As filed with
the Securities and Exchange Commission on August 23,
2010
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ALON USA ENERGY, INC.
(Exact Name of Registrant as
Specified in Its Charter)
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Delaware
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2911
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74-2966572
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(State or Other Jurisdiction
of
Incorporation or Organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification Number)
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7616 LBJ Freeway,
Suite 300
Dallas, Texas 75251
(972) 367-3600
(Address, Including
Zip Code, and Telephone Number, Including Area Code, of
Registrants Principal Executive Offices)
Jeff D. Morris
Alon USA Energy, Inc.
7616 LBJ Freeway, Suite 300
Dallas, Texas 75251
(972) 367-3600
(Name, Address,
Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
With a copy to:
Mark T. Goglia
Jones Day
2727 North Harwood Street
Dallas, Texas
75201-1515
Telephone:
(214) 220-3939
Facsimile:
(214) 969-5100
Approximate date of commencement of proposed sale to the
public: As soon as practicable after the
effective date of this Registration Statement.
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933 (the
Securities Act), check the following
box. þ
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2
of the Exchange Act. (Check one):
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Large accelerated
filer o
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Accelerated filer
þ
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Non-accelerated filer
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Smaller reporting company
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(Do not check if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Amount of
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Title of Each Class of
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Amount to be
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Offering
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Aggregate
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Registration
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Securities to be Registered
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Registered(1)
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Price per Share
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Offering Price
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Fee
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Subscription rights to purchase 8.75% Series A Convertible
Preferred Stock(2)
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4,000,000
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(3)
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8.75% Series A Convertible Preferred Stock, par value $0.01
per share, issuable upon exercise of subscription rights
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4,000,000
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$10.00
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$40,000,000
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$2,852
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Common Stock, par value $0.01 per share, issuable upon
conversion of 8.75% Series A Convertible Preferred Stock
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5,376,400(4)
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(5)
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Common Stock, par value $0.01 per share, issuable as dividends
on shares of 8.75% Series A Convertible Preferred Stock
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1,700,000(6)
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(5)
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(1)
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This registration statement relates
to (a) the subscription rights to purchase 8.75%
Series A Convertible Preferred Stock, (b) the shares
of 8.75% Series A Convertible Preferred Stock issuable upon
the exercise of the subscription rights, (c) the shares of
common stock issuable upon conversion of the 8.75% Series A
Convertible Preferred Stock, and (d) the shares of common
stock issuable as dividends on shares of the 8.75% Series A
Convertible Preferred Stock.
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(2)
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The transferable subscription
rights are being issued without consideration to the holders of
the Registrants common stock as of the record date.
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(3)
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Pursuant to Rule 457(g), there
is no separate registration fee for the subscription rights
since both the subscription rights and the 8.75% Series A
Convertible Preferred Stock issuable upon exercise thereof are
being registered under this Registration Statement.
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(4)
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Pursuant to Rule 416, this
registration statement also covers such indeterminate number of
additional shares of common stock as may become issuable as a
result of stock splits, stock dividends or similar transactions.
In the event that the registrant is required, as a result of
antidilution adjustments pursuant to the terms of the 8.75%
Series A Convertible Preferred Stock that are not
contemplated by Rule 416, to issue more shares of common
stock than are registered hereunder, the registrant will file a
new registration statement in respect of such additional shares
of common stock.
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(5)
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Pursuant to Rule 457(i), there
is no separate registration fee for the common stock since both
the 8.75% Series A Convertible Preferred Stock and the
common stock issuable upon conversion thereof, or as dividends
on shares thereof, are being registered under this Registration
Statement.
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(6)
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Represents an estimate of the
maximum amount of dividends that potentially could be payable on
outstanding shares of 8.75% Series A Convertible Preferred
Stock in the form of common stock from the date of initial
issuance through December 31, 2013.
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The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Securities
and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
The
information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these
securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not
permitted.
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SUBJECT TO COMPLETION, DATED
AUGUST 23, 2010
PROSPECTUS
Alon USA Energy, Inc.
4,000,000 Subscription Rights
to Subscribe for up to 4,000,000 Shares of
8.75% Series A Convertible
Preferred Stock at $10.00 per Share
5,376,400 Shares of Common
Stock Issuable Upon Conversion of 8.75% Series A
Convertible Preferred Stock
1,700,000 Shares of Common
Stock Issuable as Dividends on Shares of 8.75% Series A
Convertible Preferred Stock
We are distributing to you, at no charge, one transferable
subscription right for every 13.55 shares of common stock
you owned
on ,
2010, the record date, subject to adjustments to eliminate
fractional subscription rights. Each subscription right will
entitle you to purchase one share of our 8.75% Series A
Convertible Preferred Stock, or convertible preferred stock, at
an exercise price of $10.00 per share. If you exercise your
subscription rights in full, you may also concurrently exercise
an over-subscription right to purchase additional shares of
convertible preferred stock, at an exercise price of $10.00 per
share, that remain unsubscribed at the expiration of the rights
offering, subject to availability and allocation of shares among
persons exercising this over-subscription right. The shares of
convertible preferred stock will be convertible into shares of
common stock at a conversion rate of 1.344 shares of common
stock per share of convertible preferred stock, which is
equivalent to a conversion price of $7.44 per share, subject to
adjustment upon the occurrence of certain events. As of the
record date, there
are shares
of common stock outstanding. There is no minimum subscription
amount required for consummation of the rights offering. If all
the shares of convertible preferred stock are fully subscribed,
the proceeds to us are estimated to be $40,000,000 before
deducting offering expenses estimated to be approximately
$ . We intend to apply to list the
convertible preferred stock on the New York Stock Exchange. If
approved for listing, we expect trading of the convertible
preferred stock to begin within days after the
expiration of the rights offering; however, we cannot give you
any assurance that a market for the convertible preferred stock
will develop or, if a market does develop, as to how long it
will continue or at what prices the convertible preferred stock
will trade.
Dividends on the convertible preferred stock will be fully
cumulative, will accumulate without interest from the date of
original issuance of the convertible preferred stock and will be
payable quarterly in arrears in, at our election, cash, shares
of common stock or a combination of cash and shares of common
stock, commencing on the last calendar day of the first full
fiscal quarter following the date of original issuance of the
convertible preferred stock. In the event of a liquidation,
dissolution or winding up of our company, we will pay to the
holder of convertible preferred stock, prior to the payment to
any holder of common stock, an amount equal to $10.00 per share
of convertible preferred stock (as adjusted from time to time to
reflect any stock dividends, splits, combinations or other
similar recapitalization with respect to the shares of
convertible preferred stock) plus all accrued and unpaid
dividends on such share, if any, up to and including the date of
final distribution to the holders of shares of convertible
preferred stock.
The subscription rights will expire at 6:00 p.m., New
York City time,
on ,
2010, unless the exercise period is extended by us. Any
subscription rights not exercised at or before that time will
expire void and worthless without any payment to the holders of
those unexercised subscription rights. You should carefully
consider whether to exercise or sell your subscription rights
prior to the expiration of the rights offering. The manner in
which subscription rights may be exercised is described in
detail under the heading The Rights Offering
Method of Purchase Exercise of
Subscription Rights. If you intend to exercise your
subscription rights, you should be careful to comply with these
procedures. Additional information regarding the rights offering
may be found under the heading The Rights Offering
beginning on page 27.
We may cancel or terminate the rights offering at any time prior
to its expiration upon determination of our board of directors.
If we cancel or terminate this offering after you have exercised
your subscription rights, we will return your exercise price to
you, without interest or deduction.
We are offering the subscription rights, the shares of
convertible preferred stock underlying the subscription rights
and the common stock underlying the convertible preferred stock
directly to you. We have not employed any brokers, dealers or
underwriters in connection with the solicitation or exercise of
subscription rights in the rights offering and, except as
disclosed under the heading Plan of Distribution, no
commissions, fees or discounts will be paid in connection with
the rights offering. Therefore, while certain of our directors,
officers and other employees may solicit responses from you,
those directors, officers and other employees will not receive
any commissions or compensation for their services other than
their normal compensation. The Bank of New York Mellon is acting
as subscription agent and information agent for the rights
offering.
The subscription rights are transferable, and we expect them to
trade on the New York Stock Exchange under the symbol ALJ
[RT]; however, we cannot give you any assurance that a
market for the subscription rights will develop or, if a market
does develop, as to how long it will continue or at what prices
the subscription rights will trade. Our common stock is quoted
on the New York Stock Exchange under the symbol ALJ.
The last reported sale price of our common stock
on ,
2010 was $ per share.
Exercising the subscription rights and investing in our
shares of convertible preferred stock and our common stock
involves risks. We urge you to carefully read the section
entitled Risk Factors beginning on page 8 of
this prospectus and all information included or incorporated by
reference in this prospectus in its entirety before you decide
whether to exercise or sell your subscription rights. Our board
of directors is making no recommendation regarding your exercise
or sale of the subscription rights.
Neither the Securities and Exchange Commission nor any other
regulatory body has approved or disapproved of these securities
or passed upon the adequacy or accuracy of this prospectus. Any
representation to the contrary is a criminal offense.
The date of this prospectus
is ,
2010.
TABLE OF
CONTENTS
You should rely only on the information contained or
incorporated by reference in this prospectus and in any
applicable prospectus supplement. We have not authorized any
other person to provide you with different information. The
information contained in this prospectus, any applicable
prospectus supplement and the documents incorporated by
reference herein or therein are accurate only as of the date
such information is presented. Our business, financial
condition, results of operations and prospects may have
subsequently changed. You should also read this prospectus
together with the additional information described under the
heading Where You Can Find More Information.
This prospectus may be supplemented from time to time to add,
update or change information in this prospectus. Any statement
contained in this prospectus will be deemed to be modified or
superseded for purposes of this prospectus to the extent that a
statement contained in such prospectus supplement modifies or
supersedes such statement. Any statement so modified will be
deemed to constitute a part of this prospectus only as so
modified, and any statement so superseded will be deemed not to
constitute a part of this prospectus.
The registration statement containing this prospectus,
including the exhibits to the registration statement, provides
additional information about us and the securities offered under
this prospectus. The registration statement, including the
exhibits, can be read on the Securities and Exchange Commission
website or at the Securities and Exchange Commission offices
mentioned under the heading Where You Can Find More
Information.
The conversion price for the convertible preferred stock and
related information are based on a common stock price per share
of Alon of $6.33, the closing price per share on July 8,
2010, and the number of shares of common stock for which one
subscription right will be issued is based on
54,181,329 shares of Alon common stock outstanding, the
total number of shares of Alon common stock outstanding on
June 30, 2010, each of which is shown for illustrative
purposes. The actual conversion price of the convertible
preferred stock and related information, and the actual number
of shares of common stock for which one subscription right will
be issued, will be based on the closing price per share of Alon
common stock and the number of shares of common stock
outstanding, respectively, as of a date proximate to the date of
this prospectus.
In this prospectus, unless otherwise specified or the context
otherwise requires, Alon, we,
us and our refer to Alon USA Energy,
Inc. and its subsidiaries. However, in the descriptions of the
subscription rights and related matters, these terms refer
solely to Alon USA Energy, Inc. and not to any of our
subsidiaries.
QUESTIONS
AND ANSWERS RELATING TO THE RIGHTS OFFERING
The following are examples of what we anticipate will be common
questions about the rights offering. The answers are based on
selected information from this prospectus and the documents
incorporated by reference in this prospectus. The following
questions and answers do not contain all of the information that
may be important to you and may not address all of the questions
that you may have about the rights offering. This prospectus and
the documents incorporated by reference in this prospectus
contain more detailed descriptions of the terms and conditions
of the rights offering and provide additional information about
us and our business, including potential risks related to our
business, the rights offering, the shares of 8.75% Series A
Convertible Preferred Stock, or convertible preferred stock, and
the shares of common stock issuable upon conversion of the
convertible preferred stock.
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What is the rights offering? |
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We are distributing to you, at no charge, one transferable
subscription right for every 13.55 shares of common stock
that you owned on the record date, either as a holder of record
or, in the case of shares held of record by brokers, banks or
other nominees, on your behalf, as a beneficial owner of these
shares, subject to adjustments to eliminate fractional
subscription rights. The subscription rights will be evidenced
by rights certificates. |
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What is the basic subscription right? |
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Each subscription right entitles you to purchase one share of
our convertible preferred stock at an exercise price of $10.00
per share. Each share of convertible preferred stock will
initially be convertible into 1.344 shares of our common
stock. |
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What is an over-subscription right? |
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The over-subscription right associated with each subscription
right entitles you, if you fully exercise your basic
subscription right, to subscribe to purchase, at the same price
per share, any shares of convertible preferred stock that are
not purchased by other holders of subscription rights under
their basic subscription rights as of the expiration time. If
sufficient shares of convertible preferred stock are available,
we will seek to honor your over-subscription request in full.
If, however, over-subscription requests exceed the number of
shares of convertible preferred stock available for sale in the
rights offering, we will allocate the available shares of
convertible preferred stock pro rata among each stockholder
exercising the over-subscription right in proportion to the
number of shares of common stock owned by such stockholder on
the record date, relative to the number of shares of common
stock owned on the record date by all stockholders exercising
the over-subscription right. If this pro rata allocation results
in any stockholder receiving a greater number of shares of
convertible preferred stock than the stockholder subscribed for
pursuant to the exercise of the over-subscription right, then
such stockholder will be allocated only that number of shares
for which the stockholder over-subscribed, and the remaining
shares of convertible preferred stock will be allocated among
all other stockholders exercising the over-subscription right on
the same pro rata basis described above. The proration process
will be repeated until all shares of convertible preferred stock
have been allocated or all over-subscription requests have been
satisfied. The over-subscription right must be exercised, if at
all, concurrently with the basic subscription right prior to the
expiration time. |
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In order to properly exercise your over-subscription right, you
must deliver the subscription payment related to your
over-subscription right prior to the expiration time. Because we
will not know the total number of unsubscribed shares of
convertible preferred stock prior to three days after the
expiration time, if you wish to maximize the number of shares of
convertible preferred stock you purchase pursuant to your
over-subscription right, you will need to deliver payment in an
amount equal to the aggregate subscription price for the maximum
number of shares of our convertible preferred stock that may be
available to you (i.e., for the maximum number of shares of our
convertible preferred stock available to you, assuming you
exercise all of your basic subscription right and are allotted
the full amount of your over-subscription as elected by you).
