Exhibit 10.88
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.
RECITALS:
     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Credit (as defined below) and acquire shares of Preferred Stock (as defined below) in an aggregate amount equal to such withdrawn Additional Letters of Credit and/or withdrawn Original Letters of Credit, and (ii) Alon USA and Alon LA agree to certain changes to the terms and conditions of the Original Stockholders Agreement as set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.

 


 

AGREEMENT:
     NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth, the parties hereto agree as follows:
1. Definitions.
     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.

2


 

     “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.

3


 

     “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”).

4


 

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.
     2.3 Exchange Right.
          (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.

5


 

          (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 equal to such fraction multiplied by the Second L/C Alon Share Price; and
          (g) As a condition precedent to delivery of Exchange Shares, Alon Israel and/or any of its Permitted Transferees shall surrender the certificate or certificates for all

6


 

Preferred Shares being exchanged by it and/or its Permitted Transferees pursuant to such Share Exchange (or, if Alon Israel and/or any of its Permitted Transferees alleges that any such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to Alon USA to indemnify Alon USA and the Company against any claim that may be made against Alon USA or the Company on account of the alleged loss, theft or destruction of such certificate) to Alon USA at its principal office. If so required by Alon USA, certificates surrendered for exchange shall be endorsed or accompanied by written instrument or instruments of transfer, in form reasonably satisfactory to Alon USA, duly executed by the registered holder. All rights of Alon Israel and/or any of its Permitted Transferees with respect to the Preferred Shares exchanged pursuant to Section 2.3, whether arising under the Certificate, this Agreement or otherwise, including the rights, if any, to receive Series A Dividends accrued on or after the Change of Control Exchange Date, Voluntary Exchange Date, Trigger Event Exchange Date or Mandatory Exchange Date, as applicable, will be deemed transferred and assigned by Alon Israel and its Permitted Transferees to Alon USA on the Change of Control Exchange Date, Voluntary Exchange Date, Trigger Event Exchange Date or Mandatory Exchange Date, as applicable, (notwithstanding the failure of Alon Israel and/or any of its Permitted Transferees to surrender the certificates at or prior to such time), except only the right of Alon Israel and/or any of its Permitted Transferees, upon surrender of the certificate or certificates (or lost certificate affidavit and agreement) therefor, to receive Exchange Shares.
          (h) If there shall occur any reorganization, recapitalization, reclassification or other similar event involving Alon USA in which the Alon Common Stock is reclassified as, converted into or exchanged for new or different securities (the “Successor Securities”), then, following any such reorganization, recapitalization, reclassification or other event, the Preferred Shares shall instead be exchangeable pursuant to this Section 2.3 for such Successor Securities and all references in this Agreement to the Alon Common Stock shall be deemed to be references to such Successor Securities, mutatis mutandis.
          (i) In connection with a Share Exchange, Alon USA will, upon request, enter into a customary and reasonable registration rights agreement with a Permitted Transferee of Alon Israel with respect to shares of Alon USA common stock issued to such Permitted Transferee pursuant to such Share Exchange.
     2.4 Effect of Prohibited Transfers. If any Transfer by any Stockholder is made or attempted contrary to the provisions of this Agreement, such purported Transfer shall be void ab initio; the Company and the other parties hereto shall have, in addition to any other legal or equitable remedies which they may have, the right to enforce the provisions of this Agreement by actions for specific performance (to the extent permitted by law); and the Company shall have the right to refuse to recognize any improper Transferee of any Stockholder for any purpose.
     2.5 Call Option.
          (a) With respect to the Original Preferred Shares, during the 18 month period beginning on July 3, 2008, each of Alon USA and Alon LA shall have the option to purchase from Alon Israel and/or its Permitted Transferees all or a portion of the Original Preferred Shares at a price per share payable in cash equal to the Par Value plus accrued but unpaid dividends; provided, however, that such call option shall be (i) subject to the prior release (or withdrawal

