exv10w14



 






Exhibit 10.14




CATALYTICA ENERGY SYSTEMS, INC.




CONSULTING AGREEMENT




     This Consulting Agreement (“Agreement”) is entered into effective as of January 1, 2007 by and
between Catalytica Energy Systems, Inc. (together with its direct and indirect subsidiaries,
including but not limited to SCR-Tech LLC (“SCR-Tech”) and CESI-SCR, Inc., the “Company”) and
Richard A. Abdoo (“Consultant”). The Company desires to retain Consultant as an independent
contractor to perform consulting services for the Company with respect to SCR-Tech, and Consultant
is willing to perform such services, on the terms described below. In consideration of the mutual
promises contained herein, the parties agree as follows:



     1. Services and Compensation. Consultant agrees to perform for the Company the services
described in Exhibit A (the “Services”), and the Company agrees to pay Consultant the
compensation described in Exhibit A for Consultant’s performance of the Services and to
reimburse Consultant for all reasonable and necessary expenses incurred by Consultant in the
performance of the Services in accordance with Exhibit A.



     2. Confidentiality.



          A. Definition. “Confidential Information” means any non-public information that relates to the
actual or anticipated business or research and development of the Company, technical data, trade
secrets or know-how, including, but not limited to, research, product plans or other information
regarding the Company’s products or services and markets therefor, customer lists and customers
(including, but not limited to, customers of the Company on whom Consultant called or with whom
Consultant became acquainted during the term of this Agreement), software, developments,
inventions, processes, formulas, technology, designs, drawing, engineering, hardware configuration
information, marketing, finances or other business information. Confidential Information does not
include information that (i) is known to Consultant at the time of disclosure to Consultant by the
Company as evidenced by written records of Consultant, (ii) has become publicly known and made
generally available through no wrongful act of Consultant or (iii) has been rightfully received by
Consultant from a third party who is authorized to make such disclosure.




          B. Nonuse and Nondisclosure. Consultant will not, during or subsequent to the term of this
Agreement, (i) use the Confidential Information for any purpose whatsoever other than the
performance of the Services on behalf of the Company or (ii) disclose the Confidential Information
to any third party. Consultant agrees that all Confidential Information will remain the sole
property of the Company. Consultant also agrees to take all reasonable precautions to prevent any
unauthorized disclosure of such Confidential Information.




          C. Former Client Confidential Information. Consultant agrees that Consultant will not, during
the term of this Agreement, improperly use or disclose any proprietary information or trade secrets
of any former or current employer of Consultant or other person or entity with which Consultant has
an agreement or duty to keep in confidence information acquired by Consultant, if any. Consultant
also agrees that Consultant will not bring onto the Company’s premises any




 









 







unpublished document or proprietary information belonging to any such employer, person or
entity unless consented to in writing by such employer, person or entity.




          D. Third Party Confidential Information. Consultant recognizes that the Company has received
and in the future will receive from third parties their confidential or proprietary information
subject to a duty on the Company’s part to maintain the confidentiality of such information and to
use it only for certain limited purposes. Consultant agrees that, during the term of this Agreement
and thereafter, Consultant owes the Company and such third parties a duty to hold all such
confidential or proprietary information in the strictest confidence and not to disclose it to any
person, firm or corporation or to use it except as necessary in carrying out the Services for the
Company consistent with the Company’s agreement with such third party.




     3. Ownership.



          A. Assignment. Consultant agrees that all copyrightable material, notes, records, drawings,
designs, inventions, improvements, developments, discoveries and trade secrets conceived,
discovered, developed or reduced to practice by Consultant, solely or in collaboration with others,
during the term of this Agreement that relate in any manner to the business of the Company that
Consultant may be directed to undertake, investigate or experiment with or that Consultant may
become associated with in work, investigation or experimentation in the Company’s line of business
in performing the Services under this Agreement (collectively, “Inventions”), are the sole property
of the Company. Consultant also agrees to assign (or cause to be assigned) and hereby assigns fully
to the Company all Inventions and any copyrights, patents, mask work rights or other intellectual
property rights relating to all Inventions.




          B. Further Assurances. Consultant agrees to assist the Company, or its designee, at the
Company’s expense, in every proper way to secure the Company’s rights in Inventions and any
copyrights, patents, mask work rights or other intellectual property rights relating to all
Inventions in any and all countries, including the disclosure to the Company of all pertinent
information and data with respect to all Inventions, the execution of all applications,
specifications, oaths, assignments and all other instruments that the Company may deem necessary in
order to apply for and obtain such rights and in order to assign and convey to the Company, its
successors, assigns and nominees the sole and exclusive right, title and interest in and to all
Inventions, and any copyrights, patents, mask work rights or other intellectual property rights
relating to all Inventions. Consultant also agrees that Consultant’s obligation to execute or cause
to be executed any such instrument or papers shall continue after the termination of this
Agreement.




