EXHIBIT 10.22
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of July 6, 2005, by and between Alon USA Energy, Inc., a
Delaware corporation (the "Company"), and Alon Israel Oil Company Ltd., an
Israeli corporation (the "Holder").
RECITALS
A. Upon the completion of an initial public offering of shares of common
stock, par value $0.01 per share ("Common Stock"), of the Company (the
"Initial Public Offering"), the Company will cease to be a wholly owned
subsidiary of the Holder.
B. In connection with the Initial Public Offering, the Company desires to
xxxxx Xxxxxx registration rights with respect to the Holder's ownership
of Common Stock.
C. This Agreement sets forth the understandings and agreements of the
parties with respect to the rights and obligations of the Holder and
the Company with respect to such registration rights.
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. The following terms have the following meanings
when used in this Agreement with initial capital letters:
"Exchange Act" shall mean the Securities Act of 1934, as amended.
"Holders" shall mean the Holder and any permitted assignee of the
Holder's rights under this Agreement.
"Restricted Stock" shall mean all shares of Common Stock owned by the
Holder from time to time. As to any particular outstanding shares or other units
of Restricted Stock, such securities shall cease to be Restricted Stock when (i)
a registration statement with respect to the offer and sale of such securities
shall have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (ii) such
securities shall have been distributed to the public pursuant to Rule 144 (or
any successor provision) under the Securities Act, (iii) such securities may be
freely distributed by the Holder thereof in a public offering or otherwise
without the need for registration or qualification of such securities under the
Securities Act or any similar state law then in force in light of legal
requirements or market conditions and without any restriction on the volume or
the manner of sale or any other limitations under Rule 144 (or any successor
provision) under the Securities Act, (iv) such securities shall have ceased to
be outstanding, or (v) the Holder thereof shall agree in writing that such
Restricted Stock shall no longer be Restricted Stock.
"SEC" shall mean the U.S. Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Selling Holder" shall mean a Holder selling or distributing Restricted
Stock pursuant to this Agreement.
2. Demand Registration.
(a) Request for Registration. Subject to the provisions
of Section 5 hereof, at any time and from time to
time any Holder or Holders holding in the aggregate
10% or more of the shares or other units of the
Restricted Stock then outstanding may make a written
request for registration under the Securities Act of
all or part of its or their Restricted Stock pursuant
to this Section 2 (a "Demand Registration"), provided
that the number of shares or other units of
Restricted Stock proposed to be sold or distributed
pursuant to such registration shall be equal to 10%
or more of the aggregate number of shares or other
units of Restricted Stock then outstanding, but (if
fewer than all outstanding shares or other units of
Restricted Stock are proposed to be so sold or
distributed) in no event less than 5% of the initial
aggregate number of shares or other units of
Restricted Stock (subject to appropriate adjustment
for any stock dividend, stock split, combination,
recapitalization, merger, consolidation,
reorganization or other occurrence affecting the
number of shares or other units of Restricted Stock
then outstanding). Such request will specify the
aggregate number of shares or other units of
Restricted Stock proposed to be sold or distributed
and will also specify the intended method of
disposition thereof. Within 10 business days after
receipt of such request, the Company will give
written notice of such registration request to all
other Holders of Restricted Stock and include in such
registration all Restricted Stock with respect to
which the Company has received written requests for
inclusion therein within 15 business days after the
date on which such notice is so given. Each such
request will also specify the number of shares or
other units of Restricted Stock to be registered and
the intended method of disposition thereof. No party
other than a Holder shall be permitted to include
securities in any Demand Registration unless the
Holder or Holders of a majority of the
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shares or other units of Restricted Stock to be
included therein shall have consented thereto in
writing.
(b) Priority on Demand Registration. If the Holders of a
majority of the shares or other units of the
Restricted Stock to be included in a Demand
Registration so elect, the offering of such
Restricted Stock pursuant to such Demand Registration
shall be in the form of an underwritten offering. In
such event, if the managing underwriter or
underwriters of such offering advise the Company and
the Holders in writing that in their opinion the
aggregate amount of Restricted Stock requested to be
included in such offering is so large that it will
materially and adversely affect the success of such
offering, the Company will include in such
registration the aggregate number of shares or other
units of Restricted Stock which in the opinion of
such managing underwriter or underwriters can be sold
without any such material adverse effect, and such
number of shares shall be allocated pro rata among
the Holders of Restricted Stock on the basis of the
number of shares of Restricted Stock requested by
such Holders to be included in such registration. To
the extent Restricted Stock so requested to be
registered is excluded from the registration, then
the Holders of such Restricted Stock shall have the
right to one additional Demand Registration under
this Section 2 with respect to such Restricted Stock
(in addition to the number of Demand Registrations
permitted under Section 5(a)(ii) below), provided
that the failure of such Restricted Stock to be
registered is through no fault of such Holders.
