exv10w15



 





Exhibit 10.15




FORM OF INDEMNIFICATION AGREEMENT




     This Indemnification Agreement (“Agreement”) is made as of                     , 200___by and between
Catalytica Energy Systems, Inc., a Delaware corporation (the “Company”), and                      (“Indemnitee”).



RECITALS




     WHEREAS, the Company desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve the Company;



     WHEREAS, in order to induce Indemnitee to continue to provide services to the Company, the
Company wishes to provide for the indemnification of, and advancement of expenses to, Indemnitee to
the maximum extent permitted by law;



     WHEREAS, the Amended and Restated Certificate of Incorporation (the “Charter”) and the
bylaws of the Company require (i) indemnification of the officers and directors of the Company to
the fullest extent authorized by the General Corporation Law of the State of Delaware (the
“DGCL”) and (ii) the advancement of expenses (including legal fees) incurred in any
proceeding for which indemnification is available in advance of such proceedings final disposition.



     WHEREAS, the Charter and the DGCL expressly provide that the indemnification provisions set
forth therein are not exclusive and thereby contemplate that contracts may be entered into between
the Company and members of the board of directors, officers and other persons with respect to
indemnification;



     WHEREAS, the Company and Indemnitee recognize the continued difficulty in obtaining liability
insurance for the Company’s directors, officers, employees, agents and fiduciaries, the significant
and continual increases in the cost of such insurance and the general trend of insurance companies
to reduce the scope of coverage of such insurance;



     WHEREAS, the Company and Indemnitee further recognize the substantial increase in corporate
litigation in general, subjecting directors, officers, employees, agents and fiduciaries to
expensive litigation risks at the same time as the availability and scope of coverage of liability
insurance provide increasing challenges for the Company;



     WHEREAS, Indemnitee does not regard the protection currently provided by applicable law, the
Company’s governing documents and available insurance as adequate under the present circumstances,
and the Indemnitee and certain other directors, officers, employees, agents and fiduciaries of the
Company may not be willing to continue to serve in such capacities without additional protection;



     WHEREAS, the Board of Directors of the Company (the “Board”) has determined that the
increased difficulty in attracting and retaining highly qualified persons such as Indemnitee is



 









 




detrimental to the best interests of the Company’s stockholders and that the Company should
act to assure such persons that there will be increased certainty of such protection in the future;




     WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate
itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the Company free from
undue concern that they will not be so indemnified; and



     WHEREAS, this Agreement is a supplement to and in furtherance of the indemnification provided
in the Charter and any resolutions adopted pursuant thereto, and shall not be deemed a substitute
therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.



     NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:



     Section 1. Services to the Company. Indemnitee agrees to serve as a director of the
Company. Indemnitee may at any time and for any reason resign from such position (subject to any
other contractual obligation or any obligation imposed by operation of law), in which event the
Company shall have no obligation under this Agreement to continue Indemnitee in such position.
This Agreement shall not be deemed an employment contract between the Company (or any of its
subsidiaries or any Enterprise) and Indemnitee. The foregoing notwithstanding, this Agreement
shall continue in force after Indemnitee has ceased to serve as a director of the Company for the
applicable time period set forth in Section 15 hereto.



     Section 2. Definitions.



     As used in this Agreement:



          (a) “Corporate Status” describes the status of a person who is or was a director,
officer, employee or agent of the Company or of any other corporation, partnership or joint
venture, trust, employee benefit plan or other enterprise which such person is or was serving at
the request of the Company.




          (b) “Enterprise” shall mean the Company and any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at
the request of the Company as a director, officer, employee, agent or fiduciary.




          (c) “Expenses” shall include all reasonable attorneys’ fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees, and all other disbursements or
expenses of the types customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, being or preparing to be a witness in, or otherwise
participating in, a Proceeding. Expenses also shall include Expenses incurred in connection with
any appeal resulting from any Proceeding, including without limitation the premium, security for,
and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its
equivalent. Expenses, however, shall not include amounts paid in settlement by Indemnitee
or the amount of judgments or fines against Indemnitee.




