AMENDED AND RESTATED STOCKHOLDERS
AGREEMENT
THIS AMENDED AND
RESTATED STOCKHOLDERS AGREEMENT (this “
Agreement ”) is made as of the 31st day of
March, 2009, by and among Alon USA Energy, Inc., a Delaware
corporation (“ Alon USA ”), Alon Refining
Louisiana, Inc., a Delaware corporation (the “
Company ”), Alon Louisiana Holdings, Inc., a
Delaware corporation (“ Alon LA ”), Alon
Israel Oil Company, Ltd., an Israeli limited liability company
(“ Alon Israel ” and, together with Alon
LA, the “ Stockholders ”), and any other
stockholder who from time to time becomes party to this Agreement
by execution of a joinder agreement in form and substance
reasonably acceptable to the Stockholders.
A. On
July 3, 2008, Alon Israel purchased 80,000 shares of the
Company’s Series A Preferred Stock, par value $1,000.00
per share, pursuant to that certain Series A Stock Purchase
Agreement dated as of July 3, 2008 by and between the Company
and Alon Israel (the “ Original Purchase
Agreement ”);
B. In
connection with the Original Purchase Agreement, the parties hereto
entered into a Stockholders Agreement (the “ Original
Stockholders Agreement ”), dated as of July 3,
2008, to govern the terms on which the securities of the Company
will be held and transferred;
C. Alon LA
has requested that Alon Israel cause the Additional Letters of
Credit (as defined below) in an amount up to $25,000,000.00 to be
provided in favor of Alon Refining Krotz Springs, Inc., a Delaware
corporation (“ Krotz Springs ”), in
connection with negotiations by Krotz Springs for amendments to the
Term Loan Agreement, dated as of July 3, 2008, as amended to
date, by and among the Company, Krotz Springs, the lenders party
thereto and Credit Suisse, Cayman Islands Branch, and any successor
thereto (as amended, the “ Term Loan Agreement
”), and the Loan and Security Agreement, dated as of
July 3, 2008, as amended to date, by and among the Company,
Krotz Springs, any additional subsidiary joined thereunder and Bank
of America, N.A. (as amended, the “ Revolving Credit
Agreement ”);
D. In
consideration for the issuance of the Additional Letters of Credit,
(i) Alon LA will, and shall cause the Company to, grant Alon
Israel an option (the “ L/C Option ”) to
withdraw the Additional Letters of Credit and the Original Letters
of Credit (as defined below) and acquire shares of Preferred Stock
(as defined below) in an aggregate amount equal to such withdrawn
Additional Letters of Credit and/or withdrawn Original Letters of
Credit, and (ii) Alon USA and Alon LA agree to certain changes
to the terms and conditions of the Original Stockholders Agreement
as set forth herein; and
E. The
parties hereto desire to amend the Original Stockholders Agreement
as hereinafter provided and have agreed, for purposes of clarity
and ease of administration, to amend the Original Stockholders
Agreement and then restate the Original Stockholders Agreement in
its entirety by means of this Agreement.
NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants and
agreements hereinafter set forth, the parties hereto agree as
follows:
1.1 Certain
Interpretive Matters . When a reference is made in this
Agreement to Sections, such reference will be to a Section of this
Agreement unless otherwise indicated. Whenever the words
“include,” “includes” or
“including” are used in this Agreement, they will be
deemed to be followed by the words “without
limitation.” Unless the context otherwise requires, (i)
“or” is disjunctive but not necessarily exclusive,
(ii) words in the singular include the plural and vice versa,
(iii) the use in this Agreement of a pronoun in reference to a
party hereto includes the masculine, feminine or neuter, as the
context may require, (iv) the use in this Agreement of
“day” will mean a calendar day unless indicated
otherwise, (v) all references to $ or dollar amounts will be
to lawful currency of the United States, 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 section,
paragraph or other subdivision of this Agreement.
1.2 Number of
Shares of Stock . Whenever any provision of this Agreement
calls for any calculation based on a number of shares of capital
stock issued and outstanding or held by a Stockholder, the number
of shares deemed to be issued and outstanding or held by that
Stockholder, unless specifically stated otherwise, as applicable,
shall be the total number of shares of the Company’s Common
Stock, par value $0.01 per share (the “ Common
Stock ”), or Preferred Stock then issued and
outstanding or owned by such Stockholder, as applicable.
