EXHIBIT 10.4
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made as of the
17th day of April, 2006, by and among Delek US Holdings, Inc., a Delaware
corporation (the "COMPANY"), and Delek Group Ltd., an Israeli corporation
("DELEK GROUP").
RECITALS
WHEREAS, upon 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 an indirect wholly-owned
subsidiary of Delek Group; and
WHEREAS, in connection with the Initial Public Offering, the Company
desires to grant to Delek Group registration rights with respect to Delek
Group's ownership (directly or through its Affiliates (as defined below)), of
Common Stock, upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth in this Agreement, and intending to be legally bound, the parties agree as
follows:
SECTION 1. REGISTRATION RIGHTS.
1.1 CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings set forth below:
(a) "AFFILIATE" means, with respect to any specified Person, (i) any
other Person that owns (directly or indirectly), individually or as part of a
group (as determined pursuant to Rule 13d-5 under the Exchange Act) greater than
fifty percent (50%) of the voting stock or other capital interest of such
specified Person, (ii) any other Person of whom greater than fifty percent (50%)
of the voting stock or other capital interest is owned by (directly or
indirectly), individually or as part of a group (as determined pursuant to Rule
13d-5 under the Exchange Act) by such specified Person, and (iii) any other
Person directly or indirectly controlling, controlled by or under common control
with such specified Person.
(b) "COMMISSION" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
(c) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any similar successor federal statute, and the rules and regulations
thereunder, all as the same shall be in effect from time to time.
(d) "HOLDERS" means Delek Group (including any Affiliate of Delek
Group that is the record holder of shares of Common Stock) and any permitted
assignee of Delek Group's rights under this Agreement.
(e) "REGISTER," "REGISTERED" and "REGISTRATION" mean a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of the effectiveness of such
registration statement.
(f) "PERSON" means an individual, corporation, limited liability
company, general or limited partnership, association, trust, unincorporated
organization, other entity or group.
(g) "REGISTRABLE SECURITIES" means all shares of Common Stock owned
by the Holders from time to time; provided, however, that Registrable Securities
shall not include any shares of Common Stock (i) that have been disposed of in
accordance with an effective registration statement under the Securities Act,
(ii) that have been disposed of pursuant to Rule 144, (iii) that may be freely
distributed by the Holders in a public offering or otherwise without the need
for registration of qualification of such shares of Common Stock 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
manner of sale or any other limitations under Rule 144, (iv) that have ceased to
be outstanding, or (v) which the Holders agree in writing shall not be
Registrable Securities for purposes of this Agreement.
(h) "REGISTRATION EXPENSES" means all expenses incurred in effecting
any registration pursuant to this Agreement, including, without limitation, all
registration and qualification fees, printing expenses, filing fees, escrow
fees, fees and disbursements of counsel for the Company, blue sky fees and
expenses, expenses of any regular or special audits incident to or required by
any such registration and reasonable fees and disbursements of a single special
counsel for the Holders selected by the Holders of a majority of the Registrable
Securities to be so offered for sale and reasonably acceptable to the Company,
and the compensation of regular employees of the Company, but shall not include
Selling Expenses.
(i) "RULE 144" means Rule 144 as promulgated by the Commission under
the Securities Act, as such Rule may be amended from time to time, or any
similar successor rule that may be promulgated by the Commission.
(j) "RULE 145" means Rule 145 as promulgated by the Commission under
the Securities Act, as such Rule may be amended from time to time, or any
similar successor rule that may be promulgated by the Commission.
(k) "SECURITIES ACT" means the Securities Act of 1933, as amended,
or any similar successor federal statute and the rules and regulations
thereunder, all as the same shall be in effect from time to time.
(l) "SELLING EXPENSES" means all underwriting discounts, selling
commissions and stock transfer taxes applicable to the sale of Registrable
Securities.
(m) "SELLING HOLDER" means a Holder proposing to sell or distribute,
or selling or distributing, Registrable Securities pursuant to this Agreement.