7


 

pursuant to Section 5.1) of the Original Letters of Credit and (ii) conditioned upon the approval of such purchase by the audit committee of Alon USA.
          (b) With respect to the Additional L/C Preferred Shares, during the period beginning on the date of issuance of any Preferred Shares in connection with the exercise of the L/C Option and ending on December 31, 2010, each of Alon USA and Alon LA shall have the option to purchase from Alon Israel and/or its Permitted Transferees all or a portion of the Additional L/C Preferred Shares at a price per share equal to the Par Value plus accrued but unpaid dividends; provided, however, that such call option shall be (i) subject to the prior release (or withdrawal pursuant to Section 5.1) of the Additional Letters of Credit and (ii) conditioned upon the approval of such purchase by the audit committee of Alon USA.
3. Original Letters of Credit.
     3.1 Issuance of Original Letters of Credit. In accordance with the Original Purchase Agreement, Alon Israel shall have caused to be issued and delivered to Bank of America, N.A. (“Bank of America”) one or more irrevocable standby letters of credit (each, an “Original Letter of Credit”) up to the aggregate amount of $55,000,000.00 in order to support the borrowing base of Krotz Springs under the Revolving Credit Agreement.
     3.2 Repayment. In the event that Bank of America draws upon one or more Original Letters of Credit at any time during which the Original Letters of Credit are outstanding, Alon LA shall issue and deliver to Alon Israel within three days following each such draw a promissory note (each an “Original Promissory Note”) in a principal amount equal to the aggregate amount of such draw under the Original Letter(s) of Credit (each an “Original Repayment Amount”) and bearing interest at a rate of 10.75% per annum in full and final settlement and discharge of any obligation or liability of the Company or any Affiliate of the Company to Alon Israel with respect to the Original Repayment Amount; provided, however, that no fees, bank charges or other expenses shall be included in the determination of the Original Repayment Amount. The principal amount and all accrued interest under each Original Promissory Note shall be due and payable on or before 12 months following the date of issuance of such Original Promissory Note. The Original Promissory Note will provide that Alon USA may issue a whole number of shares of Alon Common Stock equal to the quotient of (1) the Original Repayment Amount divided by (2) the Original Preferred Alon Share Price to satisfy all obligations under the Original Promissory Note. Any shares of Alon Common Stock issued to satisfy the Original Promissory Note shall be issued on the first day on which the Alon Energy securities trading window is open after the date of the Original Promissory Note.
     3.3 Replacement. From and after the date of the initial issuance of the Original Letters of Credit, Alon USA and the Company shall, and shall cause their Affiliates to, use their respective best efforts (subject to the terms of their respective existing credit facilities and other binding obligations) to either (i) replace the Original Letters of Credit with their own resources or by obtaining funds or other support, including other letters of credit, through commercially reasonable arrangements with third party financing sources or (ii) otherwise secure the release by Bank of America of the letter of credit support requirement under the Revolving Credit Agreement. In addition, if the Original Letters of Credit remain outstanding after the first anniversary of the original issuance of such Original Letters of Credit, the Company shall, and

8


 

