EXHIBIT 10.45
SHAREHOLDER AGREEMENT
OPTION SHARES
This Shareholder Agreement (the "Agreement") is dated as of July 31, 2000,
by and among Alon USA Operating, Inc., a Delaware corporation (the "Company"),
and Xxxxxx X. Xxxx (the "Shareholder").
WHEREAS, the Shareholder has been granted an option (the "Option")
to purchase common stock of the Company which may result in his purchase of
shares of the common stock of the Company (the "Option Shares");
WHEREAS, it is a condition to the Company's willingness to grant the
Option to Shareholder that Shareholder enter into this Agreement to govern the
ownership of Shareholder's Option Shares;
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. In addition to the definitions that appear elsewhere in
the Agreement, the following terms have the meanings specified:
"Affiliate" of Shareholder means (i) a corporation, partnership or
other entity at least a majority of whose equity securities and voting rights
are owned (directly or indirectly) by Shareholder, Shareholder's spouse or
immediate family or a trust entirely for the benefit of Shareholder or his
spouse or immediate family, (ii) a corporation, partnership or other entity at
least a majority of whose directors or other governing body are elected or
designated by Shareholder, Shareholder's spouse or immediate family or a trust
entirely for the benefit of Shareholder or his spouse or immediate family, (iii)
a corporation, partnership or other entity whose management is otherwise
controlled by Shareholder, Shareholder's spouse or immediate family or a trust
entirely for the benefit of Shareholder or his spouse or immediate family or
(iv) a person that is controlled by, under common control with, or controls,
Shareholder.
"Capital Stock" means common stock of the Company acquired by the
Shareholder pursuant to the exercise of the Option, and will also include any
other equity securities of the Company or any successor to the Company that the
Shareholder may receive in consideration of, or in exchange for, any Option
Shares.
"Cost" as applied to Capital Stock means the amount actually paid by
Shareholder for such Capital Stock (including any Capital Stock from which it
may have been converted or exchanged), which will include with respect to the
purchase of Option Shares the exercise price paid to the Company by Shareholder
directly or constructively through the receipt of a cash bonus payment applied
to the payment of such exercise price.
"Equity Value" as applied to Capital Stock means the stockholders'
equity of the Company allocable to a share of Common Stock, based on the last
regularly prepared quarterly balance sheet of the Company released prior to the
date that the Equity
Value is required to be determined, adjusted by adding back (i) the amounts of
any dividends or distributions paid to holders of Capital Stock from the date of
organization of the Company to date of determination of Equity Value (excluding
any dividends or distributions as to which the Shareholder receives his
proportionate share) and (ii) the amount of any Shareholder Subordinated Debt.
Shareholder Subordinated Debt means debt of the Company owed to stockholders of
the Company that was created in connection with the acquisition by the Company
and its affiliates of the Southwest Business Unit and marketing assets of the
Southeast Business Unit from FINA Oil and Chemical Company to the extent that
the amount of such Shareholder Subordinated Debt plus the amount of equity
contributions made to the capital of the Company, combined with the equity
contributions and shareholder subordinated debt contributed to Alon Assets, Inc.
does not exceed $20 million. After August 4, 2001 the $20 million limitation
will be increased to $27.5 million.
