FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT
Exhibit 2.2
Execution Copy
This FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT (this “Amendment”) is entered into as of
April 29, 2011, by and among Ergon, Inc., a Mississippi corporation (“Seller”), Lion Oil Company,
an Arkansas corporation (“Lion”), and Delek US Holdings, Inc., a Delaware corporation (“Buyer”).
Each of Seller, Lion and Buyer may be referred to herein individually as a “Party,” and
collectively as the “Parties.”
WITNESSETH:
A. The Parties have entered into that certain Stock Purchase Agreement dated as of March 17,
2011 (the “Stock Purchase Agreement”).
B. The Parties now desire to amend the Stock Purchase Agreement to change certain provisions
of the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual agreements herein contained and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree, effective as of the date of this Amendment, as follows:
1. Definitions. Capitalized terms used in this Amendment that are defined in the
Stock Purchase Agreement shall have the respective meanings ascribed to them in the Stock Purchase
Agreement unless otherwise defined herein.
2. Definition of Seller Credit Enhancements. The definition of “Seller Credit
Enhancements” in Section 1.1 of the Stock Purchase Agreement is amended and restated to
read as follows:
“Seller Credit Enhancements” means the letters of credit listed on Schedule
3.2(e) to the Stock Purchase Agreement.
3. Section 3.2(e)(iv). Section 3.2(e)(iv) of the Stock Purchase Agreement is
amended and restated in its entirety to read as follows:
“(iv)
(A) Seller agrees that it shall not withdraw the Shell L/C for a period of 24 months
after the Closing Date, unless Buyer notifies Seller that it may withdraw the Shell
L/C prior to the end of such 24-month period; provided, however, that Seller may
agree to terminate the Shell L/C or reduce the amount of the Shell L/C at any time
to the extent authorized to do so by Shell Trading (US) Company or any court of
competent jurisdiction. Buyer shall reimburse Seller with respect to any draw under
the Shell L/C within two Business Days of Seller’s written request for
reimbursement.
First Amendment to Stock Purchase Agreement
(B) Subject to Buyer’s compliance with the following provisions of this Section
3.2(e)(iv), Seller shall leave in place the letters of credit listed on Schedule
3.2(e) (each such letter of credit being a “Seller L/C”) until the earlier of
60 days after the Closing Date or the expiration date of each respective Seller L/C
as listed on Schedule 3.2(e). Buyer agrees to pay Seller’s reasonably
documented letter of credit and unused capacity fees with respect to each Seller L/C
for the period in which such Seller L/Cs remain in place after the Closing.
(C) At the Closing, Buyer shall, or shall cause Lion Oil Trading & Transportation
to, provide irrevocable standby letters of credit for the benefit of Seller (each
such letter of credit being a “Buyer L/C”), each of which shall be a back-up letter
of credit to a corresponding Seller L/C. Each Buyer L/C shall (i) be issued by a
nationally recognized U.S. banking institution acceptable to Seller, (ii) be in a
form acceptable to Seller, including a face amount equal to the face amount of the
corresponding Seller L/C, (iii) set forth Seller as the sole beneficiary, and (iv)
provide that Seller is entitled to draw upon such Buyer L/C if and to the extent the
corresponding Seller L/C is drawn upon and (v) have an expiration date not less than
10 days after the expiration date of its corresponding Seller L/C; provided,
however, the Buyer L/C corresponding to the Seller L/C-Chevron and the Seller
L/C-Trafigura (April) (both defined in Schedule 3.2(e)) shall have an
expiration date of June 3, 2011, the Buyer L/C corresponding to the Seller
L/C-Trafigura (May) (defined in Schedule 3.2(e)) shall have an expiration
date of July 10, 2011, and the Buyer L/C corresponding to the Seller L/C-Saudi Oil
(defined in Schedule 3.2(e)) shall have an expiration date of June 3, 2011;
provided, further, that the Buyer L/C corresponding to the Seller L/C-Trafigura
(April) shall be for a face amount that is $250,000 less than the face amount of the
Seller L/C-Trafigura (April), and in consideration of that differential, Buyer shall
pay to Seller $250,000 at the Closing, to be held as a deposit which may be applied
by Seller to offset, on a dollar-for-dollar basis and to the extent of such deposit,
any draws upon the Seller L/C-Trafigura (April) (with any amounts not so applied to
be returned by Seller to Buyer within five Business Days following the expiration of
the Seller L/C-Trafigura (April) pursuant to its terms).
(D) Buyer agrees to indemnify, defend and hold Seller harmless from and against any
Claims or Losses in the event and to the extent any Seller L/C is drawn upon by the
beneficiary thereof and Seller does not immediately receive cash from the
corresponding Buyer L/C, in an amount equal to the draw under such Seller L/C.
