Ancillary Agreements or any separate license or technology agreement,
if the providing Party supplies or makes available to the other Party a
deliverable that in whole or in part consists of software, firmware, or other
computer code (a "Software Deliverable") as indicated in a Transition Service
--------------------
Schedule, such Software Deliverable will be supplied in object code form only
and will be subject to the terms of this ARTICLE 11. In the event that such
Software Deliverable is licensed to the Service provider by third parties, the
Service recipient agrees to be bound by any different or additional terms and
conditions that are required by such third parties and are communicated in
writing to it.
11.2 License To Software. Subject to the terms and conditions of this
-------------------
Agreement, the Service provider hereby grants to the Service recipient, under
its intellectual property rights in and to a Software Deliverable, a non-
exclusive, nontransferable worldwide license, without the right to sublicense,
to (a) use the Software Deliverable in object code only for its own internal
information processing services and computing needs, and to make sufficient
copies as reasonably necessary for such use, and (b) use the Documentation in
connection with the permitted use of the Software Deliverable and make
sufficient copies as necessary for such use; provided, however, that the
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foregoing license shall (i) be limited solely to the use by the Service
recipient of the Software Deliverable to the extent necessary for the Service
recipient to obtain the benefit of the relevant Service, and (ii) expire and
terminate upon the termination of the relevant Service term. Upon such
termination of the License, all rights of the Party receiving the associated
Service with respect to the Software Deliverable and the related Documentation
shall terminate, and such Party shall (i) promptly destroy, or return to the
Party providing the Software Deliverable, all materials comprising, containing,
based on or derived from the Software Deliverable and the related Documentation,
together with all complete or partial copies thereof in any medium as the
providing Party shall request, and (ii) certify in writing to the other Party
that such materials have been returned or destroyed.
11.3 Restrictions. Neither the Service recipient shall itself, or through
------------
any subsidiary, affiliate, agent or third party: (a) sell, lease, license or
sublicense the Software Deliverable; (b) modify, decompile, disassemble, or
reverse engineer the Software Deliverable, in whole or in part, except to the
extent such restriction is prohibited by applicable law; (c) allow access to the
Software Deliverable to any user other than its employees; (d) use the Software
Deliverable to provide processing services to third parties; (e) otherwise use
the Software Deliverable on a "service bureau" basis; or (f) provide, disclose,
divulge or make available to, or permit use of the Software Deliverable by any
third party without the Service provider's prior written consent.
11.4 Copyright Notices. The Service recipient shall not remove any
-----------------
copyright notices, proprietary markings, trademarks or trade names from the
Service provider's software or Documentation.
11.5 No Warranty. THE SOFTWARE DELIVERABLE AND ANY OTHER MATERIALS PROVIDED
-----------
HEREUNDER ARE LICENSED OR PROVIDED ON AN "AS-IS" BASIS ONLY, WITHOUT ANY EXPRESS
WARRANTIES OF ANY KIND.
11.6 Implied Warranty Disclaimer. THE SERVICE PROVIDER MAKES NO WARRANTIES
---------------------------
WHATSOEVER, EITHER EXPRESS OR IMPLIED, REGARDING THE SOFTWARE DELIVERABLE OR ANY
OTHER MATERIAL PROVIDED BY IT HEREUNDER INCLUDING, WITHOUT LIMITATION, AS TO THE
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO SUCH
SOFTWARE DELIVERABLE OR OTHER MATERIALS.
11.7 No Other Obligations. NEITHER PARTY ASSUMES ANY RESPONSIBILITY OR
--------------------
OBLIGATIONS WHATSOEVER, OTHER THAN THE RESPONSIBILITIES AND OBLIGATIONS
EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY SEPARATE WRITTEN AGREEMENT BETWEEN
THE PARTIES.
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ARTICLE 12
CONFIDENTIALITY
The terms of the Master Confidential Disclosure Agreement between the
Parties shall apply to any Confidential Information (as defined therein) which
is the subject matter of this Agreement.
ARTICLE 13
LIMITATION OF LIABILITY
NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOSS OF
DATA, LOSS OF USE, COST OF COVER, BUSINESS INTERRUPTION OR OTHER SPECIAL,
INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER
CAUSED, UNDER ANY THEORY OF LIABILITY, ARISING FROM THE PERFORMANCE OF, OR
RELATING TO, THIS AGREEMENT.
ARTICLE 14
FORCE MAJEURE
Each party will be excused for any failure or delay in performing any of
its obligations under this Agreement, other than the obligations to make
payments pursuant to ARTICLE 5 hereof for services rendered, if such failure or
delay is caused by Force Majeure. "Force Majeure" means any act of God or the
public enemy, any accident, explosion, fire, storm, earthquake, flood, or any
other circumstance or event beyond the reasonable control of the party relying
upon such circumstance or event.
ARTICLE 15
DISPUTE RESOLUTION
15.1 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.
15.2 Continuity of Service and Performance. Unless otherwise agreed in
-------------------------------------
writing, the parties will continue to provide Service and honor all other
commitments under this Agreement and each Ancillary Agreement (as defined in the
Separation Agreement) during the course of dispute resolution pursuant to the
provisions of this Article 15 with respect to all matters not subject to such
dispute, controversy or claim.
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ARTICLE 16
MISCELLANEOUS
16.1 Entire Agreement. This Agreement, the Merger Agreement, 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 shall supersede all prior written and
oral and all contemporaneous oral agreements and understandings with respect to
the subject matter hereof.