"Fair Market Value" of a share of the Company's Capital Stock means,
with respect to any purchase or sale of shares of Capital Stock owned by
Shareholder, any appraised value determined within the prior six months pursuant
to this Agreement or any comparable agreement with a member of the Company's
management, or if no such appraisal has been prepared, the fair market value of
such Capital Stock determined in good faith by agreement of Shareholder and the
Board of Directors of the Company within thirty (30) days after the occurrence
of the event requiring the valuation of Shareholder's Capital Stock (a
"Valuation Event"). If (i) the Board of Directors of the Company and Shareholder
are unable to determine the Fair Market Value of a share of Capital Stock within
thirty (30) days after the occurrence of the Valuation Event or (ii) the
Shareholder (or Interested Party) selling shares of Capital Stock pursuant to a
Valuation Event disagrees in good faith with the Fair Market Value set by the
Board of Directors as contemplated above (each of the foregoing (i) and (ii)
being referred to herein as a "Revaluation Event"), then for a period of 30 days
after notice of such Revaluation Event provided by any party to the proposed
purchase or sale of Capital Stock (the "Negotiation Period"), each party to such
proposed purchase or sale shall negotiate in good faith to reach agreement upon
the Fair Market Value of such securities or property, as of the date of the
Valuation Event. In the event that the parties are unable to agree upon the Fair
Market Value of such securities or other property by the end of the Negotiation
Period, then the Fair Market Value of such securities or property will be
determined for purposes of this Agreement by an independent regionally or
nationally recognized investment bank, accounting firm or business valuation
company agreed upon by the parties to the proposed purchase and sale (the
"Appraiser") and whose appraisal of the Fair Market Value of the Capital Stock
to be sold will be conclusive and binding on all parties to this Agreement. If
the parties to the proposed purchase and sale cannot agree upon an Appraiser,
then the sellers, as a group, and the Company, as the purchaser, shall each
select an independent nationally or regionally recognized Appraiser and the two
Appraisers so selected shall then select another nationally or regionally
recognized investment bank, accounting firm or business valuation company, which
shall serve as the Appraiser. Fair Market Value of each share of Capital Stock
at a time when (i) the Company is not a reporting company under the Securities
Exchange Act of 1934 and (ii) such common stock is not traded in the organized
securities markets, will, in all cases, be calculated by determining the Fair
Market Value of the entire Company taken as a whole
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(including the assumed exercise of all options and other rights to acquire
common stock having an exercise price per share of common stock less than the
Fair Market Value thereof) and dividing that value by the sum of (x) the number
of shares of common stock then outstanding plus (y) the number of shares of
common stock then issuable upon exercise of outstanding options and other rights
to acquire common stock having an exercise price per share less than the Fair
Market Value thereof, without premium for control or liquidation preference or
discount for minority interests, illiquidity, or restrictions on transfer. The
costs of the Appraiser will be borne equally by the person requiring the
appraisal and by the Company. In the case of determinations of Fair Market Value
of securities convertible into common stock, such determination shall be made
based upon the Fair Market Value of the shares of common stock into which such
securities are convertible. For purposes of determining Fair Market Value under
this Agreement, subordinated loans made to the Company and its affiliates at the
time of closing of the Alon/Fina Transaction will be considered to be
shareholders' equity and not debt.
"Implied Value" as applied to Capital Stock means the Cost of such
Capital Stock plus an implied 25% return on Cost, compounded annually, from the
date of payment by Shareholder of such Cost and ending on the date that Implied
Value is required to be determined.
"Interested Party" means each Person who, as a result of an
Involuntary Transfer, has an interest in Capital Stock previously owned by
Shareholder, including (as applicable) the Shareholder's estate, personal
representative, former spouse or successor.
"Involuntary Transfer" means any transfer of Capital Stock owned by
Shareholder that results from (a) the attachment, sequestration, garnishment or
other similar involuntary transfer resulting from a bankruptcy or similar
proceeding affecting Shareholder; (b) the involuntary dissolution of
Shareholder; or (c) a Marital Relationship Transfer.
"Marital Relationship Transfer" means a transfer incident to the
divorce of the Shareholder or the death of the Shareholder's spouse under
circumstances in which the Shareholder does not succeed to the spouse's interest
(if any) in any Capital Stock.
"Person" means any individual, corporation, partnership, trust or
other entity.
"Voluntary Transfer" means any sale, pledge or other transfer of
Capital Stock by Shareholder, except (a) a transfer to Shareholder's spouse or
immediate family or a trust entirely for the benefit of Shareholder or his
spouse or immediate family; (b) a transfer to an Affiliate of Shareholder, but
only if and for so long as Shareholder retains all voting rights with respect to
such Capital Stock and such transferee continues to be an Affiliate of
Shareholder; and (c) an Involuntary Transfer. If a transfer is effected pursuant
to clause (b) of the preceding sentence, and the Shareholder loses his voting
rights or the transferee
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ceases to be an Affiliate of such Shareholder, then an Involuntary Transfer will
be deemed to have occurred.
