exv10w1



 




EXHIBIT 10.1




ASSUMPTION AGREEMENT




     THIS ASSUMPTION AGREEMENT (this “Agreement”), dated as of October 1, 2007, is entered
into by and among Renegy Holdings, Inc., a Delaware Corporation (“Holdings”), Catalytica
Energy Systems, Inc., a Delaware corporation (“Catalytica”), Snowflake Acquisition
Corporation, a Delaware corporation (“Merger Sub”), Renegy, LLC, an Arizona limited
liability company (“Renegy”), Renegy Trucking, LLC, an Arizona limited liability company
(“Renegy Trucking”), Snowflake White Mountain Power, LLC, an Arizona limited liability
company (“Snowflake” and, together with Renegy and Renegy Trucking, the
“Companies”), Robert M. Worsley (“R. Worsley”), Christi M. Worsley (“C.
Worsley”) and the Robert M. Worsley and Christi M. Worsley Revocable Trust (collectively with
R. Worsley and C. Worsley, “Worsley”).



RECITALS




     WHEREAS, Holdings, Catalytica, Merger Sub, the Companies, and Worsley, have entered into that
certain Contribution and Merger Agreement dated as of May 8, 2007, as amended (the “Merger
Agreement”), pursuant to which Catalytica and the Companies shall combine and become wholly
owned subsidiaries of Holdings upon the terms and subject to the conditions set forth therein (the
“Merger and Contribution”); and



     WHEREAS, the Merger Agreement contemplates that this Agreement be executed and delivered at
the Closing of the Merger and Contribution.



     NOW, THEREFORE, in order to induce Worsley and the Companies to enter into the Merger
Agreement and the other documents to be executed and delivered by Worsley and the Companies
thereunder and to consummate the transactions contemplated thereby, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:



     1. Definitions. All capitalized terms used but not defined herein shall have the
respective meanings ascribed to such terms in the Merger Agreement.



     2. Assumption. Subject to the terms and conditions of the Merger Agreement, as of the
Effective Time, Holdings hereby:



          (a) accepts the assignment of rights and hereby assumes and agrees to perform and fulfill the
obligations of Holdings post-Closing that are set forth in the Merger Agreement, including, without
limitation, those rights and obligations set forth in Section 2.10 of the Merger Agreement,
the Employment Agreements and the indemnification obligations set forth under Article XI of
the Merger Agreement; and




          (b) assumes all of the rights and executory obligations of Catalytica under the Zack
Employment Agreement.




     3. Effect on Merger Agreement. This Agreement is made subject to and with the benefit
of the respective representations, warranties, covenants, terms, conditions, limitations and other



 









 




provisions of the Merger Agreement, which are incorporated herein by reference. In the event
of any conflict or other inconsistency between this Agreement and the Merger Agreement, the Merger
Agreement shall control.




     4. Third-Party Beneficiaries. This Agreement shall not confer any rights on any
person not a party hereto.



     5. Further Assurances. Holdings, Catalytica, Worsley and the Companies shall execute
and deliver from time to time hereafter, upon written request, all such further documents and
instruments and shall do and perform all such acts as may be reasonably necessary to give full
effect to the intent of this Agreement.



     6. Binding Effect. This Agreement shall be binding upon, inure to the benefit of, and
be enforceable by and against the respective successors and permitted assigns of the parties
hereto.



     7. Governing Law. This Agreement shall be governed by and construed under the laws of
the State of Delaware, without regard to any jurisdiction’s conflicts of law provisions.



     8. Effective Date. This Agreement shall become effective only upon the Effective
Time.



     9. Severability. If any one or more provisions contained in this Agreement, or the
application of such provision to any person or circumstance, shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.



     10. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.



[Remainder of page intentionally left blank.]



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     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized as of the day and year first above written.



	 	 	 	 	 	 	 
	 	 	RENEGY HOLDINGS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert W. Zack	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Robert W. Zack	 	 
	 

	 	Title:
	 	CEO	 	 
	 
	 	 	 	 	 	 
	 	 	CATALYTICA ENERGY SYSTEMS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert W. Zack	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Robert W. Zack	 	 
	 

	 	Title:
	 	CEO	 	 
	 
	 	 	 	 	 	 
	 	 	SNOWFLAKE ACQUISITION CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert W. Zack	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Robert W. Zack	 	 
	 

	 	Title:
	 	CEO	 	 
	 
	 	 	 	 	 	 
	 	 	RENEGY, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert M. Worsley	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Robert M. Worsley	 	 
	 

	 	Title:
	 	Manager	 	 
	 
	 	 	 	 	 	 
	 	 	RENEGY TRUCKING, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert M. Worsley	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Robert M. Worsley	 	 
	 

	 	Title:
	 	Manager	 	 






[Signature Page to Assumption Agreement]




 









 





	 	 	 	 	 	 	 
	 	 	SNOWFLAKE WHITE MOUNTAIN POWER, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert M. Worsley	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Robert M. Worsley	 	 
	 

	 	Title:
	 	 Manager	 	 
	 
	 	 	 	 	 	 
	 	 	ROBERT M. WORSLEY	 	 
	 
	 	 	 	 	 	 
	 	 	/s/ Robert M. Worsley	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	CHRISTI M. WORSLEY
	 	 
	 
	 	 	 	 	 	 
	 	 	/s/ Christi M. Worsley	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	ROBERT M. WORSLEY AND CHIRSTI M. WORSLEY
REVOCABLE TRUST	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert M. Worsley	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Robert M. Worsley	 	 
	 

	 	Title:
	 	 Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Christi M. Worsley	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Christi M .Worsley	 	 
	 

	 	Title:
	 	Trustee	 	 






[Signature Page to Assumption Agreement]