          C. Attorney-in-Fact. Consultant agrees that, if the Company is unable because of Consultant’s
unavailability, dissolution, mental or physical incapacity, or for any other reason, to secure
Consultant’s signature for the purpose of applying for or pursuing any application for any United
States or foreign patents or mask work or copyright registrations covering the Inventions assigned
to the Company in Section 3.A, then Consultant hereby irrevocably designates and appoints the
Company and its duly authorized officers and agents as Consultant’s agent and attorney-in-fact, to
act for and on Consultant’s behalf to execute and file any such applications and to do all other
lawfully permitted acts to further the prosecution and issuance of patents, copyright and mask work
registrations with the same legal force and effect as if executed by Consultant.




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     4. Conflicting Obligations.



          Consultant certifies that Consultant has no outstanding agreement or obligation that is in
conflict with any of the provisions of this Agreement or that would preclude Consultant from
complying with the provisions of this Agreement. Consultant will not enter into any such
conflicting agreement during the term of this Agreement. Consultant’s violation of this Section 4
will be considered a material breach under Section 5.B.




     5. Term and Termination.



          A. Term. The term of this Agreement will begin on the date of this Agreement and will continue
until the earlier of (i) December 31, 2007 or (ii) termination as provided in Section 5.B.




          B. Termination.




               (i) The Company may terminate this Agreement if Consultant refuses to or is unable to perform
the Services or is otherwise in breach of any material provision of this Agreement by providing 15
days prior written notice of such intention to terminate and the reasons therefor, and if
Consultant fails to cure such breach within such 15 day period. In the event of a termination by
the Company pursuant to this Section 5.B(i), Consultant shall be deemed to have earned all
compensation and Restricted Stock Units (as defined in Exhibit A hereto) that are vested
through the date of termination.



               (ii) The Company may terminate this Agreement for any reason other than Consultant’s refusal
or inability to perform the Services or Consultant’s breach of any material provision of this
Agreement upon giving Consultant 30 days’ prior written notice of such termination pursuant to
Section 8.E of this Agreement. In the event of a termination by the Company pursuant to this
Section 5.B(ii), Consultant shall be deemed to have earned all compensation hereunder and all
Restricted Stock Units (as defined in Exhibit A hereto) that are unvested as of the time of
such termination shall immediately vest.



               (iii) Consultant may terminate this Agreement for any reason upon giving the Company 30 days’
prior written notice of such termination pursuant to Section 8.E of this Agreement. In the event
of a termination by Consultant pursuant to this Section 5.B(iii), Consultant shall be deemed to
have earned all compensation and Restricted Stock Units (as defined in Exhibit A hereto)
that are vested through the date of termination.



          C. Survival. Upon such termination, all rights and duties of the Company and Consultant toward
each other shall cease except:




               (1) In the event of a termination pursuant to Section 5.B(ii), Consultant shall be deemed to
have earned all compensation hereunder, and in the event of a termination pursuant to Section
5.B(i) or Section 5.B(iii), Consultant shall be deemed to have earned all compensation through the
date of termination; and



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               (2) the Company will pay, within 30 days after the effective date of termination, all amounts
owing to Consultant for unpaid expenses in accordance with the provisions of Section 1 of this
Agreement; and



               (3) Section 2 (Confidentiality), Section 3 (Ownership), Section 4 (Conflicting Obligations),
Section 6 (Independent Contractor; Benefits), and Section 7 (Equitable Relief) will survive
termination of this Agreement.



     6. Independent Contractor; Benefits.



          A. Independent Contractor. It is the express intention of the Company and Consultant that
Consultant perform the Services as an independent contractor to the Company. Nothing in this
Agreement shall in any way be construed to constitute Consultant as an agent, employee or
representative of the Company. Without limiting the generality of the foregoing, Consultant is not
authorized to bind the Company to any liability or obligation or to represent that Consultant has
any such authority. Consultant agrees to furnish (or reimburse the Company for) all tools and
materials necessary to accomplish this Agreement and shall incur all expenses associated with
performance, except as expressly provided in Exhibit A. Consultant acknowledges and agrees
that Consultant is obligated to report as income all compensation received by Consultant pursuant
to this Agreement. Consultant agrees to and acknowledges the obligation to pay all self-employment
and other taxes on such income.




          B. Benefits. The Company and Consultant agree that Consultant will receive no
Company-sponsored benefits from the Company for Consultant’s services hereunder. If Consultant is
reclassified by a state or federal agency or court as the Company’s employee, Consultant will
become a reclassified employee and will receive no benefits from the Company for services as a
Consultant, except those mandated by state or federal law, even if by the terms of the Company’s
benefit plans or programs of the Company in effect at the time of such reclassification, Consultant
would otherwise be eligible for such benefits.




     7. Equitable Relief.



          CONSULTANT AGREES THAT EITHER THE COMPANY OR CONSULTANT MAY PETITION A COURT FOR PROVISIONAL
RELIEF, INCLUDING INJUNCTIVE RELIEF, AS PERMITTED BY THE RULES, INCLUDING, BUT NOT LIMITED TO,
WHERE EITHER THE COMPANY OR CONSULTANT ALLEGES OR CLAIMS A VIOLATION OF THIS AGREEMENT BETWEEN
CONSULTANT AND THE COMPANY OR ANY OTHER AGREEMENT REGARDING TRADE SECRETS OR CONFIDENTIAL
INFORMATION. CONSULTANT UNDERSTANDS THAT ANY BREACH OR THREATENED BREACH OF SUCH AN AGREEMENT
(INCLUDING THIS AGREEMENT) WILL CAUSE IRREPARABLE INJURY AND THAT MONEY DAMAGES WILL NOT PROVIDE AN
ADEQUATE REMEDY THEREFOR AND BOTH CONSULTANT AND THE COMPANY HEREBY CONSENT TO THE ISSUANCE OF AN
INJUNCTION.