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          (d) “Independent Counsel” means a law firm, or a partner (or, if applicable, a member)
of such a law firm, that is experienced in matters of corporation law and neither presently is, nor
in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter
material to either such party (other than with respect to matters concerning the Indemnitee under
this Agreement or other indemnitees under similar indemnification agreements), or (ii) any other
party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term “Independent Counsel” shall not include any person who, under the applicable
standards of professional conduct then prevailing, would have a conflict of interest in
representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under
this Agreement. The Company agrees to pay the reasonable legal fees and related expenses of the
Independent Counsel referred to above arising out of or relating to this Agreement or its
engagement pursuant hereto.




          (e) The term “Proceeding” shall include any threatened, pending or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing
or any other actual, threatened or completed proceeding, whether brought in the right of the
Company or otherwise and whether of a civil, criminal, administrative or investigative nature, in
which Indemnitee was, is or will be involved as a party or otherwise by reason of the fact that
Indemnitee is or was a director of the Company, by reason of any action taken by him or her or of
any action on his or her part while acting as director of the Company, or by reason of the fact
that he or she is or was serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, in each case whether or not serving in such capacity at the time any liability or
expense is incurred for which indemnification, reimbursement, or advancement of expenses can be
provided under this Agreement; provided, however, that the term “Proceeding” shall
not include any action, suit or arbitration initiated by Indemnitee to enforce Indemnitee’s rights
under this Agreement.




     Section 3. Indemnity in Third-Party Proceedings. The Company shall indemnify
Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is, or is threatened
to be made, a party to or a participant in any Proceeding other than a Proceeding by or in the
right of the Company to procure a judgment in its favor. Pursuant to this Section 3, Indemnitee
shall be indemnified against all Expenses, judgments, fines and amounts paid in settlement actually
and reasonably incurred by Indemnitee or on his or her behalf in connection with such Proceeding or
any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the Company and, in the case
of a criminal proceeding, had no reasonable cause to believe that his or her conduct was unlawful.
Indemnitee shall not enter into any settlement in connection with a Proceeding without (a) thirty
(30) days prior notice to the Company and (b) the Company’s prior written consent to the terms of
such settlement, which consent shall not be unreasonably withheld.



     Section 4. Indemnity in Proceedings by or in the Right of the Company. The Company
shall indemnify Indemnitee in accordance with the provisions of this Section 4 if Indemnitee is, or
is threatened to be made, a party to or a participant in any Proceeding by or in the right of the
Company to procure a judgment in its favor. Pursuant to this Section 4, Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred by him or her or on his or her
behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee
acted



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in good faith and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Company. No indemnification for Expenses shall be made under this Section 4
in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudged by
a court to be liable to the Company, unless and only to the extent that the Delaware Court of
Chancery (the “Delaware Court”) or any court in which the Proceeding was brought shall
determine upon application that, despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification for such
expenses as the Delaware Court or such other court shall deem proper.



     Section 5. Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provisions of this Agreement, to the extent that Indemnitee is a party
to or a participant in and is successful, on the merits or otherwise, in any Proceeding or in
defense of any claim, issue or matter therein, in whole or in part, the Company shall indemnify
Indemnitee against all Expenses actually and reasonably incurred by him or her in connection
therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the
merits or otherwise, as to one or more but less than all claims, issues or matters in such
Proceeding, the Company shall indemnify Indemnitee against (a) all Expenses actually and reasonably
incurred by him or her or on his or her behalf in connection with each successfully resolved claim,
issue or matter and (b) any claim, issue or matter related to any such successfully resolved claim,
issue or matter. For purposes of this Section and without limitation, the termination of any
claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be
deemed to be a successful result as to such claim, issue or matter.



     Section 6. Indemnification for Expenses of a Witness. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is, by reason of his or her Corporate
Status, a witness in any Proceeding to which Indemnitee is not a party, he or she shall be
indemnified against all Expenses actually and reasonably incurred by him or her or on his or her
behalf in connection therewith.



     Section 7. Additional Indemnification.



          (a) Notwithstanding any limitation in Sections 3, 4, or 5 hereof, the Company shall indemnify
Indemnitee to the fullest extent permitted by law if Indemnitee is, or is threatened to be made, a
party to any Proceeding (including a Proceeding by or in the right of the Company to procure a
judgment in its favor) against all Expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by Indemnitee in connection with the Proceeding.