2. Voluntary Transfers. If Shareholder intends to seek or effect a
Voluntary Transfer of Capital Stock, the Company will have the right to
participate in such sale or transfer on the following terms:
(a) Notice of Sale. The Shareholder will deliver a written notice (the
"Notice of Sale") to the Company. The Notice of Sale will include (i) a
statement of the Shareholder's bona fide intention to sell or transfer Capital
Stock; (ii) the name and address of the proposed transferee (the "Buyer"), if
any Buyer has been identified; (iii) the type and number of shares of Capital
Stock to be sold or transferred (the "Offered Shares"); (iv) the per share
purchase price, which must be stated in cash; and (v) the other material terms
and conditions of the proposed sale.
(b) Company's Option. The Notice of Sale will constitute an irrevocable
offer by the Shareholder to sell to the Company all or any portion of the
Offered Shares, on the same per share terms and conditions stated in the Notice
of Sale. The Company may elect to accept such offer in whole or in part only by
delivering to the Selling Shareholder written notice of its irrevocable election
to accept such offer within 30 days after delivery of the Notice of Sale (the
"Purchase Notice").
(c) Closing. If the Company elects to purchase Offered Shares pursuant
to Section 2(b), the closing of the purchase and sale will occur on the 30th day
following the date of the Purchase Notice (or such earlier date as may be agreed
among the parties). At such closing, the Company will deliver (by wire transfer
or cashier's check, or as otherwise specified in the Notice of Sale) the
consideration payable to the order of the Shareholder, against delivery by the
Shareholder of certificates evidencing the Offered Shares being so purchased,
free and clear of all liens, claims and encumbrances (other than this
Shareholder Agreement) and endorsed in good form for transfer.
3. Involuntary Transfers. Upon any Involuntary Transfer of Capital
Stock affecting Shareholder (the "Former Shareholder"), each Interested Party
will comply with the following provisions:
(a) Notice of Involuntary Transfer. The Interested Party will deliver a
written notice (the "Notice of Involuntary Transfer") to the Company (and, in
the case of a Marital Relationship Transfer, to the Former Shareholder) no later
than 30 days after such Involuntary Transfer. The Notice of Involuntary Transfer
will include (i) a description of the circumstances resulting in the Involuntary
Transfer; (ii) the name and address of each Interested Party; and (iii) the type
and number of shares of Capital Stock subject to such Involuntary Transfer (the
"Subject Shares").
(b) Former Shareholder's Option. In the case of a Marital Relationship
Transfer, the Notice of Involuntary Transfer will constitute an irrevocable
offer by the Interested Party to sell all or any portion of the Subject Shares
to the Former Shareholder, at a price
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equal to the greater of Equity Value or Implied Value, if the Involuntary
Transfer occurs prior to August 1, 2010, and at Fair Market Value if the
Involuntary Transfer occurs thereafter. The Former Shareholder may elect to
accept such offer in whole or in part only by delivering to the Interested Party
and the Company written notice of its irrevocable election to accept such offer
within 30 days after delivery of the Notice of Involuntary Transfer. If the
Former Shareholder does not accept such offer within such 30-day period with
respect to all of the Subject Shares, then the Company will have the option,
pursuant to Section 3(c), to purchase any remaining Subject Shares.
(c) Company's Option. The Notice of Involuntary Transfer will constitute
an irrevocable offer by the Interested Party to sell to the Company all or any
portion of the Subject Shares that is not purchased by the Former Shareholder
pursuant to Section 3(b), at a price equal to the greater of Equity Value or
Implied Value, if the Involuntary Transfer occurs prior to August 1, 2010, and
at Fair Market Value if the Involuntary Transfer occurs thereafter. The Company
may elect to accept such offer in whole or in part only by delivering to the
Interested Party written notice of its irrevocable election to accept such offer
within 60 days after delivery of the Notice of Involuntary Transfer. Any Former
Shareholder or Interested Party or affiliate thereof who is a member of the
Company's Board of Directors will abstain from voting on the proposed purchase
of the Subject Shares.
(d) Closing. If the Former Shareholder or the Company elects to purchase
Capital Stock pursuant to this Section 3, the closing of the purchase and sale
will occur on the 90th day following delivery of the Notice of Involuntary
Transfer (or such earlier date as may be agreed among the parties). At the
closing, the Former Shareholder or the Company (as applicable) will deliver by
wire transfer or cashier's check the consideration payable to the order of the
Interested Party, against delivery by the Interested Party of certificates
evidencing the Subject Shares being so purchased, free and clear of all liens,
claims and encumbrances (other than this Shareholder Agreement) and endorsed in
good form for transfer.