1.2 DEMAND REGISTRATION ON FORM S-3.
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(a) If the Company is eligible for the use of Form S-3, the Holders
shall collectively have, in addition to the rights set forth in Section 1.3, the
right to request up to three registrations on Form S-3. Such requests shall be
in writing and shall state the number of Registrable Securities to be disposed
of and the intended methods of disposition of such Registrable Securities by the
requesting Holder or Holders. In connection with any such request, the Company
shall, subject to Section 1.2(b):
(i) promptly give written notice of the proposed
registration to all other Holders; and
(ii) use its reasonable best efforts to effect such
registration (including, without limitation, filing post-effective amendments,
appropriate qualifications under applicable blue sky or other state securities
laws, and appropriate compliance with the Securities Act and the Exchange Act)
as would permit or facilitate the sale and distribution of all or such portion
of such Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any Holder or Holders
joining in such request as are specified in a written request received by the
Company within twenty (20) days after such written notice from the Company is
mailed or delivered.
(b) The Company shall not be obligated to effect, or to take any
action to effect, any such registration pursuant to this Section 1.2:
(i) if the Selling Holders, together with the holders of any
other securities of the Company entitled to inclusion in such registration,
propose to sell Registrable Securities and such other securities (if any) on
Form S-3 at an aggregate price to the public, net of expected Selling Expenses,
of less than Ten Million Dollars ($10,000,000); or
(ii) in any particular jurisdiction in which the Company would
be required to execute a general consent to service of process in effecting such
registration, qualification, or compliance, unless the Company is already
subject to service in such jurisdiction and except as may be required by the
Securities Act.
(c) Subject to Section 1.2(b), the Company shall use its reasonable
best efforts to effect such a registration of the Registrable Securities so
requested as soon as practicable but in any event within one hundred twenty
(120) days after receipt of the request or requests of the Selling Holders
pursuant to Section 1.2(a); provided, however, that if (i) in the good faith
judgment of the Board of Directors of the Company, such registration would be
materially disadvantageous to the Company and the Board of Directors of the
Company concludes, as a result, that it is essential to defer the filing or
effectiveness of such registration statement at such time, and (ii) the Company
furnishes to such Holders a certificate signed by the Chief Executive Officer of
the Company stating that in the good faith judgment of the Board of Directors of
the Company, it would be materially disadvantageous to the Company for such
registration statement to be filed or become effective in the near future and
that it is, therefore, essential to defer the filing or effectiveness of such
registration statement, then the Company shall have the right to defer such
filing or effectiveness, upon furnishing such certificate, for a period of not
more than one hundred twenty (120) days; provided further, that the Company
shall not defer its obligation in this manner more than once in any rolling
twelve (12) month period.
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(d) Any registration statement filed pursuant to this Section 1.2
may, subject to the provisions of Sections 1.2(e), 1.8 and 1.11 hereof, include
other securities of the Company with respect to which registration rights have
been granted and may include securities of the Company being sold for the
account of the Company.
(e) If the Selling Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to this Section 1.2
and the Company shall include such information in the written notice referred to
in Section 1.2(a)(i). In such event the right of any Holder to include its
Registrable Securities in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Selling Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall enter into an underwriting agreement in customary form
with the underwriter or underwriters of recognized national standing selected
for such underwriting by the Company (which underwriter or underwriters shall be
reasonably acceptable to a majority in interest of the Selling Holders).
