WAIVER, RELEASE AND SUBSTITUTION
--------------------------------
This WAIVER, RELEASE AND SUBSTITUTION made as of February 17, 1997, by
and between Destec Energy, Inc., a Delaware corporation ("Destec"), The Dow
Chemical Company, a Delaware corporation ("TDCC") and NGC Corporation, a
Delaware corporation ("NGC").
RECITALS
A. Destec entered into certain Compensation Adjustment Agreements
dated November 1, 1991 (the "Compensation Adjustment Agreements");
B. TDCC gave Destec a Guaranty, dated December 18, 1991 (the
"Guaranty"), whereby TDCC agreed to guarantee the performance of Destec of
its covenants and agreements under the Compensation Adjustment Agreements;
C. TDCC has entered into an Agreement and Plan of Merger, dated
February 17, 1997, with NGC, Destec and NGC Acquisition Corporation II (the
"Acquisition Agreement") whereby NGC has agreed to acquire TDCC's interest in
Destec (the "Acquisition");
D. In connection with the Acquisition, TDCC desires to be released from
all of its obligations under or in connection with the Guaranty;
E. In connection with the Acquisition Agreement, NGC has agreed to be
substituted in TDCC's stead, to assume all of TDCC's obligations under or in
connection with the Guaranty and to indemnify TDCC for any and all liability
which may arise under or in connection with said Guaranty;
F. In accordance with the terms and conditions of this Waiver, Release
And Substitution, Destec consents to the substitution of NGC in TDCC's stead
and the assumption by NGC of all of TDCC's obligations under or in connection
with the Guaranty; and
G. In accordance with the terms and conditions of the Guaranty, Destec
and NGC give the waiver and release set forth in this Waiver, Release And
Substitution.
NOW, THEREFORE, in consideration of the premises and the respective
undertakings of the parties set forth below and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, it is
agreed as follows:
1. SUBSTITUTION
Effective as of the Effective Time as that term is defined in the
Acquisition Agreement, NGC is hereby substituted in TDCC's stead and agrees
to assume all of TDCC's rights and obligations under or in connection with
the Guaranty.
2. INDEMNIFICATION
As of the Effective Time, NGC on its own behalf and on behalf of its
successors and assigns, hereby agrees to indemnify and hold harmless TDCC,
its successors and assigns, and each of its officers, shareholders,
directors, partners, agents and employees, and their respective successors
and assigns (each "Indemnified Party" and collectively the "Indemnified
Parties"), and shall not seek contribution from TDCC, or any of the
Indemnified Parties, for any cost, damage, loss, liability, obligation,
penalty, claim, action, suit or expense, including attorneys' fees, imposed,
asserted or incurred in connection with any and all claims, rights, demands,
actions, suits, causes of action, damages, counterclaims, defenses, losses,
costs, obligations, liabilities and expenses of every kind or nature, known
or unknown, suspected or unsuspected, fixed or contingent, foreseen or
unforeseen, liquidated or unliquidated, whether arising heretofore or
hereafter, based upon any actual or alleged fiduciary or other duty or
obligation to Destec, the individuals with whom Destec entered into
Compensation Adjustment Agreements, or either of their respective successors
or assigns, whether based upon common law, statute, or otherwise, in
connection with the obligations set forth in the Guaranty.
3. CONSENT TO SUBSTITUTION
As of the Effective Time, Destec on its own behalf and on behalf of its
successors and assigns, hereby consents to the substitution of NGC in TDCC's
stead and the assumption by NGC of all of TDCC's obligations, under or in
connection with the Guaranty. After the date this Agreement is signed,
Destec and NGC will use reasonable best efforts to obtain the written consent
of the Destec employees with Compensation Adjustment Agreements still covered
by the Guaranty as of the date of this Agreement, which individuals are
listed on Schedule A.
4. WAIVER AND RELEASE
As of the Effective Time, Destec and NGC on their own behalf and on
behalf of their successors and assigns, hereby release and discharge TDCC,
its successors and assigns, and each of its officers, shareholders,
directors, partners, agents and employees, and their respective successors
and assigns (each a "Released Party" and collectively the "Released
Parties"), from any and all claims, rights, demands, actions, suits, causes
of action, damages, counterclaims, defenses, losses, costs, obligations,
liabilities and expenses of every kind or nature, including attorney's fees,
known or unknown, suspected or unsuspected, fixed or contingent, foreseen or
unforeseen, liquidated or unliquidated, whether arising heretofore or
hereafter, based upon any actual or alleged fiduciary or other duty or
obligation to Destec, the individuals with whom Destec entered into
Compensation Adjustment Agreements, or either of their respective successors
or assigns, whether based upon common law, statute, or otherwise, in
connection with the obligations set forth in the Guaranty;
5. MISCELLANEOUS
A. Amendment and Modification: Any amendment or modification made to
this Waiver, Release And Substitution must be so made in a writing signed by
all the parties.
B. Successors and Assigns: This Waiver, Release And Substitution and
the provisions hereof shall inure to the benefit of and be binding upon the
successors and assigns of Destec, NGC and TDCC.