4. Call Option of the Company.
(a) Initiation of Option. Beginning on the first date that the
Shareholder is no longer employed by any corporation, limited partnership,
general partnership, limited liability company or other business entity that is
controlled by Alon Israel Oil Company, Ltd., including, without limitation, Alon
USA Operating, Inc. and Alon Assets, Inc. (the "Separation Date"), the Company
will have the right to purchase (the "Call Right") any or all of the shares of
Capital Stock of the Shareholder in accordance with the terms and conditions of
this Section 4. The Company's Call Right may be exercised at any time within one
year following the Separation Date by delivering a written notice (the "Call
Notice") to the Shareholder, which will set forth the Company's irrevocable
undertaking to purchase the number of shares of Capital Stock stated in the Call
Notice at the Call Price per share stated therein, which shall be determined
pursuant to this Section 4, and setting forth the Company's calculation of the
Call Price together with supporting documentation of such calculation. The
Shareholder agrees to sell his Capital Stock to
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the Company upon the delivery of a Call Notice on the terms and conditions set
forth in this Section 4.
(b) Price of Capital Stock. The "Call Price" to be paid for the
Shareholder's Capital Stock will be determined as follows:
(i) If the Shareholder's employment is terminated for "Cause" as
defined in his Employment Agreement, or resigns, other than for "Good
Reason" as defined in his Employment Agreement, the Call Price paid by the
Company for the Capital Stock will be an amount equal to Shareholder's
Cost as to a portion of the shares of Capital Stock and the lesser of
Implied Value or Equity Value as to the remaining portion of the shares of
Capital Stock as follows:
% at Lesser of Equity
Time of Resignation % at Cost Value or Implied Value
----------------------- --------- ----------------------
8/1/2000 to 7/31/2001 100% 0%
8/1/2001 to 7/31/2004 80% 20%
8/1/2004 to 7/31/2007 60% 40%
8/1/2007 to 7/31/2010 20% 80%
(ii) If the Shareholder's employment has terminated due to death or
disability, the Call Price paid by the Company for the Capital Stock will
be the greater of Implied Value or Equity Value.
(iii) Prior to August 1, 2010, if the Shareholder's employment is
terminated without "Cause" or by the Shareholder for "Good Reason," the
Call Price paid by the Company for the Capital Stock will be the greater
of Implied Value or Equity Value.
(iv) After July 31, 2010, if the Shareholder's employment is
terminated without "Cause" or by Shareholder for any reason, the Call
Price paid by the Company for the Capital Stock will be Fair Market Value.
(c) Closing. The closing of the purchase and sale contemplated by this
Section 4 will occur on the 30th day following delivery of the Call Notice (or
such earlier date as may be agreed among the parties). At such closing, the
Company will deliver the Call Price to the Shareholder in cash against delivery
by the Shareholder of certificates evidencing the Capital Stock being purchased,
free and clear of all liens, claims and encumbrances (other than this
Shareholder Agreement) and endorsed in good form for transfer.
5. Put Option of the Shareholder.
(a) Initiation of Option. After the Shareholders' Separation Date, the
Shareholder or the Shareholder's representative, in the event of the
Shareholder's death, will have the right to require the Company to purchase (the
"Put Right") any or all of the
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shares of Capital Stock of the Shareholder in accordance with the terms and
conditions of this Section 5. The Shareholder's right to require the Company to
purchase the Capital Stock may be exercised at any time within one year
following the Separation Date by delivering a written notice (the "Put Notice")
to the Company, which will set forth the Shareholder's irrevocable undertaking
to sell to the Company the number of shares of Capital Stock stated in the Put
Notice at the price per share determined as set forth in this Section 5, and
stating the Shareholder's calculation of the Put Price and providing supporting
documentation of such calculation. The Company agrees to purchase Capital Stock
from the Shareholder upon the delivery of a Put Notice on the terms and
conditions set forth in this Section 5.