Notwithstanding any other provision of this Section 1.2, if the underwriter
advises the Company that marketing factors require a limitation of the number of
securities underwritten (including Registrable Securities), then the Company
shall so advise all Selling Holders of Registrable Securities that would
otherwise be underwritten pursuant hereto, and the Company shall include in such
registration (i) first, any shares to be sold by the Company, (ii) second, the
shares of Registrable Securities of the Selling Holders participating in the
requested registration, allocated pro rata among such Selling Holders in
proportion to the number of shares of Registrable Securities owned by them or
allocated among such Selling Holders as they may agree and advise the Company in
writing, and (iii) third, any shares to be sold by any other stockholder
exercising piggyback registration rights with respect to such shares. Any
Registrable Securities excluded or withdrawn from such underwriting shall be
withdrawn from the registration. To the extent that Registrable Securities
requested to be registered pursuant to this Section 1.2 are excluded from such
registration, then the Holders shall have the right to one additional request
for registration pursuant to Section 1.2(a), provided that the failure of such
Registrable Securities to be registered is through no fault of such Holders;
provided, however, that if, prior to a request for registration pursuant to
Section 1.2(a), an assignment pursuant to Section 1.10(b) of one or more of the
three demand registration rights granted pursuant to Section 1.2(a) has occurred
(a "DEMAND ASSIGNMENT"), the Holder that initiated the request to register
Registrable Securities that was excluded or withdrawn from the underwriting, and
not the other Holders, shall have the right to one additional request for
registration.
(f) The Company shall not be obligated to effect, or to take any
action to effect, any such registration pursuant to this Section 1.2 during the
period starting with the date thirty (30) days prior to the Company's good faith
estimate of the filing of, and ending on a date one hundred eighty (180) days
after the effective date of, a registration statement initiated by the Company
(other than a registration statement relating solely to employee benefit plans
on Form S-3 or Form S-8 or similar forms that may be promulgated in the future,
or a registration statement relating solely to a transaction pursuant to Rule
145 on Form S-4 or similar forms that may be promulgated in the future);
provided, however, that the Company is actively employing in good faith its
reasonable best efforts to cause such registration statement to become
effective.
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1.3 COMPANY REGISTRATION.
(a) If the Company shall determine to register any of its securities
either for its own account or the account of a security holder or holders
exercising their respective demand registration rights (other than pursuant to
Section 1.2 hereof), other than a registration relating solely to employee
benefit plans, a registration relating to a corporate reorganization or other
transaction under Rule 145, or a registration on any registration form that does
not permit secondary sales, the Company will:
(i) promptly give to each Holder written notice thereof;
and
(ii) use its reasonable best efforts to include in such
registration (and any related qualification under blue sky laws or other
compliance), except as set forth in Section 1.3(b) below, and in any
underwriting involved therein, all the Registrable Securities specified in a
written request or requests, made by any Holder and received by the Company
within fourteen (14) days after the written notice from the Company described in
clause (i) above is deemed to be given to the Holders in accordance with Section
2.5. Such written request may specify all or a part of a Holder's Registrable
Securities.
(b) In connection with any offering, other than the Initial Public
Offering, involving an underwriting of shares of the Company's capital stock,
the Company shall not be required under this Section 1.3 to include any of the
Holders' securities in such underwriting unless they accept the terms of the
underwriting as agreed upon between the Company and the underwriters and, if
requested, enter into an underwriting agreement in customary form with an
underwriter or underwriters selected by the Company, and then only in such
quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities requested by Holders to be included
in such offering exceeds the amount of securities sold other than by the Company
that the underwriters determine in their sole discretion is compatible with the
success of the offering, then the Company shall be required to include in the
offering only that number of such securities, including Registrable Securities,
that the underwriters determine in their sole discretion will not jeopardize the
success of the offering, the securities so included to be apportioned (i) first
pro rata among the Selling Holders according to the total amount of securities
requested to be included therein owned by each Selling Holder or allocated among
such Selling Holders as they may agree and advise the Company in writing, and
(ii) second, any remaining securities to any other selling stockholders
exercising registration rights with respect to such securities.
If any Person does not agree to the terms of any such underwriting or
otherwise fails to comply with the provisions of this Agreement, such Person
shall be excluded therefrom by written notice from the Company or the
underwriter. Any Registrable Securities or other securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration.
(c) No Holder shall be entitled to exercise the registration rights
set forth in this Section 1.3 except with respect to registrations by the
Company that would occur after the
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expiration of the lock-up period applicable to Delek Group in connection with
the Initial Public Offering.
(d) The Company shall have the right to terminate or withdraw any
registration initiated under this Section 1.3 prior to the effectiveness of such
registration whether or not any Holder has elected to include securities in such
registration. The expenses of such withdrawn registration shall be borne by the
Company if required under Section 1.4 below.