          (b) For purposes of Section 7(a), the meaning of the phrase “to the fullest extent permitted
by law” shall include, but not be limited to:




               (i) to the fullest extent permitted by the provision of the DGCL that authorizes or
contemplates additional indemnification by agreement, or the corresponding provision of any
amendment to or replacement of the DGCL or such provision thereof; and



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               (ii) to the fullest extent authorized or permitted by any amendments to or replacements of the
DGCL adopted after the date of this Agreement that increase the extent to which a corporation may
indemnify its officers and directors.



     Section 8. Exclusions. Notwithstanding any provision in this Agreement to the
contrary, the Company shall not be obligated under this Agreement to make any indemnity in
connection with:



          (a) any claim made against Indemnitee for which payment has actually been made to or on behalf
of Indemnitee under any insurance policy or other indemnity provision, except with respect to any
excess beyond the amount paid under any insurance policy or other indemnity provision;




          (b) any claim made against Indemnitee for an accounting of profits made from the purchase and
sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of
Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state
statutory law or common law;




          (c) any claim made against Indemnitee for which payment is prohibited by applicable law; or




          (d) any claim initiated or brought voluntarily by Indemnitee and not by way of defense, except
(i) with respect to actions or proceedings brought to establish or enforce a right to receive an
advance of Expenses or indemnification of any amounts under this Agreement or any other agreement
or insurance policy or under the Charter or bylaws of the Company now or hereafter in effect
relating to indemnification and the advancement of Expenses, (ii) in specific cases if the Board
has approved the initiation or bringing of such claim, or (iii) as otherwise required under the
DGCL.




     Section 9. Advances of Expenses. The Company shall advance, to the extent not
prohibited by applicable law, the Expenses incurred by Indemnitee in connection with any
Proceeding, and such advancement shall be made within thirty (30) days after the receipt by the
Company of a statement or statements requesting such advances (which shall include invoices
received by Indemnitee in connection with such Expenses; provided, however. that ,
in the case of invoices in connection with legal services, any references to legal work performed
or to expenditures made that would cause Indemnitee to waive any privilege accorded by applicable
law shall not be included with the invoice) from time to time, whether prior to or after final
disposition of any Proceeding. Advances shall be unsecured and interest free. Advances shall be
made without regard to Indemnitee’s ability to repay the expenses and without regard to
Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement.
Advances shall include any and all reasonable Expenses incurred pursuing an action to enforce this
right of advancement, including Expenses incurred preparing and forwarding statements to the
Company to support the advances claimed. The Indemnitee shall qualify for advances upon the
execution and delivery to the Company of this Agreement which shall constitute an undertaking
providing that the Indemnitee undertakes to the fullest extent required by law to repay the advance
if and to the extent that it is ultimately determined by a court of competent jurisdiction in a
final judgment, not subject to appeal, that Indemnitee is not entitled to be indemnified by the
Company. This Section 9 shall not apply to



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any claim made by Indemnitee for which indemnity is excluded pursuant to Section 8. The right
to advances under this paragraph shall in all events continue until final disposition of any
Proceeding, including any appeal therein.



     Section 10. Procedure for Notification and Defense of Claim.



          (a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a
written request therefor.




          (b) The Company will be entitled to participate in the Proceeding at its own expense.




     Section 11. Procedure Upon Application for Indemnification.



          (a) Upon written request by Indemnitee for indemnification pursuant to Section 10(a), a
determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto
shall be made in the specific case by Independent Counsel in a written opinion to the Board, a copy
of which shall be delivered to Indemnitee and, if it is so determined that Indemnitee is entitled
to indemnification, payment to Indemnitee shall be made within ten (10) days after such
determination. Indemnitee shall cooperate with the Independent Counsel making such determination
with respect to Indemnitee’s entitlement to indemnification, including providing to such counsel
upon reasonable advance request any documentation or information which is not privileged or
otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably
necessary to such determination. Any costs or expenses (including attorneys’ fees and
disbursements) incurred by Indemnitee in so cooperating with the Independent Counsel shall be borne
by the Company (irrespective of the determination as to Indemnitee’s entitlement to
indemnification), and the Company hereby indemnifies and agrees to hold Indemnitee harmless
therefrom.




