NO PROVISION OF THIS AGREEMENT SHALL BE MODIFIED, WAIVED
OR DISCHARGED UNLESS THE MODIFICATION, WAIVER OR DISCHARGE IS AGREED TO IN
WRITING AND SIGNED BY THE EMPLOYEE AND BY AN AUTHORIZED OFFICER OF THE COMPANY
(OTHER THAN THE EMPLOYEE).
NO WAIVER BY EITHER PARTY OF ANY BREACH OF, OR OF
COMPLIANCE WITH, ANY CONDITION OR PROVISION OF THIS AGREEMENT BY THE OTHER PARTY
SHALL BE CONSIDERED A WAIVER OF ANY OTHER CONDITION OR PROVISION OR OF THE SAME
CONDITION OR PROVISION AT ANOTHER TIME.
C)
WHOLE AGREEMENT. THIS AGREEMENT AND ANY OUTSTANDING STOCK OPTION
AGREEMENTS REPRESENT THE ENTIRE UNDERSTANDING OF THE PARTIES HERETO WITH RESPECT
TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR ARRANGEMENTS AND
UNDERSTANDINGS REGARDING SAME. OTHER THAN THE AGREEMENTS DESCRIBED IN THE
PRECEDING SENTENCE, NO AGREEMENTS, REPRESENTATIONS OR UNDERSTANDINGS (WHETHER
ORAL OR WRITTEN AND WHETHER EXPRESS OR IMPLIED) WHICH ARE NOT EXPRESSLY SET
FORTH IN THIS AGREEMENT HAVE BEEN MADE OR ENTERED INTO BY EITHER PARTY WITH
RESPECT TO THE SUBJECT MATTER HEREOF.
9
D)
CHOICE OF LAW; JURISDICTION AND VENUE.
THE VALIDITY,
INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL
BE GOVERNED BY, THE LAWS OF THE STATE OF ARIZONA WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
THE PARTIES IRREVOCABLY CONSENT TO THE JURISDICTION AND
VENUE OF THE FEDERAL AND STATE COURTS OF THE COUNTY OF MARICOPA, ARIZONA IN
CONNECTION WITH ANY DISPUTE OR LITIGATION UNDER THIS AGREEMENT, AND THE PARTIES
HEREBY WAIVE ANY RIGHT TO CONTEST THE VALIDITY OF SUCH JURISDICTION AND VENUE.
E)
SEVERABILITY.
THE INVALIDITY OR UNENFORCEABILITY OF ANY
PROVISION OR PROVISIONS OF THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OR
ENFORCEABILITY OF ANY OTHER PROVISION HEREOF, WHICH SHALL REMAIN IN FULL FORCE
AND EFFECT.
F)
WITHHOLDING.
ALL PAYMENTS MADE PURSUANT TO THIS AGREEMENT
WILL BE SUBJECT TO WITHHOLDING OF APPLICABLE INCOME AND EMPLOYMENT TAXES.
G)
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN COUNTERPARTS,
EACH OF WHICH SHALL BE DEEMED AN ORIGINAL, BUT ALL OF WHICH TOGETHER WILL
CONSTITUTE ONE AND THE SAME INSTRUMENT.
IN WITNESS WHEREOF, EACH OF THE PARTIES HAS EXECUTED THIS AGREEMENT, IN THE CASE
OF THE COMPANY BY ITS DULY AUTHORIZED OFFICER, AS OF THE DAY AND YEAR SET FORTH
BELOW.
SCR-TECH, LLC
By:
CESI-SCR, Inc., its sole Member and Manager
By:
/s/ Dom Geraghty
Date:
3/17/05
Dom Geraghty
President, CESI-SCR, Inc.
Catalytica Energy Systems, Inc.
By:
/s/ Mike Murry
Date:
3/17/05
Mike Murry
President and CEO, Catalytica Energy Systems, Inc.
EMPLOYEE
By:
/s/ William J. McMahon, III
Date:
3/17/05
William J. McMahon, III