Common use of Alternative Proposals Clause in Contracts

Alternative Proposals. Prior to the Effective Time, PanEnergy --------------------- agrees (a) that neither it nor any of its Subsidiaries shall, and it shall direct and use reasonable efforts to cause its officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries or any of the foregoing) not to initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to an Alternative Proposal (as defined below) or engage in any negotiations concerning, or provide any non-public information or data to, or have any discussions with, any person relating to an Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing, and it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.1; and (c) that it will notify Duke immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 8.1 shall prohibit the Board of Directors of PanEnergy from (i) furnishing information (pursuant to a confidentiality letter deemed appropriate by the Board of Directors of PanEnergy) to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide proposal or offer to the stockholders of PanEnergy, to acquire PanEnergy pursuant to a merger, consolidation, share purchase, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) the Board of Directors of PanEnergy determines in good faith upon the advice of outside counsel that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, PanEnergy provides written notice to Duke of the identity of the person or entity making the Alternative Proposal and that it intends to furnish information to, or intends to enter into discussions or negotiations with, such person or entity, (C) PanEnergy keeps Duke informed on a timely basis of the status of any such discussions or negotiations and all terms and conditions thereof and promptly provides Duke with copies of any written inquiries or proposals relating thereto, and (D) in the event that the Board of Directors of PanEnergy determines to accept any such Alternative Proposal (in accordance with subclause (A) above), PanEnergy provides Duke with at least three days' prior written notice thereof, during which time Duke may make, and in such event, PanEnergy shall in good faith consider, a counterproposal to such Alternative Proposal; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.1 shall (x) permit PanEnergy to terminate this Agreement (except as specifically provided in Article 10 hereof), (y) permit PanEnergy to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, PanEnergy shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement deemed appropriate by the Board of Directors of PanEnergy)), or (z) affect any other obligation of PanEnergy under this Agreement. "Alternative Proposal" shall mean any merger, acquisition, consolidation, reorganization, share exchange, tender offer, exchange offer or similar transaction involving PanEnergy or any of PanEnergy's Significant Subsidiaries, or any proposal or offer to acquire in any manner, directly or indirectly, a substantial equity interest in or a substantial portion of the assets of PanEnergy or any of PanEnergy's Significant Subsidiaries. Nothing herein shall prohibit a disposition permitted by Section 7.1(f) hereof.

Alternative Proposals. Prior to the Effective Time, PanEnergy --------------------- agrees (a) From the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with Article 8, except as otherwise permitted hereby, each Exchange Party agrees that neither it will not, nor shall it authorize or permit any of its Subsidiaries shall, officers and directors and it shall direct and will use its reasonable best efforts to cause its officersagents, directorsaffiliates, employeesemployees and advisors not to, agents and representatives (i) solicit, initiate or knowingly encourage (including, without limitationbut not limited to, any investment banker, attorney or accountant retained by it or any way of its Subsidiaries or any of the foregoingfurnishing nonpublic information) not to initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect that constitutes, or is reasonably expected to an Alternative Proposal lead to, any Competing Transaction (as defined below), (ii) enter into or engage in any negotiations concerning, maintain or provide any non-public information or data to, or have any discussions with, any person relating to an Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) that it will immediately cease and cause to be terminated any existing activities, continue discussions or negotiations with any parties conducted heretofore with respect to any Person in furtherance of the foregoing, and it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.1; and (c) that it will notify Duke immediately if any such inquiries or proposals are received byto obtain a Competing Transaction, (iii) agree to any such information is requested from, Competing Transaction or (iv) endorse any such negotiations or discussions are sought to be initiated or continued with, itCompeting Transaction; provided, however, that notwithstanding anything to the contrary contained herein, prior to the date of the Requisite Stockholder Approval, nothing contained in this Section 8.1 6.4 shall in any respect