(c) Selection of Underwriters and Counsel. If any Demand
Registration is in the form of an underwritten
offering, the Holders of a majority of the shares or
other units of Restricted Stock to be registered will
select and obtain the services of the investment
banker or investment bankers and manager or managers
that will administer the offering and the counsel to
such investment bankers and managers; provided that
such investment bankers, managers and counsel must be
reasonably satisfactory to the Company.
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3. Piggyback Registration. If the Company proposes to file a
registration statement under the Securities Act with respect
to an offering (i) for its own account of any class of its
equity securities (other than a registration statement on Form
S-8 (or any successor form), Form S-4 (or any successor form)
or any other registration statement relating solely to
employee benefit plans or filed in connection with an exchange
offer, a transaction to which Rule 145 (or any successor
provision) under the Securities Act applies or an offering of
securities solely to the Company's existing stockholders) or
(ii) for the account of any other holder of Common Stock (to
the extent any agreement with such holder permitted under
Section 11 hereof (a "Third Party Agreement") permits the
registration of Restricted Stock in connection with such
offering), then the Company shall in each case give written
notice of such proposed filing to the Holders as soon as
practicable (but no later than 20 business days) before the
anticipated filing date, and such notice shall offer each
Holder the opportunity to register such number of shares or
other units of Restricted Stock as such Holder may request.
Each Holder desiring to have Restricted Stock included in such
registration statement shall so advise the Company in writing
within 10 business days after the date on which the Company's
notice is so given, setting forth the number of shares or
other units of Restricted Stock for which registration is
requested. If the offering is to be an underwritten offering,
the Company shall, subject to the further provisions of this
Agreement and to the provisions of a Third Party Agreement, if
applicable, use reasonable efforts to cause the managing
underwriter or underwriters to permit the Holders of the
Restricted Stock requested to be included in the registration
for such offering to include such Restricted Stock in such
offering on the same terms and conditions as any similar
securities of the Company included therein. The right of each
Holder to registration pursuant to this Section 3 in
connection with an underwritten offering shall, unless the
Company otherwise assents, be conditioned upon such Holder's
participation as a seller in such underwritten offering and
its execution of an underwriting agreement with the managing
underwriter or underwriters selected by the Company.
Notwithstanding the foregoing, if the managing underwriter or
underwriters of such offering deliver a written opinion to the
Company to the effect that either because of (a) the kind of
securities that the Company, the Holders and any other person
or entities intend to include in such offering or (b) the size
of the offering that the Company, the Holders and any other
persons or entities intend to make, the success of the
offering would be materially and adversely affected by
inclusion of the Restricted Stock requested to be included,
then (i) if the size of the offering is
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the basis of such managing underwriter's opinion, the number
of shares or other units of Restricted Stock to be registered
and offered for the accounts of Holders shall be reduced pro
rata on the basis of the number of securities requested by
such Holders to be registered and offered to the extent
necessary to reduce the total amount of securities to be
included in such offering to the amount recommend by such
managing underwriter or underwriters (provided that if
securities are being registered and offered for the account of
other persons or entities as well as the Company in an
offering by the Company, such reduction shall not be
proportionally greater than any similar reductions imposed on
such other persons or entities) and (ii) if the combination of
securities to be offered is the basis of such managing
underwriter's opinion, (x) the Registered Stock to be included
in such registration and offering shall be reduced as
described in clause (i) above or (y) if such actions would, in
the judgment of the managing underwriter, be insufficient to
substantially eliminate the adverse effect that inclusion of
the Restricted Stock requested to be included would have on
such offering, such Restricted Stock will be excluded entirely
from such registration and offering.