See The Rights Offering Over-Subscription
Rights. |
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Fractional convertible preferred shares resulting from the
exercise of the over-subscription right will be eliminated by
rounding to the nearest whole share, subject to adjustment to
ensure that we offer no more than 4,000,000 shares of
convertible preferred stock in the rights offering, with the
total subscription payment being adjusted accordingly. |
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What was the record date for the rights offering? |
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The record date for the rights offering, which was the date used
to determine the stockholders entitled to receive subscription
rights,
was ,
2010. |
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How many subscription rights am I receiving? |
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You are receiving one subscription right for every
13.55 shares of our common stock that you hold on the
record date, subject to adjustment to eliminate fractional
rights. If all the shares of convertible preferred stock are
fully subscribed, we will issue a total of 4,000,000 shares
of convertible preferred stock in the rights offering. |
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How many shares of common stock will I receive if I convert
my shares of convertible preferred stock? |
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Each share of convertible preferred stock will initially be
convertible into 1.344 shares of common stock, which is
equivalent to a conversion price of $7.44 per share, subject to
adjustment upon the occurrence of certain events. If, upon
conversion of the convertible preferred stock, you would be
entitled to receive a fractional interest in a share of our
common stock, we will, upon conversion, pay in lieu of such
fractional interest, cash in an amount determined under the
terms of the convertible preferred stock. |
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How much does a right cost? |
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We are distributing at no charge subscription rights to holders
of our common stock as of the close of business, New York City
time, on the record date. |
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How was the $10.00 per share exercise price determined? |
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Our board of directors established the exercise price of the
convertible preferred stock based on the estimated value of the
convertible preferred stock at the date of issuance. Factors
considered in setting the exercise price included general
conditions in the securities market, alternatives available to
us for raising equity capital, the current trading price of our
common stock and the amount of proceeds desired. See
Determination of Exercise Price and Conversion Price. |
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What are the terms of the convertible preferred stock? |
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The terms of the convertible preferred stock are as follows: |
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Rank: |
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The convertible preferred stock will rank senior to all of our
common stock, both as to payment of dividends and as to
distributions of assets upon the liquidation, dissolution or
winding up of our company, whether voluntary or involuntary. |
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Maturity: |
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The convertible preferred stock is perpetual, and therefore does
not have a maturity date. |
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Dividends: |
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The convertible preferred stock will rank senior to our common
stock with respect to the payment of dividends. Holders of
shares of convertible preferred stock will be entitled to
receive, when, as and if declared by the board of directors out
of funds legally available for such purpose, dividends at an
annual rate of 8.75% of the per share stated value of the
convertible preferred stock. The initial per share stated value
of the convertible preferred stock is $10.00, and is subject to
adjustment in the event of any stock dividend, stock split,
combination or other similar recapitalization with respect to
the convertible preferred stock. Dividends on the |
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convertible preferred stock will be payable quarterly in arrears
in, at our election, cash, shares of common stock or a
combination of cash and shares of common stock, commencing on
the last calendar day of the first full fiscal quarter following
the date of original issuance of the convertible preferred
stock. If we elect to pay any dividends in shares of common
stock, the amount of those dividends will be computed based on a
3.0% discount from the average of the Volume Weighted Closing
Price (as defined below under the heading The Rights
Offering Terms of the 8.75% Series A
Convertible Preferred Stock Dividends) of the
common stock over the 20 consecutive trading days immediately
preceding the fifth trading day immediately preceding the record
date for the payment of dividends. |
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No dividends or other distributions, other than dividends
payable solely in shares of common stock, may be paid or set
apart for payment on, and no purchase, redemption or other
acquisition may be made by us, of any shares of our capital
stock ranking junior as to the payment of dividends to the
convertible preferred stock unless and until all accumulated and
unpaid dividends on the convertible preferred stock, including
the full dividend for the then-current quarterly dividend
period, has been paid or declared and set apart for payment. |
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Dividends on the convertible preferred stock will be fully
cumulative and will accumulate without interest from the date of
original issuance of the convertible preferred stock. |
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If at any time dividends on the convertible preferred stock
shall be in arrears in an amount equal to six quarterly
dividends thereon (whether or not consecutive), all the holders
of shares of the convertible preferred stock, voting as a single
class with any other preferred stock or preference securities
having similar voting rights that are exercisable during a
period of default on the payment of dividends, shall be entitled
at the next annual or special meeting of our stockholders to
elect two additional directors to our board of directors. Such
voting right and the term of the directors so elected will
expire at such time when all accrued and unpaid dividends for
all previous quarterly dividend periods and for the current
quarterly dividend period on all shares of the convertible
preferred stock then outstanding shall have been declared and
paid or set apart for payment. See The Rights
Offering Terms of the 8.75% Series A
Convertible Preferred Stock Voting. |
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Liquidation: |
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The convertible preferred stock will rank senior to the common
stock with respect to the distributions of assets upon the
liquidation, dissolution or winding up of our company, whether
voluntary or involuntary. In the event of a liquidation,
dissolution or winding up of our company, we will pay to the
holders of convertible preferred stock, prior to the payment to
any holder of common stock, an amount equal to $10.00 per share
of convertible preferred stock (as adjusted from time to time to
reflect any stock dividends, splits, combinations or other
similar recapitalization with respect to the shares of
convertible preferred stock) plus all accumulated, accrued |
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and unpaid dividends on such share, if any, whether or not
declared, to the date of final distribution. |
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Conversion: |
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At any time, holders of convertible preferred stock may elect to
convert their convertible preferred stock into common stock.
Each share of convertible preferred stock will initially be
convertible into 1.344 shares of common stock, which is
equivalent to a conversion price of $7.44 per share, subject to
adjustment upon the occurrence of certain events. The conversion
rate will be adjusted from time to time upon the occurrence of
certain events, including dividends, splits, combinations or
other similar recapitalization with respect to the shares of
common stock or convertible preferred stock, and the issuance of
rights, warrants, options or other securities to all
stockholders. Cash will be paid in lieu of any fractional share
of common stock to which a holder would otherwise be entitled
upon conversion. In connection with any conversion, you would
receive a payment in an amount equal to all declared and unpaid
dividends on your shares of convertible preferred stock to the
date of conversion (which may, at our election, be in the form
of cash, shares of common stock or a combination of cash and
shares of common stock), but after conversion you would no
longer be entitled to the dividends, liquidation preference or
other rights attributable to holders of the convertible
preferred stock. |
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From and after the third anniversary of the date on which the
convertible preferred stock is first issued, if over a period of
30 consecutive trading days the average Volume Weighted
Closing Price (as defined below under the heading The
Rights Offering Terms of the 8.75% Series A
Convertible Preferred Stock Dividends) of our
common stock for any 20 days during such
30-day
period equals or exceeds 130% of the then-prevailing conversion
price per share, we may, at our option, require that some or all
then outstanding shares of convertible preferred stock be
automatically converted into a number of shares of our common
stock equal to $10.00 (as adjusted from time to time to reflect
any stock dividends, splits, combinations or other similar
recapitalization with respect to the shares of common stock)
divided by the then-prevailing conversion price. In addition to
issuing the necessary number of whole shares of common stock in
connection with the automatic conversion, we will pay cash in
lieu of any fractional share to which a holder would otherwise
be entitled. In addition, in connection with such automatic
conversion you would receive a payment in an amount equal to all
declared and unpaid dividends on your shares of convertible
preferred stock to the date of conversion (which may, at our
election, be in the form of cash, shares of common stock or a
combination of cash and shares of common stock), but after
conversion you would no longer be entitled to the dividends,
liquidation preference or other rights attributable to holders
of the convertible preferred stock. |
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Voting: |
|
Holders of the convertible preferred stock will generally have
limited voting rights. In accordance with the terms of the
convertible preferred stock, we may not, without the consent or
affirmative vote of the holders of at least
662/3%
of the outstanding shares of |
v
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convertible preferred stock, voting separately as a class,
(a) authorize, create or issue any shares of any other
class or series of capital stock ranking senior to the
convertible preferred stock as to dividends or upon liquidation,
or (b) amend, alter or repeal any provision of our
certificate of incorporation or bylaws in a manner that
adversely affects the powers, preferences or rights of the
convertible preferred stock. See The Rights
Offering Terms of the 8.75% Series A
Convertible Preferred Stock Voting. |
|
Redemption: |
|
The holders of the convertible preferred stock may not redeem
the convertible preferred stock. From and after the third
anniversary of the date on which the convertible preferred stock
is first issued, if over a period of 30 consecutive trading days
the average Volume Weighted Closing Price (as defined below
under the heading The Rights Offering Terms of
the 8.75% Series A Convertible Preferred Stock
Dividends) of our common stock for any 20 days during
such 30-day
period equals or exceeds 130% of the then-prevailing conversion
price per share, we may, at our option, redeem some or all of
the outstanding shares of convertible preferred stock for cash
at a price of $10.00 per share of convertible preferred stock
(as adjusted to reflect any stock dividends, splits,
combinations or other similar recapitalization with respect to
the shares of convertible preferred stock) plus all accumulated,
accrued and unpaid dividends, if any, whether or not declared,
to the date of redemption, on the shares of convertible
preferred stock being redeemed (which may, at our election, be
in the form of cash, shares of common stock or a combination of
cash and shares of common stock). We are not required to set
aside funds to redeem the convertible preferred stock. |
For a more complete description of the rights, preferences and
privileges of the convertible preferred stock, see The
Rights Offering Terms of the 8.75% Series A
Convertible Preferred Stock.
|
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|
Q: |
|
How were the terms of the convertible preferred stock,
including the conversion price, determined? |
|
A: |
|
Our board of directors established the conversion price of the
convertible preferred stock based on the estimated value of the
convertible preferred stock at the date of issuance. Factors
considered in setting the terms of the convertible preferred
stock, including the conversion price, included general
conditions in the securities market, alternatives available to
us for raising equity capital, the current trading price of our
common stock and the amount of proceeds desired. |
|
Q: |
|
If I convert my shares of convertible preferred stock, will I
receive any payment for any declared and unpaid dividends on the
shares of convertible preferred stock? |
|
A: |
|
Yes. Upon conversion of convertible preferred stock, we will pay
to the holder of the convertible preferred stock being converted
an amount equal to all declared and unpaid dividends on the
shares of convertible preferred stock being converted. At our
election, we may make those payments in cash, shares of common
stock or a combination of cash and shares of common stock. |
|
Q: |
|
Will you issue fractional subscription rights? |
|
A: |
|
We will not issue fractional subscription rights or cash in lieu
of fractional subscription rights. Fractional subscription
rights will be eliminated by rounding to the nearest whole
share, with such adjustments as may be necessary to ensure that
we offer 4,000,000 shares of convertible preferred stock in
the rights offering. In the event that, because of the rounding
of fractional subscription rights, the rights offering would
have been subscribed in an amount in excess of
4,000,000 shares of convertible preferred stock, all |
vi
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holders subscription rights will be reduced in an
equitable manner. Any excess subscription funds will be returned
promptly, without interest or deduction. |
|
Q: |
|
How will you use the proceeds from the rights offering? |
|
A: |
|
Our proceeds from the rights offering will be approximately
$40,000,000 before deducting offering expenses estimated to be
approximately $ . We expect
to use the net proceeds from the rights offering, together with
other available funds, including cash on hand, for payment of
amounts owing under the Hapoalim Facility (as defined below
under the heading Use of Proceeds), and, if any
proceeds of the rights offering remain, for general corporate
purposes. See Use of Proceeds. |
|
Q: |
|
When will I receive my rights certificate? |
|
A: |
|
Promptly after the date of this prospectus, the subscription
agent will send a rights certificate to each holder of our
common stock that is entitled to receive a rights certificate
and that is registered on our stockholder registry maintained at
The Bank of New York Mellon, the transfer agent for our common
stock. If you own your shares of common stock through a broker,
bank or other nominee, you will not receive an actual rights
certificate. If you wish to obtain a separate rights
certificate, you should promptly contact your broker, bank or
other nominee and request a separate certificate. See Q:
What should I do if I want to participate in the rights offering
but my shares are held in the name of my broker, bank or other
nominee? It is not necessary to have a physical rights
certificate in order to exercise or sell your subscription
rights. |
|
Q: |
|
May I transfer my subscription rights if I do not want to
purchase any shares of convertible preferred stock? |
|
A: |
|
Yes. The subscription rights are transferable from the
commencement of the rights offering until 4:00 p.m., New
York City time, on the last business day prior to the scheduled
expiration date of the rights offering, which may be extended by
us in our sole discretion. See The Rights
Offering Method of Transferring Subscription
Rights. |
|
Q: |
|
How may I sell or transfer my subscription rights? |
|
A: |
|
You may seek to sell your subscription rights through normal
investment channels. See The Rights Offering
Method of Selling Subscription Rights. In addition, if you
hold your subscription rights in your own name, you may seek to
sell or transfer your subscription rights through the
subscription agent. See The Rights Offering
Selling Subscription Rights through the Subscription
Agent. We anticipate that the subscription rights will be
eligible to trade on the New York Stock Exchange, or the NYSE,
from the commencement of the rights offering until
4:00 p.m., New York City time, on the last trading day
before the expiration date of the rights offering. The
subscription rights are a new issue of securities, however, and
do not have an established trading market. We cannot give you
any assurance that a market for the subscription rights will
develop or, if a market does develop, as to how long it will
continue or at what prices the subscription rights will trade.
Therefore, we cannot assure you that you will be able to sell
any of your subscription rights or as to the value you may
receive in a sale. See The Rights Offering
Transferability of Subscription Rights and The
Rights Offering Method of Transferring Subscription
Rights. |
|
Q: |
|
How do I exercise my subscription rights? |
|
A: |
|
You may exercise your subscription rights by properly completing
and signing your rights certificate. You must deliver your
rights certificate to The Bank of New York Mellon, which is
acting as the subscription agent for the rights offering. The
subscription agent will not accept a facsimile transmission of
your completed rights certificate. If you send your rights
certificate by mail, we recommend that you send it by registered
mail, properly insured, with return receipt requested. Delivery
of your rights certificate must be accompanied by full payment
of the exercise price for each share of convertible preferred
stock you wish to purchase. Your payment of the exercise price
must be made in U.S. dollars for the full number of shares of
convertible preferred stock you are purchasing pursuant to the
exercise of subscription rights by (a) certified check
drawn upon a U.S. bank payable to the subscription agent,
(b) cashiers check drawn |
vii
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upon a U.S. bank or express money order payable to the
subscription agent, or (c) wire transfer of funds to the
account maintained by the subscription agent for the purpose of
the rights offering. See The Rights Offering
Method of Purchase Exercise of Subscription
Rights and The Rights Offering Method of
Payment of Exercise Price. If you cannot deliver your
rights certificate to the subscription agent prior to the
expiration of the rights offering, you may follow the guaranteed
delivery procedures described under The Rights
Offering Guaranteed Delivery Procedures. |
|
Q: |
|
If I want to exercise or sell my subscription rights, will it
be easier for me to do so if I hold my subscription rights in my
own name or through my broker, bank or other nominee? |
|
A: |
|
We believe that it will be easier to exercise or sell
subscription rights held through a broker, bank or other nominee
rather than in your own name. Your broker, bank or other nominee
should be experienced in effecting transfers of securities and
in completing the documentation necessary to exercise your
subscription rights. Your broker, bank or other nominee will
provide you with the means to exercise your subscription rights.
Once you have indicated to your broker, bank or other nominee
your decision to exercise your subscription rights, your broker,
bank or other nominee will take care of all the necessary
documentation. Your broker, bank or other nominee may also use
the facilities of The Depository Trust Company, or DTC, to
effect the sale or exercise of your subscription rights in a
timely manner. See The Rights Offering
Beneficial Owners. In addition, any holder who holds its
subscription rights in its own name and wishes to sell its
subscription rights may also seek to sell its subscription
rights through the subscription agent. See The Rights
Offering Selling Subscription Rights through the
Subscription Agent. Each holder will be responsible for
all fees associated with the sale of its subscription rights,
whether the subscription rights are sold through its own broker,
bank or other nominee or the subscription agent. We cannot
assure you that any person, including the subscription agent,
will be able to sell any subscription rights on your behalf. |
|
Q: |
|
When will I receive the shares I am purchasing by exercising
my subscription rights? |
|
A: |
|
If you properly exercise your subscription rights, you will be
deemed to own the shares immediately after the expiration of the
rights offering. We will issue a Direct Registration System
book-entry statement representing the shares of convertible
preferred stock to you or DTC on your behalf, as the case may
be, promptly after the completion of the rights offering and
after all pro rata allocations and adjustments have been
completed. We have the discretion to delay distribution of any
shares you may elect to purchase by exercise of subscription
rights if necessary to comply with state securities laws. No
interest will be paid to you on the funds you deposit with the
subscription agent. |
|
Q: |
|
When do the subscription rights expire? |
|
A: |
|
The subscription rights expire, if not previously exercised, at
6:00 p.m., New York City time,
on ,
2010, unless the exercise period is extended by us. We currently
do not intend to extend the exercise period. See The
Rights Offering Expiration of the Rights
Offering and The Rights Offering
Extension, Amendments and Termination. |
|
Q: |
|
Am I required to exercise or sell my subscription rights? |
|
A: |
|
No. If you do not exercise or sell your subscription rights
prior to the expiration of the rights offering, your
subscription rights will expire and you will lose any value
represented by your subscription rights. See Q: What
happens if I do not exercise my subscription rights? |
|
Q: |
|
What happens if I do not exercise my subscription rights? |
|
A: |
|
You will retain your current number of shares of our capital
stock held directly by you; however, the percentage of our
capital stock held by you will decrease. The magnitude of the
reduction will depend upon the extent to which rights holders
subscribe in the rights offering. |
|
Q: |
|
Are we requiring a minimum subscription to complete the
rights offering? |
|
A: |
|
No. See Q: What happens to the shares of convertible
preferred stock if the rights offering is not fully
subscribed? |
viii
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|
Q: |
|
What happens to the shares of convertible preferred stock if
the rights offering is not fully subscribed? |
|
A: |
|
In the event that any portion of the subscription rights are not
exercised by the holders thereof prior to the expiration of the
rights offering, including through the exercise of
over-subscription rights, we have the option, but not the
obligation, to offer the shares of convertible preferred stock
that were subject to such unexercised rights, at the same price
per share, to persons and entities that did not hold shares of
our common stock as of the record date. |
|
Q: |
|
If I exercise my subscription rights in the rights offering,
may I withdraw the exercise? |
|
A: |
|
No. Unless our board of directors cancels or terminates the
rights offering, all exercises of subscription rights are
irrevocable, even if you later learn information that you
consider to be unfavorable to the exercise of your subscription
rights. You should not exercise your subscription rights unless
you are certain that you wish to purchase shares of convertible
preferred stock at an exercise price of $10.00 per share. |
|
Q: |
|
May you terminate the rights offering? |
|
A: |
|
Yes. We have no intention of terminating the rights offering,
but we have reserved the right, in our sole discretion, to
terminate the rights offering in the event that unforeseen
circumstances occur between the date of this prospectus and the
scheduled expiration of the rights offering. See The
Rights Offering Extensions, Amendments and
Termination. |
|
Q: |
|
May you amend the rights offering? |
|
A: |
|
Yes. We have reserved the right, in our sole discretion, to
amend or modify the terms of the rights offering. |
|
Q: |
|
If the rights offering is terminated, will my payment be
refunded to me? |
|
A: |
|
Yes. The subscription agent will hold all funds it receives in
escrow until completion of the rights offering. If the rights
offering is not completed, the subscription agent will return
promptly, without interest or deduction, all subscription
payments. If you hold your shares in street name, it
may take longer for you to receive payment because the
subscription agent will send payment through the record holder
of your shares. See The Rights Offering
Extensions, Amendments and Termination. |
|
Q: |
|
What should I do if I want to participate in the rights
offering but my shares are held in the name of my broker, bank
or other nominee? |
|
A: |
|
If you hold shares of our common stock through a broker, bank or
other nominee, you will need to have your broker, bank or other
nominee act for you if you wish to exercise or sell your
subscription rights. If you wish to exercise or sell your
subscription rights, you should complete and return to your
broker, bank or other nominee the form entitled Beneficial
Owner Election Form. You should receive this form from
your broker, bank or other nominee with the other rights
offering materials. You should contact your broker, bank or
other nominee if you believe you are entitled to participate in
the rights offering but you have not received this form. See
The Rights Offering Beneficial Owners. |
|
Q: |
|
If I am a foreign stockholder, how do I exercise my
subscription rights? |
|
A: |
|
If you are a rights holder whose address is outside the United
States, and if it is not, in our sole judgment, unlawful to do
so, the subscription agent will mail rights certificates to you.
To exercise your subscription rights, you must notify the
subscription agent on or prior to 6:00 pm, New York City time,
on ,
2010, the expiration date of the rights offering (unless the
exercise period is extended by us), and take all other steps
which are necessary to exercise your subscription rights, on or
prior to that time. If you do not follow these procedures prior
to the expiration date of the rights offering, your subscription
rights will expire. |
|
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|
The rights offering is not being made in any state or other
jurisdiction in which it would be unlawful to do so, nor are we
selling to you, or accepting any offers from you to purchase,
shares of convertible preferred stock if you are a resident of
any such state or other jurisdiction. If necessary, we may delay |
ix
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commencement of the rights offering in certain states or other
jurisdictions in order to comply with the securities law
requirements of those states or other jurisdictions. In
addition, in certain circumstances, in order to comply with
applicable state securities laws, we may not be able to honor
all oversubscription privileges even if we have shares of
convertible preferred stock available. We do not anticipate that
there will be any changes in the rights offering, and we may, in
our sole discretion, decline to make modifications to the terms
of the rights offering requested by regulators in states or
other jurisdictions, in which case stockholders who live in
those states or other jurisdictions will not be eligible to
participate in the rights offering. |
|
Q: |
|
Will I be charged a sales commission or a fee if I exercise
or sell my subscription rights? |
|
A: |
|
We will not charge a brokerage commission or a fee to rights
holders for exercising or selling their subscription rights. If
you exercise your subscription rights through a broker, bank or
other nominee, however, you will be responsible for any fees
charged by your broker, bank or nominee. If you sell your
subscription rights, you will be responsible for any fees or
commissions relating to that sale. |
|
Q: |
|
Have you or your board of directors made a recommendation as
to whether I should exercise or sell my subscription rights? |
|
A: |
|
No. Neither we nor our board of directors has made any
recommendation as to whether you should exercise or sell your
subscription rights. You should make those decisions based upon
your own assessment of your best interests. However, if you do
not exercise or sell your subscription rights prior to the
expiration of the rights offering, you will lose any value
inherent in the subscription rights, and if you do not exercise
your subscription rights prior to the expiration of the rights
offering, your percentage ownership interest in us will be
diluted. |
|
Q: |
|
Have any stockholders indicated they will exercise their
subscription rights? |
|
A: |
|
Alon Israel Oil Company, Ltd., which owns approximately 76% of
our outstanding common stock, has indicated its intention to
exercise its basic subscription rights to purchase approximately
$30 million of convertible preferred stock. If Alon Israel
Oil Company, Ltd. exercises its basic subscription rights in
full and no other subscription rights are exercised, Alon Israel
would own approximately 77.69% of our common stock assuming Alon
Israel Oil Company, Ltd. fully converts the convertible
preferred stock held by it to common stock immediately following
completion of the rights offering. |
|
Q: |
|
Are there risks in exercising my subscription rights? |
|
A: |
|
Yes. The exercise of your subscription rights involves risks.
Exercising your subscription rights means buying shares of our
convertible preferred stock and should be considered as
carefully as you would consider any other investment. We urge
you to carefully read the section entitled Risk
Factors beginning on page 8 of this prospectus and
all information included or incorporated by reference in this
prospectus in its entirety before you decide whether to exercise
your subscription rights. |
|
Q: |
|
Is there an active market for the convertible preferred
stock? |
|
A: |
|
No. The convertible preferred stock is a new issue of
securities with no established trading market. We have applied
to list the convertible preferred stock on the New York Stock
Exchange. If approved for listing, we expect trading of the
convertible preferred stock to begin
within days after the expiration of the rights
offering. Listing of the convertible preferred stock does not
guarantee that a trading market for the convertible preferred
stock will develop. If there is no active trading market, or the
trading market is not sustained, you may not be able to sell
your convertible preferred stock or be able to sell your
convertible preferred stock at a price that is satisfactory to
you. In the event there is not an active trading market in the
convertible preferred stock, because there is no maturity date
for the convertible preferred stock, conversion of the
convertible preferred stock into shares of our common stock and
the sale of those shares of common stock or redemption by us of
your shares of convertible preferred stock may be the only way
for you to liquidate your investment in any shares of
convertible preferred stock you purchase in the rights offering. |
x
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|
Q: |
|
What are the U.S. federal income tax consequences of the
rights offering to me? |
|
A: |
|
We believe that the receipt of the subscription rights in the
rights offering should not be a taxable event. A holder of
common stock will not recognize income or loss for federal
income tax purposes in connection with the exercise of
subscription rights in the rights offering. See Material
United States Federal Income Tax Consequences. You should
consult your tax advisor as to the particular tax consequences
to you, including the applicability of any federal estate or
gift tax laws and any state, local or
non-U.S. tax
laws. |
|
Q: |
|
How many shares of common stock are currently outstanding? |
|
A: |
|
On the record date for the rights offering, there
were shares
of our common stock outstanding. |
|
Q: |
|
How many shares of convertible preferred stock and common
stock will be outstanding immediately after the rights
offering? |
|
A: |
|
Assuming that the rights offering is fully subscribed,
4,000,000 shares of convertible preferred stock will be
outstanding immediately after the rights offering. Based upon
the initial conversion rate and assuming 54,181,329 shares
of our common stock were outstanding immediately prior to the
expiration of the rights offering, 5,376,400 shares of
common stock would be issuable upon conversion of the
convertible preferred stock, and we would have
59,557,729 shares of common stock outstanding immediately
after the closing of the rights offering assuming the full
conversion of the convertible preferred stock. |
|
Q: |
|
What should I do if I have other questions? |
|
A: |
|
If you have any questions about or require assistance regarding
the procedure for exercising your subscription rights, including
the procedure if you have lost your rights certificate or would
like additional copies of this prospectus, please contact The
Bank of New York Mellon, which is acting as our information
agent, at [ ]. |
If you have questions about whether your completed rights
certificate or payment has been received, please contact The
Bank of New York Mellon, which is acting as our subscription
agent, at [ ].
For a more complete description of the rights offering, see
The Rights Offering.
xi
PROSPECTUS
SUMMARY
This summary highlights some of the information contained
elsewhere in or incorporated by reference into this prospectus.
Because this is only a summary, it does not contain all of the
information that may be important to you. You should carefully
read this prospectus, including the documents incorporated by
reference, which are described under Incorporation of
Certain Information by Reference and Where You Can
Find More Information.
Our
Company
We are a Delaware corporation formed in 2000 to acquire a crude
oil refinery in Big Spring, Texas, and related pipeline,
terminal and marketing assets from Atofina Petrochemicals, Inc.,
or FINA. In 2006, we acquired refineries in Paramount and Long
Beach, California and Willbridge, Oregon, together with the
related pipeline, terminal and marketing assets, through the
acquisitions of Paramount Petroleum Corporation and Edgington
Oil Company. In 2008, we acquired a refinery in Krotz Springs,
Louisiana through the acquisition of Valero Refining
Company-Louisiana. In June 2010, we acquired a refinery in
Bakersfield, California, through the purchase of substantially
all of the assets of Big West of California, LLC (together with
the Paramount and Long Beach refineries, the California
Refineries). As of June 30, 2010, we operated
306 convenience stores in Central and West Texas and New
Mexico, primarily under the 7-Eleven and FINA brand names. Our
convenience stores typically offer merchandise, food products
and motor fuels. Our principal executive offices are located at
7616 LBJ Freeway, Suite 300, Dallas, Texas 75251, and our
telephone number is
(972) 367-3600.
Our website can be found at www.alonusa.com. Information on our
website should not be construed to be part of this prospectus.
On July 28, 2005, our stock began trading on the New York
Stock Exchange under the trading symbol ALJ. We are
a controlled company under the rules and regulations of the New
York Stock Exchange because Alon Israel Oil Company, Ltd.
(Alon Israel) holds more than 50% of the voting
power for the election of our directors through its ownership of
approximately 76% of our outstanding common stock. Alon Israel,
an Israeli limited liability company, is the largest services
and trade company in Israel. Alon Israel entered the gasoline
marketing and convenience store business in Israel in 1989 and
has grown to become a leading marketer of petroleum products and
one of the largest operators of retail gasoline and convenience
stores in Israel. Alon Israel is a controlling shareholder of
Alon Holdings Blue Square-Israel Ltd. (Blue Square),
a leading retailer in Israel, which is listed on the New York
Stock Exchange and the Tel Aviv Stock Exchange, and Dor-Alon
Energy in Israel (1988) Ltd. (Dor-Alon), a
leading Israeli marketer, developer and operator of gas stations
and shopping centers, which is listed on the Tel Aviv Stock
Exchange.
The
Rights Offering
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The Rights Offering |
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We are distributing to you, at no charge, one transferable
subscription right for every 13.55 shares of common stock
that you owned on the record date, either as a holder of record
or, in the case of shares held of record by brokers, banks or
other nominees, on your behalf, as a beneficial owner of these
shares, subject to adjustments to eliminate fractional
subscription rights. |
|
Basic Subscription Rights |
|
Each right entitles you to purchase one share of our 8.75%
Series A Convertible Preferred Stock, or convertible
preferred stock, par value $0.01 per share, at an exercise price
of $10.00 per share. If all the shares of convertible preferred
stock are fully subscribed, we will issue a total of
4,000,000 shares of convertible preferred stock in the
rights offering. Each share of convertible preferred stock will
initially be convertible into 1.344 shares of our common
stock, which is equivalent to a conversion price of $7.44 per
share, subject to adjustment upon the occurrence of certain
events. |
1
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Over-Subscription Rights |
|
If you fully exercise your basic subscription right, you may
also subscribe to purchase, at the same price per share, any
shares of convertible preferred stock that are not purchased by
other holders of subscription rights under their basic
subscription rights as of the expiration time. If sufficient
shares of convertible preferred stock are available, we will
seek to honor your over-subscription request in full. If,
however, over-subscription requests exceed the number of shares
of convertible preferred stock available for sale in the rights
offering, we will allocate the available shares of convertible
preferred stock pro rata among each stockholder exercising the
over-subscription right in proportion to the number of shares of
common stock owned by such stockholder on the record date,
relative to the number of shares of common stock owned on the
record date by all stockholders exercising the over-subscription
right. If this pro rata allocation results in any stockholder
receiving a greater number of shares of convertible preferred
stock than the stockholder subscribed for pursuant to the
exercise of the over-subscription right, then such stockholder
will be allocated only that number of shares for which the
stockholder over-subscribed, and the remaining shares of
convertible preferred stock will be allocated among all other
stockholders exercising the over-subscription right on the same
pro rata basis described above. The proration process will be
repeated until all shares of convertible preferred stock have
been allocated or all over-subscription requests have been
satisfied. The over-subscription right must be exercised, if at
all, concurrently with the basic subscription right prior to the
expiration time. |
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The subscription agent will return any excess payments by mail,
without interest or deduction, promptly after the expiration of
the rights offering. |
|
Record Date |
|
,
2010, which was the date used to determine the stockholders
entitled to receive subscription rights. |
|
Exercise Price |
|
$10.00 per share of convertible preferred stock, payable in cash. |
|
Fractional Subscription Rights and Common Stock |
|
No fractional subscription rights or cash in lieu of fractional
subscription rights will be issued. Fractional subscription
rights will be eliminated by rounding to the nearest whole
share, with such adjustments as may be necessary to ensure that
we offer 4,000,000 shares of convertible preferred stock in
the rights offering. In the event that, because of the rounding
of fractional subscription rights, the rights offering would
have been subscribed in an amount in excess of
4,000,000 shares of convertible preferred stock, all
holders subscription rights will be reduced in an
equitable manner. Any excess subscription funds will be promptly
returned, without interest or deduction. |
|
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|
If, upon conversion of the convertible preferred stock, a holder
would be entitled to receive a fractional interest in a share of
our common stock, we will, upon conversion, pay in lieu of such
fractional interest, cash in an amount determined under the
terms of the convertible preferred stock. |
2
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Transfer and Sale of Subscription Rights |
|
The subscription rights are transferable from the commencement
of the rights offering until 4:00 p.m., New York City time,
on ,
2010, the last business day prior to the scheduled expiration
date of the rights offering, which may be extended by us in our
sole discretion. You may seek to sell or otherwise transfer your
subscription rights through normal investment channels. See
The Rights Offering Method of Selling
Subscription Rights. In addition, if you hold your
subscription rights in your own name, you may seek to sell or
transfer your subscription rights through the subscription
agent. See The Rights Offering Selling
Subscription Rights through the Subscription Agent. We
anticipate that the subscription rights will be eligible to
trade on the NYSE from the commencement of the rights offering
until 4:00 p.m., New York City time,
on ,
2010, the last business day prior to the scheduled expiration
date of the rights offering, which may be extended by us in our
sole discretion. The subscription rights are a new issue of
securities, however, and do not have an established trading
market. We cannot give you any assurance that a market for the
subscription rights will develop or, if a market does develop,
as to how long it will continue or at what prices the
subscription rights will trade. Therefore, we cannot assure you
that you will be able to sell any of your subscription rights or
as to the value you may receive in a sale. Commissions and
applicable taxes or broker fees may apply if you sell your
subscription rights. See The Rights Offering
Transferability of Subscription Rights and The
Rights Offering Method of Transferring Subscription
Rights. |
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Use of Proceeds |
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Assuming full participation, the proceeds from the rights
offering will be approximately $40,000,000 before deducting
offering expenses estimated to be approximately
$ . We expect to use the net
proceeds from the rights offering, together with other available
funds, including cash on hand for payment of amounts owing under
the Hapoalim Facility (as defined below under the heading
Use of Proceeds), and, if any proceeds of the rights
offering remain, for general corporate purposes. See Use
of Proceeds. |
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Procedures for Exercise |
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You may exercise your subscription rights by properly completing
and signing your rights certificate. You must deliver your
rights certificate to The Bank of New York Mellon, which is
acting as the subscription agent for the rights offering. The
subscription agent will not accept a facsimile transmission of
your completed rights certificate. This delivery must be
accompanied by full payment of the exercise price for each share
of convertible preferred stock you wish to purchase. If you send
your rights certificate by mail, we recommend that you send it
by registered mail, properly insured, with return receipt
requested. See The Rights Offering Method of
Purchase Exercise of Subscription Rights and
The Rights Offering Method of Payment of
Exercise Price. |
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If you cannot deliver your rights certificate to the
subscription agent prior to the expiration of the rights
offering, you may follow the guaranteed delivery procedures
described under The Rights Offering Guaranteed
Delivery Procedures. |
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Rights Certificates |
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Promptly after the date of this prospectus, the subscription
agent will send a rights certificate to each holder of our
common stock that is entitled to receive a rights certificate
and that is registered on our stockholder registry maintained at
The Bank of New York Mellon, the transfer agent for our common
stock. If you own your shares of common stock through a broker,
bank or other nominee, you will not receive an actual rights
certificate. If you wish to obtain a separate rights
certificate, you should promptly contact your broker, bank or
other nominee and request a separate certificate. It is not
necessary to have a physical rights certificate in order to
exercise or sell your subscription rights. |
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Receipt of Shares of Convertible Preferred Stock |
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If you properly exercise your subscription rights, you will be
deemed to own the shares immediately after the expiration of the
rights offering. We will issue a Direct Registration System
book-entry statement representing the shares of convertible
preferred stock to you or DTC on your behalf, as the case may
be, promptly after the completion of the rights offering and
after all pro rata allocations and adjustments have been
completed. We have the discretion to delay distribution of any
shares you may elect to purchase by exercise of subscription
rights if necessary to comply with state securities laws. No
interest will be paid to you on the funds you deposit with the
subscription agent. |
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Expiration of Subscription Rights |
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The subscription rights expire, if not previously exercised, at
6:00 p.m., New York City time,
on ,
2010, unless the exercise period is extended by us. We currently
do not intend to extend the exercise period. |
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Unexercised Rights |
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You are not required to exercise or sell your subscription
rights. If you do not exercise or sell your subscription rights
prior to the expiration of the rights offering, your
subscription rights will expire and you will lose any value
represented by your subscription rights. If you do not exercise
your subscription rights prior to the expiration of the rights
offering, you will retain your current number of shares of our
capital stock held directly by you; however, the percentage of
our capital stock held by you will decrease. The magnitude of
the reduction will depend upon the extent to which rights
holders subscribe in the rights offering. |
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In the event that any portion of the subscription rights are not
exercised by the holders thereof prior to the expiration of the
rights offering, including through the exercise of
over-subscription rights, we have the option, but not the
obligation, to offer the shares of convertible preferred stock
that were subject to such unexercised rights, at the same price
per share, to persons and entities that did not hold shares of
our common stock as of the record date. |
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No Revocation of Exercise of Subscription Rights |
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You may not withdraw your exercise of your subscription rights.
Unless our board of directors cancels or terminates the rights
offering, all exercises of subscription rights are irrevocable,
even if you later learn information that you consider to be
unfavorable to the exercise of your subscription rights. You
should not exercise your subscription rights unless you are
certain that you wish to purchase |
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shares of convertible preferred stock at an exercise price of
$10.00 per share. |
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Termination of Rights Offering |
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We have no intention of terminating the rights offering, but we
have reserved the right, in our sole discretion, to terminate
the rights offering in the event that unforeseen circumstances
occur between the date of this prospectus and the scheduled
expiration of the rights offering. If the rights offering is
terminated, the subscription agent will return as soon as
practicable all exercise payments, without interest or
deduction. If you hold your shares in street name,
it may take longer for you to receive payment because the
subscription agent will send payment through the record holder
of your shares. See The Rights Offering
Extensions, Amendments and Termination. |
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Amendment to Rights Offering |
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We have reserved the right, in our sole discretion, to amend or
modify the terms of the rights offering. |
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Exercise by Beneficial Holders |
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If you hold shares of our common stock through a broker, bank or
other nominee, you will need to have your broker, bank or other
nominee act for you if you wish to exercise or sell your
subscription rights. If you wish to exercise or sell your
subscription rights, you should complete and return to your
broker, bank or other nominee the form entitled Beneficial
Owner Election Form. You should receive this form from
your broker, bank or other nominee with the other rights
offering materials. You should contact your broker, bank or
other nominee if you believe you are entitled to participate in
the rights offering but you have not received this form. See
The Rights Offering Beneficial Owners. |
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Foreign Stockholders |
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If you are a rights holder whose address is outside the United
States, and if it is not, in our sole judgment, unlawful to do
so, the subscription agent will mail rights certificates to you.
To exercise your subscription rights, you must notify the
subscription agent on or prior to 6:00 pm, New York City time,
on ,
2010, the expiration date of the rights offering (unless the
exercise period is extended by us), and take all other steps
which are necessary to exercise your subscription rights, on or
prior to that time. If you do not follow these procedures prior
to the expiration date of the rights offering, your subscription
rights will expire. |
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The rights offering is not being made in any state or other
jurisdiction in which it would be unlawful to do so, nor are we
selling to you, or accepting any offers from you to purchase,
shares of convertible preferred stock if you are a resident of
any such state or other jurisdiction. If necessary, we may delay
commencement of the rights offering in certain states or other
jurisdictions in order to comply with the securities law
requirements of those states or other jurisdictions. In
addition, in certain circumstances, in order to comply with
applicable state securities laws, we may not be able to honor
all oversubscription privileges even if we have shares of
convertible preferred stock available. We do not anticipate that
there will be any changes in the rights offering, and we may, in
our sole discretion, decline to make modifications to the terms
of the rights offering requested by regulators in states or
other jurisdictions, in |
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which case stockholders who live in those states or other
jurisdictions will not be eligible to participate in the rights
offering. |
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Sales Commissions and Fees |
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No brokerage commission or fees will be charged by us to rights
holders for exercising or selling their subscription rights. If
you exercise your subscription rights through a broker, bank or
other nominee, however, you will be responsible for any fees
charged by your broker, bank or other nominee. If you sell your
subscription rights, you will be responsible for any fees or
commissions relating to that sale. |
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No Recommendation |
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Neither we nor our board of directors has made any
recommendation as to whether you should exercise or sell your
subscription rights. You should make those decisions based upon
your own assessment of your best interests. However, if you do
not exercise or sell your subscription rights prior to the
expiration of the rights offering, you will lose any value
inherent in the rights, and if you do not exercise your
subscription rights prior to the expiration of the rights
offering, your percentage ownership in us will be diluted. |
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NYSE Listing of Our Common Stock |
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Our common stock is listed on the NYSE under the symbol
ALJ.
On ,
2010, the closing price for our common stock on the NYSE was
$ per share. |
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NYSE Trading of Our Subscription Rights |
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We expect the subscription rights to be traded on the NYSE under
the symbol ALJ [RT]. We anticipate that the
subscription rights will be eligible to trade on the NYSE from
the commencement of the rights offering until 4:00 p.m. on
the last trading day before the expiration date of the rights
offering, which may be extended by us in our sole discretion.
See The Rights Offering Transferability of
Subscription Rights. |
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NYSE Listing of Our Convertible Preferred Stock |
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We intend to apply to list the convertible preferred stock on
the NYSE. If approved for listing, we expect trading of the
convertible preferred stock to begin
within days after the expiration of the rights
offering. Listing of the convertible preferred stock does not
guarantee that a trading market for the convertible preferred
stock will develop. If there is no active trading market, or the
trading market is not sustained, you may not be able to sell
your convertible preferred stock or be able to sell your
convertible preferred stock at a price that is satisfactory to
you. Conversion of the convertible preferred stock into shares
of our common stock and the sale of those shares of common stock
may be the only way for you to liquidate your investment in any
shares of convertible preferred stock you purchase in the rights
offering. |
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Tax Consequences of Rights Offering |
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We believe that the receipt of the subscription rights in the
rights offering should not be a taxable event. A holder of
common stock will not recognize income or loss for federal
income tax purposes in connection with the exercise of
subscription rights in the rights offering. See Material
United States Federal Income Tax Consequences. |
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Subscription Agent and Information Agent |
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We have appointed The Bank of New York Mellon to act as the
subscription agent and the information agent for the rights
offering. |
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Risk Factors |
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The exercise of your subscription rights involves risks.
Exercising your subscription rights means buying shares of our
convertible preferred stock and should be considered as
carefully as you would consider any other investment. We urge
you to carefully read the section entitled Risk
Factors beginning on page 8 of this prospectus and
all information included or incorporated by reference in this
prospectus in its entirety before you decide whether to exercise
or sell your subscription rights. |
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Common Stock and Convertible Preferred Stock |
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On the record date for the rights offering, there
were shares of our common
stock outstanding. Assuming that the rights offering is fully
subscribed, 4,000,000 shares of convertible preferred stock
will be outstanding immediately after the rights offering. Based
upon the initial conversion rate and assuming
54,181,329 shares of our common stock were outstanding
immediately prior to the expiration of the rights offering,
5,376,400 shares of common stock would be issuable upon
conversion of the convertible preferred stock, and we would have
59,557,729 shares of common stock outstanding, assuming the
full conversion of the convertible preferred shares, immediately
after the closing of the rights offering. |
For a more complete description of the rights offering, see
The Rights Offering.
Key Dates
to Keep in Mind
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Record Date |
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,
2010, which was the date used to determine the stockholders
entitled to receive subscription rights. |
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Commencement Date |
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, 2010. |
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Rights Trading Period |
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,
2010
through ,
2010. The subscription rights are transferable until
4:00 p.m., New York City time, on the last trading day
prior to the scheduled expiration date of the rights offering,
unless the exercise period is extended by us. |
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Expiration Date |
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The subscription rights expire, if not previously exercised, at
6:00 p.m., New York City time,
on ,
2010, unless the exercise period is extended by us. Any
subscription rights unexercised at the end of the exercise
period will expire without any payment to the holders of those
unexercised subscription rights. |
7
RISK
FACTORS
An investment in our securities involves a high degree of
risk. You should carefully consider the risks and uncertainties
described in this prospectus and the documents incorporated by
reference herein, including the risks and uncertainties
described in our consolidated financial statements and the notes
to those financial statements. The risks and uncertainties
described in this prospectus and the documents incorporated by
reference herein are not the only ones facing us. Additional
risks and uncertainties that we do not presently know about or
that we currently believe are not material may also adversely
affect our business. If any of the risks and uncertainties
described in this prospectus or the documents incorporated by
reference herein actually occur, our business, financial
condition and results of operations could be adversely affected
in a material way. This could cause the trading price of our
common stock to decline, perhaps significantly, and you may lose
part or all of your investment.
Risk
factors related to our business
The
price volatility of crude oil, other feedstocks, refined
products and fuel and utility services may have a material
adverse effect on our earnings, profitability and cash
flows.
Our refining and marketing earnings, profitability and cash
flows from operations depend primarily on the margin above fixed
and variable expenses (including the cost of refinery
feedstocks, such as crude oil) at which we are able to sell
refined products. When the margin between refined product prices
and crude oil and other feedstock prices contracts, our
earnings, profitability and cash flows are negatively affected.
Refining margins historically have been volatile, and are likely
to continue to be volatile, as a result of a variety of factors,
including fluctuations in the prices of crude oil, other
feedstocks, refined products and fuel and utility services. For
example, from January 2005 to June 2010, the price for West
Texas Intermediate (WTI) crude oil fluctuated
between $31.27 and $145.31 per barrel, while the price for Gulf
Coast unleaded gasoline fluctuated between 76.8 cents per
gallon, or cpg, and 474.6 cpg. Prices of crude oil, other
feedstocks and refined products depend on numerous factors
beyond our control, including the supply of and demand for crude
oil, other feedstocks, gasoline, diesel, asphalt and other
refined products. Such supply and demand are affected by, among
other things:
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changes in global and local economic conditions;
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domestic and foreign demand for fuel products;
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worldwide political conditions, particularly in significant oil
producing regions such as the Middle East, West Africa and
Venezuela;
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the level of foreign and domestic production of crude oil and
refined products and the level of crude oil, feedstock and
refined products imported into the United States;
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utilization rates of U.S. refineries;
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development and marketing of alternative and competing fuels;
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commodities speculation;
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accidents, interruptions in transportation, inclement weather or
other events that can cause unscheduled shutdowns or otherwise
adversely affect our refineries;
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federal and state government regulations; and
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local factors, including market conditions, weather conditions
and the level of operations of other refineries and pipelines in
our markets.
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When the margin between refined product prices and crude oil and
other feedstock prices contracts our earnings, profitability and
cash flows are negatively affected.
The nature of our business requires us to maintain substantial
quantities of crude oil and refined product inventories. Because
crude oil and refined products are essentially commodities, we
have no control over the
8
changing market value of these inventories. Our inventory is
valued at the lower of cost or market value under the
last-in,
first-out (LIFO) inventory valuation methodology. As
a result, if the market value of our inventory were to decline
to an amount less than our LIFO cost, we would record a
write-down of inventory and a non-cash charge to cost of sales.
Our investment in inventory is affected by the general level of
crude oil prices, and significant increases in crude oil prices
could result in substantial working capital requirements to
maintain inventory volumes.
In addition, the volatility in costs of fuel, principally
natural gas, and other utility services, principally
electricity, used by our refineries and other operations affect
our operating costs. Fuel and utility prices have been, and will
continue to be, affected by factors outside our control, such as
supply and demand for fuel and utility services in both local
and regional markets. Future increases in fuel and utility
prices may have a negative effect on our earnings, profitability
and cash flows.
Our
profitability depends, in part, on the sweet/sour crude oil
price spread. A decrease in this spread could negatively affect
our profitability.
Because our Big Spring and California refineries are configured
to process substantial volumes of sour crude oils, our
profitability depends, in part, on the price spread between
sweet crude oil and sour crude oil, which we refer to as the
sweet/sour spread. In recent years, the sweet/sour spread has
significantly narrowed and any further tightening of the
sweet/sour spreads could negatively affect our profitability.
The
profitability of our California refineries depends, in part, on
the light/heavy crude oil price spread. A decrease in this
spread could negatively affect our profitability.
Our California refineries process significant volumes of heavy
crude oils and, as a result, our profitability depends in part
on the price spread between light crude oil and heavy crude oil,
which we refer to as the light/heavy spread. Because processing
light crude oils produces higher percentages of light products,
light crude oils typically are priced higher than heavy crude
oils. In 2009, the light/heavy spread was less than in 2008 and
the light/heavy spread has fluctuated in 2010. Any further
tightening of the light/heavy spread would negatively affect
profitability.
Our
indebtedness could adversely affect our financial condition or
make us more vulnerable to adverse economic
conditions.
As of June 30, 2010, our consolidated outstanding
indebtedness was $932.0 million. Our level of indebtedness
could have important consequences to you, such as:
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we may be limited in our ability to obtain additional financing
to fund our working capital needs, capital expenditures and debt
service requirements or our other operational needs;
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we may be limited in our ability to use operating cash flow in
other areas of our business because we must dedicate a
substantial portion of these funds to make principal and
interest payments on our debt;
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we may be at a competitive disadvantage compared to competitors
with less leverage since we may be less capable of responding to
adverse economic and industry conditions; and
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we may not have sufficient flexibility to react to adverse
changes in the economy, our business or the industries in which
we operate.
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In addition, our ability to make payments on our indebtedness
will depend on our ability to generate cash in the future. Our
ability to generate cash is subject to general economic,
financial, competitive, legislative, regulatory and other
factors that are beyond our control. Our historical financial
results have been, and we anticipate that our future financial
results will be, subject to fluctuations. We cannot assure you
that our business will generate sufficient cash flow from
operations or that future borrowings will be available to us in
an amount sufficient to enable us to pay our indebtedness or to
fund our other liquidity needs. Any inability to pay our debts
would require us to pursue one or more alternative strategies,
such as selling assets, refinancing or restructuring our
indebtedness or selling equity. However, we cannot assure you
that any such alternatives
9
would be feasible or prove adequate. Failure to pay our debts
could cause us to default on our obligations in respect of our
indebtedness and impair our liquidity. Also, some alternatives
would require the prior consent of the lenders under our credit
facilities, which we may not be able to obtain.
The
dangers inherent in our operations could cause disruptions and
could expose us to potentially significant losses, costs or
liabilities.
Our operations are subject to significant hazards and risks
inherent in refining operations and in transporting and storing
crude oil, intermediate products and refined products. These
hazards and risks include, but are not limited to, natural
disasters, fires, explosions, pipeline ruptures and spills,
third party interference and mechanical failure of equipment at
our or third-party facilities, any of which could result in
production and distribution difficulties and disruptions,
environmental pollution, personal injury or wrongful death
claims and other damage to our properties and the properties of
others. We experienced such an event on February 18, 2008
when a fire at the Big Spring refinery destroyed the propylene
recovery unit and damaged equipment in the alkylation and gas
concentration units. As a result the Big Spring refinerys
crude unit did not operate until April 5, 2008 and the
Fluid Catalytic Cracking Unit (FCCU) did not resume
operations until September 26, 2008.
The occurrence of such events at our Big Spring refinery, Krotz
Springs refinery or our California refineries could
significantly disrupt our production and distribution of refined
products, and any sustained disruption could have a material
adverse effect on our business, financial condition and results
of operations.
We are
subject to interruptions of supply as a result of our reliance
on pipelines for transportation of crude oil and refined
products.
Our refineries receive a substantial percentage of their crude
oil and deliver a substantial percentage of their refined
products through pipelines. We could experience an interruption
of supply or delivery, or an increased cost of receiving crude
oil and delivering refined products to market, if the ability of
these pipelines to transport crude oil or refined products is
disrupted because of accidents, earthquakes, hurricanes,
governmental regulation, terrorism, other third-party action or
any of the types of events described in the preceding risk
factor. Our prolonged inability to use any of the pipelines that
we use to transport crude oil or refined products could have a
material adverse effect on our business, results of operations
and cash flows.
If the
price of crude oil increases significantly, it could reduce our
profit on our fixed-price asphalt supply
contracts.
We enter into fixed-price asphalt supply contracts pursuant to
which we agree to deliver asphalt to customers at future dates.
We set the pricing terms in these agreements based, in part,
upon the price of crude oil at the time we enter into each
contract. If the price of crude oil increases from the time we
enter into the contract to the time we produce the asphalt, our
profits from these sales could be adversely affected. For
example, in the first half of 2008, WTI crude prices increased
from $87.15 per barrel to $140.22 per barrel over a period of
six months. Primarily as a result of these increases in the cost
of crude, we experienced reduced margins from our asphalt sales
in the first half of 2008.
Our
operating results are seasonal and generally lower in the first
and fourth quarters of the year.
Demand for gasoline and asphalt products is generally higher
during the summer months than during the winter months due to
seasonal increases in highway traffic and road construction
work. Seasonal fluctuations in highway traffic also affect motor
fuels and merchandise sales in our retail stores. As a result,
our operating results for the first and fourth calendar quarters
are generally lower than those for the second and third calendar
quarters of each year. This seasonality is more pronounced in
our asphalt business.
10
If the
price of crude oil increases significantly, it could limit our
ability to purchase enough crude oil to operate our refineries
at full capacity.
We rely in part on borrowings and letters of credit under our
revolving credit facilities to purchase crude oil for our
refineries. If the price of crude oil increases significantly,
we may not have sufficient capacity under our revolving credit
facilities to purchase enough crude oil to operate our
refineries at full capacity. A failure to operate our refineries
at full capacity could adversely affect our profitability and
cash flows.
Changes
in our credit profile could affect our relationships with our
suppliers, which could have a material adverse effect on our
liquidity and our ability to operate our refineries at full
capacity.
Changes in our credit profile could affect the way crude oil
suppliers view our ability to make payments and induce them to
shorten the payment terms for our purchases or require us to
post security prior to payment. Due to the large dollar amounts
and volume of our crude oil and other feedstock purchases, any
imposition by our suppliers of more burdensome payment terms on
us may have a material adverse effect on our liquidity and our
ability to make payments to our suppliers. This, in turn, could
cause us to be unable to operate our refineries at full
capacity. A failure to operate our refineries at full capacity
could adversely affect our profitability and cash flows.
Competition
in the refining and marketing industry is intense, and an
increase in competition in the markets in which we sell our
products could adversely affect our earnings and
profitability.
We compete with a broad range of companies in our refining and
marketing operations. Many of these competitors are integrated,
multinational oil companies that are substantially larger than
we are. Because of their diversity, integration of operations,
larger capitalization, larger and more complex refineries and
greater resources, these companies may be better able to
withstand disruptions in operations, volatile market conditions,
to offer more competitive pricing and to obtain crude oil in
times of shortage.
We are not engaged in the petroleum exploration and production
business and therefore do not produce any of our crude oil
feedstocks. Certain of our competitors, however, obtain a
portion of their feedstocks from company-owned production.
Competitors that have their own crude production are at times
able to offset losses from refining operations with profits from
producing operations, and may be better positioned to withstand
periods of depressed refining margins or feedstock shortages. In
addition, we compete with other industries, such as wind, solar
and hydropower, that provide alternative means to satisfy the
energy and fuel requirements of our industrial, commercial and
individual customers. If we are unable to compete effectively
with these competitors, both within and outside our industry,
there could be a material adverse effect on our business,
financial condition, results of operations and cash flows.
Competition
in the asphalt industry is intense, and an increase in
competition in the markets in which we sell our asphalt products
could adversely affect our earnings and
profitability.
Our asphalt business competes with other refiners and with
regional and national asphalt marketing companies. Many of these
competitors are larger, more diverse companies with greater
resources, providing them advantages in obtaining crude oil and
other blendstocks and in competing through bidding processes for
asphalt supply contracts.
We compete in large part on our ability to deliver specialized
asphalt products which we produce under proprietary technology
licenses. Recently, demand for these specialized products has
increased due to new specification requirements by state and
federal governments. If we were to lose our rights under our
technology licenses, or if competing technologies for
specialized products are developed by our competitors, our
profitability could be adversely affected.
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Competition
in the retail industry is intense, and an increase in
competition in the markets in which our retail businesses
operate could adversely affect our earnings and
profitability.
Our retail operations compete with numerous convenience stores,
gasoline service stations, supermarket chains, drug stores, fast
food operations and other retail outlets. Increasingly, national
high-volume grocery and dry-goods retailers, such as
Albertsons and Wal-Mart are entering the gasoline
retailing business. Many of these competitors are substantially
larger than we are. Because of their diversity, integration of
operations and greater resources, these companies may be better
able to withstand volatile market conditions or levels of low or
no profitability. In addition, these retailers may use
promotional pricing or discounts, both at the pump and in the
store, to encourage in-store merchandise sales. These activities
by our competitors could adversely affect our profit margins.
Additionally, our convenience stores could lose market share,
relating to both gasoline and merchandise, to these and other
retailers, which could adversely affect our business, results of
operations and cash flows.
Our convenience stores compete in large part based on their
ability to offer convenience to customers. Consequently, changes
in traffic patterns and the type, number and location of
competing stores could result in the loss of customers and
reduced sales and profitability at affected stores.
We may
incur significant costs to comply with new or changing
environmental laws and regulations.
Our operations are subject to extensive regulatory controls on
air emissions, water discharges, waste management and the
clean-up of
contamination that can require costly compliance measures. If we
fail to meet environmental requirements, we may be subject to
administrative, civil and criminal proceedings by state and
federal authorities, as well as civil proceedings by
environmental groups and other individuals, which could result
in substantial fines and penalties against us as well as
governmental or court orders that could alter, limit or stop our
operations.
On February 2, 2007, we committed in writing to enter into
discussions with the United States Environmental Protection
Agency, or EPA, under the National Petroleum Refinery
Initiative. To date, the EPA has not made any specific findings
against us or any of our refineries and we have not determined
whether we will ultimately enter into a settlement agreement
with the EPA. Based on prior settlements that the EPA has
reached with other petroleum refiners under the Petroleum
Refinery Initiative, we anticipate that the EPA will seek relief
in the form of the payment of civil penalties, the installation
of air pollution controls and the implementation of
environmentally beneficial projects. At this time, we cannot
estimate the amount of any such civil penalties or the costs of
any required controls or environmentally beneficial projects.
Our Big Spring refinery is one of more than 100 facilities in
Texas to receive a Clean Air Act request for information from
the EPA relating to the EPAs disapproval of Texas
flexible permit rule. According to the EPA, the
Texas flexible permit rule was never approved by the
EPA for inclusion in the Texas state clean-air implementation
plan and, therefore, emission limitations in Texas flexible
permits are not federally enforceable. The EPA indicated that it
would consider enforcement against holders of flexible permits
that failed to comply with applicable federal requirements on a
case-by-case
basis. At this time, it is unclear whether we will become the
target of EPA enforcement, whether we will have any obligation
to install new controls or whether or how we will be required to
revise our current permit for the Big Spring refinery or obtain
new permit limits to address any alleged permitting deficiencies.
In addition, new laws and regulations, new interpretations of
existing laws and regulations, increased governmental
enforcement or other developments could require us to make
additional unforeseen expenditures. Many of these laws and
regulations are becoming increasingly stringent, and the cost of
compliance with these requirements can be expected to increase
over time. We are not able to predict the impact of new or
changed laws or regulations or changes in the ways that such
laws or regulations are administered, interpreted or enforced.
The requirements to be met, as well as the technology and length
of time available to meet those requirements, continue to
develop and change. To the extent that the costs associated with
meeting any of these requirements are substantial and not
adequately provided for, our results of operations and cash
flows could suffer.
12
The
adoption of climate change legislation by Congress or the
regulation of greenhouse gas emissions by the EPA could result
in increased operating costs, lower profitability and reduced
demand for our refined products.
On June 26, 2009, the U.S. House of Representatives
passed the American Clean Energy and Security Act of
2009, also known as the Waxman-Markey
cap-and-trade
legislation or ACESA. The purpose of ACESA is to control
and reduce emissions of greenhouse gases, or
GHGs, in the United States. GHGs are certain gases,
including carbon dioxide and methane, that may be contributing
to warming of the Earths atmosphere and other climatic
changes. ACESA would establish an economy-wide cap on emissions
of GHGs in the United States and would require an overall
reduction in GHG emissions of 17% (from 2005 levels) by 2020,
and by over 80% by 2050. Under ACESA, most sources of GHG
emissions would be required to obtain GHG emission
allowances corresponding to their annual emissions
of GHGs. The number of emission allowances issued each year
would decline as necessary to meet ACESAs overall emission
reduction goals. As the number of GHG emission allowances
declines each year, the cost or value of allowances is expected
to escalate significantly. The net effect of ACESA will be to
impose increasing costs on the combustion of carbon-based fuels
such as oil and refined petroleum products.
The U.S. Senate has begun work on its own legislation for
controlling and reducing emissions of GHGs in the United States.
On September 30, 2009, Senators Barbara Boxer and John
Kerry introduced climate change legislation, S. 1733, entitled
the Clean Energy Jobs & American Power
Act. The 2020 GHG reduction target in the Senate proposed
legislation is 20% below 2005 levels, versus 17% below 2005
levels in ACESA. Although the Senate Environment and Public
Works Committee approved the bill on November 5, 2009, the
legislations co-sponsor, Sen. John Kerry, has introduced
new legislation with Sen. Joseph Lieberman on May 12, 2010.
Entitled the American Power Act, the draft
legislation calls for a 17% economy-wide reduction in GHG
emissions from 2005 levels by 2020; 42% by 2030 and 83% by 2050.
Like ACESA, GHG emission allowances would phase out over a
period of about 20 years. However, additional alternatives
are being considered, including a proposal that is limited to
GHGs emitted by the utility sector. It remains unclear at this
time which legislative proposal or combination of proposals
would be brought to a vote by the Senate Democratic leadership.
Any Senate-passed legislation would need to be reconciled with
ACESA, and both chambers would be required to approve identical
legislation before it could become law. President Obama has
indicated that he is in support of the adoption of legislation
to control and reduce emissions of GHGs through a mechanism that
prices emissions of GHGs. Although it is not possible at this
time to predict when the Senate may act on climate change
legislation or how any bill approved by the Senate would be
reconciled with ACESA, any laws or regulations that may be
adopted to restrict or reduce emissions of GHGs would likely
require us to incur increased costs. If we are unable to sell
our refined products at a price that reflects such increased
costs, there could be a material adverse effect on our business,
financial condition and results of operations. In addition, any
increase in prices of refined products resulting from such
increased costs could have an adverse effect on our financial
condition, results of operations and cash flows.
In addition to the climate change legislation under
consideration by Congress, on December 7, 2009, the EPA
issued an endangerment finding that GHGs endanger both public
health and welfare, and that GHG emissions from motor vehicles
contribute to the threat of climate change. Although the finding
itself does not impose requirements on regulated entities, it
allowed the EPA and the Department of Transportation to finalize
a jointly proposed rule regulating greenhouse gas emissions from
vehicles and establishing Corporate Average Fuel Economy
standards for light-duty vehicles. National GHG tailpipe
standards for passenger cars and light trucks were finalized on
April 1, 2010.
Once GHGs became regulated by the EPA for vehicles, they also
became regulated pollutants under the Clean Air Act potentially
triggering other Clean Air Act requirements. On May 13,
2010, EPA announced a final rule to raise the threshold amount
of GHG emissions that a source would have to emit to trigger
certain Clean Air Act permitting requirements and the need to
install controls to reduce emissions of greenhouse gases.
Beginning in January 2011, facilities already subject to the
Prevention of Significant Deterioration and Title V
operating permit programs that increase their emissions of GHGs
by 75,000 tons per year will be
13
required to install control technology, known as Best
Available Control Technology, to address the GHG emissions.
Both the endangerment finding and stationary source rule are
being challenged, however. Industry organizations have filed
petitions in the United States Court of Appeals for the D.C.
Circuit. Administrative petitions challenging the endangerment
finding are also pending. If EPAs actions withstand legal
challenge, the new obligations finalized in the stationary
source rule could require us to incur increased costs. If we are
unable to sell our refined products at a price that captures
such increased costs, there could be a material adverse effect
on our business, financial condition and results of operations.
In addition, any increase in prices of refined products
resulting from such increased costs could have an adverse effect
on our financial condition, results of operations and cash flows.
We may
incur significant costs and liabilities with respect to
environmental lawsuits and proceedings and any investigation and
remediation of existing and future environmental
conditions.
We are currently investigating and remediating, in some cases
pursuant to government orders, soil and groundwater
contamination at our Big Spring refinery, terminals and
convenience stores. Since August 2000, we have spent
approximately $20.0 million with respect to the
investigation and remediation of our Big Spring refinery and
related terminals. We anticipate spending approximately
$7.5 million in investigation and remediation expenses in
connection with our Big Spring refinery and terminals over the
next 15 years. Since their acquisition, we have spent
approximately $9.1 million with respect to the
investigation and remediation of our California refineries and
related terminals. We anticipate spending an additional
$40.5 million in investigation and remediation expenses in
connection with our California refineries and terminals over the
next 15 years. There can be no assurances, however, that we
will not have to spend more than these anticipated amounts. Our
handling and storage of petroleum and hazardous substances may
lead to additional contamination at our facilities and
facilities to which we send or sent wastes or by-products for
treatment or disposal, in which case we may be subject to
additional cleanup costs, governmental penalties, and
third-party suits alleging personal injury and property damage.
Although we have sold three of our pipelines and three of our
terminals pursuant to a transaction with Holly Energy Partners,
L.P. (HEP) and two of our pipelines pursuant to a
transaction with an affiliate of Sunoco, Inc.
(Sunoco), we have agreed, subject to certain
limitations, to indemnify HEP and Sunoco for costs and
liabilities that may be incurred by them as a result of
environmental conditions existing at the time of the sale. See
Items 1 and 2 Business and Properties
Government Regulation and Legislation Environmental
Indemnity to HEP and Environmental
Indemnity to Sunoco of our 2009 Annual Report on
Form 10-K,
which is incorporated by reference in this prospectus. If we are
forced to incur costs or pay liabilities in connection with such
proceedings and investigations, such costs and payments could be
significant and could adversely affect our business, results of
operations and cash flows.
We
could incur substantial costs or disruptions in our business if
we cannot obtain or maintain necessary permits and
authorizations or otherwise comply with health, safety,
environmental and other laws and regulations.
From time to time, we have been sued or investigated for alleged
violations of health, safety, environmental and other laws. If a
lawsuit or enforcement proceeding were commenced or resolved
against us, we could incur significant costs and liabilities. In
addition, our operations require numerous permits and
authorizations under various laws and regulations. These
authorizations and permits are subject to revocation, renewal or
modification and can require operational changes to limit
impacts or potential impacts on the environment
and/or
health and safety. A violation of authorization or permit
conditions or other legal or regulatory requirements could
result in substantial fines, criminal sanctions, permit
revocations, injunctions,
and/or
facility shutdowns. In addition, major modifications of our
operations could require modifications to our existing permits
or upgrades to our existing pollution control equipment. Any or
all of these matters could have a negative effect on our
business, results of operations, cash flows or prospects.
14
We
could encounter significant opposition to operations at our
California refineries.
Our Paramount refinery is located in a residential area. The
refinery is located near schools, apartment complexes, private
homes and shopping establishments. In addition, our Long Beach
refinery is also located in close proximity to other commercial
facilities. Any loss of community support for our California
refining operations could result in higher than expected
expenses in connection with opposing any community action to
restrict or terminate the operation of the refinery. Any
community action in opposition to our current and planned use of
the California refineries could have a material adverse effect
on our business, results of operations and cash flows.
The
occurrence of a release of hazardous materials or a catastrophic
event affecting our California refineries could endanger persons
living nearby.
Because our Paramount refinery is located in a residential area,
any release of hazardous material or catastrophic event could
cause injuries to persons outside the confines of the Paramount
refinery. Similarly, any such release or event at our Long Beach
refinery could cause injury to persons outside of the Long Beach
refinery. In the event that non-employees were injured as a
result of such an event, we would be likely to incur substantial
legal costs as well as any costs resulting from settlements or
adjudication of claims from such injured persons. The extent of
these expenses and costs could be in excess of the limits
provided by our insurance policies. As a result, any such event
could have a material adverse effect on our business, results of
operations and cash flows.
Certain
of our facilities are located in areas that have a history of
earthquakes or hurricanes, the occurrence of which could
materially impact our operations.
Our refineries located in California and the related pipeline
and asphalt terminals, and to a lesser extent our refinery and
operations in Oregon, are located in areas with a history of
earthquakes, some of which have been quite severe. Our Krotz
Springs refinery is located less than 100 miles from the
Gulf Coast. In August 2008, the Krotz Springs refinery sustained
minor physical damage from Hurricane Gustav; however, the
regional utilities were affected and, as a result, the Krotz
Springs refinery was without electric power for one week.
Offshore crude oil production and gathering facilities were
impacted by Gustav and a subsequent storm, which temporarily
limited the availability of crude oil to the Krotz Springs
refinery. In the event of an earthquake or hurricane that causes
damage to our refining, pipeline or asphalt terminal assets, or
the infrastructure necessary for the operation of these assets,
such as the availability of usable roads, electricity, water, or
natural gas, we may experience a significant interruption in our
refining
and/or
marketing operations. Such an interruption could have a material
adverse effect on our business, results of operations and cash
flows.
Terrorist
attacks, threats of war or actual war may negatively affect our
operations, financial condition, results of operations and
prospects.
Terrorist attacks, threats of war or actual war, as well as
events occurring in response to or in connection with them, may
adversely affect our operations, financial condition, results of
operations and prospects. Energy-related assets (which could
include refineries, terminals and pipelines such as ours) may be
at greater risk of future terrorist attacks than other possible
targets in the United States. A direct attack on our assets or
assets used by us could have a material adverse effect on our
operations, financial condition, results of operations and
prospects. In addition, any terrorist attack, threats of war or
actual war could have an adverse impact on energy prices,
including prices for our crude oil and refined products, and an
adverse impact on the margins from our refining and marketing
operations. In addition, disruption or significant increases in
energy prices could result in government-imposed price controls.
Covenants
in our credit agreements could limit our ability to undertake
certain types of transactions and adversely affect our
liquidity.
Our credit agreements contain negative and financial covenants
and events of default that may limit our financial flexibility
and ability to undertake certain types of transactions. For
example, we are subject to
15
negative covenants that restrict our activities, including
changes in control of Alon or certain of our subsidiaries,
restrictions on creating liens, engaging in mergers,
consolidations and sales of assets, incurring additional
indebtedness, entering into certain lease obligations, making
certain capital expenditures, and making certain dividend, debt
and other restricted payments. Should we desire to undertake a
transaction that is limited by the negative covenants in our
credit agreements, we will need to obtain the consent of our
lenders or refinance our credit facilities. Such refinancings
may not be possible or may not be available on commercially
acceptable terms, or at all.
Our
insurance policies do not cover all losses, costs or liabilities
that we may experience.
We maintain significant insurance coverage, but it does not
cover all potential losses, costs or liabilities, and our
business interruption insurance coverage does not apply unless a
business interruption exceeds a period of 45 to 75 days,
depending upon the specific policy. We could suffer losses for
uninsurable or uninsured risks or in amounts in excess of our
existing insurance coverage. Our ability to obtain and maintain
adequate insurance may be affected by conditions in the
insurance market over which we have no control. The occurrence
of an event that is not fully covered by insurance could have a
material adverse effect on our business, financial condition and
results of operations.
We are
exposed to risks associated with the credit-worthiness of the
insurer of our environmental policies.
The insurer under two of our environmental policies is The
Kemper Insurance Companies, which has experienced significant
downgrades of its credit ratings in recent years and is
currently in run-off. These two policies are
20-year
policies that were purchased to protect us against expenditures
not covered by our indemnification agreement with FINA. Our
insurance brokers have advised us that environmental insurance
policies with terms in excess of ten years are not currently
available and that policies with shorter terms are available
only at premiums equal to or in excess of the premiums paid for
our policies with Kemper. Accordingly, we are currently subject
to the risk that Kemper will be unable to comply with its
obligations under these policies and that comparable insurance
may not be available or, if available, at premiums equal to or
in excess of our current premiums with Kemper. However, we have
no reason at this time to believe that Kemper will not be able
to comply with its obligations under these policies.
If we
lose any of our key personnel, our ability to manage our
business and continue our growth could be negatively
affected.
Our future performance depends to a significant degree upon the
continued contributions of our senior management team and key
technical personnel. We do not currently maintain key man life
insurance with respect to any member of our senior management
team. The loss or unavailability to us of any member of our
senior management team or a key technical employee could
significantly harm us. We face competition for these
professionals from our competitors, our customers and other
companies operating in our industry. To the extent that the
services of members of our senior management team and key
technical personnel would be unavailable to us for any reason,
we would be required to hire other personnel to manage and
operate our company and to develop our products and technology.
We cannot assure you that we would be able to locate or employ
such qualified personnel on acceptable terms or at all.
A
substantial portion of our Big Spring refinerys workforce
is unionized, and we may face labor disruptions that would
interfere with our operations.
As of June 30, 2010, we employed approximately
175 people at our Big Spring refinery, approximately 124 of
whom were covered by a collective bargaining agreement. The
collective bargaining agreement expires April 1, 2012. Our
current labor agreement may not prevent a strike or work
stoppage in the future, and any such work stoppage could have a
material adverse effect on our results of operation and
financial condition.
16
We
conduct our convenience store business under a license agreement
with 7-Eleven, and the loss of this license could adversely
affect the results of operations of our retail and branded
marketing segment.
Our convenience store operations are primarily conducted under
the 7-Eleven name pursuant to a license agreement between
7-Eleven, Inc. and Alon. 7-Eleven may terminate the agreement if
we default on our obligations under the agreement. This
termination would result in our convenience stores losing the
use of the 7-Eleven brand name, the accompanying 7-Eleven
advertising and certain other brand names and products used
exclusively by 7-Eleven. Termination of the license agreement
could have a material adverse effect on our retail operations.
We may
not be able to successfully execute our strategy of growth
through acquisitions.
A component of our growth strategy is to selectively acquire
refining and marketing assets and retail assets in order to
increase cash flow and earnings. Our ability to do so will be
dependent upon a number of factors, including our ability to
identify acceptable acquisition candidates, consummate
acquisitions on favorable terms, successfully integrate acquired
assets and obtain financing to fund acquisitions and to support
our growth and many other factors beyond our control. Risks
associated with acquisitions include those relating to:
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diversion of management time and attention from our existing
business;
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challenges in managing the increased scope, geographic diversity
and complexity of operations;
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difficulties in integrating the financial, technological and
management standards, processes, procedures and controls of an
acquired business with those of our existing operations;
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liability for known or unknown environmental conditions or other
contingent liabilities not covered by indemnification or
insurance;
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greater than anticipated expenditures required for compliance
with environmental or other regulatory standards or for
investments to improve operating results;
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difficulties in achieving anticipated operational improvements;
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incurrence of additional indebtedness to finance acquisitions or
capital expenditures relating to acquired assets; and
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issuance of additional equity, which could result in further
dilution of the ownership interest of existing stockholders.
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We may not be successful in acquiring additional assets, and any
acquisitions that we do consummate may not produce the
anticipated benefits or may have adverse effects on our business
and operating results.
We
depend upon our subsidiaries for cash to meet our obligations
and pay any dividends, and we do not own 100% of the stock of
our operating subsidiaries.
We are a holding company. Our subsidiaries conduct all of our
operations and own substantially all of our assets.
Consequently, our cash flow and our ability to meet our
obligations or pay dividends to our stockholders depend upon the
cash flow of our subsidiaries and the payment of funds by our
subsidiaries to us in the form of dividends, tax sharing
payments or otherwise. Our subsidiaries ability to make
any payments will depend on their earnings, cash flows, the
terms of their indebtedness, tax considerations and legal
restrictions.
Three of our executive officers, Messrs. Morris, Hart and
Concienne, own shares of non-voting stock of two of our
subsidiaries, Alon Assets, Inc., or Alon Assets, and Alon USA
Operating, Inc., or Alon Operating. As of June 30, 2010,
the shares owned by these executive officers represent 6.17% of
the aggregate equity interest in these subsidiaries. In
addition, these executive officers hold options vesting through
2010 which, if exercised, could increase their aggregate
ownership to 7.25% of Alon Assets and Alon Operating. To the
extent these two subsidiaries pay dividends to us,
Messrs. Morris, Hart and Concienne will be entitled to
17
receive pro rata dividends based on their equity ownership. For
additional information, see Security Ownership of Certain
Beneficial Owners and Management.
Messrs. Morris, Hart and Concienne are parties to
stockholders agreements with Alon Assets and Alon
Operating, pursuant to which we may elect or be required to
purchase their shares in connection with put/call rights or
rights of first refusal contained in those agreements. The
purchase price for the shares is generally determined pursuant
to certain formulas set forth in the stockholders
agreements, but after July 31, 2010, the purchase price,
under certain circumstances involving a termination of, or
resignation from, employment would be the fair market value of
the shares. For additional information, see Security
Ownership of Certain Beneficial Holders and Management.
It may
be difficult to serve process on or enforce a United States
judgment against certain of our directors.
All of our directors, other than Messrs. Ron Haddock and
Jeff Morris, reside in Israel. In addition, a substantial
portion of the assets of these directors are located outside of
the United States. As a result, you may have difficulty serving
legal process within the United States upon any of these
persons. You may also have difficulty enforcing, both in and
outside the United States, judgments you may obtain in United
States courts against these persons in any action, including
actions based upon the civil liability provisions of
United States federal or state securities laws.
Furthermore, there is substantial doubt that the courts of the
State of Israel would enter judgments in original actions
brought in those courts predicated on United States federal or
state securities laws.
Risk
factors related to the rights offering
If the
rights offering is consummated, your relative ownership interest
may experience significant dilution.
To the extent that you do not exercise your subscription rights,
and other stockholders exercise their subscription rights, the
percentage that your original shares of common stock represent
of our expanded equity will be diluted.
To the extent that you exercise your subscription rights but do
not convert the convertible preferred stock that you purchase
into common stock, and other stockholders exercise their
subscription rights and convert the convertible preferred stock
that they purchase into common stock, your proportionate voting
interest in us will be reduced.
Similarly, to the extent that you do not exercise your
subscription rights, or that you convert your shares of
convertible preferred stock into shares of common stock, your
percentage ownership interest in us will be diluted to the
extent that we elect to pay dividends on the convertible
preferred stock in shares of common stock.
Completion
of the rights offering is not subject to us raising a minimum
offering amount and therefore proceeds may be insufficient to
meet our objectives, thereby increasing the risk to investors in
this offering.
Completion of this offering is not subject to us raising a
minimum offering amount. As such, proceeds from the rights
offering may not be sufficient to meet the objectives we state
in this prospectus. Investors should not rely on the success of
this offering to address our need for funding.
There
is no prior market for the subscription rights.
We anticipate that the subscription rights will be eligible to
trade on the NYSE from the commencement of the rights offering
until 4:00 p.m., New York City time,
on ,
2010, the last business day prior to the scheduled expiration
date of the rights offering, which may be extended by us in our
sole discretion. The subscription rights are a new issue of
securities, however, and do not have an established trading
market. We cannot give you any assurance that a market for the
subscription rights will develop or, if a market does
18
develop, as to how long it will continue or at what prices the
subscription rights will trade. Therefore, we cannot assure you
that you will be able to sell any of your subscription rights or
as to the value you may receive in a sale. Commissions and
applicable taxes or broker fees may apply if you sell your
subscription rights. Subject to certain earlier deadlines
described in the section entitled The Rights Offering
Selling Subscription Rights through the Subscription
Agent, the subscription rights are transferable until
4:00 p.m., New York City time,
on ,
2010, the last business day prior to the expiration date of the
rights offering, which may be extended by us in our sole
discretion, at which time they will no longer be transferable.
The subscription agent will only facilitate sales or transfers
of the physical subscription rights certificates until
4:00 p.m., New York City time,
on ,
2010, three business days prior to the expiration date of the
rights offering, which may be extended by us in our sole
discretion. If you wish to sell or otherwise transfer your
subscription rights or the subscription agent tries to sell or
otherwise transfer subscription rights on your behalf, but such
subscription rights cannot be sold or otherwise transferred, or
if you provide the subscription agent with instructions to
exercise the subscription rights and your instructions are not
timely received by the subscription agent or if you do not
provide any instructions to exercise your subscription rights,
then the subscription rights will expire and will be void and no
longer exercisable.
There
is currently no market for the convertible preferred
stock.
The convertible preferred stock is a new issue of securities
with no established trading market. We have applied to list the
convertible preferred stock on the NYSE. If approved for
listing, we expect trading of the convertible preferred stock to
begin within days after the expiration of the rights
offering. Listing of the convertible preferred stock does not
guarantee that a trading market for the convertible preferred
stock will develop. If there is no active trading market, or the
trading market is not sustained, you may not be able to sell
your convertible preferred stock or be able to sell your
convertible preferred stock at a price that is satisfactory to
you. In the event there is not an active trading market in the
convertible preferred stock, because there is no maturity date
for the convertible preferred stock, conversion of the
convertible preferred stock into shares of our common stock and
the sale of those shares of common stock or redemption by us of
your shares of convertible preferred stock may be the only way
for you to liquidate your investment in any shares of
convertible preferred stock you purchase in the rights offering.
If you convert your convertible preferred stock into common
stock, you may be unable to sell the shares of common stock
issuable upon such conversion at a price equal to or greater
than the conversion price. Our board of directors established
the exercise price of the convertible preferred stock based on
the estimated value of the convertible preferred stock at the
date of issuance. Factors considered in setting the exercise
price and terms of the convertible preferred stock included
general conditions in the securities market, alternatives
available to us for raising equity capital, the current trading
price of our common stock and the amount of proceeds desired.
The exercise price for shares of convertible preferred stock is
$10.00 per share and the initial conversion price is $7.44 per
share. The exercise price and the conversion price do not
necessarily bear any relationship to the book value of our
assets or our past operations, cash flows, losses, financial
condition, net worth or any other established criteria used to
value securities. We did not seek or obtain any opinion of
financial advisors or investment bankers in establishing the
exercise price for the shares of convertible preferred stock or
the conversion price. You should not consider the exercise price
or the conversion price to be an indication of the fair value of
the convertible preferred stock to be offered in the rights
offering or the common stock issuable upon conversion of the
convertible preferred stock.
We may
terminate the rights offering and return your subscription
payments without interest.
We may in our sole discretion decide not to continue with the
rights offering or to terminate the rights offering at any time.
This decision could be based on many factors, including market
conditions. We currently have no intention to terminate the
rights offering, but are reserving the right to do so. If we
elect to cancel or terminate the rights offering, neither we nor
the subscription agent will have any obligation with respect to
the subscription rights except to return, without interest or
deduction, any subscription payments the subscription agent
received from you.
19
This
offering may cause the price of our common stock to
decrease.
The number of shares of common stock that will be issuable if
this offering is completed and all shares of convertible
preferred stock are converted to common stock, together with any
shares of common stock that we may elect to issue as dividends
to holders of the convertible preferred stock, may result in an
immediate decrease in the market value of our common stock. This
decrease may continue after the completion of this offering. If
that occurs, you may be unable to profitably convert your
convertible preferred stock. Further, if a substantial number of
subscription rights are exercised and shares of convertible
preferred stock are converted, and if the holders of the common
stock received upon conversion of the convertible preferred
stock choose to sell some or all of those shares, the resulting
sales could depress the market price of our common stock. There
is no assurance that following the conversion of the convertible
preferred stock received pursuant to the rights offering you
will be able to sell your common stock at a price equal to or
greater than the conversion price.
There
may be future sales or other dilution of our equity, which may
adversely affect the market price of our common
stock.
We are not restricted by the terms of the convertible preferred
stock from issuing additional common stock or preferred stock,
including any securities that are convertible into or
exchangeable for, or that represent the right to receive, common
stock or any substantially similar securities. The market price
of our common stock could decline as a result of sales of shares
of common stock or similar securities in the market made after
this offering or the perception that such sales could occur.
If you
do not act promptly and follow the subscription instructions,
your exercise of subscription rights may be
rejected.
Stockholders who desire to purchase shares of convertible
preferred stock in the rights offering must act promptly to
ensure that all required forms and payments are actually
received by the subscription agent before 6:00 p.m., New
York City time,
on ,
2010, the expiration date of the rights offering, unless the
exercise period is extended by us. If you are a beneficial owner
of shares of common stock, you must act promptly to ensure that
your broker, bank or other nominee acts for you and that all
required forms and payments are actually received by the
subscription agent before the expiration date of the rights
offering. We will not be responsible if your broker, bank or
other nominee fails to ensure that all required forms and
payments are actually received by the subscription agent before
the expiration date of the rights offering. If you fail to
complete and sign the required subscription forms, send an
incorrect payment amount or otherwise fail to follow the
subscription procedures that apply to your exercise in the
rights offering, the subscription agent may, depending on the
circumstances, reject your subscription or accept it only to the
extent of the payment received. Neither we nor our subscription
agent undertakes to contact you concerning an incomplete or
incorrect subscription form or payment, nor are we under any
obligation to correct such forms or payment. We have the sole
discretion to determine whether a subscription exercise is valid
and effective.
Dividends
on convertible preferred stock may be paid in shares of our
common stock.
Dividends on the convertible preferred stock may be paid, at the
election of our board of directors, in shares of our common
stock. Dividends paid in shares of common stock will be issued
on the basis of a 3.0% discount from the average of the Volume
Weighted Closing Price (as defined under The Rights
Offering Terms of the 8.75% Series A
Convertible Preferred Stock Dividends) of the
common stock over the 20 consecutive trading days
immediately preceding the fifth trading day immediately
preceding the record date for the payment of dividends. The
value of the shares received in payment of those dividends and
payments could decline if the market price for shares of our
common stock declines. In addition, if our common stock is not
listed or quoted on a national stock exchange or other market at
the time you wish to sell shares received in payment of
dividends, or if the there is not a liquid market for our common
stock, you may be unable to sell the shares of common stock
received in payment of the dividends payable on the convertible
preferred stock.
20
The
receipt of subscription rights may be treated as a taxable
distribution to you.
The distribution of the subscription rights in this offering
should be a non-taxable distribution under Section 305(a)
of the Internal Revenue Code of 1986, as amended (the
Code). Please see the discussion on the
Material United States Federal Income Tax
Considerations below. This position is not binding on the
Internal Revenue Service, or the courts, however. If this
offering is part of a disproportionate distribution
under Section 305 of the Code, your receipt of subscription
rights in this offering may be treated as the receipt of a
taxable distribution to you equal to the fair market value of
the subscription rights. Any such distribution would be treated
as dividend income to the extent of our current and accumulated
earnings and profits, if any, with any excess being treated as a
return of capital to the extent thereof and then as capital
gain. Each holder of common stock is urged to consult his, her
or its own tax advisor with respect to the particular tax
consequences of this offering.
We
might be permitted to require you to convert your shares of
convertible preferred stock.
From and after the third anniversary of the date on which the
convertible preferred stock is first issued, if over a period of
30 consecutive trading days the average Volume Weighted Closing
Price (as defined below under the heading The Rights
Offering Terms of the 8.75% Series A
Convertible Preferred Stock Dividends) of our
common stock for any 20 days during such
30-day
period equals or exceeds 130% of the then-prevailing conversion
price per share, we may, at our option, require that some or all
then outstanding shares of convertible preferred stock be
automatically converted into a number of shares of our common
stock equal to $10.00 (as adjusted from time to time to reflect
any stock dividends, splits, combinations or other similar
recapitalization with respect to the shares of common stock)
divided by the then-prevailing conversion price. In connection
with such automatic conversion you would receive a payment in an
amount equal to all declared and unpaid dividends on your shares
of convertible preferred stock to the date of conversion (which
may, at our election, be in the form of cash, shares of common
stock or a combination of cash and shares of common stock), but
after conversion you would no longer be entitled to the
dividends, liquidation preference or other rights attributable
to holders of the convertible preferred stock.
Our
controlling stockholder will be able to control the outcome of
all matters submitted to a vote of holders of convertible
preferred stock unless and until our controlling stockholder
converts its shares of convertible preferred stock to shares of
common stock.
The holders of convertible preferred stock generally have
limited voting rights. In accordance with the terms of the
convertible preferred stock, we may not, without the consent or
affirmative vote of the holders of at least
662/3%
of the outstanding shares of convertible preferred stock, voting
separately as a class, (a) authorize, create or issue any
shares of any other class or series of capital stock ranking
senior to the convertible preferred stock as to dividends or
upon liquidation, or (b) amend, alter or repeal any
provision of our certificate of incorporation or bylaws in a
manner that adversely affects the powers, preferences or rights
of the convertible preferred stock. In addition, if at any time
dividends on the convertible preferred stock shall be in arrears
in an amount equal to six quarterly dividends thereon (whether
or not consecutive), all the holders of shares of the
convertible preferred stock, voting as a single class with any
other preferred stock or preference securities having similar
voting rights that are exercisable during a period of default on
the payment of dividends, shall be entitled at the next annual
or special meeting of our stockholders to elect two additional
directors to our board of directors by a majority vote. Alon
Israel currently owns, directly or indirectly, approximately 76%
of our common stock. If all the shares of convertible preferred
stock are fully subscribed, Alon Israel will own approximately
76% of our convertible preferred stock. As a result, Alon Israel
will be able to control the outcome of all matters submitted to
a vote of the holders of convertible preferred stock unless and
until such time as Alon Israel converts its shares of
convertible preferred stock into shares of common stock. We
cannot assure you that the interests of Alon Israel will
coincide with the interests of other holders of our convertible
preferred stock.
21
Risks
related to our common stock
Our
controlling stockholder may have conflicts of interest with
other stockholders in the future.
Alon Israel currently owns, directly or indirectly,
approximately 76% of our common stock. As a result, Alon Israel
is able to control the election of our directors, determine our
corporate and management policies and determine, without the
consent of our other stockholders, the outcome of any corporate
transaction or other matter submitted to our stockholders for
approval, including potential mergers or acquisitions, asset
sales and other significant corporate transactions. So long as
Alon Israel continues to own a significant amount of the
outstanding shares of our common stock, Alon Israel will
continue to be able to strongly influence or effectively control
our decisions, including whether to pursue or consummate
potential mergers or acquisitions, asset sales and other
significant corporate transactions. We cannot assure you that
the interests of Alon Israel will coincide with the interests of
other holders of our common stock.
Delaware
law and our organizational documents may impede or discourage a
takeover, which could adversely affect the value of our common
stock.
Provisions of Delaware law and our certificate of incorporation
and bylaws may have the effect of discouraging a change of
control of our company or deterring tender offers for our common
stock. The anti-takeover provisions of Delaware law impose
various impediments to the ability of a third party to acquire
control of us, even if a change of control would be beneficial
to our existing stockholders. We are currently subject to
Delaware anti-takeover provisions. Additionally, provisions of
our certificate of incorporation and bylaws impose various
procedural and other requirements, which could make it more
difficult for stockholders to effect some corporate actions. For
example, our certificate of incorporation authorizes our board
to determine the rights, preferences and privileges and
restrictions of unissued shares of preferred stock without any
vote or action by our stockholders. Thus our board is able to
authorize and issue shares of preferred stock with voting or
conversion rights that could adversely affect the voting or
other rights of holders of our common stock. Our bylaws require
advance notice for stockholders to nominate director candidates
for election or to bring business before an annual meeting of
stockholders. Moreover, stockholders are not permitted to call a
special meeting or to require the board of directors to call a
special meeting or to take action by written consent. These
rights and provisions may have the effect of delaying or
deterring a change of control of our company and may limit the
price that investors might be willing to pay in the future for
shares of our common stock. See the description of our common
stock included under the heading Description of Capital
Stock.
FORWARD
LOOKING STATEMENTS
Certain statements contained in this prospectus and the
information incorporated by reference herein, or in other
written or oral statements made by us, other than statements of
historical fact, are forward-looking statements as
defined in the Private Securities Litigation Reform Act of 1995.
Forward-looking statements relate to matters such as our
industry, business strategy, goals and expectations concerning
our market position, future operations, margins, profitability,
capital expenditures, liquidity and capital resources and other
financial and operating information. We have used the words
anticipate, assume, believe,
budget, continue, could,
estimate, expect, intend,
may, plan, potential,
predict, project, will,
future and similar terms and phrases to identify
forward-looking statements.
Forward-looking statements reflect our current expectations
regarding future events, results or outcomes. These expectations
may or may not be realized. Some of these expectations may be
based upon assumptions or judgments that prove to be incorrect.
In addition, our business and operations involve numerous risks
and uncertainties, many of which are beyond our control, which
could result in our expectations not being realized or otherwise
materially affect our financial condition, results of operations
and cash flows.
Actual events, results and outcomes may differ materially from
our expectations due to a variety of factors. Although it is not
possible to identify all of these factors, they include, among
others, the following:
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changes in general economic conditions and capital markets;
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changes in the underlying demand for our products;
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the availability, costs and price volatility of crude oil, other
refinery feedstocks and refined products;
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changes in the sweet/sour spread;
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changes in the light/heavy spread;
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the effects of transactions involving forward contracts and
derivative instruments;
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actions of customers and competitors;
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changes in fuel and utility costs incurred by our facilities;
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disruptions due to equipment interruption, pipeline disruptions
or failure at our or third-party facilities;
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the execution of planned capital projects;
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adverse changes in the credit ratings assigned to our trade
credit and debt instruments;
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the effects of and cost of compliance with current and future
state and federal environmental, economic, safety and other
laws, policies and regulations;
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operating hazards, natural disasters, casualty losses and other
matters beyond our control;
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the global financial crisis impact on our business and
financial condition in ways that we currently cannot predict. We
may face significant challenges if conditions in the financial
markets do not improve or continue to worsen, such as adversely
impacting our ability to refinance existing credit facilities or
extend their terms; and
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the other factors discussed in our filings with the SEC,
especially on
Forms 10-K,
10-Q and
8-K.
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Any one of these factors or a combination of these factors could
materially affect our future results of operations and could
influence whether any forward-looking statements ultimately
prove to be accurate. Our forward-looking statements are not
guarantees of future performance, and actual results and future
performance may differ materially from those suggested in any
forward looking statements. We do not intend to update these
statements unless we are required by the securities laws to do
so.
USE OF
PROCEEDS
The proceeds to us from the sale of all of the shares of the
convertible preferred stock in the rights offering is estimated
to be $40,000,000 before deducting offering expenses estimated
to be approximately $ . We will use
the proceeds of the rights offering for payment of amounts owing
under the Credit Agreement, dated as of March 15, 2010, by
and between Alon Refining Krotz Springs, Inc., a Delaware
corporation and a subsidiary of Alon (ARKS), the
financial institutions party thereto from time to time as
lenders (collectively, the Lenders), and Bank
Hapoalim B.M., a bank organized under the laws of Israel, acting
through its New York Branch, as administrative agent and
collateral agent for the Lenders (as amended, the Hapoalim
Facility), and, if any proceeds of the rights offering
remain, for general corporate purposes. The obligations owed
under the Hapoalim Facility bear interest at either LIBOR plus
3.00% or Bank Hapoalim B.M.s prime rate plus 1.75%, and
are payable currently on November 15, 2010. The proceeds of
the Hapoalim Facility were used to repay the outstanding amounts
under ARKSs existing revolving credit facility. As of
June 30, 2010, the principal amount outstanding under the
Hapoalim Facility was $30,000,000 and bore interest at an
effective annual rate of 4%.