(b) Price of Capital Stock. The "Put Price" to be paid for the
Shareholder's Capital Stock will be determined as follows:
(i) If the Shareholder's employment is terminated for "Cause" as
defined in his Employment Agreement, or resigns, other than for "Good
Reason" as defined in his Employment Agreement, the Put Price paid by the
Company for the Capital Stock will be an amount equal to Shareholder's
Cost as to a portion of the shares of Capital Stock and the lesser of
Implied Value or Equity Value as to the remaining portion of the shares of
Capital Stock as follows:
% at Lesser of Implied
Time of Resignation % at Cost Value or Equity Value
---------------------- --------- ----------------------
8/1/2000 to 7/31/2001 100% 0%
8/1/2001 to 7/31/2004 80% 20%
8/1/2004 to 7/31/2007 60% 40%
8/1/2007 to 7/31/2010 20% 80%
(ii) If the Shareholder's employment has terminated due to death or
disability, the Put Price paid by the Company for the Capital Stock will
be the greater of Implied Value or Equity Value.
(iii) Prior to August 1, 2010, if the Shareholder's employment is
terminated without "Cause" or by the Shareholder for "Good Reason," the
Put Price paid by the Company for the Capital Stock will be the greater of
Implied Value or Equity Value.
(iv) After July 31, 2010, if the Shareholder's employment is
terminated without "Cause" or by Shareholder for any reason, the Put Price
paid by the Company for the Capital Stock will be Fair Market Value.
(c) Closing. The closing of the purchase and sale contemplated by this
Section 5 will occur on the 30th day following delivery of the Put Notice (or
such earlier date as may be agreed among the parties). At such closing, the
Company will deliver the Put Price to the Shareholder in cash, or if otherwise
provided below, by delivery of cash and a promissory note, against delivery by
the Shareholder of certificates evidencing the Capital
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Stock being purchased, free and clear of all liens, claims and encumbrances
(other than this Shareholder Agreement) and endorsed in good form for transfer.
If the Put Right is exercised: (i) after Shareholder's employment is
terminated for "Cause" as defined in his Employment Agreement, or Shareholder
has resigned, other than for "Good Reason" as defined in his Employment
Agreement, and (ii) the Company's payment of annual cash bonuses under the Alon
USA Annual Cash Bonus Plan for the preceding fiscal year was less than 50% of
Shareholder's Target Bonus Amount (as such terms are defined in that plan) or it
is determined by the Board of Directors of the Company in good faith that it is
reasonably likely that Shareholder's bonus for the year of exercise of the Put
Right would be less than 50% of Shareholder's Target Bonus Amount, then the
Company may elect to pay the Put Price (a "Deferred Payout") by delivering to
Shareholder cash equal to 25% of the Put Price and a promissory note of the
Company payable to the order of the Shareholder in a principal amount of 75% of
the Put Price, bearing interest at a rate of 8% per annum, payable quarterly,
and payable in three equal annual installments of principal on the first, second
and third anniversary dates of issuance.
If the Put Right is exercised at a time when the Company is in default
under the terms of its obligation to its senior secured lender, the Company may
defer making any payment to the Shareholder until such time as default is cured,
at which time the Company may elect to pay the Put Price in the form of a
Deferred Payout or in a lump sum, in its sole discretion.
6. Take-Along Right.
(a) Right to Include Shares. In the event that more than fifty percent
(50%) of the issued and outstanding shares of Capital Stock of the Company are
transferred by the shareholders of the Company for consideration to a third
party not affiliated with such shareholders, the Company will provide
Shareholder with the right (the "Take-Along Right") to require such third party
to purchase from Shareholder up to a percentage of the number of total shares of
Capital Stock held by Shareholder equal to the number derived by multiplying the
(x) total number of shares of Capital Stock of the Company that the third party
will acquire by (y) a fraction, the numerator of which shall be the total number
of shares of Capital Stock owned by Shareholder, and the denominator of which
shall be the total number of shares of Capital Stock owned by each shareholder
of the Company participating in such transaction. The Company shall deliver
written notice to Shareholder (the "Take-Along Notice"), which written notice
shall specify the price and the terms and conditions on which the proposed
transaction is to take place. Any shares of Capital Stock purchased from the
Executive pursuant to this Section 6 shall be at the same price per share and
upon the same terms and conditions as apply to each other shareholder of the
Company participating in such transaction (it being agreed that reasonable
compensation received or to be received by any stockholder pursuant to
arms-length negotiation in respect of services to be rendered by it shall not be
deemed direct payment for shares of Capital Stock sold by it).