shall cause Krotz Springs to, use its respective best efforts to prevent any draw down on the Original Letters of Credit, including by reducing inventories and throughput at Krotz Springs.
     3.4 Expenses, Fees, Charges and Interest. Alon LA or Alon USA (subject to the terms of their respective existing credit facilities and other binding obligations) shall pay the credit support obligations of the Company set forth in Section 1.3 of the Original Purchase Agreement and the Company is hereby released from such obligations.
4. Additional Letters of Credit.
     4.1 First Letters of Credit. Alon Israel shall cause to be issued and delivered to one or more Persons, as designated by Krotz Springs, one or more irrevocable standby letters of credit (the “First Letters of Credit”) in an aggregate face amount of up to $15,000,000.00 and shall cause such First Letters of Credit to be maintained (unless replaced, reduced or withdrawn as provided herein or unless drawn upon by the beneficiary thereof) pursuant to the Term Loan Agreement and the Revolving Credit Agreement.
     4.2 Second Letters of Credit. On or before April 30, 2009, Alon Israel shall cause to be issued and delivered to one or more Persons, as designated by Krotz Springs, one or more irrevocable standby letters of credit (the “Second Letters of Credit”) in an aggregate face amount of up to $10,000,000.00 and shall cause such First Letters of Credit to be maintained (unless replaced, reduced or withdrawn as provided herein or unless drawn upon by the beneficiary thereof) pursuant to the Term Loan Agreement and the Revolving Credit Agreement.
     4.3 Repayment. In the event that any Person draws upon an Additional Letter of Credit at any time during which any Additional Letter of Credit remains outstanding, Alon LA shall issue and deliver to Alon Israel within three days following each such draw a promissory note (each an “L/C Promissory Note”) in a principal amount equal to the aggregate amount of such draw under the applicable Additional Letter of Credit (each an “L/C Repayment Amount”) and bearing interest at a rate of 10.75% per annum in full and final settlement and discharge of any obligation or liability of the Company or any Affiliate of the Company to Alon Israel with respect to the L/C Repayment Amount; provided, however, that no fees, bank charges or other expenses shall be included in the determination of the L/C Repayment Amount. The principal amount and all accrued interest under each L/C Promissory Note shall be due and payable on or before 12 months following the date of issuance of such L/C Promissory Note. Each L/C Promissory Note will provide that Alon USA may issue a whole number of shares of Alon Common Stock equal to the quotient of (1) the L/C Repayment Amount divided by (2) the First L/C Alon Share Price or the Second L/C Alon Share Price, as applicable, to satisfy all obligations under such L/C Promissory Note. Any shares of Alon Common Stock issued to satisfy any L/C Promissory Note shall be issued on the first day on which the Alon USA securities trading window is open after the date of such L/C Promissory Note.
     4.4 Replacement. From and after the date of the initial issuance of the Additional Letters of Credit, Alon USA and the Company shall, and shall cause their Affiliates to, use their respective best efforts (subject to the terms of their respective existing credit facilities and other binding obligations) to either (i) replace the Additional Letters of Credit with their own resources or by obtaining funds or other support, including other letters of credit, through commercially

9


 

reasonable arrangements with third party financing sources or (ii) otherwise secure the release of the letter of credit support requirements. In addition, if the Additional Letters of Credit remain outstanding after the first anniversary of the original issuance of such Additional Letters of Credit, the Company shall, and shall cause Krotz Springs to, use its respective best efforts to prevent any draw down on the Additional Letters of Credit, including by reducing inventories and throughput at Krotz Springs. If the Additional Letters of Credit remain outstanding as of December 31, 2010, Alon USA and Alon LA shall be obligated to replace the Letters of Credit or otherwise secure the release of the letter of credit support requirements; provided, that if Alon USA and Alon LA fail to replace the Additional Letters of Credit or otherwise release the credit support requirements by December 31, 2010, Alon USA or Alon LA (subject to the terms of their respective existing credit facilities and other binding obligations) shall pay to Alon Israel a penalty payment and incur an interest rate adjustment as set forth in Section 4.5.
     4.5 Expenses, Fees, Charges and Interest. Alon LA or Alon USA (subject to the terms of their respective existing credit facilities and other binding obligations) shall pay to Alon Israel for a period beginning on the date of the initial issuance of the Additional Letters of Credit and ending on December 31, 2009, in consideration for causing the issuance of the Letters of Credit, a rate per annum equal to 2% of the aggregate amount of Additional Letters of Credit outstanding. If, after compliance by Alon LA or Alon USA with its obligations under Section 4.4 of this Agreement to attempt to replace or secure the release of the Additional Letters of Credit, the Additional Letters of Credit continue to remain outstanding after December 31, 2009, Alon Israel will continue to provide the letter of credit support for an additional twelve month period during which Alon LA or Alon USA (subject to the terms of their respective existing credit facilities and other binding obligations) shall pay to Alon Israel, in consideration for continuing the letter of credit support, a rate per annum equal to 4% of the aggregate amount of Letters of Credit outstanding. If Alon USA and the Company fail to release the Additional Letters of Credit by December 31, 2010, as required in Section 4.4, and the Additional Letters of Credit continue to remain outstanding at such time, Alon LA or Alon USA (subject to the terms of their respective existing credit facilities and other binding obligations) shall, within three days after December 31, 2010, pay to Alon Israel a penalty in an amount equal to the difference between (x) the aggregate amount of payments Alon LA or Alon USA would have paid to Alon Israel for the letter of credit support during the period beginning on the date of the initial issuance of the Additional Letters of Credit and ending on December 31, 2010 if the rates described above would have been 10.75%, less (y) the aggregate amount of payments actually made by Alon Israel for the Letter of Credit support during such period. Subject to receipt of the penalty payment by Alon LA or Alon USA, Alon Israel will thereafter continue to provide the letter of credit support until such time as either Alon LA or Alon USA shall have successfully replaced the Additional Letters of Credit or such Additional Letters of Credit shall have been released, during which time Alon LA or Alon USA (subject to the terms of their respective existing credit facilities and other binding obligations) shall pay to Alon Israel, in consideration for continuing the letter of credit support, a rate per annum equal to 10.75 % of the aggregate amount of Additional Letters of Credit outstanding.
5. Withdrawal of Letters of Credit and Preferred Stock Purchase Option.
     5.1 L/C Option.