prohibit the Schick Board or the officers, directors, agents, affiliates, emxxxxxxs or advisors of Directors of PanEnergy Schick or its Subsidiaries from (i) furnishing information (pursuant to a confidentiality letter deemed appropriate by the Board of Directors of PanEnergy) to or entering into disclosing inforxxxxxx to, or engaging in discussions or negotiations with, any person or entity Person that makes an unsolicited bona fide written proposal or offer to the stockholders of PanEnergy, to acquire PanEnergy Schick pursuant to a mergerCompeting Transaction (a "Competing Transactxxx Xxoposal"), consolidation, share purchase, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to if the extent that, (A) the Schick Board of Directors of PanEnergy determines acting in good faith upon the advice of outside counsel determines (i) after consultation xxxx its financial advisor that such action Competing Transaction Proposal constitutes or is required reasonably likely to result in a Superior Proposal and (ii) after taking into account any revisions to the terms of the Exchange Transactions or this Agreement proposed by Luxco after being notified pursuant to Section 6.4(c), that doing so is necessary for the Schick Board of Directors to comply with its fiduciary duties to stockholders imposed by the Schick Stoxxxxxxers under applicable law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, PanEnergy provides written notice to Duke of the identity of the person or entity making the Alternative Proposal and that it intends to furnish information to, or intends to enter into discussions or negotiations with, such person or entity, (C) PanEnergy keeps Duke informed on a timely basis of the status of any such discussions or negotiations and all terms and conditions thereof and promptly provides Duke with copies of any written inquiries or proposals relating thereto, and (D) in the event that the Board of Directors of PanEnergy determines to accept any such Alternative Proposal (in accordance with subclause (A) above), PanEnergy provides Duke with at least three days' prior written notice thereof, during which time Duke may make, and in such event, PanEnergy shall in good faith consider, a counterproposal to such Alternative Proposal; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.1 shall (x) permit PanEnergy to terminate this Agreement (except as specifically provided in Article 10 hereof), (y) permit PanEnergy to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, PanEnergy shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement deemed appropriate by the Board of Directors of PanEnergy)), or (z) affect any other obligation of PanEnergy under this Agreement. A "Alternative Proposal" shall mean any merger, acquisition, consolidation, reorganization, share exchange, tender offer, exchange offer or similar transaction involving PanEnergy or any of PanEnergy's Significant Subsidiaries, or any proposal or offer to acquire in any manner, directly or indirectly, a substantial equity interest in or a substantial portion of the assets of PanEnergy or any of PanEnergy's Significant Subsidiaries. Nothing herein shall prohibit a disposition permitted by Section 7.1(f) hereof.

Alternative Proposals. Prior to the Effective Time, PanEnergy --------------------- agrees (a) that neither it Neither the Company nor any --------------------- of its Subsidiaries shall, and it they shall direct and use reasonable efforts to cause its their officers, directors, employees, directors and employees and direct their agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it the Company or any of its Subsidiaries or any of the foregoingSubsidiaries) not to initiate, solicit solicit, or knowingly encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to an Alternative Proposal (as defined below) or engage participate in any negotiations concerning, or provide any non-public confidential information or data to, afford access to the properties, books or records of the Company or its Subsidiaries to, or have any discussions with, any person Person relating to an Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing, and it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.1; and (c) that it will notify Duke immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 8.1 5.1 shall prohibit the Company or its Board of Directors from: (i) at any time prior to obtaining the Company Shareholder Approval (the "Company Applicable Period"), participating in discussions or ------------------------- negotiations with, providing confidential information or data to, or affording access to the properties, books or records of the Company or its Subsidiaries to, any Person who has made, in the good faith judgment of the Board of Directors of PanEnergy from the Company after consultation with their financial advisors, a bona fide written Alternative Proposal that would reasonably be expected to result in a Superior Proposal (ias defined below); provided that: -------- ---- (w) furnishing information (pursuant to a confidentiality letter deemed appropriate such Alternative Proposal was not initiated, solicited or knowingly encouraged by the Board Company, its Subsidiaries