4. Registration Procedures. Whenever, pursuant to Section 2 or 3
hereof, Holders of Restricted Stock have requested that any
Restricted Stock be registered, the Company shall, subject to
the provisions of Section 5 hereof, use reasonable efforts to
effect the registration and the sale or distribution of such
Restricted Stock in accordance with the intended method of
disposition thereof as promptly as practicable, and in
connection with any such request, the Company shall:
(a) in connection with a request pursuant to Section 2
hereof, prepare and file with the SEC, not later than
45 days after receipt of such a request, a
registration statement on any form for which the
Company then qualifies and which counsel for the
Company shall deem appropriate and which form shall
be available for the sale or distribution of such
Restricted Stock in accordance with the intended
method of distribution thereof, and use reasonable
efforts to cause such registration statement to
become effective; provided that if the Company shall
furnish to the Holders making such a request a
certificate signed by either the chief executive
officer or the chief financial officer of the Company
stating that in the good faith judgment of the
Company's board of directors, it would be
significantly disadvantageous to the Company for
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such a registration statement to be filed on or
before the date filing would otherwise be required
hereunder and explaining the reasons therefor, the
Company shall have an additional period of not more
than 90 days within which to file such registration
statement; and, provided further, that (i) before
filing a registration statement or prospectus or any
amendments or supplements thereto, the Company will
furnish to one counsel selected by the Holders of a
majority of the shares or other units of Restricted
Stock covered by such registration statement copies
of all such documents proposed to be filed, which
documents will be subject to the review and comment
of such counsel and (ii) after the filing of the
registration statement, the Company shall promptly
notify each Selling Holder of Restricted Stock of any
stop order issued or, to the knowledge of the
Company, threatened by the SEC and take all
reasonable actions to prevent the entry of such stop
order or to remove it if entered;
(b) in connection with a request pursuant to Section 2
hereof, prepare and file with the SEC such amendments
and supplements to such registration statement and
the prospectus used in connection therewith as may be
necessary to keep such registration statement
effective for a period of not less than 90 days or
such shorter period as shall terminate when the
distribution of all Restricted Stock covered by such
registration statement shall have terminated and
comply with the provisions of the Securities Act with
respect to the disposition of all securities covered
by such registration statement during such period in
accordance with the intended methods of disposition
by the Selling Holders thereof set forth in such
registration statement;
(c) as soon as reasonably practicable, furnish to each
Selling Holder, prior to filing a registration
statement, copies of such registration statement as
proposed to be filed and thereafter furnish to such
Selling Holder such number of copies of such
registration statement, each amendment and supplement
thereto, the prospectus included in such registration
statement (including any preliminary prospectus) and
such other documents as such
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Selling Holder may reasonably request in order to
facilitate the disposition of the Restricted Stock
owned by such Selling Holder;
(d) use its reasonable efforts to register or qualify
such Restricted Stock under such other securities or
blue sky laws of Canada and of such jurisdictions
within the United States and Canada as any Selling
Holder reasonably (in light of such Selling Holder's
intended plan of distribution) requests and do any
and all other acts and things which may be reasonably
necessary or advisable to enable such Selling Holder
to consummate the disposition in such jurisdictions
of the Restricted Stock owned by such Selling Holder;
provided that the Company shall not be required to
(i) qualify generally to do business or file a
general consent to service of process in any
jurisdiction or (ii) take any action that would
subject itself to taxation in any such jurisdiction;
(e) promptly notify each Selling Holder of such
Restricted Stock, at any time when a prospectus
relating thereto is required to be delivered under
the Securities Act, of the occurrence of any event
known to the Company requiring the preparation of a
supplement or amendment to such prospectus so that,
as thereafter delivered to the purchasers or
recipients of such Restricted Stock, such prospectus
will not contain an untrue statement of a material
fact or omit to state any material fact required to
be stated therein or necessary to make the statements
therein not misleading and promptly make available to
each Selling Holder any such supplement or amendment;
(f) in connection with a request pursuant to Section 2
hereof, enter into an underwriting agreement in
customary form, the form and substance of such
underwriting agreement being subject to the
reasonable satisfaction of the Company and a majority
in interest of the Selling Holders;
(g) make available for inspection by any Selling Holder,
any underwriter participating in any sale or
distribution pursuant to such registration statement
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and any attorney, accountant or other agent retained
by any such Selling Holder or underwriter
(collectively, the "Inspectors") all financial and
other records, pertinent corporate documents and
properties of the Company (collectively, the
"Records") as shall be reasonably necessary to enable
them to exercise their due diligence responsibility,
and cause the Company's officers and employees to
supply all information reasonably requested for such
purpose by any such Inspector in connection with such
registration statement; provided that the Company
shall have no obligation to permit such access to the
Records or its officers or employees in a manner that
would unreasonably disrupt the normal conduct of its
business operations;
(h) in the event such sale is pursuant to an underwritten
offering, use its reasonable efforts to obtain a
comfort letter or letters from the Company's
independent public accountants in customary form and
covering such matters of the type customarily covered
by comfort letters as the managing underwriter
reasonably requests; and
(i) otherwise use its reasonable efforts to comply with
all applicable rules and regulations of the SEC and
make available to its security holders, as soon as
reasonably practicable, an earnings statement
complying with the provisions of Section 11(a) of the
Securities Act (including, at the option of the
Company, pursuant to Rule 158 (or any successor
provision) under the Securities Act).
