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) 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 TimeDate, PanEnergy --------------------- the Company agrees (a) that neither it nor any of its Subsidiaries shall, and it shall direct and use reasonable its best 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 foregoingSubsidiaries) not to 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 a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Significant Subsidiaries (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 to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any 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 8.18.7; and (c) that it will notify Duke Parent 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 8.7 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 bona fide proposal or offer to the stockholders of PanEnergy, to acquire PanEnergy the Company 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 the Company 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 the Company provides written notice to Duke of Parent 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 with, such person or entity, entity and (C) PanEnergy the Company keeps Duke Parent promptly informed on a timely basis of the status and all material terms and conditions of any such discussions or negotiations and all terms and conditions thereof and promptly provides Duke with copies (including identities of any written inquiries or proposals relating theretoparties) and, and (D) in the event that the Board of Directors of PanEnergy determines to accept if any such Alternative Proposal (proposal or inquiry is in accordance with subclause (A) above)writing, PanEnergy provides Duke with at least three days' prior written notice furnishes a copy of such proposal or inquiry to Parent as soon as practicable after the receipt 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 8.7 shall (x) permit PanEnergy the Company to terminate this Amended and Restated Agreement (except as specifically provided in Article 10 X hereof), (y) permit PanEnergy the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Amended and Restated Agreement (it being agreed that during the term of this Amended and Restated Agreement, PanEnergy the 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 (z) affect any other obligation of PanEnergy the Company under this Amended and Restated 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 TimeDate, PanEnergy --------------------- the Company agrees (a) that neither it nor any of its Subsidiaries shall, and it shall direct and use reasonable its best 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 foregoingSubsidiaries) not to 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 a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Significant Subsidiaries (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 to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any 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 8.18.9; and (c) that it will notify Duke Parent 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 8.9 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 bona fide proposal or offer to the stockholders of PanEnergy, to acquire PanEnergy the Company 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 the Company 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 the Company provides written notice to Duke of Parent 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 with, such person or entity, entity and (C) PanEnergy the Company keeps Duke Parent promptly informed on a timely basis of the status and all material terms and conditions of any such discussions or negotiations and all terms and conditions thereof and promptly provides Duke with copies (including identities of any written inquiries or proposals relating theretoparties) and, and (D) in the event that the Board of Directors of PanEnergy determines to accept if any such Alternative Proposal (proposal or inquiry is in accordance with subclause (A) above)writing, PanEnergy provides Duke with at least three days' prior written notice furnishes a copy of such proposal or inquiry to Parent as soon as practicable after the receipt 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 8.9 shall (x) permit PanEnergy the Company to terminate this Agreement (except as specifically provided in Article 10 X hereof), (y) permit PanEnergy the Company 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 the 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 (z) 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 the Effective TimeDate, PanEnergy --------------------- the Company agrees (a) that neither it nor any of its Subsidiaries shall, and it shall direct and use reasonable its best efforts to cause it and its Subsidiaries' 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 foregoingSubsidiaries) not to 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 a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or substantially all of the assets or any equity securities of, the Company or any of its Subsidiaries (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 to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any 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 8.19.6; and (c) that it will notify Duke Parent 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; it or any of its Subsidiaries: provided, however, that nothing contained in this Section 8.1 9.6 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 bona fide proposal or offer to the stockholders of PanEnergy, to acquire PanEnergy the Company 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 the Company determines in good faith upon the (after consultation with and based on advice of its outside counsel legal 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 (i) the Company provides written notice to Duke of Parent 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 with, such person or entity, entity and (ii) the Company and such person or entity enter into an appropriate confidentiality agreement with respect to information to be supplied by the Company and (C) PanEnergy the Company keeps Duke Parent promptly informed on a timely basis of the status and all material terms and conditions of any such discussions or negotiations and all terms and conditions thereof and promptly provides Duke with copies (including identities of any written inquiries or proposals relating theretoparties) and, and (D) in the event that the Board of Directors of PanEnergy determines to accept if any such Alternative Proposal (proposal or inquiry is in accordance with subclause (A) above)writing, PanEnergy provides Duke with at least three days' prior written notice furnishes a copy of such proposal or inquiry to Parent as soon as practicable after the receipt 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 9.6 shall (x) permit PanEnergy the Company to terminate this Agreement (except as specifically provided in Article 10 XI hereof), (y) permit PanEnergy the Company 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 the 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 (z) 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 the Effective Time, PanEnergy --------------------- the Company agrees (a) that neither it nor any of its Subsidiaries shall, and nor shall it shall direct and use reasonable efforts to cause or any of its Subsidiaries permit their respective 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 foregoingSubsidiaries) not to to, initiate, 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 a merger, acquisition, consolidation or similar transaction involving, or any purchase of any equity securities of, the Company or all or any significant portion of the assets of the Company or its Subsidiaries (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 or entity relating