1.4 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to
Section 1.2 and 1.3 hereof shall be borne by the Company. All Selling Expenses
relating to securities so registered shall be borne by the holders of such
securities pro rata on the basis of the number of shares of securities so
registered on their behalf. Notwithstanding the foregoing, the Company shall not
be required to pay for any Registration Expenses of any registration begun
pursuant to Section 1.2 hereof if a registration demand initiated by the Holders
under Section 1.2(a) is subsequently withdrawn at the request of Selling Holders
of a majority of the Registrable Securities to be so registered (in which case
all participating Selling Holders shall bear such expenses pro rata based upon
the number of Registrable Securities that were to be registered in the withdrawn
registration statement and such withdrawn registration shall not constitute the
use by the Holders of a requested registration under Section 1.2); provided,
however, (a) that if at the time of such withdrawal the Seller Holders have
learned of a material adverse change in the condition, business or prospects of
the Company from that known to the Holders at the time of their request and they
have withdrawn the request with reasonable promptness following the Selling
Holders having learned of such material adverse change, then the Selling Holders
shall not be required to pay any of such Registration Expenses and such
withdrawn registration shall not constitute the use by the Holders of a demand
registration under Section 1.2; provided, however, that if, prior to a request
for registration pursuant to Section 1.2(a), a Demand Assignment has occurred,
the Holder that initiated the request to register Registrable Securities in the
withdrawn registration, and not the other Holders, shall have the right to one
additional request for registration; or (b) the Selling Holders agree (or, if a
Demand Assignment has occurred prior to a request for registration pursuant to
Section 1.2(a), the Holder that initiated the request to register Registrable
Securities in the withdrawn registration agrees) in writing to forego one demand
right pursuant to Section 1.2, then the Selling Holders shall not be required to
pay any of the Registration Expenses.
1.5 REGISTRATION PROCEDURES. In the case of each registration effected by
the Company pursuant to Section 1.2 or 1.3, the Company will keep each Selling
Holder advised in writing as to the initiation of each registration and as to
the completion thereof. At its expense, the Company will use its reasonable best
efforts to:
(a) prepare and file with the Commission a registration statement
with respect to such shares and use its reasonable best efforts to cause such
registration statement to become effective as soon as reasonably practicable
thereafter (provided that before filing a registration statement or any
amendments or supplements thereto, the Company shall furnish counsel for the
Selling Holders with copies of all such documents proposed to be filed) and to
cause such registration statement to comply as to form and content in all
material respects with the Commission's forms, rules and regulations;
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(b) keep such registration effective for a period of one hundred
eighty (180) days in the case of a registration pursuant to Section 1.2 hereof,
for a period of one hundred twenty (120) days in the case of a registration
pursuant to Section 1.3 hereof, or until the Selling Holders have completed the
distribution described in the registration statement relating thereto, whichever
first occurs;
(c) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
(d) furnish such number of prospectuses and other documents incident
thereto, including any amendment of or supplement to the prospectus, as a
Selling Holder from time to time may reasonably request;
(e) use all reasonable efforts to register or qualify such shares
under such other securities or blue sky laws of such jurisdictions as such
Selling Holder requests (and to maintain such registrations and qualifications
effective for the applicable period of time set forth in Section 1.5(b) hereof),
and to 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 such shares; provided that, notwithstanding anything to the
contrary in this Agreement with respect to the bearing of expenses, if any such
jurisdiction shall require that expenses incurred in connection with the
qualification of such shares in that jurisdiction be borne in part or full by
such Selling Holder, then such Selling Holder shall pay such expenses to the
extent required by such jurisdiction;
(f) notify each seller of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the occurrence of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or incomplete in the light of the
circumstances then existing, and at the request of any such seller, prepare and
furnish to such seller a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such shares, such prospectus shall not include 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 or
incomplete in the light of the circumstances then existing;
(g) use its reasonable best efforts to cause all such Registrable
Securities registered pursuant hereunder to be listed on each securities
exchange, interdealer quotation system or other market on which similar
securities issued by the Company are then listed;
(h) provide a CUSIP number for all such Registrable Securities not
later than the effective date of such registration;
(i) provide the transfer agent for the Common Stock with
certificates for the Registrable Securities that are in a form eligible for
deposit with The Depository Trust Company
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(or, if the Registrable Securities are not in book-entry form, reasonably