          (b) The Independent Counsel shall be selected by Indemnitee and shall be the same law firm or
partner (or, if applicable, member) as is acting as “Independent Counsel” or in a similar role for
other indemnitees under indemnification agreements similar to this Agreement, unless such law firm,
partner (or, if applicable, member), under applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing Indemnitee and such other
indemnitees. The Company may, within ten (10) days after written notice of such selection, deliver
to the Indemnitee a written objection to such selection; provided, however, that
such objection may be asserted only on the ground that the Independent Counsel so selected does not
meet the requirements of “Independent Counsel” as defined in Section 2 of this Agreement, and the
objection shall set forth with particularity the factual basis of such assertion. Absent a proper
and timely objection, the person so selected shall act as Independent Counsel. If such written
objection is so made and substantiated, the Independent Counsel so selected may not serve as
Independent Counsel unless and until such objection is withdrawn or a court has determined that
such objection is without merit. If, within twenty (20) days after the later of submission by
Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof, and the final
disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been
selected and not objected to, the Indemnitee may petition a court of competent jurisdiction for
resolution of any objection which




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shall have been made by the Company to the selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the court or by such other person as the
court shall designate, and the person with respect to whom all objections are so resolved or the
person so appointed shall act as Independent Counsel under Section 11(a) hereof. Upon the due
commencement of any judicial proceeding or arbitration pursuant to Section 13(a) of this Agreement,
Independent Counsel shall be discharged and relieved of any further responsibility in such capacity
(subject to the applicable standards of professional conduct then prevailing).




     Section 12. Presumptions and Effect of Certain Proceedings.



          (a) In making a determination with respect to entitlement to indemnification hereunder, the
Independent Counsel making such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a request for indemnification in
accordance with Section 10(a) of this Agreement, and the Company shall have the burden of proof to
overcome that presumption in connection with the making by the Independent Counsel of any
determination contrary to that presumption. Neither the failure of the Company or of Independent
Counsel to have made a determination prior to the commencement of any action pursuant to this
Agreement that indemnification is proper in the circumstances because Indemnitee has met the
applicable standard of conduct, nor an actual determination by the Company or by Independent
Counsel that Indemnitee has not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that Indenmitee has not met the applicable standard of conduct.




          (b) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of guilty, nolo contendere or its
equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself
adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee
did not act in good faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the Company or, with respect to any criminal Proceeding, that
Indemnitee had reasonable cause to believe that his or her conduct was unlawful.




          (c) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted
in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise,
including financial statements, or on information supplied to Indemnitee by the officers of the
Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or
the Board or counsel selected by any committee of the Board or on information or records given or
reports made to the Enterprise by an independent certified public accountant or by an appraiser,
investment banker or other expert selected with reasonable care by the Company or the Board or any
committee of the Board. The provisions of this Section 12(c) shall not be deemed to be exclusive
or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met
the applicable standard of conduct set forth in this Agreement.




          (d) The knowledge and/or actions, or failure to act, of any director, officer, agent or
employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right
to indemnification under this Agreement.




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     Section 13. Remedies of Indemnitee.



          (a) Subject to Section 13(e), in the event that (i) a determination is made pursuant to
Section 11 of this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 9 of this Agreement,
(iii) no determination of entitlement to indemnification shall have been made pursuant to
Section 11(a) of this Agreement within ninety (90) days after receipt by the Company of the request
for indemnification, (iv) payment of indemnification is not made pursuant to Section 5 or 6 or the
last sentence of Section 11(a) of this Agreement within ten (10) days after receipt by the Company
of a written request therefor, or (v) payment of indemnification pursuant to Section 3, 4 or 7 of
this Agreement is not made within ten (10) days after a determination has been made that Indemnitee
is entitled to indemnification, Indemnitee shall be entitled to an adjudication by a court of his
or her entitlement to such indemnification or advancement of Expenses. Indemnitee shall commence
such proceeding seeking an adjudication within 180 days following the date on which Indemnitee
first has the right to commence such proceeding pursuant to this Section 13(a); provided,
however, that the foregoing clause shall not apply in respect of a proceeding brought by
Indemnitee to enforce his or her rights under Section 5 of this Agreement. The Company shall not
oppose Indemnitee’s right to seek any such adjudication.