(E) Buyer agrees to indemnify, defend and hold Seller harmless from and against any
Claims or Losses to the extent arising from that certain Parent Company Guarantee
executed by Seller on March 3, 2008 guaranteeing the obligations of Lion Oil Company
to Saudi Arabian Oil Company (the “Saudi Oil Guarantee”).
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(F) Buyer and Lion shall take such actions as are reasonably necessary in order to
cause the Saudi Oil Guarantee shall be released by Saudi Arabian Oil Company on or
before May 29, 2011. Without limiting the generality of the foregoing, Buyer will
ensure that Lion Oil Trading & Transportation will pay the obligations with respect
to crude deliveries from Saudi Arabian Oil Company or its Affiliates immediately
upon delivery to the Louisiana Offshore Oil Port.”
4. Section 6.13. Article VI of the Stock Purchase Agreement is amended by the
addition of a new Section 6.13 as follows:
“Section 6.13 Reconstitution of Company Boards of Directors. If, after
the delivery of board of director resignations by the individuals listed on
Schedule 3.3(a)(xv), the Closing does not occur on April 29, 2011 for any
reason, Buyer shall cooperate with Seller and Lion to reconstitute the boards of
directors of the Companies to reflect the composition of such boards of directors
immediately prior to the delivery of such resignations.”
5. Schedule 3.2(d) (Inventory Measurement Procedures). Schedule 3.2(d) (Inventory
Measurement Procedures) of the Stock Purchase Agreement is amended as follows:
| i. | The third paragraph of Part I. Section A (Independent Inspection) of
Schedule 3.2(d) is amended and replaced in its entirety to read as follows: |
“The Parties stipulate quantities of unit fill and line fill for the purposes of
this Schedule 3.2(d) to be as follows as of the date of the Agreement, with any
changes to be approved by the Inventory Committee (for which purposes the Lion Oil
Company member will not be a voting member):
| Barrels | ||||
Refinery |
16,641 | |||
XXXX Gathering System piping |
78,564 | |||
Magnolia Pipeline |
66,810 | |||
El Dorado Pipeline |
32,818 | |||
Total |
194,833 | ” | ||
| ii. | The second sentence of Part I. Section F (Pre-Closing Inventory
Procedures) of Schedule 3.2(d) is amended and replaced in its entirety to read as
follows: |
“Based on this determination, facility personnel will develop a schedule (the
“Inventory Schedule”) for performing the physical Inventory of both active and
inactive storage tanks no later than one Business Day prior to the Closing.”
| iii. | Appendix A (Tank List) of Schedule 3.2(d) is amended and
replaced in its entirety by Appendix A attached hereto. |
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6. Schedule 3.2(e) (Letters of Credit). Schedule 3.2(e) (Letters of Credit)
of the Stock Purchase Agreement is amended and replaced in its entirety by Schedule 3.2(e)
attached hereto.
7. Exhibit E (Form of Asphalt Sales Agreement). Exhibit E (Form of Asphalt Sales
Agreement) of the Stock Purchase Agreement is amended and replaced in its entirety by
Exhibit E attached hereto.
8. Exhibit J (Form of Muskogee Terminal Operations Agreement). Exhibit J (Form of
Muskogee Terminal Operations Agreement) of the Stock Purchase Agreement is amended and replaced
in its entirety by Exhibit J attached hereto.
9. Exhibit L (Form of Lion Transition Services Agreement). Exhibit L (Form of
Lion Transition Services Agreement) of the Stock Purchase Agreement is amended and replaced in
its entirety by Exhibit L attached hereto.
10. References. Each reference to this “Agreement” in the Stock Purchase Agreement or
to the “Stock Purchase Agreement,” the “Purchase Agreement” or the “SPA” in any Related Agreement
shall, unless the context otherwise requires, mean the Stock Purchase Agreement as amended by this
Amendment.
11. Ratification. The Stock Purchase Agreement, as amended by this Amendment, is in
all respects ratified, approved and confirmed.
12. Constructions, Etc. This Amendment shall be governed by all provisions of the
Stock Purchase Agreement, unless the context otherwise requires, including all provisions
concerning construction, enforcement, notices, governing law and arbitration.
13. Successors. This Amendment shall be binding upon and shall inure to the benefit
of the Parties and their respective successors and permitted assigns.
14. Counterparts. This Amendment may be executed in multiple counterparts and by the
different Parties in separate counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, each of the Parties has caused this Amendment to be executed as of the
date first written above by its officer thereunto duly authorized.
| Ergon, Inc. |
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| By: | /s/ A. Xxxxxxx Xxxxx | |||
| A. Xxxxxxx Xxxxx, Executive Vice President | ||||
| and Chief Financial Officer | ||||
| Lion Oil Company |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx, Authorized Signatory | ||||
| Delek US Holdings, Inc. |
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| By: | /s/ Assi Ginzburg | |||
| Assi Xxxxxxxx, EVP | ||||
| By: | /s/ Xxxxxxxx Xxxxx | |||
| Xxxxxxxx Xxxxx, EVP | ||||