10


 

          (a) While any Original Letters of Credit remain outstanding, Alon Israel may exercise the L/C Option at any time and from time to time, to withdraw all or a portion of the outstanding Original Letters of Credit and acquire Preferred Shares in accordance with Section 5.2 below. The Preferred Shares delivered to Alon Israel upon such exercise shall be deemed to constitute Original Preferred Shares for all purposes of this Agreement.
          (b) While any Additional Letters of Credit remain outstanding, Alon Israel may exercise the L/C Option at any time and from time to time, to withdraw all or a portion of the outstanding Additional Letters of Credit and acquire Preferred Shares in accordance with Section 5.2 below.
          (c) Alon Israel may exercise the L/C Option by providing written notice to Alon LA of Alon Israel’s election thereof and by providing the date of the anticipated withdrawal of the Original Letters of Credit or Additional Letters of Credit, as applicable, which will be at least 10 Business Days after the date of the delivery of such notice.
     5.2 L/C Stock Purchase Agreement. In the event that Alon Israel exercises an L/C Option, Alon Israel and the Company will enter into a stock purchase agreement (the “L/C Stock Purchase Agreement”) in the form attached hereto as Exhibit A pursuant to which the Company will sell to Alon Israel a number of Preferred Shares equal to the quotient of (1) the aggregate amount of the outstanding Original Letters of Credit or Additional Letters of Credit, as applicable, being withdrawn divided by (2) $1,000.00. The sale of such Preferred Shares will not be registered under the Securities Act, in reliance on an exemption from registration under Section 4(2) of the Securities Act. The closing of the transactions contemplated by the L/C Stock Purchase Agreement will occur contemporaneously with the withdrawal of the Original Letters of Credit or Additional Letters of Credit, as applicable.
6. Miscellaneous Provisions.
     6.1 Reliance. Each of the parties hereto agrees that each covenant and agreement made by it in this Agreement is material, shall be deemed to have been relied upon by the other parties and shall remain operative and in full force and effect after the date hereof regardless of any investigation. This Agreement shall not be construed so as to confer any right or benefit upon any Person other than the parties hereto and their respective successors and permitted assigns to the extent contemplated herein.
     6.2 Legend on Securities. The Company and the Stockholders acknowledge and agree that in addition to any other legend on the certificates representing Securities held by them, substantially the following legend shall be typed on each certificate evidencing any of the Securities held at any time by any Stockholder:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. ABSENT SUCH REGISTRATION OR AN EXEMPTION FROM THE REQUIREMENT THEREFOR, NO TRANSFER OF THESE SHARES OR ANY INTEREST THEREIN MAY BE MADE.

11


 

THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE PROVISIONS OF A CERTAIN STOCKHOLDERS AGREEMENT, INCLUDING CERTAIN RESTRICTIONS ON TRANSFER SET FORTH THEREIN. A COMPLETE AND CORRECT COPY OF SUCH AGREEMENT IS AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE OF THE COMPANY AND WILL BE FURNISHED UPON WRITTEN REQUEST AND WITHOUT CHARGE.
     6.3 Alon Common Stock.
          (a) Alon Israel understands that any shares of Alon Common Stock that may be issued pursuant to this Agreement will not be registered under the Securities Act, and will be issued by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of Alon Israel’s representations as expressed herein. Alon Israel understands that such shares will be “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant to these laws, Alon Israel must hold such shares indefinitely unless they are registered with the Securities and Exchange Commission and qualified by state authorities, or an exemption from such registration and qualification requirements is available. Alon Israel acknowledges that, except pursuant to the terms of the Registration Rights Agreement, dated as of July 6, 2005, between Alon USA and Alon Israel, Alon USA has no obligation to register or qualify such shares for resale. Alon Israel further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements, including the time and manner of sale and the holding period for such Shares, and on requirements relating to the Company which are outside of Alon Israel’s control, and which Alon USA is under no obligation and may not be able to satisfy.
          (b) Alon Israel acknowledges that Alon USA’s agreement hereunder to issue shares of Alon Common Stock is made in reliance upon Alon Israel’s representation to Alon USA, which by the its execution of this Agreement, Alon Israel hereby confirms, that any shares of Alon Common Stock that may be acquired by Alon Israel hereunder will be acquired for investment for Alon Israel’s own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof. By executing this Agreement, Alon Israel further represents that it does not presently have any contract, undertaking, agreement or arrangement with any Person to sell, transfer or grant participations to such Person or to any third Person, with respect to any of such shares. Alon Israel has not been formed for the specific purpose of acquiring the Shares.
          (c) Alon Israel represents to Alon USA that Alon Israel is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
          (d) Alon Israel acknowledges and agrees that any certificates representing shares of Alon Common Stock will bear substantially the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. ABSENT SUCH REGISTRATION OR AN EXEMPTION FROM THE

12


 

REQUIREMENT THEREFOR, NO TRANSFER OF THESE SHARES OR ANY INTEREST THEREIN MAY BE MADE.
          (e) Alon Israel represents that, with respect to any issuance of shares of Alon Common Stock pursuant to this Agreement, it will satisfy itself as to the full observance of the laws of Israel, including (i) the legal requirements within Israel for the acquisition of such shares, (ii) any foreign exchange restrictions applicable to such acquisition, (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 acquisition, holding, redemption, sale, or transfer of such shares. Alon Israel’s acquisition and continued beneficial ownership of such shares will not violate any applicable securities or other laws of Israel.
     6.4 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.
     6.5 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.
     6.6 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.
     6.7 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.
     6.8 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 (d) 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 6.8.
     6.9 Amendments and Waivers. Any term of this Agreement may be amended, terminated or waived only with the written consent of Alon USA, the Company and the Stockholders.
     6.10 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

13


 

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.
     6.11 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.
     6.12 Entire Agreement; Amendment and Restatement. 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. This Agreement amends and restates the Original Stockholders Agreement in its entirety.
     6.13 Further Assurances. From and after the date of this Agreement, upon the request of either Stockholder or the Company, the Company and each Stockholder 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.
     6.14 After-Acquired Securities; New Parties. Whenever any Stockholder becomes the record or beneficial owner of additional securities of the Company, such securities will be subject to all of the terms and conditions of this Agreement. The Company will cause Persons not parties to this Agreement who from time to time receive securities of the Company to be subject to the terms and conditions of this Agreement.
[Signature Page Follows]

14


 

     IN WITNESS WHEREOF, the parties hereto have caused this Stockholders Agreement to be duly executed as of the date first set forth above.
         
  ALON USA ENERGY, INC.
 
 
 
  By:   /s/ Jeff D. Morris    
    Name:   Jeff D. Morris   
    Title:   President and CEO   
 
Address:
7616 LBJ Freeway, Suite 300
Dallas, Texas 75251
Attention: General Counsel
         
  ALON REFINING LOUISIANA, INC.
 
 
 
  By:   /s/ Jeff D. Morris    
    Name:   Jeff D. Morris   
    Title:   Vice President   
 
Address:
7616 LBJ Freeway, Suite 300
Dallas, Texas 75251
Attention: General Counsel
         
  STOCKHOLDERS:

ALON LOUISIANA HOLDINGS, INC.
 
 
 
  By:   /s/ Jeff D. Morris    
    Name:   Jeff D. Morris   
    Title:   President and CEO   
 
Address:
7616 LBJ Freeway, Suite 300
Dallas, Texas 75251
Attention: General Counsel

15


 

         
  ALON ISRAEL OIL COMPANY, LTD.
 
 
  By:   /s/ David Wiessman    
    Name:   David Wiessman   
    Title:   President   
 
Address:
Europark (France Building)
P.O.B. 10
Kibbutz Yakum, Israel 60972
Attention: General Counsel

16