cooperate with each Selling Holder to facilitate timely preparation and delivery
of certificates representing Registrable Securities sold pursuant to the
effective registration statement and not bearing any restrictive legends (unless
required by applicable law));
(j) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission and to assist in any filings
required to be made with the National Association of Securities Dealers by any
underwriter in connection with any underwritten offering pursuant to a
registration statement filed pursuant to Section 1.2 or 1.3 hereof;
(k) make available for reasonable inspection upon prior written
notice by such Holder, by any underwriter participating in any distribution
pursuant to such registration statement, and by any attorney, accountant or
other agent bound by a confidentiality arrangement retained by such Holder or by
any such underwriter, all financial and other records, pertinent corporate
documents, and properties of the Company (other than confidential intellectual
property or other property or information that is subject to legal
confidentiality obligations);
(l) in connection with any underwritten offering pursuant to a
registration statement filed pursuant to Sections 1.2 or 1.3 hereof, will enter
into an underwriting agreement in usual and customary form reasonably necessary
to effect the offer and sale of Registrable Securities; provided such
underwriting agreement contains customary underwriting provisions and provided
further that if the underwriter so requests the underwriting agreement will
contain customary contribution provisions; and
(m) furnish, at the request of a majority of the Selling Holders
participating in the registration, on the date that such Registrable Securities
are delivered to the underwriters for sale, if such securities are being sold
through underwriters (i) an opinion, dated as of such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to the underwriters in an underwritten public
offering addressed to the underwriters and (ii) a letter dated as of such date
from the Company's independent registered public accounting firm, in form and
substance as is customarily given by independent registered public accounting
firms to underwriters in an underwritten public offering addressed to the
underwriters.
1.6 INDEMNIFICATION.
(a) The Company will indemnify each Selling Holder, each of such
Selling Holder's Affiliates, officers, directors, managers, members, partners,
legal counsel, accountants and representatives and each person controlling such
Selling Holder within the meaning of Section 15 of the Securities Act with
respect to which registration, qualification or compliance has been effected
pursuant to this Section 1, and each underwriter, if any, and each person who
controls within the meaning of Section 15 of the Securities Act any underwriter,
against all claims, actions, losses, damages, and liabilities (joint or several)
(or actions, proceedings or settlements in respect thereof) arising out of or
based on any of the following statements, omissions or violations (each, a
"VIOLATION"): (i) any untrue statement or alleged untrue statement of a material
fact contained in any registration statement, including any preliminary
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prospectus or final prospectus contained therein or any amendments or
supplements thereto, any offering circular or other related registration
statement or notification incident to any such registration, and any "free
writing prospectus" (as defined in Rule 405 under the Securities Act) prepared
by the Company, on behalf of the Company with its knowledge and consent, or used
or referred to by the Company in connection with any underwritten offering
pursuant to a registration statement filed under Section 1.2 or 1.3, or any
"road show" (as defined in Rule 433 under the Securities Act) not constituting a
"free writing prospectus" in connection with any underwritten public offering
pursuant to a registration statement filed under Section 1.2 or 1.3, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the Securities Act,
the Exchange Act, any state securities laws or any rule or regulation thereunder
applicable to the Company in connection with any such registration,
qualification, or compliance with respect to any Registrable Securities, and
will reimburse each such Selling Holder, each of its Affiliates, officers,
directors, managers, members, partners, legal counsel, and accountants and each
person controlling such Holder, each such underwriter, and each person who
controls any such underwriter, for any legal and any other expenses reasonably
incurred (and as incurred) in connection with investigating and defending or
settling any such claim, action, loss, damage, liability, or action; provided
that the Company will not be liable in any such case to the extent that any such
claim, action, loss, damage, liability, or expense arises out of or is based on:
(i) a Violation by the Company in reliance upon and in conformity with any
untrue statement or omission set forth in written information furnished to the
Company by such Holder or underwriter and stated to be specifically for use
therein, unless such Holder (or underwriter as the case may be) timely provided
to the Company additional information to correct the previously inaccurate or
incomplete information, or (ii) such Holders' failure, if required, to deliver a
copy of the registration statement or prospectus or any amendment or supplements
thereto after the Company has furnished such Holder with a sufficient number of
copies of the same. It is agreed that the indemnity agreement contained in this
Section 1.6(a) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability, or action if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld or
delayed).
