ETP has agreed, subject to certain exceptions with respect to unsolicited proposals, not to
directly or indirectly solicit competing acquisition proposals or to enter into discussions concerning, or provide confidential information in connection with, any unsolicited alternative business combinations. However, the ETP Managing GP Board
may, upon recommendation of the ETP Conflicts Committee and subject to certain conditions, change its recommendation in favor of the adoption of the Merger Agreement (i) if, in connection with the receipt of an alternative proposal, it
determines in good faith, after consultation with outside counsel, that the failure to effect such a change in recommendation would be inconsistent with its duties under applicable law, as modified by ETPs partnership agreement, or
(ii) if, in connection with a material event, circumstance, change or development that arises or occurs after the date of the Merger Agreement and that was not reasonably foreseeable at the time of the Merger Agreement, it determines in good
faith that the failure to effect such a change in recommendation would be inconsistent with its duties under applicable law, as modified by ETPs partnership agreement.
The completion of the Merger is subject to the satisfaction or waiver of customary closing conditions, including: (i) approval of the
Merger Agreement by a majority of ETPs common unitholders, (ii) approval of the Merger Agreement by a majority of ETPs unaffiliated common unitholders, (iii) approval for listing of the ETE Common Units issuable as part of the
Merger Consideration on the New York Stock Exchange, (iv) there being no law or injunction prohibiting the consummation of the Merger, (v) expiration or termination of any applicable waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the
HSR Act
), (vi) the effectiveness of a registration statement on Form
S-4,
(vii) subject to specified materiality standards, the accuracy of the
representations and warranties of the other party, (viii) compliance by the other party in all material respects with its covenants, (ix) ETEs issuance of the Class A Units to ETE GP and (x) the receipt by ETE and ETP of
certain tax opinions covering such matters as described in the Merger Agreement.
ETE and ETP have made customary representations and
warranties in the Merger Agreement. The Merger Agreement also contains customary covenants and agreements, including covenants and agreements relating to (i) the conduct of each of ETEs and ETPs business between the date of the
signing of the Merger Agreement and the closing date of the Merger and (ii) the efforts of the parties to cause the Merger to be completed, including actions which may be necessary to cause the expiration or termination of the waiting period
under the HSR Act. Pursuant to the terms of the Merger Agreement, ETE and ETP have agreed to (including to cause their respective subsidiaries to) use their reasonable best efforts to resolve any objections that a governmental authority may assert
under antitrust laws with respect to the Merger, and to avoid or eliminate each and every impediment under any antitrust law that may be asserted by any governmental authority with respect to the Merger, in each case, so as to enable the closing of
the Merger to occur as promptly as practicable and in any event no later than on March 31, 2019, including offering, accepting and agreeing to (i) dispose or hold separate any part of ETEs, ETPs, or their respective
subsidiaries business, operations or assets and (ii) restrict the manner in which ETE, ETP or any of their respective subsidiaries may carry on business in any part of the world. Neither ETE nor ETP may, without the other partys
prior written consent, commit to any disposal, hold separate or other restriction related to its or its subsidiaries businesses, operations or assets.
The Merger Agreement contains certain termination rights for ETE and ETP. The Merger Agreement further provides that, upon termination of the
Merger Agreement under certain circumstances, ETP may be required to reimburse ETEs expenses up to $30 million or pay ETE a termination fee equal to $750 million, less any previous reimbursements by ETP.
The Merger Agreement is attached hereto as Exhibit 2.1 and is incorporated by reference. The foregoing summary has been included to provide
investors and security holders with information regarding the terms of the Merger Agreement and is qualified in its entirety by the terms and conditions of the Merger Agreement. It is not intended to provide any other factual information about ETE,
ETP or their respective subsidiaries and affiliates. The Merger Agreement contains representations and warranties
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