Upon receipt of any notice from the Company of the occurrence of any
event of the kind described in subsection (e) hereof, such Selling Holder shall
forthwith discontinue all offerings, sales and other dispositions of Restricted
Stock pursuant to the registration statement covering such Restricted Stock
until such Selling Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by subsection (e) hereof. In the event the Company shall
give any such notice, the Company shall extend the period during which such
registration statement shall be maintained effective pursuant to this Agreement
(including the period referred to in subsection (b) hereof) by the number of
days during the period from and including the date of the giving of such notice
pursuant to subsection (b) hereof to and including the first date on which each
Selling Holder covered by such registration statement shall have received the
copies of the supplemented or amended prospectus contemplated by subsection (e)
hereof. Each Selling Holder shall notify the Company if any event relating to
such Selling Holder occurs which would require the preparation of a supplement
or amendment to the prospectus so that such prospectus
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will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading.
5. Conditions and Limitations.
(a) The Company's obligations under Section 2 hereof
shall be subject to the following limitations:
(i) the Company need not file a registration
statement either (x) during the period
starting with the date 60 days prior to the
Company's estimated date of filing of, and
ending 90 days after the effective date of
filing of, any registration statement
pertaining to securities of the Company
(other than a registration of securities in
a transaction to which Rule 145 (or any
successor provision) under the Securities
Act applies, in an exchange offer or with
respect to an employee benefit plan or
dividend reinvestment plan), provided that
if such Company registration statement is
not filed within 90 days after the first
date on which the Company notifies a Holder
of Restricted Stock that it will delay a
Demand Registration pursuant to this clause
(x), the Company may not further postpone
such Demand Registration pursuant to this
clause (x) or (y) during the period
specified in the first proviso of
subparagraph (a) of Section 4 hereof;
(ii) except as provided in Section 2(b) hereof,
the Company shall not be required to cause
to become effective more than three Demand
Registrations, other than Demand
Registrations meeting the requirements of
Section 2 and which can be made by the
Company using Form S-3, which shall not be
limited in number; and
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(iii) the Company shall have received the
information and documents specified in
Section 6 hereof and each Selling Holder
shall have observed or performed its other
covenants contained in Sections 6 and 8
hereof.
(b) The Company's obligation under Section 3 hereof shall
be subject to the limitations and conditions
specified in such Section and in clause (iii) of
subsection (a) of this Section 5, and to the
condition that the Company may at any time terminate
its proposal to register equity securities for its
own account and discontinue its efforts to cause a
registration statement to become or remain effective
as to any and all shares or other units of Restricted
Stock that would otherwise have been eligible for
inclusion in such registration.
6. Information from and Certain Covenants of Holders of
Restricted Stock. Notices and requests delivered to the
Company by Holders for whom Restricted Stock is to be
registered pursuant to this Agreement shall contain such
information regarding the Restricted Stock to be so
registered, the Holder and the intended method of disposition
of such Restricted Stock as shall reasonably be required in
connection with the actions contemplated to be taken pursuant
to this Agreement. Any Holder whose Restricted Stock is
included in a registration statement pursuant to this
Agreement shall exercise all consents, powers of attorney,
registration statements and other documents reasonably
required to be executed by it in order to cause such
registration statement to become effective. Each Selling
Holder covenants that, in disposing of such Holder's shares,
such Holder will comply with Regulation M and Rule 10b-5 (or
any successor provisions) under the Exchange Act and all other
requirements of applicable law.
7. Registration Expenses.
(a) All Registration Expenses (as defined herein) will be
borne by the Company. Underwriting discounts and
commissions applicable to the sale of Restricted
Stock shall be borne by the Holder of the Restricted
Stock to which such discount or commission relates.
