This SUPPORT AGREEMENT, dated as of September 15, 2019 (this Agreement), is by and among Energy Transfer LP, a Delaware limited partnership (Parent), Nautilus Merger Sub LLC, a Delaware limited liability company and wholly owned subsidiary of Parent (Merger Sub and, together with Parent, the Parent Parties), WP SemGroup Holdco LLC, a Delaware limited liability company (Stockholder), and SemGroup Corporation, a Delaware corporation (the Company).
WHEREAS, concurrently with the execution of this Agreement, the Parent Parties and the Company are entering into an Agreement and Plan of Merger, dated as of the date hereof (as amended, supplemented, restated or otherwise modified from time to time, the Merger Agreement), pursuant to which, among other things, Merger Sub will merge with and into the Company (the Merger), with the Company as the surviving entity;
WHEREAS, as of the date hereof, Stockholder is the record and beneficial owner in the aggregate of, and has the right to vote and dispose of 300,000 shares of the Companys Series A Cumulative Perpetual Convertible Preferred Stock, par value $0.01 per share (the Company Preferred Stock)), which represent approximately 85.72% of the issued and outstanding Company Preferred Stock;
WHEREAS, the Merger will result in a Change of Control (as defined in the Certificate of Designations) of the Company and, pursuant to Section 8 of the Certificate of Designations, the holders of Company Preferred Stock, acting by a majority vote of the Company Preferred Stock, are entitled to, among other things, require the Company to redeem the Company Preferred Stock as set forth therein; and
WHEREAS, as a material inducement to the Parent Parties to enter into the Merger Agreement, the Parent Parties have required Stockholder to agree, and Stockholder has agreed, to enter into this agreement and abide by the covenants and obligations with respect to the Covered Shares (as hereinafter defined) set forth herein.
NOW THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements herein contained, and intending to be legally bound hereby, the parties hereto agree as follows:
Section 1.1 Defined Terms. The following capitalized terms, as used in this Agreement, shall have the meanings set forth below. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed thereto in the Merger Agreement.
Certificate of Designations means the Certificate of Designations of Series A Cumulative Perpetual Convertible Preferred Stock of SemGroup Corporation, filed with the Secretary of State of the State of Delaware on January 19, 2018, as amended by Amendment No. 1 dated as of the date hereof.