(b) Each Selling Holder will, if Registrable Securities held by such
Selling Holder are included in the securities as to which such registration,
qualification, or compliance is being effected, indemnify, severally and not
jointly, the Company, its Affiliates, each of its directors, officers, legal
counsel, accountants and representatives and each underwriter, if any, of the
Company's securities covered by such a registration statement, each person who
controls the Company or such underwriter within the meaning of Section 15 of the
Securities Act, each other such Selling Holder, and each of their Affiliates,
officers, directors, managers, members, partners, legal counsel, accountants and
representatives and each person controlling such Selling Holder or other
stockholder, against all claims, actions, losses, damages and liabilities (joint
or several) (or actions, proceedings or settlements in respect thereof) arising
out of or based on any Violation, and will reimburse the Company and such
Selling Holders, other stockholders, Affiliates, directors, officers, managers,
members, partners, legal counsel, accountants, representatives, underwriters, or
control persons for any legal or any other expenses reasonably incurred (as
incurred) in connection with investigating and defending or settling any such
claim, action, loss, damage, liability, or action, in each case to the extent
but only to the extent that such
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untrue statement or alleged untrue statement or omission or alleged omission is
made in such registration statement, prospectus, offering circular, "free
writing prospectus," "road show" not constituting a "free writing prospectus" or
other document in reliance upon and in conformity with written information
furnished to the Company by such Selling Holder and stated to be specifically
for use therein; provided, however, that the obligations of such Selling Holder
hereunder shall not apply to amounts paid in settlement of any such claims,
losses, damages, or liabilities (or actions in respect thereof) if such
settlement is effected without the consent of such Selling Holder (which consent
shall not be unreasonably withheld or delayed); provided further that in no
event shall any indemnity under this Section 1.6(b) exceed the net proceeds from
the offering received by such Selling Holder.
(c) Each party entitled to indemnification under this Section 1.6
(the "INDEMNIFIED PARTY") shall give written notice to the party required to
provide indemnification (the "INDEMNIFYING PARTY") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of such
claim or any litigation resulting therefrom; provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld or delayed), and the
Indemnified Party may participate in such defense at such party's expense,
except that such participation by an Indemnified Party shall be at the expense
of the Indemnifying Party if representation of such Indemnified Party by the
counsel retained by the Indemnifying Party would be inappropriate due to actual
or potential differing interests, as reasonably determined by either party,
between such Indemnified Party and any other party represented by such counsel
in such proceeding; provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Section 1, to the extent such failure is not
prejudicial. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of an unconditional release from all liability in respect to
such claim or litigation. Each Indemnified Party shall furnish such information
regarding itself or the claim in question as an Indemnifying Party may
reasonably request in writing and as shall be reasonably required in connection
with the defense of such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 1.6 is held
by a court of competent jurisdiction to be unavailable to an Indemnified Party
with respect to any loss, liability, claim, action, damage, or expense referred
to therein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party hereunder, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such loss, liability, claim, action,
damage, or expense in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party on the one hand and of the Indemnified Party on
the other in connection with the statements or omissions that resulted in such
loss, liability, claim, action, damage, or expense as well as any other relevant
equitable considerations; provided that in no event shall any contribution
obligation of a Selling Holder hereunder exceed the net proceeds from the
offering received by such Selling Holder. The relative fault of the Indemnifying
Party and of the Indemnified Party shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied
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by the Indemnifying Party or by the Indemnified Party and the parties' relative
intent, knowledge, access to information, and opportunity to correct or prevent
such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with the underwritten public offering are in conflict
with the foregoing provisions, the provisions in the underwriting agreement
shall control.