1.3 Defined
Terms . The following capitalized terms, as used in this
Agreement, shall have the meanings set forth below.
“Additional L/C Preferred Shares ” means
the First L/C Preferred Shares and the Second L/C Preferred
Shares.
“Additional Letters of Credit ” means the
First Letters of Credit and the Second Letters of
Credit.
“
Affiliate ” shall mean with respect to any
Person (as defined below), any Person who, directly or indirectly,
controls, is controlled by or is under common control with such
Person, including any partner, officer, director, member, manager
or employee of such Person.
“ Alon
Common Stock ” shall mean the shares of common stock,
par value $0.01 per share, of Alon USA Energy, Inc., a Delaware
corporation.
“
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 ” means the Company’s Amended
and Restated Certificate of Incorporation, as in effect from time
to time.
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“
Change of Control ” means either of the
following events:
(a) the
failure, for any reason, of Alon USA or any of its Affiliates to
beneficially own, directly or indirectly, at least a majority of
the voting stock of the Company or, if applicable, any entity that
succeeds to all or substantially all of the assets of the Company
by purchase, contribution, assignment, merger, consolidation or
otherwise; or
(b) the
failure, for any reason, of Alon Israel to beneficially own,
directly or indirectly, at least a majority of the voting stock of
Alon USA or, if applicable, any entity that succeeds to all or
substantially all of the assets of Alon USA by purchase,
contribution, assignment, merger, consolidation or
otherwise.
“
First L/C Alon Share Price ” shall mean the
greater of (i) the average of the daily closing sales prices
per share of the Alon Common Stock on the New York Stock Exchange
for each trading day during the period commencing on the day
90 days prior to the date of the issuance of the First Letters
of Credit and ending on the date of issuance, and (ii) the
closing sale price per share of the Alon Common Stock on the New
York Stock Exchange on the date of the issuance of the First
Letters of Credit.
“
First L/C Preferred Shares ” means the
Preferred Shares issued upon an exercise of the L/C Option with
respect to the First Letters of Credit.
“
Original Preferred Alon Share Price ” shall
mean the greater of (i) the average of the daily closing sales
prices per share of the Alon Common Stock on the New York Stock
Exchange for each trading day during the period commencing on the
day 90 days prior to the date of the Original Stockholders
Agreement and ending on the date of the Original Stockholders
Agreement (ii) the closing sale price per share of the Alon
Common Stock on the New York Stock Exchange on the date of the
Original Stockholders Agreement.
“
Original Preferred Shares ” means the 80,000
shares of Preferred Stock issued pursuant to the Original Purchase
Agreement, together with any and all shares of Preferred Stock that
may be issued upon an exercise of the L/C Option with respect to
the Original Letters of Credit.
“ Par
Value ” means the par value of $1,000.00 per share of
the Preferred Stock.
“
Permitted Transferee ” means any Person to
which a Stockholder may Transfer Securities as permitted by and in
accordance with Sections 2.1 and 2.2 of this
Agreement.
“
Person ” means an individual, a corporation, an
association, a joint venture, a partnership, a limited liability
company, an estate, a trust, an unincorporated organization and any
other entity or organization, governmental or otherwise.
“
Preferred Shares ” means, collectively, the
Original Preferred Shares, the First L/C Preferred Shares and the
Second L/C Preferred Shares.
“
Preferred Stock ” means the Company’s
Series A Preferred Stock, par value $1,000 per
share.
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“
Second L/C Alon Share Price ” shall mean the
greater of (i) the average of the daily closing sales prices
per share of the Alon Common Stock on the New York Stock Exchange
for each trading day during the period commencing on the day
90 days prior to the date of the issuance of the Second
Letters of Credit and ending on the date of issuance, and
(ii) the closing sale price per share of the Alon Common Stock
on the New York Stock Exchange on the date of the issuance of the
Second Letters of Credit.
“
Second L/C Preferred Shares ” means the
Preferred Shares issued upon an exercise of the L/C Option with
respect to the Second Letters of Credit.