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     8. Miscellaneous.



          A. Governing Law. This Agreement shall be governed by the laws of Delaware without regard to
Delaware’s conflicts of law rules.




          B. Assignability. Except as otherwise provided in this Agreement, Consultant may not sell,
assign or delegate any rights or obligations under this Agreement.




          C. Entire Agreement. This Agreement constitutes the entire agreement between the parties with
respect to the subject matter of this Agreement and supersedes all prior written and oral
agreements between the parties regarding the subject matter of this Agreement.




          D. Headings; Signatures. Headings are used in this Agreement for reference only and shall not
be considered when interpreting this Agreement. This Agreement may be executed in counterparts and
by facsimile signatures.




          E. Notices. Any notice or other communication required or permitted by this Agreement to be
given to a party shall be in writing and shall be deemed given if delivered personally or by
commercial messenger or courier service, or mailed by U.S. registered or certified mail (return
receipt requested), to the party at the party’s address written below or at such other address as
the party may have previously specified by like notice. If by mail, delivery shall be deemed
effective three business days after mailing in accordance with this Section 8.E.




               (1) If to the Company, to:


  Catalytica Energy Systems, Inc.

  301 West Warner Road, Suite 132

  Tempe, AZ 85284

  Attention: Chief Executive Officer




               (2) If to Consultant, to the address for notice on the signature page
to this Agreement or, if no such address is provided, to the last address of Consultant
provided by Consultant to the Company.



          F. Attorneys’ Fees. In any court action at law or equity that is brought by one of the parties
to this Agreement to enforce or interpret the provisions of this Agreement, the prevailing party
will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that party
may be entitled.




          G. Severability. If any provision of this Agreement is found to be illegal or unenforceable,
the other provisions shall remain effective and enforceable to the greatest extent permitted by
law.




(signature page follows)





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     IN WITNESS WHEREOF, the parties hereto have executed this Consulting Agreement as of the date
first written above.



	 	 	 	 	 	 	 	 	 	 	 
	CONSULTANT	 	 	 	CATALYTICA ENERGY SYSTEMS, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Richard Adboo
	 	 	 	By:
	 	/s/ Rob Zack	 	 
	 

	 	 

	 	 
	 	 	 	 

	 	 
	Name:

	 	Richard A. Abdoo
	 	 	 	Name:
	 	Rob Zack	 	 
	 

	 	 	 	 	 	 	 	 

	 	 
	Address for Notices:	 	 	 	Title:	 	 CEO	 	 
	R.A. Abdoo & Company LLC	 	 	 	 	 	 	 	 
	301 West Wisconsin Avenue, Suite 440	 	 	 	 	 	 	 	 
	Milwaukee, WI 53203	 	 	 	 	 	 	 	 




[Signature Page to Consulting Agreement]






 









 








EXHIBIT A




Services and Compensation





	1.	 	Contact. Consultant’s principal Company contacts:






Ricardo Levy, Chairman of the Board and Rob Zack, CEO




	2.	 	Services. The Services shall include, but shall not be limited to, the following:






	 	(1)	 	Advising the Company and the President of SCR-Tech on business
strategies relating to selective catalytic reduction management, cleaning and
regeneration technology, services and solutions (the “SCR Business”);
	 
	 	(2)	 	Advising the Company and the President of SCR-Tech on the background
and abilities of SCR Business partners and customers; and






(3) Assisting the Company and the President of SCR-Tech in other aspects of the SCR
Business as needed from time to time as requested by the CEO or Chairman of the Board.




The Company will reimburse Consultant for all reasonable expenses incurred by Consultant
in performing the Services pursuant to this Agreement, including travel, lodging and
meal expenses, if Consultant submits receipts for such expenses to the Company in
accordance with Company policy as provided to Consultant from time to time. From time
to time, Consultant shall submit to the Company a written invoice for expenses, and such
statement shall be subject to the approval of designated agent of the Company in
accordance with such Company policy.




	3.	 	Compensation.






In exchange for Services hereunder, the Company previously issued to Consultant $60,000
in restricted stock units, rounded down to the nearest whole share (the “Restricted
Stock Units”), vesting during 2007, with 1/12 vesting upon the date of grant and the
remaining 11/12 vesting in equal monthly installments. The Restricted Stock Units are
subject to the terms and conditions of the Company’s 1995 Stock Plan and form of
documentation thereunder. In the event of a termination by the Company pursuant to
Section 5.B(ii) of this Agreement, Consultant shall be deemed to have earned all
compensation hereunder and all Restricted Stock Units that are unvested as of the time
of such termination shall immediately vest.