1.7 INFORMATION BY HOLDER. Each Selling Holder of Registrable Securities
shall furnish to the Company such information regarding such Selling Holder and
the distribution proposed by such Selling Holder as the Company may reasonably
request in writing and as shall be reasonably required in connection with any
registration, qualification, or compliance referred to in this Section 1.
1.8 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after the date
of this Agreement, the Company shall not, without the prior written consent of
Holders holding a majority of the Registrable Securities, enter into any
agreement with any holder or prospective holder of any securities of the Company
that would allow such holder or prospective holder to (a) include such
securities in any registration filed under this Section 1, unless under the
terms of such agreement, (i) such holder or prospective holder may include such
securities in any such registration only to the extent that the inclusion of
such securities will not reduce the amount of the Registrable Securities of the
Holders which are included, or (ii) such registration rights are otherwise
expressly subordinate to the registration rights granted under this Agreement or
(b) make a demand registration which could result in such registration statement
being declared effective the earlier of either the date upon which the Company's
first becomes eligible to use Form S-3 or within one hundred twenty (120) days
following the effective date of a registration statement effected pursuant to
Section 1.2.
1.9 RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the Commission that may permit the sale of the
Registrable Securities to the public without registration, the Company agrees
to:
(a) make and keep public information regarding the Company available
as those terms are understood and defined in Rule 144, at all times from and
after the effective date of the registration statement relating to the Initial
Public Offering;
(b) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act at any time after it has become subject to such reporting
requirements; and
(c) so long as a Holder owns any Registrable Securities, furnish to
the Holder forthwith upon written request a written statement as to the
Company's compliance with the reporting requirements of Rule 144 (at any time
from and after the effective date of the first registration statement filed by
the Company for an offering of its securities to the general public), and of the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements), a copy of the most recent annual or quarterly
report of the Company,
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and such other reports and documents so filed and information as a Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing a Holder to sell any such securities without registration.
1.10 TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause
the Company to register securities granted to a Holder by the Company under this
Section 1 may be transferred or assigned by such Holder:
(a) to a transferee or assignee who is an Affiliate of the
Holder; or
(b) to a transferee or assignee who is not an Affiliate of the
Holder, provided that such transfer represents no less than 15% of the Common
Stock owned by Delek Group (directly or through its Affiliates) as of the date
of closing of the Initial Public Offering;
provided, in either case, that (i) the Company is given written notice as soon
as practicable, and in any case within fifteen (15) days, after such assignment
or transfer, stating the name and address of the transferee or assignee and
identifying the securities with respect to which such registration rights are
being transferred or assigned, and, in the case of a Demand Assignment,
specifying the number of demand registration rights, if any, that were so
transferred or assigned and the number of unused demand registration rights
retained by such Holder, and (ii) the transferee or assignee of such rights
assumes in writing the obligations of such Holder under this Agreement.
1.11 TERMINATION OF REGISTRATION RIGHTS. The rights to request
registration of any Company securities pursuant to Sections 1.2 and 1.3 shall
terminate as to any Holder upon the earliest of: (a) when all of the Registrable
Securities may be sold in a single transaction during a single three (3) month
period under Rule 144; and (b) when a Holder's Registrable Securities may be
transferred under Rule 144(k) unless such Holder later becomes an affiliate of
the Company (as defined in Rule 144) in which case such Holder's rights to
request registration shall be revived until such Holder's rights otherwise
terminate under this Section 1.11.
1.12 CHANGES IN COMMON STOCK. If there is any change in the Common Stock
by way of a stock split, stock dividend, combination or reclassification, or
through a merger, consolidation, reorganization or recapitalization, or by any
other means, appropriate adjustment shall be made in the provisions hereof so
that the rights and privileges granted hereby shall continue with respect to the
Common Stock as so changed.