“
Securities ” means, at any time, any shares of
capital stock of the Company, including Common Stock and Preferred
Stock now or hereafter issued by the Company, together with any
options thereon and any other shares of stock directly or
indirectly issued or issuable with respect thereto, whether by way
of a stock dividend, stock split or in exchange for or upon
conversion of such shares or otherwise in connection with a
combination of shares, recapitalization, merger, consolidation or
other corporate reorganization, and any instrument convertible into
or exercisable or exchangeable for (in each case, directly or
indirectly) shares of capital stock of the Company, together with
any shares of stock issued or issuable with respect
thereto.
“
Securities Act ” means the Securities Act of
1933, as amended, and the rules and regulations promulgated
thereunder.
“
Series A Dividends ” has the meaning set
forth in the Certificate.
“
Share Exchange ” means the issuance and
delivery by Alon USA to Alon Israel and/or any of its Permitted
Transferees in exchange for Preferred Shares held by Alon Israel
and/or any of its Permitted Transferees a number of duly
authorized, fully paid and nonassessable whole shares of Alon
Common Stock as determined in accordance with Section 2.3
hereof.
“
Transfer ” means any direct transfer, donation,
sale, assignment, pledge, hypothecation, grant of a security
interest in or other disposal or attempted disposal of all or any
portion of a Security, any interest or rights in a Security, or any
rights under this Agreement. “ Transferred
” means the accomplishment of a Transfer, and “
Transferee ” means the recipient of a
Transfer.
2.
Restrictions on Transfer .
2.1
Restrictions on Transfer . Each Stockholder agrees that such
Stockholder will not, without the prior written consent of the
Company, not to be unreasonably withheld, Transfer all or any
portion of the Securities now owned or hereafter acquired by such
Stockholder, except in connection with, and strictly in compliance
with this Article 2. Notwithstanding the foregoing, a Transfer
by a Stockholder to any Affiliate of such Stockholder shall not be
subject to the prior consent of the Company.
2.2 Permitted
Transfers . Notwithstanding the provisions of Section 2.1,
no Transfer shall be permitted or effected hereunder unless and
until the Transferee shall have entered into a joinder agreement in
form and substance reasonably acceptable to the Stockholders
providing that all Securities so Transferred shall continue to be
subject to all provisions of this Agreement as if such Securities
were still held by such Stockholder (“ Joinder
Agreement ”).
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Notwithstanding
anything to the contrary in this Agreement or any failure by a
Transferee under this Section 2.2 to execute a Joinder
Agreement, such Transferee shall take any Securities so Transferred
subject to all provisions of this Agreement as if such Securities
were still held by the Stockholder making such Transfer, whether or
not they so agree in writing.
(a) Subject
to the prior receipt by Alon USA of approval of holders of a
majority of the Alon Common Stock with respect to the issuance of
the Exchange Shares (as defined below) pursuant to and in
compliance with Section 312.03 of the NYSE’s Listed
Company Manual (“ NYSE Stockholder Approval
”), prior to the consummation of any Change of Control (a
“ Change of Control Date ”), each of Alon
USA and Alon Israel shall have the option, exercisable at each such
party’s sole and absolute discretion, to require the other
party to consummate a Share Exchange by delivery to the other party
at least 10 Business Days prior to the Change of Control Date of a
written notice (the “ Exercise Notice ”)
setting forth such party’s election to effectuate a Share
Exchange. Any Share Exchange elected pursuant to this
Section 2.3(a) shall be consummated effective as of the
Business Day immediately preceding such Change of Control Date (the
“ Change of Control Exchange Date
”).
(b) Subject
to the prior receipt by Alon USA of NYSE Stockholder Approval, Alon
Israel and/or any of its Permitted Transferees shall have the
option (the “ Exchange Option ”),
exercisable for a five Business Day period beginning on the first
day on which the Alon USA securities trading window is open after
each of January 3, 2010, July 1, 2010 and January 1,
2011 to require Alon USA to consummate a Share Exchange by delivery
to Alon USA of an exercise notice setting forth the election to
effectuate a Share Exchange (the date on which such Share Exchange
is consummated being referred to herein as a “
Voluntary Exchange Date ”).
