EXHIBIT 3.1
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into as of _______________________, 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
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include securities in any Demand Registration unless the
Holder or Holders of a majority of the 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
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bankers, managers and counsel must be reasonably satisfactory
to the Company.
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
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materially and adversely affected by inclusion of the Restricted
Stock requested to be included, then (i) if the size of the offering
is 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
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Company's board of directors, it would be significantly
disadvantageous to the Company for 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
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registration statement (including any preliminary prospectus)
and such other documents as such 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;
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(g) make available for inspection by any Selling Holder, any
underwriter participating in any sale or distribution pursuant
to such registration statement 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
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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 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
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can be made by the Company using Form S-3, which shall
not be limited in number; and
(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
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Holder of the Restricted Stock to which such discount or
commission relates.
(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
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disbursements of counsel) arising out of or based upon any
untrue statement or alleged untrue statement of 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 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
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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, 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
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proceeding (including any impleaded parties) include both such
indemnified party and such indemnifying party, and such
indemnified party 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
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omissions, as well as any other relevant equitable
considerations. The relative fault of each such party shall be
determined by reference to, among other 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 Securities
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
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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 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.
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
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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.
(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.
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(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 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
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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: ____________________________
Name:
Title:
ALON ISRAEL OIL COMPANY LTD.
By: ____________________________
Name:
Title:
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