C. No Third-Party Beneficiaries: Except as otherwise expressly
provided nothing in this Waiver, Release And Substitution, expressed or
implied, is intended to confer any rights or remedies upon any person or
entity, other than the parties hereto, the Indemnified Parties and the
Released Parties.
D. Counterparts: This Waiver, Release And Substitution may be executed
in one or more counterparts, all of which together shall constitute one
agreement binding on all parties to this Waiver, Release And Substitution.
E. Applicable Law: This Waiver, Release And Substitution shall be
governed by and construed in accordance with the laws of the State of
Delaware without giving effect to the principles of conflicts of law thereof.
IN WITNESS WHEREOF, the undersigned, intending to be bound
hereby, have duly executed this Waiver, Release And Substitution
as of the day and year first above written.
DESTEC ENERGY, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President, Chief
Financial Officer and Treasurer
THE DOW CHEMICAL COMPANY,
a Delaware Corporation
By: /s/ X.X. Xxxxxxxxx
-----------------------------------------
Name: X.X. Xxxxxxxxx
Title: Corporate Director, Mergers &
Acquisitions
NGC CORPORATION
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President and
General Counsel
SCHEDULE A
P.A. Xxxxx X.X. Xxxxxxxxxxx
X.X. Xxxxxx X.X. Xxxxx
X.X. Xxxxxxx X.X. Xxxxxxxxxxx
B.E. Ybarguen X.X. Xxxxxxx
M.D. Xxxxxx X.X. Xxxxxx
X.X. Xxxxxxxxx X. Xxxx
IN WITNESS WHEREOF, the undersigned, consents to the Waiver, Release And
Substitution by and between Destec Energy, Inc., The Dow Chemical Company and
NGC Corporation made as of February 17, 1997.
By:
--------------------------------------
P.A. Xxxxx
Date:
IN WITNESS WHEREOF, the undersigned, consents to the Waiver, Release And
Substitution by and between Destec Energy, Inc., The Dow Chemical Company and
NGC Corporation made as of February 17, 1997.
By:
--------------------------------------
X.X. Xxxxxx
Date:
IN WITNESS WHEREOF, the undersigned, consents to the Waiver, Release And
Substitution by and between Destec Energy, Inc., The Dow Chemical Company and
NGC Corporation made as of February 17, 1997.
By:
--------------------------------------
X.X. Xxxxxxx
Date:
IN WITNESS WHEREOF, the undersigned, consents to the Waiver, Release And
Substitution by and between Destec Energy, Inc., The Dow Chemical Company and
NGC Corporation made as of February 17, 1997.
By:
--------------------------------------
B.E. Ybarguen
Date:
IN WITNESS WHEREOF, the undersigned, consents to the Waiver, Release And
Substitution by and between Destec Energy, Inc., The Dow Chemical Company and
NGC Corporation made as of February 17, 1997.
By:
--------------------------------------
M.D. Xxxxxx
Date:
IN WITNESS WHEREOF, the undersigned, consents to the Waiver, Release And
Substitution by and between Destec Energy, Inc., The Dow Chemical Company and
NGC Corporation made as of February 17, 1997.
By:
--------------------------------------
X.X. Xxxxxxxxx
Date:
IN WITNESS WHEREOF, the undersigned, consents to the Waiver, Release And
Substitution by and between Destec Energy, Inc., The Dow Chemical Company and
NGC Corporation made as of February 17, 1997.
By:
--------------------------------------
X.X. Xxxxxxxxxxx
Date:
IN WITNESS WHEREOF, the undersigned, consents to the Waiver, Release And
Substitution by and between Destec Energy, Inc., The Dow Chemical Company and
NGC Corporation made as of February 17, 1997.
By:
--------------------------------------
X.X. Xxxxx
Date:
IN WITNESS WHEREOF, the undersigned, consents to the Waiver, Release And
Substitution by and between Destec Energy, Inc., The Dow Chemical Company and
NGC Corporation made as of February 17, 1997.
By:
--------------------------------------
X.X. Xxxxxxxxxxx
Date:
IN WITNESS WHEREOF, the undersigned, consents to the Waiver, Release And
Substitution by and between Destec Energy, Inc., The Dow Chemical Company and
NGC Corporation made as of February 17, 1997.
By:
--------------------------------------
X.X. Xxxxxxx
Date:
IN WITNESS WHEREOF, the undersigned, consents to the Waiver, Release And
Substitution by and between Destec Energy, Inc., The Dow Chemical Company and
NGC Corporation made as of February 17, 1997.
By:
--------------------------------------
X.X. Xxxxxx
Date:
IN WITNESS WHEREOF, the undersigned, consents to the Waiver, Release And
Substitution by and between Destec Energy, Inc., The Dow Chemical Company and
NGC Corporation made as of February 17, 1997.
By:
--------------------------------------
E.L. Xxxxxxx
Date:
IN WITNESS WHEREOF, the undersigned, consents to the Waiver, Release And
Substitution by and between Destec Energy, Inc., The Dow Chemical Company and
NGC Corporation made as of February 17, 1997.
By:
--------------------------------------
X.X. Xxxx
Date:
