FORM OF SERIES A CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
Exhibit 10.105
THIS SERIES A CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT (this “Agreement”) is made as of
the ____ day of _______, 2010 (the “Closing Date”) by and between Alon USA Energy, Inc., a Delaware
corporation (the “Company”), and _________________________, a _____________________ (the
“Purchaser”).
The parties hereby agree as follows:
1. Purchase and Sale of Series A Convertible Preferred Stock.
1.1. Sale and Issuance of Series A Convertible Preferred Stock. Subject to the terms
of this Agreement, the Purchaser hereby purchases and the Company hereby sells and issues to the
Purchaser ____________ shares of the Series A Convertible Preferred Stock, par value $0.01 per
share (the “Preferred Stock”), of the Company at a purchase price per share of $10.00 (the “Price
Per Share”). The shares of Preferred Stock issued to the Purchaser pursuant to this Agreement
shall be referred to in this Agreement as the “Shares”.
1.2. Deliveries.
(a) On or prior to the date hereof, the Company has delivered or caused to be delivered to the
Purchaser the Shares being purchased by the Purchaser on the Closing Date.
(b) On or prior to the date hereof, the Purchaser has delivered or caused to be delivered to
the Company payment of the purchase price for the Shares by wire transfer to a bank account
designated by the Company.
1.3. Defined
Terms Used in this Agreement. In addition to the terms defined
above and herein,
the following terms used in this Agreement shall be construed to have the meanings set forth or
referenced below.
“Business Day” means a day other than a Saturday, Sunday or other day on which commercial
banks in Dallas, Texas are not open for business.
“Certificate of Designation” means the certificate of designation for the Preferred Stock, in
the form attached as an exhibit to the Registration Statement.
“Common Stock” means the Company’s common stock, par value $0.01 per share.
“NYSE” means the New York Stock Exchange.
“Person” means any individual, corporation, partnership, trust, limited liability company,
association or other entity.
“Registration Statement” means the registration statement on Form S-1 (File No. 333-169583)
pursuant to which to the Shares have been offered.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
2. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Purchaser as of the Closing Date as follows:
2.1. Organization, Good Standing and Corporate Power. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the State of Delaware and
has all requisite corporate power and authority to carry on its business as presently conducted.
2.2. Authorization. All corporate action required to be taken by the Company’s Board
of Directors and stockholders in order to authorize the Company to enter into this Agreement, and
to issue the Shares at the Closing Date, has been taken. All action on the part of the officers of
the Company necessary for the execution and delivery of this Agreement, the performance of all
obligations of the Company under this Agreement to be performed as of the Closing Date, and the
issuance and delivery of the Shares has been taken. This Agreement constitutes a valid and legally
binding obligation of the Company, enforceable against the Company in accordance with its terms
except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, or other laws of general application relating to or affecting the enforcement of
creditors’ rights generally, or (b) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies.
2.3. Valid Issuance of Shares. The Shares, when issued, sold and delivered in
accordance with the terms and for the consideration set forth in this Agreement, will be validly
issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions
on transfer under this Agreement or the Certificate of Designation, applicable state and federal
securities laws and liens or encumbrances created by or imposed by the Purchaser. Assuming the
accuracy of the representations of the Purchaser in Section 3 of this Agreement and subject
to the filings described in Section 2.4 below, the Shares will be issued in compliance with
all applicable federal and state securities laws.
2.4. Governmental Consents and Filings. Assuming the accuracy of the representations
made by the Purchaser in Section 3 of this Agreement, no consent, approval, order or
authorization of, or registration, qualification, designation, declaration or filing with, any U.S.
federal, state or local governmental authority is required on the part of the Company in connection
with the consummation of the transactions contemplated by this Agreement, except for filings
pursuant to the Securities Act and applicable state securities laws.
2.5. No Prohibition. No law or order of any governmental entity is in effect, or
stayed pending appeal, which restrains or prohibits, or renders unlawful, the Company’s
consummation of the transactions contemplated by this Agreement. No claim, action, suit
investigation or other proceeding is pending or, to the Company’s knowledge, threatened before any
governmental entity, which purports to enjoin or restrain the Company or to seek relief from or
against the Company, or which could result in an order prohibiting the Company from, consummating
the transactions contemplated by this Agreement.
2.6. No Violation. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement will not result in any violation or
default (i) of any provisions of the Company’s Certificate of Incorporation or Bylaws, each as
amended to date, (ii) of any judgment, order, writ or decree binding on the Company, (iii) under
any contract, agreement, note, indenture or mortgage to which the Company is a party or by which
its properties and assets are bound, or (iv) to its knowledge, of any provision of federal or state
statute, rule or regulation applicable to the Company, in each case the violation of which would
have a material adverse effect on the business, assets, liabilities, financial condition, property
or results of operations of the Company.
3. Representations and Warranties of the Purchaser. The Purchaser hereby represents
and warrants to the Company that:
3.1 Existence; Good Standing; Authorization. The Purchaser is a ___________________
duly formed and validly existing under the laws of ________. The Purchaser has full power and
authority to enter into this Agreement. This Agreement constitutes a valid and legally binding
obligation of the Purchaser, enforceable in accordance with its terms, except (a) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws
of general application relating to or affecting the enforcement of creditors’ rights generally, or
(b) as limited by laws relating to the availability of specific performance, injunctive relief, or
other equitable remedies.
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3.2 Restrictions on Conversion and Dividends. The Purchaser understands that any
Purchaser who is determined to be a Related Party of the Company (as such term is defined in Rule
312.03(b)(7) of the NYSE Listed Company Manual or any successor rule (“Rule
312”) or otherwise described in section (b)(2) or (b)(3) of Rule 312) may not elect to convert its
Shares into shares of Common Stock prior to receipt of any stockholder approval required pursuant
to Rule 312 to be obtained by the Corporation (“NYSE Stockholder Approval”). The Purchaser
acknowledges that it is a Related Party.
3.4 No Public Market. The Purchaser understands that no public market now exists for
the Shares, and that the Company has made no assurances that a public market will ever exist for
the Shares. The Purchaser understands that the Shares are new securities for which there is
currently no active market. The Company has made no assurances that a trading market for the Shares
will ever develop. The Purchaser understands that the Company does not intend to list the Shares
on any securities exchange and conversion of the Shares into shares of Common Stock and the sale of
those shares of Common Stock may be the only means for the Purchaser to liquidate its investment in
any Shares purchased pursuant to this Agreement.
3.5 Legends. The Purchaser understands that the Shares and any securities issued in
respect of or exchange for the Shares, may bear any legend set forth in, or required by, the
Certificate of Designation or by the securities laws of any state to the extent such laws are
applicable to the Shares represented by the certificate so legended.
3.6 Foreign Investor. The Purchaser hereby represents that it has satisfied itself as
to the full observance of the laws of Israel in connection with the offer for and purchase of the
Shares or any use of this Agreement, including (i) the legal requirements within Israel for the
purchase of the Shares, (ii) any foreign exchange restrictions applicable to such purchase, (iii)
any governmental or other consents that may need to be obtained, and (iv) the income tax and other
tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale, or
transfer of the Shares. The Purchaser’s payment for and continued beneficial ownership of the
Shares will not violate any applicable securities or other laws of Israel.
3.7 Finders’ Fee. Purchaser has not made (and is not bound by) any arrangement under
which any broker, underwriter, investment banker, financial advisor or other Person is entitled to
any fee with respect to services in such capacity in connection with the transactions contemplated
by this Agreement.