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(b) As used herein, the term Registration Expenses means
all expenses incident to the Company's performance of
or compliance with this Agreement (whether or not the
registration in connection with which such expenses
are incurred ultimately becomes effective), including
without limitation all registration and filing fees,
fees and expenses of compliance with securities or
blue sky laws (including reasonable fees and
disbursements of counsel in connection with blue sky
qualifications of the Restricted Stock), rating
agency fees, printing expenses, the fees and expenses
incurred in connection with the listing or admission
for quotation of the securities to be registered on
any securities exchange or quotation system and fees
and disbursements of counsel for the Company and its
independent certified public accountants (including
the expenses of any special audit or comfort letters
required by or incident to such performance),
securities act liability insurance (if the Company
elects to obtain such insurance), the reasonable fees
and expenses of any special experts retained by the
Company in connection with such registration and the
fees and expenses of other persons retained by the
Company, all fees and expenses of counsel for the
underwriters (to the extent not borne by the
underwriters), and all fees and expenses of one
counsel acting on behalf of the Selling Holders and
selected by Selling Holders holding a majority of the
shares or other units of Restricted Stock to be
registered.
8. Indemnification; Contribution.
(a) Indemnification by the Company. In connection with
any offering of Restricted Stock pursuant to this
Agreement, the Company shall indemnify and hold
harmless each Selling Holder, its officers, directors
and agents and each person, if any, who controls such
Selling Holder within the meaning of either Section
15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses,
claims, damages, liabilities and expenses (including
reasonable fees and disbursements of counsel) arising
out of or based upon any untrue statement or alleged
untrue statement of material fact contained in any
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registration statement or prospectus relating to
Restricted Stock or in any amendment or supplement
thereto or in any preliminary prospectus relating to
Restricted Stock or arising out of or based upon any
omission or alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statements therein not
misleading in light of the circumstances under which
they were made, except insofar as such losses,
claims, damages, liabilities or expenses arise out
of, or are based upon, any such untrue statement or
alleged untrue statement or omission or alleged
omission based upon information furnished in writing
to the Company by such Selling Holder or on such
Selling Holder's behalf expressly for use therein. In
connection with any underwritten offering of
Restricted Stock registered pursuant to this
Agreement, the Company shall cause to be included in
any underwriting agreement with the underwriters of
such offering provisions indemnifying and providing
for contribution to such underwriters and their
officers and directors and each person who controls
such underwriters on substantially the same basis as
the provisions of this Section 8 indemnifying and
providing for contribution to the Selling Holders.
(b) Indemnification by Holders of Restricted Stock. In
connection with any offering of Restricted Stock
pursuant to this Agreement, each Selling Holder shall
indemnify and hold harmless the Company, its
officers, directors and agents and each person, if
any, who controls the Company within the meaning of
either Section 15 of the Securities Act or Section 20
of the Exchange Act, from and against any and all
losses, claims, damages, liabilities and expenses
(including reasonable fees and disbursements of
counsel) arising out of or based upon any untrue
statement or alleged untrue statement of a material
fact contained in any registration statement or
prospectus relating to Restricted Stock or in any
amendment or supplement thereto or in any preliminary
prospectus relating to Restricted Stock, or arising
out of or based upon any omission or alleged omission
to state therein a material fact required to be
stated therein or necessary to make the statements
therein
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not misleading in light of the circumstances under
which they were made, provided that (i) such losses,
claims, damages, liabilities or expenses arise out
of, or are based upon, any such untrue statement or
alleged untrue statement or omission or alleged
omission based upon information furnished in writing
to the Company by such Selling Holder or on such
Selling Holder's behalf expressly for use therein and
(ii) no Selling Holder shall be liable for any
indemnification under this Section 8 in an aggregate
amount which exceeds the total net proceeds received
by such Selling Holder from such offering. In
connection with any underwritten offering of
Restricted Stock registered pursuant to this
Agreement, each Selling Holder shall cause to be
included in any underwriting agreement with the
underwriters of such offering provisions indemnifying
and providing for contribution to such underwriters,
their officers and directors and each person who
controls such underwriters on substantially the same
basis as the provisions of this Section 8
indemnifying and providing for contribution to the
Company.
(c) Conduct of Indemnification Proceedings. If any action
or proceeding (including any governmental
investigation) shall be brought or asserted against
any indemnified party hereunder in respect of which
indemnity may be sought from an indemnifying party
hereunder, such indemnifying party shall assume the
defense thereof, including the employment of counsel
reasonably satisfactory to such indemnified party,
and shall assume the payment of all expenses. Such
indemnified party shall have the right to employ
separate counsel in any such action and to
participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expenses of
such indemnified party unless (i) the indemnifying
party has agreed to pay such fees and expenses, (ii)
the indemnifying party shall have failed to assume
the defense of such action or proceeding and employ
counsel reasonably satisfactory to such indemnified
party, or (iii) the named parties to any such action
or proceeding (including any impleaded parties)
include both such indemnified party and such
indemnifying party, and such indemnified party
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shall have been advised by counsel that there may be
one or more legal defenses available to such
indemnified party which are different from or
additional to those available to the indemnifying
party (in which case, if such indemnified party
notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of
the indemnifying party, the indemnifying party shall
not have the right to assume the defense of such
action or proceeding on behalf of such indemnified
party; it being understood, however, that the
indemnifying party shall not, in connection with any
one such action or proceeding or separate but
substantially similar or related actions or
proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be
liable for the fees and expenses of more than one
separate firm of attorneys (together with appropriate
local counsel) at any time for such indemnified
party, which firm shall be designated in writing by
such indemnified party and reasonably satisfactory to
the indemnifying party). The indemnifying party shall
not be liable for any settlement of any such action
or proceeding effected without its written consent,
but if settled with its written consent, or if there
is a final judgment for the plaintiff in any such
action or proceeding, the indemnifying party shall
indemnify and hold harmless the indemnified party
from and against any loss or liability (to the extent
stated above) by reason of such settlement or
judgment.
(d) Contribution. If the indemnification provided for in
this Section 8 is unavailable to the Company or the
Selling Holders in respect of any losses, claims,
damages, liabilities or judgments referred to herein,
then each such indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute
to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages,
liabilities and judgments in such proportion as is
appropriate to reflect the relative fault of each
such party in connection with such statements or
omissions or alleged statements or omissions, as well
as any other relevant equitable considerations. The
relative fault of each such party shall be determined
by reference to, among other
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things, whether the untrue or alleged untrue
statement of a material fact or the omission or
alleged omission to state a material fact relates to
information supplied by such party, and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or
omission. The Company and the Selling Holders agree
that it would not be just and equitable if
contribution pursuant to this Section 8(d) were
determined by pro rata allocation or by any other
method of allocation which does not take account of
the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or
payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph
shall be deemed to include, subject to the
limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified
party in connection with investigation or defending
any such action or claims. Notwithstanding the
provisions of this Section 8(d), no Selling Holder
shall be required to contribute an amount in excess
of the amount by which the total price at which the
Restricted Stock of such Selling Holder was offered
to the public exceeds the amount of any damages which
such Selling Holder has otherwise been required to
pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who is
not guilty of such fraudulent misrepresentation.
9. Reports Under Exchange Act. With a view to making available to
the Holder the benefits of Rule 133 promulgated under the
Securites Act and any other rule or regulation of the SEC that
may at any time permit a Holder to sell securities of the
Company to the public without registration or pursuant to a
registration on Form S-3, the Company agrees to:
(a) Make and keep public information available, as those
terms are understood and defined in SEC Rule 144, at
all times after the effective date of the first
registration statement filed by the Company for the
offering of its securities to the general public so
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long as the Company is subject to the periodic
reporting requirements under Sections 13 or 15(d) of
the Exchange Act;
(b) File with the SEC in a timely manner all reports and
other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) Furnish to any Holder, so long as the Holder owns
shares or other units of Restricted Stock, forthwith
upon request (i) a written statement by the Company
that it has complied with the reporting requirements
of SEC Rule 144, the Securities Act and the Exchange
Act (at any time after it has become subject to such
reporting requirements), or that it qualifies as a
registrant whose securities may be resold pursuant to
Form S-3 (at any time after it so qualifies), (ii) a
copy of the most recent annual or quarterly report of
the Company, and (iii) such other information as may
be reasonably requested in availing any Holder of any
rule or regulation of the SEC which permits the
selling of any such securities without registration
or pursuant to such form.
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10. Lock-Up Arrangements. In consideration of the covenants and
agreements of the Company contained herein, each Holder agrees
that, in connection with any offering by the Company of its
securities, whether for the account of the Company, any
Holder, or any other holder of securities of the Company, such
Holder shall, with respect to any Restricted Stock then held
by such Holder which is not included in such offering, execute
a customary "lock-up" agreement reasonably requested by the
Company or, if such offering is an underwritten offering, by
the underwriters in such offering; provided that the period of
such agreement shall not exceed 180 days after the initial
sale of securities in such offering.