to an Alternative Proposal, Proposal or otherwise take any action to knowingly 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 person or entity conducted heretofore with respect to any of the foregoing, foregoing and it will take the necessary steps to inform the individuals any such person or entities referred to above entity of the obligations undertaken in under this Section 8.15.1; and (c) that it will notify Duke the Purchaser 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 transactions contemplated by, PanEnergy --------------------- agrees or termination of, this Agreement, Sellers agree (a) that neither it nor any none of its Subsidiaries them shall, and it they shall direct and use reasonable their best efforts to cause its the Subsidiaries and the officers, directors, employees, agents and representatives of Sellers and the Subsidiaries (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries or any of the foregoingSeller) not to 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 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 or any of the Subsidiaries (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 to an Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) that it Sellers will immediately 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 Sellers will notify Duke Buyer 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, itany Seller; provided, however, provided that nothing contained in this Section 8.1 shall prohibit the Board board of Directors directors or trustees 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, any person or entity Person that makes an unsolicited bona fide proposal or offer to the stockholders of PanEnergy, to acquire PanEnergy Sellers or the Subsidiaries 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 or trustees 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 with, such person or entityPerson, PanEnergy provides Sellers provide written notice to Duke of Buyer and Vanguard 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 with, such person or entityPerson, and (C) PanEnergy keeps Duke subject to any confidentiality agreement with such Person (which Sellers determined in good faith was required to be executed in order for its board to comply with fiduciary duties imposed by law), Sellers keep Buyer and Vanguard 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 hereof)8), (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 Sellers shall not enter into any agreement with any person Person that provides for, for or in any way 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 Sellers 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 the Company agrees --------------------- agrees (a) that neither it nor any of its Subsidiaries shall, and nor shall it shall direct and use reasonable efforts to cause or any of its Subsidiaries permit their respective 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 foregoingSubsidiaries) not to to, (x) 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 belowi) a merger, acquisition, consolidation or similar transaction involving, or purchase of (A) any assets of the Company and its Subsidiaries (other than purchases of securities and other investments from the Company's investment portfolio consistent with past practice) or (B) any outstanding shares of Company Common Stock, including any shares not already owned by the Purchaser or the Purchaser Subsidiaries, (ii) any tender offer or exchange offer with respect to shares of Company Common Stock, or (iii) any other transaction the consummation of which could be reasonably expected to impede, interfere with, prevent or materially delay the merger or which could reasonably be expected to dilute materially the benefits to the Purchaser of the transactions contemplated under this Agreement (any such proposal or offer being hereinafter referred to as an "Alternative Proposal") or (y) engage in any negotiations concerning, or provide any non-public confidential information or data to, or have any discussions with, any person relating to an Alternative Proposal (excluding the Merger and the Recapitalization contemplated by this Agreement), or (z) agree to, recommend or approve any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; and (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 notify 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 Purchaser immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or any discussions are sought to be initiated or continued with, it; provided, however, that nothing . Nothing contained in this Section 8.1 5.1 shall prohibit prevent the Board Company or the Special Committee from discussing, for the purpose of Directors determining the terms and conditions 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 Alternative Proposal not solicited in violation of this Agreement provided that 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 Special Committee determines in good faith faith, upon the advice of outside counsel counsel, that such action is required for the Board failure to do so would likely be a breach 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) hereofduties.

Alternative Proposals. Prior to the Effective Time, PanEnergy --------------------- the Company agrees (a) that neither it nor any of its Subsidiaries shall, and nor shall it shall direct and use reasonable efforts to cause or any of its Subsidiaries permit their respective 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 foregoingSubsidiaries) not to to, initiate, 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 a merger, acquisition, consolidation or similar transaction involving, or any purchase of any equity securities of, the Company or all or any significant portion of the assets of the Company or its Subsidiaries (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 or entity relating to an Alternative Proposal, Proposal or otherwise take any action to knowingly 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 person or entity conducted heretofore with respect to any of the foregoing, foregoing and it will take the necessary steps to inform the individuals any such person or entities referred to above entity of the obligations undertaken in under this Section 8.15.1; and (c) that it will notify Duke the Purchaser 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 that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by lawcounsel, (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 that 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.action

Alternative Proposals. Prior to the Effective TimeDate, PanEnergy --------------------- the Company agrees (a) that neither it nor any of its Subsidiaries shall, and it shall direct and use reasonable its best 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 foregoingSubsidiaries) not to 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 a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Significant Subsidiaries (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 to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any 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 8.18.7; and (c) that it will notify Duke Parent 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 8.7 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 bona fide proposal or offer to the stockholders of PanEnergy, to acquire PanEnergy the Company 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 the Company 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 the Company provides written notice to Duke of Parent 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 with, such person or entity, entity and (C) PanEnergy the Company keeps Duke Parent promptly informed on a timely basis of the status and all material terms and conditions of any such discussions or negotiations and all terms and conditions thereof and promptly provides Duke with copies (including identities of any written inquiries or proposals relating theretoparties) and, and (D) in the event that the Board of Directors of PanEnergy determines to accept if any such Alternative Proposal (proposal or inquiry is in accordance with subclause (A) above)writing, PanEnergy provides Duke with at least three days' prior written notice furnishes a copy of such proposal or inquiry to Parent as soon as practicable after the receipt 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.18