16.2 Governing Law. This Agreement shall be construed in accordance with
-------------
and all Disputes hereunder shall be governed by the laws of the State of
Delaware, excluding its conflict of law rules. A court of competent jurisdiction
in the State of Delaware shall have jurisdiction and venue over all Disputes
between the parties that are permitted to be brought in a court of law.
16.3 Termination. This Agreement may be terminated at any time before the
-----------
Distribution Date by mutual consent of Catalytica and CESI. In the event of
termination pursuant to this Section 16.3, no Party shall have any liability of
any kind to the other Party.
16.4 Notices. Any notice, demand, offer, request or other communication
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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 unless otherwise specified on a Transition Service Schedule.
16.5 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
not be assigned by any Party hereto without written consent of the other party,
which consent shall not be unreasonably withheld. Notwithstanding anything to
the contrary contained herein, 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 the Agreement and each Ancillary
Agreement.
16.6 Severability. If any term or other provision of this Agreement or the
------------
Schedules or Exhibits attached hereto is determined by a non appealable 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 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
-11-
<PAGE>
possible in an acceptable manner to the end that transactions contemplated
hereby are fulfilled to the fullest extent possible.
16.7 Injunctive Relief. Each Party acknowledges and agrees that Software
-----------------
Deliverables and other Confidential Information made available to it by the
other party hereunder constitute valuable property of the other party and that
violation by it or by its employees, agents or subcontractors of any provisions
of Sections 11.1 through 11.4, or of Article 12, of this Agreement with respect
to such Software Deliverables or Confidential Information may cause the other
party irreparable injury not compensable by money damages, for which the other
party may not have an adequate remedy at law. Accordingly, if either party
institutes an action or proceeding to enforce any provisions of Sections 11.1
through 11.4 or of Article 12 of this Agreement, such party shall be entitled to
appropriate injunctive or other equitable relief as may be necessary to enjoin,
prevent or curtail any breach thereof, threatened or actual, without the posting
of any bond or security.
16.8 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 Schedules or Exhibits attached hereto are cumulative to, and
not exclusive of, any rights or remedies otherwise available.
16.9 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.
16.10 Authority. Each of the Parties hereto represents to the other that
---------
(a) it has the corporate or other requisite power and authority to execute,
deliver and perform this Agreement, (b) the execution, delivery and performance
of this Agreement by it have been duly authorized by all necessary corporate or
other actions, (c) it has duly and validly executed and delivered this
Agreement, and (d) this Agreement is a legal, valid and binding obligation,
enforceable against it in accordance with its terms subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and general equity principles.
16.11 Interpretation. The headings contained in this Agreement, in any
--------------
Exhibit or Schedule hereto 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. 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, or Exhibit, or Schedule, such reference shall be to an
Article or Section of, or an Exhibit or Schedule to, this Agreement unless
otherwise indicated.
16.12 Conflicting Agreements. In the event of conflict between this
----------------------
Agreement and: (a) the Separation Agreement; (b) the Merger Agreement; or (c)
the Indemnification Agreement, the provisions of such other agreement shall
prevail.
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<PAGE>
16.13 Counterparts. This Agreement, including the Schedules and Exhibits
hereto and the other documents referred to herein, 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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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
CATALYTICA, INC. CATALYTICA ENERGY SYSTEMS, INC.
By: /s/ Lawrence W. Briscoe By: /s/ Dennis S. Riebe
---------------------------- --------------------------------
Title: Chief Financial Officer Title: CFO
------------------------- -----------------------------
<PAGE>
Exhibit A
---------
Form Transition Service Schedule to Master Transitional Services Agreement
Service Provider: _________________
Service Recipient: ________________
1. Transition Service Schedule #: ___________(To be inserted by responsible
individual or department.)
2. Functional Area: ____________
3. Start/End Date: The Services start on the Effective Date of the Master
Transitional Services Agreement and end on _____________ unless otherwise
indicated below.
Indicate below if other start/end date:
--------------------------------------
Start Date: ____________
End Date: ______________
If Start and End dates vary by service and/or country, please indicate in
Section 5 below.
4. Summary of Services (Describe the service to be provided in appropriate
detail.
--------------------------------------------------------------------------------
Service Name Description
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
5. List of services to be provided per country and site: (List all the
services to be provided at each site. Enter Start Date and End Date if different
than Section 3 above.)
--------------------------------------------------------------------------------
Country Site Service(s) Start Date End Date
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
A-1
<PAGE>
6. Performance parameters/Service level: (State minimum performance expected
from each service, if applicable.):
7. Estimated Total Compensation: _____________
8. Describe cost methodology and cost drivers affecting Estimated Total
Compensation (Describe on an individual service basis if necessary):
9. Describe the process by which the cost of services will be adjusted in the
instance of an increase/reduction in the services provided: (Describe on an
individual service basis if necessary.)
10. Software: Will software be used or included with the Services to be
provided under this Transition Service Schedule: ____ Yes ____ No
If yes, will source code be provided: ____ Yes ____ No
List software to be provided:
Software Application Number of Licenses to be Provided
-------------------- ---------------------------------
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Upon execution of this Transition Service Schedule by both parties, this
Transition Service Schedule is hereby deemed incorporated into and made part of
that certain Master Transitional Services Agreement.
CATALYTICA INC. CATALYTICA ENERGY SYSTEMS INC.
By: _____________________________ By: ______________________________
Title:___________________________ Title:____________________________
A-2