1.13 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 Registrable Securities 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,
however, that any such "lock-up" period shall not exceed 180 days (plus any
conditional extension period customary in such "lock-up" agreements) after the
initial sale of securities in such offering.
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1.14 COMPLIANCE WITH APPLICABLE LAW. Each Holder covenants that, in
disposing of such Holder's shares of Common Stock, 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.
SECTION 2. MISCELLANEOUS.
2.1 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.
2.2 GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the State of Delaware without regard to conflicts of laws
principles.
2.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, permitted assigns, heirs, executors and administrators of the
parties hereto.
2.4 ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement constitutes the
full and entire understanding and agreement between the parties with regard to
the subject matter hereof, and any previous agreement between the parties
relative to the specific subject matter hereof is superseded by this Agreement.
Neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated, except by a written instrument signed by the parties hereto.
2.5 NOTICES. All notices and other communications required or permitted
hereunder shall be in writing and shall be sent by facsimile, delivered by an
internationally recognized overnight courier or delivered by hand, addressed as
follows:
(a) if to the Company:
Delek US Holdings, Inc.
000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
with a copy to (which shall not constitute notice):
Fulbright & Xxxxxxxx L.L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.
(b) if to Delek Group:
Delek Group Ltd.
0 Xxxxxxx Xxxxxx Xxxxxx
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X.X. Xxx 0000
Xxxxxxxxxx Xxxx Xxxxx, Xxxxxxx 00000
Xxxxxx
Facsimile: 000 (000) 0-000-0000
Attention: President
with a copy to (which shall not constitute notice):
Delek Group Ltd.
0 Xxxxxxx Xxxxxx Street
X.X. Xxx 0000
Xxxxxxxxxx Xxxx Xxxxx, Xxxxxxx 00000
Israel
Facsimile: 000 (000) 0-000-0000
Attention: General Counsel
(c) if to any Holder other than Delek Group, to the address of such
Holder furnished to the Company in writing from time to time.
All such notices and other written communications shall be effective at
the time of confirmed facsimile transmission, the next business day after the
date of delivery to a representative of an internationally recognized overnight
courier or the date of delivery in the case of by hand delivery, as the case may
be.
2.6 DELAYS OR OMISSIONS. No delay or omission to exercise any right, power
or remedy accruing to any Holder, upon any breach or default of the Company
under this Agreement shall impair any such right, power or remedy of any Holder
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 therefore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of any
Holder of any breach or default under this Agreement or any waiver on the part
of any Holder of any provisions or conditions of this Agreement must be made 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 the Holders, shall be cumulative and not alternative.
2.7 SEVERABILITY. In case any provision of the Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
2.8 TITLES AND SUBTITLES. The titles of the paragraphs and subparagraphs
of this Agreement are for convenience of reference only and are not to be
considered in construing or interpreting this Agreement.
2.9 COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument. This Agreement may be executed by
facsimile signatures.
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2.10 FURTHER ASSURANCES. The parties agree, from time to time and without
further consideration, to execute and deliver such further documents and take
such further actions as reasonably may be required to implement and effectuate
the transactions contemplated in this Agreement.
2.11 NO THIRD-PARTY BENEFICIARIES. Other than as provided for herein, this
Agreement is intended to inure to the benefit of the Company and the Holders,
and no other Person shall have any rights, express or implied, by reason of this
Agreement.
[signature page follows]
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IN WITNESS WHEREOF, the Company and Delek Group have executed this
Agreement on the date first above written.
DELEK US HOLDINGS, INC.
By: /s/ Ezra Uzi Yemin
------------------------------------
Name: Ezra Uzi Yemin
Title: President and Chief Executive Officer
By: /s/ Xxxx XxXxxxx
------------------------------------
Name: Xxxx XxXxxxx
Title: VP of Human Resources
DELEK GROUP LTD.
By: /s/ Xxxxx Xxx-Xxx
--------------------------------
Name: Xxxxx Xxx-Xxx
Title: VP and CFO
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxx
Title: CEO
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