          (b) In the event that a determination shall have been made pursuant to Section 11(a) of this
Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding commenced
pursuant to this Section 13 shall be conducted in all respects as a de novo trial on the merits and
Indemnitee shall not be prejudiced by reason of that adverse determination. In any judicial
proceeding commenced pursuant to this Section 13 the Company shall have the burden of proving
Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be.




          (c) If a determination shall have been made pursuant to Section 11(a) of this Agreement that
Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any
judicial proceeding commenced pursuant to this Section 13, absent (i) a misstatement by Indemnitee
of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not
materially misleading, in connection with the request for indemnification, or (ii) a prohibition of
such indemnification under applicable law.




          (d) The Company shall be precluded from asserting in any judicial proceeding commenced
pursuant to this Section 13 that the procedures and presumptions of this Agreement are not valid,
binding and enforceable and shall stipulate in any such court or before any such arbitrator that
the Company is bound by all the provisions of this Agreement. The Company shall indemnify
Indemnitee against any and all Expenses and, if requested by Indemnitee, shall (within ten (10)
days after receipt by the Company of a written request therefor) advance, to the extent not
prohibited by law, such Expenses to Indemnitee, which are incurred by Indemnitee in connection with
any action brought by Indemnitee for indemnification or advance of Expenses from the Company under
this Agreement or under any directors’ and officers’ liability insurance policies maintained by the




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Company, regardless of whether Indemnitee ultimately is determined to be entitled to such
indemnification, advancement of Expenses or insurance recovery, as the case may be.




          (e) Notwithstanding anything in this Agreement to the contrary, no determination as to
entitlement to indemnification under this Agreement shall be required to be made prior to the final
disposition of the Proceeding, including any appeal therein.




     Section 14. Non-exclusivity, Survival of Rights; Insurance Subrogation.



          (a) The rights of indemnification and to receive advancement of Expenses as provided by this
Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be
entitled under applicable law, the Charter, the Company’s Bylaws, any agreement, a vote of
stockholders or a resolution of directors, or otherwise. No amendment, alteration or repeal of
this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under
this Agreement in respect of any action taken or omitted by such Indemnitee in his or her Corporate
Status prior to such amendment, alteration or repeal. To the extent that a change in Delaware law,
whether by statute or judicial decision, permits greater indemnification or advancement of Expenses
than would be afforded currently under the Charter, Bylaws and this Agreement, it is the intent of
the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded
by such change. No right or remedy herein conferred is intended to be exclusive of any other right
or remedy, and every other right and remedy shall be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other right or remedy.




          (b) To the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, or agents of the Company or of any other
Enterprise, Indemnitee shall be covered by such policy or policies in accordance with its or their
terms to the maximum extent of the coverage available for any such director, officer, employee or
agent under such policy or policies. If, at the time of the receipt of a notice of a claim
pursuant to the terms hereof, the Company has director and officer liability insurance in effect,
the Company shall give prompt notice of the commencement of such proceeding to the insurers in
accordance with the procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee,
all amounts payable as a result of such proceeding in accordance with the terms of such policies.




          (c) In the event of any payment under this Agreement, the Company shall be subrogated to the
extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers
required and take all action necessary to secure such rights, including execution of such documents
as are necessary to enable the Company to bring suit to enforce such rights.




          (d) The Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder (or for which advancement is provided hereunder) if and to the
extent that Indemnitee has otherwise actually received such payment under any insurance policy,
contract, agreement or otherwise.




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          (e) The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is
or was serving at the request of the Company as a director, officer, employee or agent of any other
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall be
reduced by any amount Indemnitee has actually received as indemnification or advancement of
Expenses from such other corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise.




     Section 15. Duration of Agreement. This Agreement shall continue until and terminate
upon the later of (a) ten (10) years after the date that Indemnitee shall have ceased to serve as a
director of the Company or (b) one (1) year after the final termination of any Proceeding,
including any appeal, then pending in respect of which Indemnitee is granted rights of
indemnification or advancement of Expenses hereunder and of any proceeding commenced by Indemnitee
pursuant to Section 13 of this Agreement relating thereto. This Agreement shall be binding upon
the Company and its successors and assigns and shall inure to the benefit of Indemnitee and his or
her heirs, executors and administrators. The Company shall require and cause any successor
(whether direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially
all or a substantial part, of the business and/or assets of the Company, by written agreement in
form and substance satisfactory to the Indemnitee, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be required to perform
if no such succession had taken place.