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(b) Exercise of Right. The Take-Along Right may be exercised by
Shareholder by delivery of a written notice to the Company (the "Acceptance
Notice") within twenty (20) calendar days following the receipt of the
Take-Along Notice. The Acceptance Notice shall state the number of shares of
Capital Stock that the Executive proposes to include in such transfer to the
third party, determined as aforesaid, plus the number of additional shares of
Capital Stock, if any, that Shareholder would be willing to sell to the third
party. It shall be a condition precedent to the transfer of shares of Capital
Stock to the third party that it purchase from Shareholder the shares of Capital
Stock tendered by Shareholder on the same economic terms and conditions as it
purchases shares of Capital Stock from other shareholders of the Company.
(c) Further Assurances. Notwithstanding anything to the contrary
contained herein, the exercise of the Take-Along Right shall be conditioned upon
the agreement by Shareholder to execute any customary agreement, certificate or
other document required to be executed in connection with such transfer;
provided, however, that Shareholder shall only be required to give
representations or warranties or make covenants with respect to the title,
ownership, and delivery of the shares of Capital Stock owned by Shareholder,
including the authority to transfer such shares of Capital Stock but in no event
shall Shareholder be required to make representations and warranties more
extensive than those given by other participating shareholders or to provide
indemnities (other than with respect to such limited representation and
warranties) disproportionate (based upon the percentage of sales proceeds to be
received) to those provided by other participating shareholders. Failure of
Shareholder to comply with the provisions of this Section 6(c) shall constitute
a breach of this Agreement and a waiver of the Take-Along Right hereunder.
7. Restrictions on Transfer and Pledge. No sale, pledge or other
transfer of Capital Stock by Shareholder, whether voluntary or involuntary, will
be valid or effective (a) unless effected in compliance with the terms of this
Agreement and (b) until the transferee executes an addendum agreement
substantially in the form of Exhibit A hereto (an "Addendum Agreement"). The
Company will not issue or record the transfer of any Capital Stock unless the
purchaser executes an Addendum Agreement agreeing to be bound by the terms and
conditions of this Agreement applicable to the Shareholder. Shareholder hereby
agrees with the Company that each certificate representing Capital Stock will
bear substantially the following legend:
THE TRANSFER OF ANY SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
RESTRICTED BY THE TERMS OF A SHAREHOLDER AGREEMENT BETWEEN ALON USA
OPERATING, INC. (THE "COMPANY") AND THE HOLDER OF THIS CERTIFICATE, A COPY
OF WHICH MAY BE INSPECTED AT THE COMPANY'S PRINCIPAL OFFICE.
In addition, Capital Stock may not be sold, pledged or otherwise transferred in
the absence of an effective registration statement pertaining thereto under the
Securities Act of 1933, as amended, and all applicable regulations promulgated
thereunder (the "Federal Act"), and
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under any applicable state securities laws and all applicable regulations
promulgated thereunder (the "State Acts"), or an exemption from the registration
requirements of the Federal Act and all applicable State Acts.
8. Miscellaneous
(a) Termination of Agreement. This Agreement will terminate upon
the closing of an underwritten public offering of the Company's common stock or
the completion of any other business transaction that results in the
availability of a public market for the Capital Stock in the United States.
(b) Notices. All notices and other communications hereunder must
be in writing and will be deemed to have been duly given when delivered
personally or sent by overnight delivery service or facsimile transmission or
five days after being mailed by certified mail (return receipt requested) (i) to
the Company at its principal executive offices or (ii) to Shareholder at his
address set forth below his signature to this Agreement.
(c) Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any applicable law, then provision will
be deemed to be modified to the extent necessary to render it legal, valid and
enforceable, and if no such modification will render it legal, valid and
enforceable, then this Agreement will be construed as if not containing the
provision held to be invalid, and the rights and obligations of the parties will
be construed and enforced accordingly.
(d) CHOICE OF LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAW, AND NOT THE LAW OF CONFLICTS, OF
THE STATE OF TEXAS.
(e) Counterparts. This Agreement may be executed in any number of
counterparts, and all such counterparts will be deemed an original, will be
construed together and will constitute one and the same instrument.
