Williams Cos. Inc. (WMB)

[eastunder]

From the S4

Registration statement regarding the Merger

PAGE 182

http://www.sec.gov/Archives/edgar/data/1648098/000119312515386887/d80568ds4.htm

Termination of the Merger Agreement

The merger agreement may be terminated in accordance with its terms at any time prior to the effective time, whether before or after the requisite approval of WMB’s stockholders is obtained:

by mutual written consent of ETE and WMB; or

by either ETE or WMB:

if the merger is not consummated on or before June 28, 2016, subject to extension by the mutual written agreement of ETE and WMB and further subject to the extension by the written notice of either of ETE and WMB if all closing conditions except certain regulatory approvals are satisfied


(such date being referred to herein as the “outside date”), except that neither party may terminate under these circumstances if the terminating party’s breach of the merger agreement was a principal cause or resulted in the failure to consummate the merger by the outside date;


if any court or governmental entity of competent jurisdiction has issued any final and non-appealable law, injunction, order or other judgment restraining or enjoining the consummation of the transactions in the merger agreement (such stipulation being referred to herein as a “restraint”), except that neither party may terminate under these circumstances if its own failure to perform its obligations under the merger agreement was a principal cause of or resulted in the failure of the consummation of the transactions in the merger agreement; or

if the requisite approval of WMB’s stockholders is not obtained at the special meeting.


By ETE:

if WMB breaches any of its representations or warranties or fails to perform any of the covenants or agreements set forth in the merger agreement, and such breach or failure to perform (a) would give rise to the failure of a closing condition and (b) is incapable of being cured prior to the outside date; or

if WMB makes an adverse recommendation change or willfully and materially breaches its obligations in the merger agreement regarding the solicitation of acquisition proposals.



By WMB:

If either ETC or ETE breaches any of its representations or warranties or fails to perform any of its covenants or agreements set forth in the merger agreement, and such breach or failure to perform (a) would give rise to the failure of a closing condition and (b) is incapable of being cured prior to the outside date; or

at any time prior to obtaining the requisite approval of WMB stockholders in order to accept a superior proposal, provided that WMB simultaneously enters into an associated alternative acquisition agreement and pays the applicable termination fee to ETE pursuant to the merger agreement (as described below).

Effect of Termination

If the merger agreement is validly terminated there will be no liability or obligation on the part of ETC, ETE or WMB to the other parties except as related to the confidentiality of information, termination fees and certain other provisions of the merger agreement, and provided that (a) no party will be relieved from liability for any willful and material breach of any provision of the merger agreement and (b) the confidential disclosure agreement dated as of July 16, 2015, between ETE and WMB, shall survive such termination in accordance with its terms.

Termination Fees and Expenses

If the merger agreement is terminated:

by ETC or ETE following the failure of WMB stockholders to approve the merger proposal at the special meeting, then WMB will reimburse ETE for all out-of-pocket fees and expenses incurred in connection with the merger, up to $50.0 million;

by ETE or WMB due to the breach by the other party of its representations, warranties, covenants or agreements as set forth in the merger agreement, then the breaching party will reimburse all out-of-pocket fees and expenses incurred by the other party in connection with the merger, up to $100.0 million.


WMB will pay ETE a termination fee equal to $1.48 billion, if:

WMB terminates the merger agreement to accept a superior proposal;

ETE terminates the merger agreement due to a change in the WMB Board’s recommendation of the merger to WMB stockholders;

ETE terminates the merger agreement due to a breach by WMB of its non-solicitation obligations; or

(a) after the date of the merger agreement and prior to the special meeting, a takeover proposal is publicly announced, publicly disclosed or otherwise communicated to WMB, which takeover proposal shall not be withdrawn for at least seven business days prior to the special meeting, (b) thereafter, the merger agreement is terminated (i) by either ETE or WMB following the failure of WMB stockholders to approve the Merger Proposal at the special meeting, (ii) by either ETE or WMB for a failure to consummate the merger on or before the outside date, or (iii) by ETE following a breach by WMB of its covenants or agreements not to solicit a takeover proposal, to hold the special meeting, to aid in the preparation of the prospectus/proxy statement or to negotiate with ETE for three business days after informing ETE of a superior proposal and (c) WMB enters into a definitive agreement with respect to a transaction contemplated by a takeover proposal or consummates a takeover proposal within 12 months of the date the merger agreement is terminated.

In the event such a termination fee is paid as described above, payment of such fee is ETC and ETE’s sole and exclusive remedy against WMB and its affiliates, except in the case of a willful and material breach by WMB of certain provisions in the merger agreement.

ETE will reimburse WMB $410 million in respect of a portion of the termination fee payable by WMB to WPZ to terminate the WPZ merger agreement and to reimburse WMB’s expenses in an amount up to $100 million if certain conditions to WMB’s obligation to consummate the merger have not been satisfied and the merger agreement is terminated by ETE or WMB: (i) due to a permanent injunction or final, non-appealable governmental order or action being in effect, (ii) ETE or ETC’s breach of any of its representations, warranties, covenants, or agreements set forth in the merger agreement, or (iii) the failure to consummate the merger within the outside date in certain circumstances.