     Section 16. Severability. If any provision or provisions of this Agreement shall be
held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality
and enforceability of the remaining provisions of this Agreement (including without limitation,
each portion of any Section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any
way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by
law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform
to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to
the fullest extent possible, the provisions of this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any such provision held to be invalid, illegal
or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to
give effect to the intent manifested thereby.



     Section 17. Enforcement.



          (a) The Company expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director
of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in
serving as a director of the Company.




          (b) This Agreement constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and understandings, oral, written and
implied, between the parties hereto with respect to the subject matter hereof; provided,
however, that this Agreement is a supplement to and in furtherance of the Charter of the




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Company, the Bylaws of the Company and applicable law, and shall not be deemed a substitute
therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.




     Section 18. Modification and Waiver. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by the parties thereto. No waiver of any of
the provisions of this Agreement shall be deemed or shall constitute a waiver of any other
provisions of this Agreement nor shall any waiver constitute a continuing waiver.



     Section 19. Noticed Indemnitee. Indemnitee agrees promptly to notify the Company in
writing upon being served with any summons, citation, subpoena, complaint, indictment, information
or other document relating to any Proceeding or matter which may be subject to indemnification or
advancement of Expenses covered hereunder. The failure of Indemnitee to so notify the Company
shall not relieve the Company of any obligation which it may have to the Indemnitee under this
Agreement or otherwise.



     Section 20. Notices. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered by
hand and receipted for by the party to whom said notice or other communication shall have been
directed, (b) mailed by certified or registered mail with postage prepaid, on the third business
day after the date on which it is so mailed, (c) mailed by reputable overnight courier and
receipted for by the party to whom said notice or other communication shall have been directed or
(d) sent by facsimile transmission, with receipt of oral confirmation that such transmission has
been received:



          (a) If to Indemnitee, at such address as Indemnitee shall provide to the Company.




          (b) If to the Company to:



Catalytica Energy Systems, Inc.

Attn: CEO

1388 N. Tech Blvd.

Gilbert, AZ 85233



with a copy to:



Wilson Sonsini Goodrich & Rosati, P.C.

Attn: Brian C. Erb

650 Page Mill Road

Palo Alto, CA 94304



or to any other address as may have been furnished to Indemnitee by the Company.




     Section 21. Contribution. To the fullest extent permissible under applicable law, if
the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason
whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount
incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to
be paid in settlement and/or for Expenses, in connection with any claim relating to an
indemnifiable



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event under this Agreement, in such proportion as is deemed fair and reasonable in light of
all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received
by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to
such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers,
employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).



     Section 22. Applicable Law and Consent to Jurisdiction. This Agreement and the legal
relations among the parties shall be governed by, and construed and enforced in accordance with,
the laws of the State of Delaware, without regard to its conflict of laws rules. Except with
respect to any arbitration commenced by Indemnitee pursuant to Section 13(a) of this Agreement, the
Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or
proceeding arising out of or in connection with this Agreement shall be brought only in the
Delaware Court, and not in any other state or federal court in the United States of America or any
court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Delaware
Court for purposes of any action or proceeding arising out of or in connection with this Agreement,
(iii) appoint, to the extent such party is not otherwise subject to service of process in the State
of Delaware, The Corporation Trust Company, Wilmington, Delaware as its agent in the State of
Delaware as such party’s agent for acceptance of legal process in connection with any such action
or proceeding against such party with the same legal force and validity as if served upon such
party personally within the State of Delaware, (iv) waive any objection to the laying of venue of
any such action or proceeding in the Delaware Court, and (v) waive, and agree not to plead or to
make, any claim that any such action or proceeding brought in the Delaware Court has been brought
in an improper or inconvenient forum.



     Section 23. Identical Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original but all of which
together shall constitute one and the same Agreement. Only one such counterpart signed by the
party against whom enforceability is sought needs to be produced to evidence the existence of this
Agreement.



          (a) Miscellaneous. The headings of the paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.




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     IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year
first above written.



	 	 	 	 	 
	 	CATALYTICA ENERGY SYSTEMS, INC.

 	 
	 	By:  	 	 
	 	 	[Name] 	 
	 	 	[Title] 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	[Indemnitee] 	 
	 	 	[Name] 	 
	 




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