(f) Complete Agreement. This Agreement embodies the complete
agreement and understanding among the parties with respect to the subject matter
hereof and supersedes and preempts any prior written, or prior or
contemporaneous oral, understandings, agreements or representations by or among
any of the parties that may have related to the subject matter hereof in any
way.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
ALON USA OPERATING, INC.
By: /s/ Xxxx Xxxxxx/Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxx Xxxxxx/Xxxxx Xxxxxxxx
Title: CEO Chairman
SHAREHOLDER:
/s/ Xxxxxx X. Xxxx
-----------------------
Name:
Address: 0000 Xxx Xxx Xx
Xxxxx, XX 00000
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SPOUSAL CONSENT
I acknowledge that I have read the foregoing Shareholder Agreement (the
"Agreement") between Alon USA Operating, Inc. (the "Company") and my spouse,
that I understand its provisions, that I consent thereto and that I agree to be
bound by its terms. I am aware that by its terms, among other things, my spouse
agrees to sell certain of his or her shares of the capital stock of the Company,
including my community property or other interest therein (if any), upon certain
other events and that transfer of such shares is otherwise restricted. I hereby
consent to such sale and to such restrictions, approve of the provisions of the
Agreement, and agree that if I pre-decease my spouse, the successors of my
community property or other interest (if any) in such shares will hold such
shares subject to the provisions of the Agreement. I am also aware of, and
hereby consent to, the rights granted to my spouse and the other parties to the
Agreement to purchase any shares of the Company's capital stock that I may
acquire by virtue of an Involuntary Transfer (as defined in the Agreement),
including without limitation any shares that may be awarded or distributed to me
in any dissolution, divorce, legal separation or other similar proceeding.
Dated: 8/8/00 /s/ Xxxxx X. Xxxx
-------------- ----------------------
(Signature of Spouse)
Xxxxx X. Xxxx
----------------------
(Printed Name)
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Exhibit A
ADDENDUM TO BUY/SELL AND VOTING AGREEMENT
Reference is made to the Shareholder Agreement, dated as of 7/31, 2000,
between Alon USA Operating, Inc., a Delaware corporation (the "Company"), and
the Shareholder identified therein (the "Agreement"). Capitalized terms used
herein have the meanings assigned to such terms in the Agreement.
The undersigned hereby agrees to become a party to the Agreement and to be
bound by and to observe and perform all obligations of "Shareholder" thereunder
with respect to all Capital Stock now owned or hereafter acquired by the
undersigned. If the undersigned is a natural person who is married, the spouse
of the undersigned has also executed this Addendum in the space provided below.
This Addendum will be attached to and become part of the Agreement and
will be binding upon and inure to the benefit of the Company and each other
Shareholder.
SHAREHOLDER:
/s/ Xxxxxx X. Xxxx
--------------------------
Name: Xxxxxx X. Xxxx
Date: 8/9/00
I acknowledge that I have read the foregoing Addendum and the Agreement,
that I understand its provisions, that I consent thereto and that I agree to be
bound by its terms. I am aware that by its terms, among other things, my spouse
agrees to sell certain of his or her shares of the capital stock of the Company,
including my community property or other interest therein (if any), upon certain
other events and that transfer of such shares is otherwise restricted. I hereby
consent to such sale and to such restrictions, approve of the provisions of the
Agreement, and agree that if I pre-decease my spouse, the successors of my
community property or other interest (if any) in such shares will hold such
shares subject to the provisions of the Agreement. I am also aware of, and
hereby consent to, the rights granted to my spouse and the other parties to the
Agreement to purchase any shares of the Company's capital stock that I may
acquire by virtue of an Involuntary Transfer (as defined in the Agreement),
including without limitation any shares that may be awarded or distributed to me
in any dissolution, divorce, legal separation or other similar proceeding.
Dated: 8/9/00
---------------
/s/ Xxxxx X. Xxxx
--------------------------------
(Signature of Spouse)
Xxxxx X. Xxxx
--------------------------------
(Printed Name)
AMENDMENT TO
SHAREHOLDER AGREEMENT
OPTION SHARES
This Amendment is made as of June 30, 2002, by and among Alon USA
Operating, Inc., a Delaware corporation (the "Company"), and Xxxxxx Xxxx (the
"Shareholder").