(c) If
Krotz Springs’ assets are the subject of any proceeding
under, or any order, decree or judgment entered in any proceeding
under, any bankruptcy, insolvency, receivership, reorganization,
liquidation or other similar law (other than a voluntary
liquidation pursuant to which there are sufficient proceeds to
distribute to the holders of the Preferred Shares an aggregate
amount equal to the par value plus accrued dividends of all of the
then outstanding Preferred Shares) (each, a “ Trigger
Event ”), then, subject to the prior receipt by Alon
USA of NYSE Stockholder Approval, Alon Israel and/or any of its
Permitted Transferees shall have the option to require Alon USA to
consummate a Share Exchange effective (the date on which such Share
Exchange is consummated being referred to herein as a “
Trigger Event Exchange Date ”).
(d) If
a Share Exchange effected pursuant to Sections 2.3(a),
(b) or (c) shall not have occurred prior to 5:00 p.m.
(Dallas, Texas time) on July 1, 2011 (the “
Mandatory Exchange Date ”), then, subject to
the prior receipt by Alon USA of NYSE Stockholder Approval, Alon
USA and Alon Israel and/or any of its Permitted Transferees shall
consummate a Share Exchange effective as of the Mandatory Exchange
Date.
(e) Alon
USA 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 its 2009 annual
meeting of stockholders.
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(f) On
the Change of Control Exchange Date, Voluntary Exchange Date,
Trigger Event Exchange Date or Mandatory Exchange Date, as
applicable, Alon USA shall issue and deliver to Alon Israel and/or
any of its Permitted Transferees in exchange for the Preferred
Shares subject to such Share Exchange (all of which shares shall be
transferred and delivered to Alon USA free and clear of any lien,
claim, judgment, charge, mortgage, security interest, escrow,
equity or other encumbrance), a number of duly authorized, fully
paid and nonassessable whole shares of Alon Common Stock equal
to:
(i) with respect
to the Original Preferred Shares, the quotient obtained by dividing
(x) the sum of (A) the aggregate Par Value of the
Original Preferred Shares being exchanged by Alon Israel and/or any
of its Permitted Transferees, and (B) the aggregate
Series A Dividends accrued but unpaid on such Original
Preferred Shares, whether or not declared, together with any other
dividends declared but unpaid on such Original Preferred Shares, by
(y) the Original Preferred Alon Share Price (the “
Original Exchange Shares ”); provided that in
lieu of any fractional share of Alon Common Stock that would
otherwise be payable by operation of this subsection, Alon USA
shall pay to the Person entitled thereto an amount in cash equal to
such fraction multiplied by the Original Preferred Alon Share
Price.
(ii) with respect
to the First L/C Preferred Shares, the quotient obtained by
dividing (x) the sum of (A) the aggregate Par Value of
the First L/C Preferred Shares being exchanged by Alon Israel
and/or any of its Permitted Transferees, and (B) the aggregate
Series A Dividends accrued but unpaid on such First L/C
Preferred Shares, whether or not declared, together with any other
dividends declared but unpaid on such First L/C Preferred Shares,
by (y) the First L/C Alon Share Price (the “ First
L/C Exchange Shares ”); provided that in lieu of any
fractional share of Alon Common Stock that would otherwise be
payable by operation of this subsection, Alon USA shall pay to the
Person entitled thereto an amount in cash equal to such fraction
multiplied by the First L/C Alon Share Price;
(iii) with respect
to the Second L/C Preferred Shares, the quotient obtained by
dividing (x) the sum of (A) the aggregate Par Value of
the Second L/C Preferred Shares being exchanged by Alon Israel
and/or any of its Permitted Transferees, and (B) the aggregate
Series A Dividends accrued but unpaid on such Second L/C
Preferred Shares, whether or not declared, together with any other
dividends declared but unpaid on such Second L/C Preferred Shares,
by (y) the Second L/C Alon Share Price (the “
Second L/C Exchange Shares ” and together with
the Original Exchange Shares and the First L/C Exchange Shares (the
“ Exchange Shares ”); provided that in
lieu of any fractional share of Alon Common Stock that would
otherwise be payable by operation of this subsection, Alon USA
shall pay to the Person entitled thereto an amount in cash
eq
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