4. NYSE Stockholder Approval. The Company acknowledges and agrees that it
shall include the NYSE Stockholder Approval (and all required disclosures) as a matter to be voted
upon in its proxy statement relating to the Company’s 2011 annual meeting of stockholders or, if
requested by a Purchaser who is a Related Party, at a special meeting of the stockholders prior to
the Company’s 2011 annual meeting of the stockholders.
5. Miscellaneous.
5.1. Successors and Assigns. The terms and conditions of this Agreement shall inure
to the benefit of and be binding upon the respective successors and permitted assigns of the
parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as expressly provided in
this Agreement.
5.2. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Texas, regardless of the laws that might otherwise govern under
applicable principles of conflicts of law.
5.3. Counterparts; Facsimile. This Agreement may be executed and delivered by
facsimile signature and in two or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
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5.4. Titles and Subtitles. The titles and subtitles used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting this Agreement.
5.5. Notices. All notices and other communications given or made pursuant to this
Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to
the party to be notified, (b) five Business Days after having been sent by certified mail, return
receipt requested, postage prepaid, or (c) two Business Days after deposit with an internationally
recognized express courier service, specifying same day or next Business Day delivery, with written
verification of receipt. All communications shall be sent to the respective parties at their
address as set forth on the signature page, or to such address as subsequently modified by written
notice given in accordance with this Section 5.5.
5.6. Amendments and Waivers. Any term of this Agreement may be amended, terminated or
waived only with the written consent of the Company and Purchaser. Any amendment or waiver
effected in accordance with this Section 5.6 shall be binding upon the Purchaser and each
transferee of the Shares, each future holder of all such securities, and the Company.
5.7. 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 purposes and intent of such invalid, illegal or
unenforceable provision.
5.8. Delays or Omissions. No delay or omission to exercise any right, power or remedy
accruing to any party under this Agreement, upon any breach or default of any other party under
this Agreement, shall impair any such right, power or remedy of such non-breaching or
non-defaulting party nor shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any
waiver of any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this Agreement, or any waiver on
the part of any party of any provisions or conditions of this Agreement, must be in writing and
shall be effective only to the extent specifically set forth in such writing. All remedies, either
under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not
alternative.
5.9. Entire Agreement. This Agreement constitutes the full and entire understanding
and agreement between the parties with respect to the subject matter hereof, and any other written
or oral agreement relating to the subject matter hereof existing between the parties are expressly
canceled.
5.10. Further Assurances. From and after the date of this Agreement, upon the request
of the Purchaser or the Company, the Company and the Purchaser shall execute and deliver such
instruments, documents and other writings as may be reasonably necessary or desirable to confirm
and carry out and to effectuate fully the intent and purposes of this Agreement and the
transactions contemplated hereby.
5.11. Certain Interpretive Matters.
(a) Unless the context otherwise requires, (i) all references to Sections or Articles are to
be Sections or Articles of this Agreement, (ii) each term defined in this Agreement has the meaning
assigned to it, (iii) words in the singular include the plural and vice versa, (iv) the term
“including” means “including without limitation,” (v) all references to $ or dollar amounts will
be to lawful currency of the United States, (vi) to the extent the term “day” or “days” is used, it
shall mean calendar days, and (vi) the words “herein,” “hereby,” “hereof,” and “hereunder” and
other words of similar import refer to this Agreement as a whole and not to any particular article,
section, paragraph or other subdivision of this Agreement.
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(b) No provision of this Agreement will be interpreted in favor of, or against, any of the
parties hereto by reason of the extent to which any such party or its counsel participated in the
drafting thereof or by reason of the extent to which any such provision is inconsistent with any
prior draft hereof or thereof.
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IN WITNESS WHEREOF, the parties have executed this Series A Convertible Preferred Stock
Purchase Agreement as of the date first written above.
| COMPANY: ALON USA ENERGY, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Address:
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Secretary
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Secretary
| PURCHASER: |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Address:
_____________________________________________
_____________________________________________
_____________________________________________
Signature Page to Series A Convertible Preferred Stock Purchase Agreement