WHEREAS, the Company and Shareholder entered into that certain Shareholder
Agreement - Option Shares dated as of July 31,2000 (the "Shareholder
Agreement"), which set forth the rights and obligations of the Company and
Shareholder with respect to shares of common stock of the Company to be acquired
by Shareholder pursuant to the exercise of stock options; and
WHEREAS, it is necessary to amend the Shareholder Agreement in order for
the Company to obtain favorable accounting treatment for such stock options.
NOW, THEREFORE, the parties agree as follows:
1. The first sentence of Section 2 of the Shareholder Agreement
("Voluntary Transfers") is deleted and replaced by the following three
sentences:
Shareholder may not effect a Voluntary Transfer of Capital Stock until he
has held the Capital Stock for a period of at least six months. No
Voluntary Transfer of Capital Stock prior to the expiration of such
six-month holding period will be made or recorded on the books of the
Company, and any such Voluntary Transfer will be void and of no effect.
If, following the expiration of such six-month holding period, Shareholder
intends to seek or effect a Voluntary Transfer of Capital Stock, the
Company will have the right to participate in such sale or transfer on the
following terms:
2. The first sentence of Section 4(a) of the Shareholder Agreement ("Call
Options of the Company - Initiation of Option") is amended in its entirety to
read as follows:
Beginning on the first date that the Shareholder both (i) is no longer
employed by any corporation, limited partnership, general partnership,
limited liability company or other business entity that is controlled by
Alon Israel Oil Company, Ltd., including, without limitation, Alon USA
Operating, Inc. and Alon Assets, Inc. (the "Separation Date") and (ii) has
held shares of Capital Stock for at least six months, the Company will
have the right to purchase (the "Call Right") any or all of such shares of
Capital Stock in
accordance with the terms and conditions of this Section 4; provided,
however, that the Company will not have the right to initiate the purchase
such shares of Capital Stock if the Shareholder's Separation Date is prior
to August 1, 2010, and his employment is terminated by his employer
without "Cause" as defined in his Employment Agreement or by the
Shareholder for "Good Reason" as defined in his Employment Agreement.
3. Paragraph (iii) of Section 4(b) of the Shareholder Agreement ("Call
Option of the Company -- Price of Capital Stock") is deleted from the
Shareholder Agreement, and paragraph (iv) of such Section 4(b) is renumbered as
paragraph (iii).
4. The first sentence of Section 5(a) of the Shareholder Agreement ("Put
Option of the Shareholder -- Initiation of Option") is deleted from the
Shareholder Agreement and is replaced by the following two sentences:
Except as provided in the immediately following sentence, after the
Shareholders' Separation Date, the Shareholder or the Shareholder's
representative, in the event of the Shareholder's death or disability,
will have the right to require the Company to purchase (the "Put Right")
any or all of the shares of Capital Stock of the Shareholder in accordance
with the terms and conditions of this Section 5, provided the Shareholder
(including the Shareholder's representative, if applicable) has held such
shares of Capital Stock for at least six months. Notwithstanding the
preceding sentence, the Shareholder will not have the right to require the
Company to purchase any shares of Capital Stock if the Shareholder's
Separation Date is prior to August 1, 2010, and his employment is
terminated by his employer without "Cause" as defined in his Employment
Agreement or by the Shareholder for any reason other than death or
disability.
5. Paragraph (i) of Section 5(b) of the Shareholder Agreement ("Put Option
of the Shareholder -- Price of Capital Stock") is amended in its entirety to
read as follows:
(i) If the Shareholder's employment is terminated for "Cause" as
defined in his Employment Agreement, the Put Price paid by the Company for
the Capital Stock will be an amount equal to $1 per share.
6. Paragraph (iii) of Section 5(b) of the Shareholder Agreement ("Put
Option of the Shareholder -- Price of Capital Stock") is deleted from the
Shareholder Agreement, and paragraph (iv) of such Section 5(b) is renumbered as
paragraph (iii).
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IN WITNESS WHEREOF, the parties have cause this Amendment to be executed
and delivered as of the date first written above.
ALON USA OPERATING, INC.
By /s/ Xxxxx Xxxxxxxx, Xxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx, Xxxx Xxxxxx
SHAREHOLDER '
/s/ Xxxxxx X. Xxxx
--------------------------------------
Xxxxxx Xxxx
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