Alternative Proposals. Prior to The Company agrees (a) that, between the date hereof and the Effective Time, PanEnergy --------------------- agrees (a) that neither it nor any of its Subsidiaries shall, and it shall direct and use reasonable its best 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 foregoingSubsidiaries) not to 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 a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Subsidiaries (any such proposal or offer being hereinafter referred to as an Alternative Proposal (as defined below"ALTERNATIVE PROPOSAL") or engage 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 any of 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 such parties of the obligations undertaken in this Section 8.1SECTION 6.1; and (c) that it will notify Duke Parent immediately of the identity of the potential acquirer and the terms of such Person's or entity's proposal 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, itthe Company; provided, however, that nothing contained in this Section 8.1 SECTION 6.1 shall prohibit the Board Company or its Subsidiaries, upon approval of Directors of PanEnergy the Special Committee, from (i) prior to the acceptance for payment of shares of Common Stock by Purchaser pursuant to the Offer, furnishing information (pursuant to a confidentiality letter deemed appropriate by the Board of Directors of PanEnergy) to to, or entering into discussions or negotiations with, any person Person or entity that makes an unsolicited bona fide proposal or offer to the stockholders of PanEnergy, to acquire PanEnergy the Company pursuant to a merger, consolidation, share purchase, share exchange, purchase of substantially all of the assets of the Company, a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) such proposal was not initially solicited, encouraged or knowingly facilitated by the Board Company, its Subsidiaries or their agents in violation of Directors of PanEnergy this SECTION 6.1, (B) such proposal is not subject to a financing condition and involves consideration that provides a higher value per share than the Merger Consideration, (C) the Company Board, or the Company's directors constituting the Special Committee, determines in good faith upon based on the advice of outside counsel that the failure to take such action is required for the Board of Directors to comply would be inconsistent with its fiduciary duties to stockholders imposed by lawLaw, and (BD) prior to furnishing such information to, or entering into discussions or negotiations with, such person Person or entity, PanEnergy the Company provides written notice to Duke of Parent 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 with, such person Person or entity, (C) PanEnergy keeps Duke . The Company shall keep Parent immediately informed on a timely basis of the status of any such discussions or negotiations (including the identify of such Person or entity and all the 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) aboveproposal), 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 14e-2(a) promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.1 SECTION 6.1 shall (x) permit PanEnergy the Company to terminate this Agreement (except as specifically provided in Article 10 ARTICLE 8 hereof), (y) permit PanEnergy the Company 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 the Company under this Agreement. "Notwithstanding anything to the contrary in this SECTION 6.1, Parent and Purchaser have advised the Company Board that they have no intention of selling the Parent Shares or the Shares acquired by Purchaser in the Offer pursuant to such an 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 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 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 Company agrees (a) that, between the date hereof and the Effective Time, PanEnergy --------------------- agrees (a) that neither it nor any of its Subsidiaries shall, and it shall direct and use reasonable its best 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 foregoingSubsidiaries) not to 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 a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Subsidiaries (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, afford access to the properties, books or records of the Company or any of 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 such parties of the obligations undertaken in this Section 8.16.1; and (c) that it will notify Duke Parent immediately of the identity of the potential acquirer and the terms of such Person's or entity's proposal 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, itthe Company; provided, however, that nothing contained in this Section 8.1 6.1 shall prohibit the Board Company or its Subsidiaries, upon approval of Directors of PanEnergy the Special Committee, from (i) prior to the acceptance for payment of shares of Common Stock by Purchaser pursuant to the Offer, furnishing information (pursuant to a confidentiality letter deemed appropriate by the Board of Directors of PanEnergy) to to, or entering into discussions or negotiations with, any person Person or entity that makes an unsolicited bona fide proposal or offer to the stockholders of PanEnergy, to acquire PanEnergy the Company pursuant to a merger, consolidation, share purchase, share exchange, purchase of substantially all of the assets of the Company, a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) such proposal was not initially solicited, encouraged or knowingly facilitated by the Board Company, its Subsidiaries or their agents in violation of Directors of PanEnergy this Section 6.1, (B) such proposal is not subject to a financing condition and involves consideration that provides a higher value per share than the Merger Consideration, (C) the Company Board, or the Company's directors constituting the Special Committee, determines in good faith upon based on the advice of outside counsel that the taking of such action is required for the Board of Directors to comply would be inconsistent with its fiduciary duties to stockholders imposed by lawLaw, and (BD) prior to furnishing such information to, or entering into discussions or negotiations with, such person Person or entity, PanEnergy the Company provides written notice to Duke of Parent 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 with, such person Person or entity, (C) PanEnergy keeps Duke . The Company shall keep Parent immediately informed on a timely basis of the status of any such discussions or negotiations (including the identify of such Person or entity and all the 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) aboveproposal), 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 14e-2(a) promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.1 6.1 shall (x) permit PanEnergy the Company to terminate this Agreement (except as specifically provided in Article 10 8 hereof), (y) permit PanEnergy the Company 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 the Company under this Agreement. "Notwithstanding anything to the contrary in this Section 6.1, Parent and Purchaser have advised the Company Board that they have no intention of selling the Parent Shares or the Shares acquired by Purchaser in the Offer pursuant to such an 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.