11. Limitations on Subsequent Registration Rights. The Company
shall not, without the prior written consent of the Holders of
a majority of the Restricted Stock then outstanding, enter
into any agreement with any holder or prospective holder of
any securities of the Company that would grant such holder or
prospective holder registration rights that would reduce the
amount of Restricted Stock a Holder may include in any
registration by the Company.
12. Miscellaneous.
(a) Effectiveness. This Agreement shall become effective
on the date on which the purchase and sale of shares
of Common Stock pursuant to the Initial Public
Offering first occurs.
(b) Successors and Assigns. This Agreement shall be
binding upon the parties hereto and their respective
successors and permitted assigns and shall inure to
the benefit of the parties hereto and their
respective successors and permitted assigns. This
Agreement may not be assigned by the Company. This
Agreement may be assigned by a Holder to any of its
affiliates or to any other person who acquires from a
Holder at least 10% of the initial aggregate number
of shares or other units of Restricted Stock.
(c) No Third-Party Beneficiaries. Nothing expressed or
implied in this Agreement shall be construed to give
any person or entity other than the parties hereto
any legal or equitable rights hereunder.
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(d) Entire Agreement. This Agreement constitutes the
entire agreement between the parties with respect to
the subject matter hereof.
(e) Amendment. This Agreement may not be amended except
by an instrument signed by the parties hereto.
(f) Waivers. Either party hereto may (i) extend the time
for the performance of any of the obligations or
other act of the other party, (ii) waive any
inaccuracies in the representations and warranties
contained herein, or (iii) waive compliance with any
of the agreements contained herein. No waiver of any
term shall be construed as a waiver of the same term,
or a waiver of any other term, of this Agreement. The
failure of any party to assert any of its rights
hereunder will not constitute a waiver of any such
rights.
(g) Severability. Whenever possible, each provision or
portion of any provision of this Agreement shall be
interpreted in such manner as to be effective and
valid under applicable law, but if any provision or
portion of any provision of this Agreement is held to
be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction,
such invalidity, illegality or unenforceability shall
not affect the validity, legality or enforceability
of any other provision or portion of any provision in
such jurisdiction, and this Agreement shall be
reformed, construed and enforced in such jurisdiction
in such manner as will effect as nearly as lawfully
possible the purpose and intent of such invalid,
illegal or unenforceable provision.
(h) Headings. Section headings in this Agreement are
included herein for convenience of reference only and
shall not constitute a part of this Agreement for any
other purpose.
(i) Notices. All notices given in connection with this
Agreement shall be in writing. Service of such
notices shall be deemed complete (i) if hand
delivered, on the date of delivery, (ii) if by
telecopier, upon receipt of oral or written
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confirmation that such transmission has been
received, (iii) if by mail, on the sixth business day
following the day of deposit in the United States
mail, by certified or registered mail, first-class
postage prepaid, or (iv) if sent by FedEx or
equivalent courier service, on the next business day.
Such notices shall be addressed to the parties at the
following addresses or at such other address for a
party as shall be specified by like notice (except
that notices of change of address shall be effective
upon receipt):
If to Holder: Alon Israel Oil Company Ltd.
Xxxxxxxx (Xxxxxx Xxxxxxxx)
Xxxxxxx Xxxxx 00000
Xxxxxx
Attn: Xxxxx Xxxxxxxx
Facsimile No.: 011-972-9-951-4345
If to the Company: Alon USA Energy, Inc.
0000 XXX Xxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attn: General Counsel
Facsimile No.: (000) 000-0000
(j) Governing Law. This Agreement shall be governed by,
and construed in accordance with, the law of the
State of Delaware, without giving effect to the
principles of conflict of laws of such State.
(k) Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but
all of which together shall constitute but one and
the same instrument.
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IN WITNESS WHEREOF, the Company and the Holder have caused this
Agreement to be executed on the date first above written.
ALON USA ENERGY, INC.
By: /s/ XXXXXX XXXX
-----------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
ALON ISRAEL OIL COMPANY LTD.
By: /s/ XXXXX XXXXXXXX /s/ XXXXXX XXXXX
--------------------------------------------
Name: Xxxxx Xxxxxxxx Xxxxxx Xxxxx
Title: President and CEO Chairman
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