or their agents in violation of Directors of PanEnergy) to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide proposal or offer to the stockholders of PanEnergy, to acquire PanEnergy pursuant to a merger, consolidation, share purchase, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent thatthis Section 5.1, (Ax) the Company has complied with its obligations under this Section 5.1, (y) the Board of Directors of PanEnergy the Company, after consultation with outside legal counsel, determines in good faith upon that the advice of outside counsel that such action is required for the Board of Directors failure to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into so participate in discussions or negotiations withnegotiations, such person provide confidential information or entity, PanEnergy provides written notice to Duke data or afford access would result in a breach of the identity fiduciary duty of the person or entity making the Alternative Proposal and that it intends to furnish information to, or intends to enter into discussions or negotiations with, such person or entity, (C) PanEnergy keeps Duke informed on a timely basis of the status of any such discussions or negotiations and all terms and conditions thereof and promptly provides Duke with copies of any written inquiries or proposals relating thereto, and (D) in the event that the Board of Directors of PanEnergy determines the Company to accept any such Alternative Proposal shareholders of the Company under applicable Law and (in accordance with subclause (Az) above), PanEnergy provides Duke with at least three days' prior written notice thereof, during which time Duke may make, and in such event, PanEnergy shall in good faith consider, a counterproposal copy of all the information provided to such Alternative Proposal; and Person is delivered simultaneously to Parent if it has not previously been furnished or made available to Parent or (ii) making such disclosure to the extent applicableCompany's shareholders, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.1 shall (x) permit PanEnergy to terminate this Agreement (except as specifically provided in Article 10 hereof), (y) permit PanEnergy to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, PanEnergy shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement deemed appropriate by if the Board of Directors of PanEnergy))the Company determines in good faith, or after consultation with outside legal counsel, that the failure to disclose such information would result in a breach of the fiduciary duty of the Board of Directors of the Company to the shareholders of the Company under applicable Law. Any actions permitted under clauses (zi) affect and (ii) above, and taken in compliance with the foregoing, shall not be deemed a breach of any other obligation covenant or agreement of PanEnergy under such party contained in this Agreement. "Alternative Proposal" shall mean any merger, acquisition, consolidation, reorganization, share exchange, tender offer, exchange offer or similar transaction involving PanEnergy or any of PanEnergy's Significant Subsidiaries, or any proposal or offer to acquire in any manner, directly or indirectly, a substantial equity interest in or a substantial portion of the assets of PanEnergy or any of PanEnergy's Significant Subsidiaries. Nothing herein shall prohibit a disposition permitted by Section 7.1(f) hereof.

Alternative Proposals. Prior to the Effective Time, PanEnergy --------------------- agrees (a) that neither it nor any Subject to the provisions of its Subsidiaries shallthis Section 8.4, at all times during the period commencing with Effective Date and continuing until the earlier to occur of the termination of this Agreement and the Second Closing Date, the Company shall not, and it shall direct cause its officers and directors not to, and shall use its reasonable best efforts to cause its officers, directors, and its Subsidiaries’ employees, agents investment bankers, attorneys and other advisors or representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries or any collectively with officers and directors of the foregoingCompany, “Representatives”) not to to, (i) solicit, initiate, solicit or encourage, directly or indirectlyinduce any inquiry with respect to, any inquiries or the making making, submission or implementation of any proposal or offer (including, without limitationannouncement of, any proposal or offer which would reasonably be expected to its stockholders) with respect to an Alternative Proposal (as defined below) or engage in any negotiations concerning, or provide any non-public information or data to, or have any discussions with, any person relating to an Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing, and it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.1; and (c) that it will notify Duke immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 8.1 shall prohibit the Board of Directors of PanEnergy from (i) furnishing information (pursuant lead to a confidentiality letter deemed appropriate by the Board of Directors of PanEnergy) to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide proposal or offer to the stockholders of PanEnergy, to acquire PanEnergy pursuant to a merger, consolidation, share purchase, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) the Board of Directors of PanEnergy determines in good faith upon the advice of outside counsel that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, PanEnergy provides written notice to Duke of the identity of the person or entity making the Alternative Proposal and that it intends to furnish information to, or intends to enter into discussions or negotiations with, such person or entity, (C) PanEnergy keeps Duke informed on a timely basis of the status of any such discussions or negotiations and all terms and conditions thereof and promptly provides Duke with copies of any written inquiries or proposals relating thereto, and (D) in the event that the Board of Directors of PanEnergy determines to accept any such Alternative Proposal (in accordance with subclause (A) above), PanEnergy provides Duke with at least three days' prior written notice thereof, during which time Duke may make, and in such event, PanEnergy shall in good faith consider, a counterproposal to such Alternative Proposal; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.1 shall (x) permit PanEnergy to terminate this Agreement (except as specifically provided in Article 10 hereof), (y) permit PanEnergy to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, PanEnergy shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement deemed appropriate by the Board of Directors of PanEnergy)), or (z) affect any other obligation of PanEnergy under this Agreement. "Alternative Proposal" shall mean any merger, acquisition, consolidation, reorganization, share exchange, tender offer, exchange offer or similar transaction involving PanEnergy or any of PanEnergy's Significant Subsidiariesinvolving, or any proposal or offer to purchase or acquire in any manner, directly manner (A) assets representing 10% or indirectly, a substantial equity interest in or a substantial portion more of the assets of PanEnergy the Company and its Subsidiaries, taken as a whole, (B) an equity interest in 10% or more of the Equity Securities or (C) any other transaction that is or would be an alternative to the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an “Axxxxxxxxxx Xxxxxxxx”), (xx) enter into, participate, continue or otherwise engage in discussions or negotiations with, or provide any non-public information to any Person (other than the Purchaser, its Affiliates and its respective representatives) with respect to any inquiries regarding, or the making of, an Acquisition Proposal or that would otherwise reasonably be expected to lead to any Acquisition Proposal, (iii) approve, endorse or recommend any Acquisition Proposal or (iv) enter into or approve any letter of PanEnergy's Significant Subsidiariesintent, agreement in principle, acquisition agreement or similar agreement relating to an Acquisition Proposal. Nothing herein The Company shall prohibit a disposition permitted by Section 7.1(f) hereofimmediately terminate, and shall cause its Representatives to immediately terminate, all discussions or negotiations, if any, that are ongoing as of the date hereof with any third party with respect to an Acquisition Proposal.

Alternative Proposals. Prior to the Effective Time, PanEnergy --------------------- the Company agrees (a) that neither it nor any of its Subsidiaries shall, and it shall direct and use reasonable efforts to cause its officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries or any of the foregoing) not to initiate, solicit or encouragewill not, directly or indirectly, through any inquiries officer, director, agent or otherwise, (i) solicit or initiate, directly or indirectly, or encourage submission of inquiries, proposals or offers from any potential buyer (other than the making Purchaser) relating to the disposition of the assets or implementation securities of the Company, or any part thereof (other than sales of inventory in the ordinary course) or (ii) participate in any discussions or negotiations regarding, or furnish any person with information with respect to, the disposition of the assets or any securities of the Company or any part thereof (any such proposal or offer (including, without limitation, any proposal or offer being hereinafter referred to its stockholders) with respect to as an Alternative Proposal (as defined below) or engage in any negotiations concerning, or provide any non-public information or data to, or have any discussions with, any person relating to an "Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing, and it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.1; and (c) that it will notify Duke immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it"); provided, however, that nothing contained in this Section 8.1 5.1 shall prohibit the Board of Directors of PanEnergy the Company from (i) furnishing information (pursuant to a confidentiality letter deemed appropriate by the Board of Directors of PanEnergy) to or entering into discussions or negotiations with, any person or entity that makes an unsolicited unsolicited, bona fide proposal Alternative Proposal or offer delivers an unsolicited, bona fide, written expression of interest that could reasonably be expected to lead to an Alternative Proposal, which is not subject to the arrangement of financing (other than securities of an acquiror to be issued to holders of shares of Common Stock in an acquisition thereof by merger or consolidation) and that the Board of Directors of the Company in good faith determines (in consultation with its financial advisors) represents a financially superior transaction for the stockholders of PanEnergy, the Company as compared to acquire PanEnergy pursuant to a merger, consolidation, share purchase, share exchange, purchase of a substantial portion of assets, business combination or other similar transactionthe Merger, if, and only to the extent that, (A) the Board of Directors of PanEnergy determines in good faith the Company, based upon the advice of outside counsel counsel, determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, PanEnergy the Company provides written notice to Duke of the identity of Purchaser to the person or entity making the Alternative Proposal and effect that it intends to furnish is furnishing information to, or intends to enter entering into discussions or negotiations with, such person or entity, and (C) PanEnergy subject to the same fiduciary standards as in the preceding clause (A), the Company keeps Duke the Purchaser informed on a timely basis of the status of and all material information with respect to any such discussions or negotiations and all terms and conditions thereof and promptly provides Duke with copies of any written inquiries or proposals relating thereto, and (D) in the event that the Board of Directors of PanEnergy determines to accept any such Alternative Proposal (in accordance with subclause (A) above), PanEnergy provides Duke with at least three days' prior written notice thereof, during which time Duke may make, and in such event, PanEnergy shall in good faith consider, a counterproposal to such Alternative Proposalnegotiations; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.1 5.1 shall (xA) permit PanEnergy the Company to terminate this Agreement (except as specifically provided in Article 10 7 hereof), (yB) permit PanEnergy the Company to enter into any agreement with respect to an Alternative Proposal during the term of for as long as this Agreement remains in effect (it being agreed that during for as long as this Agreement remains in effect, the term of this Agreement, PanEnergy Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement deemed appropriate by the Board of Directors of PanEnergyin customary form)), or (zC) affect any other obligation of PanEnergy the Company under this Agreement. "Alternative Proposal" shall mean any merger, acquisition, consolidation, reorganization, share exchange, tender offer, exchange offer or similar transaction involving PanEnergy or any of PanEnergy's Significant Subsidiaries, or any proposal or offer to acquire in any manner, directly or indirectly, a substantial equity interest in or a substantial portion of the assets of PanEnergy or any of PanEnergy's Significant Subsidiaries. Nothing herein shall prohibit a disposition permitted by Section 7.1(f) hereof.

Alternative Proposals. Prior to From the Effective TimeDate until the Closing of the Transaction contemplated by, PanEnergy --------------------- agrees or termination of, this Agreement, and except for the Excluded Assets used solely in the conduct of the Excluded Businesses, Sellers agree (a) that neither it nor any none of its Subsidiaries them shall, and it they shall direct and use their reasonable best efforts to cause its the officers, directors, employees, agents and representatives of Sellers (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries or any of the foregoingSeller) not to initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal proposals or offer (including, without limitation, any proposal or offer to its stockholdersboard of directors) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or equity or membership interests of, Sellers, the Subsidiary or the Joint Venture (any such proposal or offer being hereinafter referred to as an "Alternative Proposal (as defined belowProposal") or engage in any negotiations concerning, or provide any non-public confidential information or data to, or have any discussions with, any person relating Person to an Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; and (b) that it Sellers will immediately promptly cease and cause to be terminated any existing activities, discussions or negotiations with any parties Persons conducted heretofore with respect to any of the foregoing, and it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.1Section; and (c) that it will notify Duke immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, provided that nothing contained in this Section 8.1 shall prohibit the Board board of Directors directors of PanEnergy any Seller from (i) furnishing information (pursuant to a confidentiality letter deemed appropriate by the Board of Directors of PanEnergy) to or entering into discussions or negotiations with, with any person or entity Person that makes an unsolicited bona fide proposal or offer to the stockholders of PanEnergy, to acquire PanEnergy Sellers, the Subsidiary or the Joint Venture pursuant to a merger, consolidation, share purchase, share exchange, purchase of a substantial portion of assets, business combination or other similar transactiontransactions, if, and only to the extent that, (A) the Board relevant board of Directors of PanEnergy directors determines in good faith upon the advice of outside counsel that such action is required for the Board of Directors board to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations withwith such Person, such person or entity, PanEnergy provides Sellers provide written notice to Duke of Purchasers to the identity of the person or entity making the Alternative Proposal and effect that it intends to furnish is furnishing information to, or intends to enter entering into discussions or negotiations withwith such Person, such person or entity, and (C) PanEnergy keeps Duke subject to any confidentiality agreement with such Person (which Sellers determine in good faith is required to be executed in order for its board to comply with fiduciary duties imposed by law), Sellers keep Purchasers informed on a timely basis of the status (not the terms) of any such discussions or negotiations and all terms and conditions thereof and promptly provides Duke with copies of any written inquiries or proposals relating thereto, and (D) in the event that the Board of Directors of PanEnergy determines to accept any such Alternative Proposal (in accordance with subclause (A) above), PanEnergy provides Duke with at least three days' prior written notice thereof, during which time Duke may make, and in such event, PanEnergy shall in good faith consider, a counterproposal to such Alternative Proposal; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposalnegotiations. Nothing in this Section 8.1 shall (x) permit PanEnergy Sellers to terminate this Agreement (except as specifically provided in Article 10 hereof16), (y) permit PanEnergy Sellers to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, PanEnergy Agreement Sellers shall not enter into any agreement with any person Person that provides for, for or in any way facilitates, facilitates an Alternative Proposal (other than a confidentiality agreement deemed appropriate by the Board of Directors of PanEnergy)in customary form), or (z) affect any other obligation of PanEnergy under this Agreement. "Alternative Proposal" shall mean any merger, acquisition, consolidation, reorganization, share exchange, tender offer, exchange offer or similar transaction involving PanEnergy or any of PanEnergy's Significant Subsidiaries, or any proposal or offer to acquire in any manner, directly or indirectly, a substantial equity interest in or a substantial portion of the assets of PanEnergy or any of PanEnergy's Significant Subsidiaries. Nothing herein shall prohibit a disposition permitted by Section 7.1(f) hereof.

Alternative Proposals. Prior to the Effective Time, PanEnergy --------------------- agrees (a) that neither it nor any Subject to the provisions of its Subsidiaries shallthis Section 8.4, at all times during the period commencing with Effective Date and continuing until the earlier to occur of the termination of this Agreement and the Second Closing Date, the Company shall not, and it shall direct cause its officers and directors not to, and shall use its reasonable best efforts to cause its officers, directors, and its Subsidiaries’ employees, agents investment bankers, attorneys and other advisors or representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries or any collectively with officers and directors of the foregoingCompany, “Representatives”) not to to, (i) solicit, initiate, solicit or encourage, directly or indirectlyinduce any inquiry with respect to, any inquiries or the making making, submission or implementation of any proposal or offer (including, without limitationannouncement of, any proposal or offer which would reasonably be expected to its stockholders) with respect to an Alternative Proposal (as defined below) or engage in any negotiations concerning, or provide any non-public information or data to, or have any discussions with, any person relating to an Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing, and it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.1; and (c) that it will notify Duke immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 8.1 shall prohibit the Board of Directors of PanEnergy from (i) furnishing information (pursuant lead to a confidentiality letter deemed appropriate by the Board of Directors of PanEnergy) to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide proposal or offer to the stockholders of PanEnergy, to acquire PanEnergy pursuant to a merger, consolidation, share purchase, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) the Board of Directors of PanEnergy determines in good faith upon the advice of outside counsel that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, PanEnergy provides written notice to Duke of the identity of the person or entity making the Alternative Proposal and that it intends to furnish information to, or intends to enter into discussions or negotiations with, such person or entity, (C) PanEnergy keeps Duke informed on a timely basis of the status of any such discussions or negotiations and all terms and conditions thereof and promptly provides Duke with copies of any written inquiries or proposals relating thereto, and (D) in the event that the Board of Directors of PanEnergy determines to accept any such Alternative Proposal (in accordance with subclause (A) above), PanEnergy provides Duke with at least three days' prior written notice thereof, during which time Duke may make, and in such event, PanEnergy shall in good faith consider, a counterproposal to such Alternative Proposal; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.1 shall (x) permit PanEnergy to terminate this Agreement (except as specifically provided in Article 10 hereof), (y) permit PanEnergy to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, PanEnergy shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement deemed appropriate by the Board of Directors of PanEnergy)), or (z) affect any other obligation of PanEnergy under this Agreement. "Alternative Proposal" shall mean any merger, acquisition, consolidation, reorganization, share exchange, tender offer, exchange offer or similar transaction involving PanEnergy or any of PanEnergy's Significant Subsidiariesinvolving, or any proposal or offer to purchase or acquire in any manner, directly manner (A) assets representing 10% or indirectly, a substantial equity interest in or a substantial portion more of the assets of PanEnergy the Company and its Subsidiaries, taken as a whole, (B) an equity interest in 10% or more of the Equity Securities or (C) any other transaction that is or would be an alternative to the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an “Acquisition Proposal”), (ii) enter into, participate, continue or otherwise engage in discussions or negotiations with, or provide any non-public information to any Person (other than the Purchaser, its Affiliates and its respective representatives) with respect to any inquiries regarding, or the making of, an Acquisition Proposal or that would otherwise reasonably be expected to lead to any Acquisition Proposal, (iii) approve, endorse or recommend any Acquisition Proposal or (iv) enter into or approve any letter of PanEnergy's Significant Subsidiariesintent, agreement in principle, acquisition agreement or similar agreement relating to an Acquisition Proposal. Nothing herein The Company shall prohibit a disposition permitted by Section 7.1(f) hereofimmediately terminate, and shall cause its Representatives to immediately terminate, all discussions or negotiations, if any, that are ongoing as of the date hereof with any third party with respect to an Acquisition Proposal.

Alternative Proposals. Prior to the Effective Time, PanEnergy --------------------- agrees (a) that neither Except as contemplated hereby, the Company agrees that, prior to the earlier of the Effective Time and the termination of this Agreement pursuant to Section 8.1, it nor shall not, and shall not authorize or permit any of its the Subsidiaries shallto, and it shall direct and use its reasonable best efforts to cause its and the Subsidiaries' directors, officers, directors, employees, agents and agents, representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries or any of the foregoing) not to initiate, solicit or encourageaffiliates, directly or indirectly, not to, solicit, initiate, encourage or facilitate (including by way of furnishing or disclosing non-public information) any inquiries or the making or implementation of any proposal with respect to any merger, consolidation, share exchange, business combination or offer similar event involving the Company or any of the Subsidiaries, or the acquisition of more than 10% of the capital stock of the Company or any of the Subsidiaries or rights with respect thereto, or any material portion of the assets (includingexcept for sales of inventory in the ordinary course of business consistent with past practice) of the Company or any of the Subsidiaries (an "Alternative Transaction") or negotiate, without limitationexplore or otherwise engage in substantive discussions with any Person (other than Purchaser or its respective directors, officers, employees, agents, representatives and affiliates), or enter into any agreement, with respect to any Alternative Transaction or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement; provided that the Company may, prior to the date of the Stockholders Meeting, in response to a bona fide unsolicited written proposal or offer to its stockholders) with respect to an Alternative Proposal Transaction received from a third party after the date of this Agreement (an "Acquisition Proposal"), if, and to the extent that such person first enters into a confidentiality agreement with the Special Committee (as defined belowhereinafter defined) on terms no less favorable to the Company than the terms contained in the Confidentiality Agreement (the "Confidentiality Agreement"), dated February 26, 1999, between the Financial Advisor on behalf of the Special Committee and BRS, furnish or engage in any negotiations concerning, or provide any disclose non-public information or data to, and negotiate, explore or have any otherwise engage in substantive discussions with, any person relating to an Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing, and it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.1; and (c) that it will notify Duke immediately if enter into any such inquiries agreement, arrangement or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued understanding with, it; providedsuch third party, however, that nothing contained in this Section 8.1 shall prohibit the Board of Directors of PanEnergy from if and so long as (i) furnishing information the Special Committee determines in good faith by a majority vote, after consultation with the Financial Advisor (pursuant to a confidentiality letter deemed appropriate by the Board of Directors of PanEnergyor other nationally reputable financial advisor) to or entering into discussions or negotiations with, any person or entity and legal advisors that makes an unsolicited bona fide such proposal or offer (A) is more favorable to the stockholders of PanEnergythe Company (other than any stockholders participating in the buying group with Purchaser as contemplated by this Agreement) from a financial point of view than the transactions contemplated by this Agreement (including any adjustment to the terms and conditions proposed in writing by Purchaser in response to such Acquisition Proposal), (B) is not subject to any material contingency, to acquire PanEnergy pursuant which the other party thereto has not reasonably demonstrated in its written offer its ability to a mergerovercome or address, consolidation, share purchase, share exchange, purchase including the receipt of a substantial portion of assets, business combination government consents or other similar transaction, ifapprovals (including any such approval required under the HSR Act), and (C) is reasonably likely to be consummated and is in the best interests of the Stockholders of the Company (provided that, only for purposes of clauses (B) and (C) above, the Special Committee or its advisors shall be permitted to contact such third party and its advisors solely for the purpose of clarifying the proposal and any material contingencies and the likelihood of consummation) and (ii) the Company has received advice from its outside legal counsel that there is a material risk that failure to negotiate, explore or otherwise engage in substantive discussions with, or enter into an agreement with such third party will constitute a breach of the Board's fiduciary duties under applicable law; provided that, immediately prior to entering into an agreement for an Alternative Transaction, the Company shall have complied with the provisions of Section 8.1(c) hereof, and the Company shall comply with Section 8.3 hereof. Nothing in this Section 6.1 shall prohibit the Company or the Special Committee from making such disclosures to the extent thatCompany's stockholders which, (A) in the Board judgment of Directors of PanEnergy determines in good faith the Special Committee based upon the advice of outside counsel that such action counsel, is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by under applicable law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, PanEnergy provides written notice to Duke of the identity of the person or entity making the Alternative Proposal and that it intends to furnish information to, or intends to enter into discussions or negotiations with, such person or entity, (C) PanEnergy keeps Duke informed on a timely basis of the status of any such discussions or negotiations and all terms and conditions thereof and promptly provides Duke with copies of any written inquiries or proposals relating thereto, and (D) in the event that the Board of Directors of PanEnergy determines to accept any such Alternative Proposal (in accordance with subclause (A) above), PanEnergy provides Duke with at least three days' prior written notice thereof, during which time Duke may make, and in such event, PanEnergy shall in good faith consider, a counterproposal to such Alternative Proposal; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.1 shall (x) permit PanEnergy to terminate this Agreement (except as specifically provided in Article 10 hereof), (y) permit PanEnergy to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, PanEnergy shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement deemed appropriate by the Board of Directors of PanEnergy)), or (z) affect any other obligation of PanEnergy under this Agreement. "Alternative Proposal" shall mean any merger, acquisition, consolidation, reorganization, share exchange, tender offer, exchange offer or similar transaction involving PanEnergy or any of PanEnergy's Significant Subsidiaries, or any proposal or offer to acquire in any manner, directly or indirectly, a substantial equity interest in or a substantial portion of the assets of PanEnergy or any of PanEnergy's Significant Subsidiaries. Nothing herein shall prohibit a disposition permitted by Section 7.1(f) hereof.