23
RATIO OF
COMBINED FIXED CHARGES AND PREFERENCE DIVIDENDS TO
EARNINGS
The table below sets forth the ratio of combined fixed charges
and preference dividends to earnings on a historical basis for
the periods indicated:
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Six Months
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Ended
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June 30, 2010
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2009
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2008
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2007
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2006
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2005
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*
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*
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2.7x
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3.9x
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8.2x
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8.3x
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For the six months ended June 30, 2010 and the year ended
December 31, 2009, our ratio of earnings to fixed charges
was less than
one-to-one,
and our coverage deficiency was approximately
$141.4 million for the six months ended June 30, 2010
and $173.7 million for the year ended December 31,
2009. |
For purposes of calculating the ratio of combined fixed charges
and preference dividends to earnings, earnings is the sum of
income before income taxes and before adjustment for minority
interests in consolidated subsidiaries, accumulated dividends on
preferred stock of subsidiaries and income from equity
investees, plus fixed charges, amortization of capitalized
interest and distributions from equity investees. Fixed charges
consist of interest expense and that portion of rental expense
that is representative of an interest factor.
DETERMINATION
OF EXERCISE PRICE AND CONVERSION PRICE
Our board of directors established the exercise price for the
shares of convertible preferred stock and the conversion price
of the convertible preferred stock based on the estimated value
of the convertible preferred stock at the date of issuance.
Factors considered in setting the exercise price, the conversion
price and the terms of the convertible preferred stock included
general conditions in the securities markets, alternatives
available to us for raising equity capital, the current trading
price of our common stock and the amount of proceeds desired.
The exercise price for shares of convertible preferred stock is
$10.00 per share and the initial conversion price is $7.44 per
share. The exercise price and the conversion price do not
necessarily bear any relationship to the book value of our
assets or our past operations, cash flows, losses, financial
condition, net worth or any other established criteria used to
value securities. We did not seek or obtain any opinion of
financial advisors or investment bankers in establishing the
exercise price or the conversion price. You should not consider
the exercise price or the conversion price to be an indication
of the fair value of the convertible preferred stock to be
offered in the rights offering or the common stock issuable upon
conversion of the convertible preferred stock.
DESCRIPTION
OF CAPITAL STOCK
Alon is authorized to issue two classes of capital stock,
designated common stock and preferred stock. The total number of
shares of capital stock that Alon is authorized to issue is
110,000,000 shares, consisting of 100,000,000 shares
of common stock, par value $0.01 per share, and
10,000,000 shares of preferred stock, par value $0.01 per
share. As of the date of this prospectus, there were outstanding
54,181,329 shares of common stock and no shares of
preferred stock. The following description of our capital stock
is only a summary, does not purport to be complete and is
subject to and qualified by our certificate of incorporation and
bylaws and by the provisions of applicable Delaware law.
Common
Stock
Holders of our common stock are entitled to one vote for each
share on all matters voted upon by our stockholders, including
the election of directors, and do not have cumulative voting
rights. Subject to the rights of holders of any then outstanding
shares of our preferred stock, our common stockholders are
entitled to receive ratably any dividends that may be declared
by our board of directors out of funds legally available
therefor. Holders of our common stock are entitled to share
ratably in our net assets upon our dissolution or liquidation
after payment or provision for all liabilities and any
preferential liquidation rights of our preferred stock then
outstanding. Holders of our common stock do not have preemptive
rights to purchase shares of our stock. The shares of our common
stock are not subject to any redemption provisions and are not
convertible
24
into any other shares of our capital stock. All outstanding
shares of our common stock are fully paid and nonassessable. The
rights, preferences and privileges of holders of our common
stock will be subject to those of the holders of the convertible
preferred stock and any other preferred stock we may issue in
the future.
Blank
Check Preferred Stock
Our board of directors may, from time to time, authorize the
issuance of one or more classes or series of preferred stock
without stockholder approval.
Our certificate of incorporation permits us to issue up to
10,000,000 shares of preferred stock from time to time.
Subject to the provisions of our certificate of incorporation
and limitations prescribed by law, our board of directors is
authorized to adopt resolutions to issue shares, establish the
number of shares, change the number of shares constituting any
series, and provide or change the voting powers, designations,
preferences and relative rights, qualifications, limitations or
restrictions on shares of our preferred stock, including
dividend rights, terms of redemption, conversion rights and
liquidation preferences, in each case without any action or vote
by our stockholders.
The issuance of preferred stock may adversely affect the rights
of our common stockholders by, among other things:
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restricting dividends on the common stock;
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diluting the voting power of the common stock;
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impairing the liquidation rights of the common stock; or
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delaying or preventing a change in control without further
action by the stockholders.
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As a result of these or other factors, the issuance of preferred
stock could have an adverse impact on the market price of our
common stock.
8.75%
Series A Convertible Preferred Stock
There are currently no shares of convertible preferred stock
outstanding. For a description of the rights, preferences and
privileges of the convertible preferred stock, see the
discussion under the heading The Rights
Offering Terms of the 8.75% Series A
Convertible Preferred Stock.
Anti-takeover
Effects of Certain Provisions of Our Certificate of
Incorporation and Bylaws
General
Our certificate of incorporation and bylaws contain provisions
that are intended to enhance the likelihood of continuity and
stability in the composition of our board of directors and that
could make it more difficult to acquire control of our company
by means of a tender offer, open market purchases, a proxy
contest or otherwise. A description of these provisions is set
forth below.
Preferred
Stock
We believe that the availability of the preferred stock under
our certificate of incorporation provides us with flexibility in
addressing corporate issues that may arise. Having these
authorized shares available for issuance will allow us to issue
shares of preferred stock without the expense and delay of a
special stockholders meeting. The authorized shares of
preferred stock, as well as shares of common stock, will be
available for issuance without further action by our
stockholders, unless action is required by applicable law or the
rules of any stock exchange on which our securities may be
listed. The board of directors has the power, subject to
applicable law, to issue series of preferred stock that could,
depending on the terms of the series, impede the completion of a
merger, tender offer or other takeover attempt. For instance,
subject to applicable law, series of preferred stock might
impede a business combination by including class voting rights
which would enable the holder or holders of such series to block
a proposed transaction. Our board of directors will make any
determination to issue shares based on its judgment as to our
and our stockholders best interests.
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Our board of directors, in so acting, could issue preferred
stock having terms which could discourage an acquisition attempt
or other transaction that some, or a majority, of the
stockholders might believe to be in their best interests or in
which stockholders might receive a premium for their stock over
the then prevailing market price of the stock.
No
Stockholder Action by Written Consent
Our certificate of incorporation provides that any action
required or permitted to be taken at any annual or special
meeting of stockholders may be taken only at a duly called
annual or special meeting of stockholders and may not be
effected by any written consent of stockholders in lieu of a
meeting of stockholders. This prevents stockholders from
initiating or effecting any action by written consent, thereby
limiting the ability of stockholders to take actions opposed by
our board of directors.
Advance
Notice Procedure
Our bylaws provide an advance notice procedure for stockholders
to nominate director candidates for election or to bring
business before an annual meeting of stockholders, including
proposed nominations of persons for election to the board of
directors. Only persons nominated by, or at the direction of,
our board of directors or by a stockholder who has given proper
and timely notice to our secretary prior to the meeting, will be
eligible for election as a director. In addition, any proposed
business other than the nomination of persons for election to
our board of directors must constitute a proper matter for
stockholder action pursuant to the notice of meeting delivered
to us. For notice to be timely, it must be received by our
secretary not less than 60 nor more than 90 calendar days prior
to the first anniversary of the previous years annual
meeting (or if the date of the annual meeting is advanced more
than 30 calendar days or delayed by more than 30 calendar days
from such anniversary date, not earlier than the
90th calendar day prior to such meeting or the
10th calendar day after public disclosure of the date of
such meeting is first made). These advance notice provisions may
have the effect of precluding the conduct of certain business at
a meeting if the proper procedures are not followed or may
discourage or deter a potential acquirer from conducting a
solicitation of proxies to elect its own slate of directors or
otherwise attempt to obtain control of us.
Special
Meetings of Stockholders
Our bylaws provide that special meetings of stockholders may be
called only by our chairman of the board, president or secretary
after written request of a majority of our board of directors.
Delaware
Anti-Takeover Law
Section 203 of the Delaware General Corporation Law
provides that, subject to exceptions specified therein, an
interested stockholder of a Delaware corporation
shall not engage in any business combination,
including general mergers or consolidations or acquisitions of
additional shares of the corporation, with the corporation for a
three-year period following the time that such stockholder
becomes an interested stockholder unless:
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prior to such time, the board of directors of the corporation
approved either the business combination or the transaction
which resulted in the stockholder becoming an interested
stockholder;
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upon consummation of the transaction which resulted in the
stockholder becoming an interested stockholder, the
interested stockholder owned at least 85% of the voting stock of
the corporation outstanding at the time the transaction
commenced (excluding specified shares); or
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on or subsequent to such time, the business combination is
approved by the board of directors of the corporation and
authorized at an annual or special meeting of stockholders, and
not by written consent, by the affirmative vote of at least
662/3%
of the outstanding voting stock not owned by the interested
stockholder.
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Under Section 203, the restrictions described above also do
not apply to specified business combinations proposed by an
interested stockholder following the announcement or
notification of one of the specified
26
transactions involving the corporation and a person who had not
been an interested stockholder during the previous three years
or who became an interested stockholder with the approval of a
majority of the corporations directors, if such
transaction is approved or not opposed by a majority of the
directors who were directors prior to any person becoming an
interested stockholder during the previous three years or were
recommended for election or elected to succeed such directors by
a majority of such directors.
Except as otherwise specified in Section 203, an
interested stockholder is defined to include:
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any person that is the owner of 15% or more of the outstanding
voting stock of the corporation, or is an affiliate or associate
of the corporation and was the owner of 15% or more of the
outstanding voting stock of the corporation at any time within
three years immediately prior to the date of
determination; and
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the affiliates and associates of any such person.
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Under some circumstances, Section 203 makes it more
difficult for a person who is an interested stockholder to
effect various business combinations with us for a three-year
period. We have not elected to be exempt from the restrictions
imposed under Section 203.
Limitation
of Liability of Officers and Directors
Our certificate of incorporation limits the liability of
directors to the fullest extent permitted by Delaware law. The
effect of these provisions is to eliminate the rights of our
company and our stockholders, through stockholders
derivative suits on behalf of our company, to recover monetary
damages against a director for breach of fiduciary duty as a
director, including breaches resulting from grossly negligent
behavior. However, exculpation does not apply if the directors
acted in bad faith, knowingly or intentionally violated the law,
authorized illegal dividends or redemptions or derived an
improper benefit from their actions as directors. In addition,
our certificate of incorporation provides that we will indemnify
our directors and officers to the fullest extent permitted by
Delaware law. We have entered into Indemnification Agreements
with each of our directors and certain of our officers to give
these directors and officers additional contractual assurances
regarding the scope of the indemnification set forth in our
certificate of incorporation and to provide additional
procedural protections. We also maintain directors and officers
insurance.
Transfer
Agent and Registrar
The transfer agent and registrar for our common stock is The
Bank of New York Mellon. The transfer agent and registrar for
our convertible preferred stock will be The Bank of New York
Mellon.
THE
RIGHTS OFFERING
Background
of the Rights Offering
Prior to approving the rights offering, our board of directors,
after careful consideration of various factors, including the
current market conditions and opportunities and the pro rata
nature of a rights offering, which would allow all of our
existing stockholders to participate in the rights offering, and
after extensive evaluation of several alternatives, believed
that the rights offering presented the most viable and
cost-effective method for raising the capital necessary to pay
amounts owing under the Hapoalim Facility. Taking into
consideration the factors discussed above and the effect of the
$40,000,000 in additional capital that may be generated in the
rights offering before deducting offering expenses, our board of
directors believes that the rights offering is in the best
interests of Alon and its stockholders.
As described under the heading Use of Proceeds, on
March 15, 2010, ARKS entered into the Hapoalim Facility.
The Hapoalim Facility provided for a single borrowing on
March 15, 2010 in the amount of $65 million. As of
June 30, 2010, the principal amount outstanding under the
Hapoalim Facility was $30 million. The purpose of the
rights offering is to raise capital for payment of amounts owing
under the Hapoalim Facility and, if any proceeds of the rights
offering remain, for general corporate purposes.
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Basic
Subscription Rights
We are distributing to stockholders of record of our common
stock as of the close of business, New York City time,
on ,
2010, at no charge, one transferable subscription right for
every 13.55 shares of our common stock they hold on the
record date, subject to adjustment to eliminate fractional
rights. Each right entitles its holder to purchase one share of
our convertible preferred stock at an exercise price of $10.00
per share. If all the shares of convertible preferred stock are
fully subscribed, we will issue a total of 4,000,000 shares
of convertible preferred stock in the rights offering.
Each share of convertible preferred stock will be convertible
into shares of our common stock.
Over-Subscription
Rights
The over-subscription right associated with each subscription
right entitles you, if you fully exercise your basic
subscription right, to subscribe to purchase, at the same price
per share, any shares of convertible preferred stock that are
not purchased by other holders of subscription rights under
their basic subscription rights as of the expiration time. If
sufficient shares of convertible preferred stock are available,
we will seek to honor the over-subscription requests in full.
If, however, over-subscription requests exceed the number of
shares of convertible preferred stock available, we will
allocate the available shares of convertible preferred stock pro
rata among each stockholder exercising the over-subscription
right in proportion to the number of shares of common stock
owned by such stockholder on the record date, relative to the
number of shares of common stock owned on the record date by all
stockholders exercising the over-subscription right. If this pro
rata allocation results in any stockholder receiving a greater
number of shares of convertible preferred stock than the
stockholder subscribed for pursuant to the exercise of the
over-subscription right, then such stockholder will be allocated
only that number of shares for which the stockholder
over-subscribed, and the remaining shares of convertible
preferred stock will be allocated among all other stockholders
exercising the over-subscription right on the same pro rata
basis described above. The proration process will be repeated
until all shares of convertible preferred stock have been
allocated or all over-subscription requests have been satisfied.
The over-subscription right must be exercised, if at all,
concurrently with the basic subscription right prior to the
expiration time.
In order to properly exercise your over-subscription right, you
must deliver the subscription payment related to your
over-subscription right prior to the expiration time. Because we
will not know the total number of unsubscribed shares until
three days after the expiration date, which is the latest date
for our stockholders to deliver the rights certificate according
to the guaranteed delivery procedures, if you wish to maximize
the number of shares you purchase pursuant to your
over-subscription right, you will need to deliver payment in an
amount equal to the aggregate subscription price for the maximum
number of shares of our convertible preferred stock that may be
available to you (i.e., for the maximum number of shares of
convertible preferred stock available to you, assuming you
exercise all of your basic subscription right and are allotted
the full amount of your over-subscription as elected by you).
Fractional convertible preferred shares resulting from the
exercise of the over-subscription right will be eliminated by
rounding to the nearest whole share, subject to adjustment as
may be necessary to ensure that we offer no more than
4,000,000 shares of convertible preferred stock in the
rights offering, with the total subscription payment being
adjusted accordingly.
We can provide no assurance that you will actually be entitled
to purchase the number of shares of convertible preferred stock
issuable upon the exercise of your over-subscription right in
full at the expiration of the rights offering. We will not be
able to satisfy your exercise of the over-subscription right if
all of our stockholders exercise their basic subscription rights
in full, and we will only honor an over-subscription right to
the extent a sufficient amount of shares of our convertible
preferred stock are available following the exercise of
subscription rights under the basic subscription rights.
To the extent the aggregate subscription price of the maximum
number of unsubscribed shares of convertible preferred stock
available to you pursuant to the over-subscription right is less
than the amount you actually paid in connection with the
exercise of the over-subscription right, you will be allocated
only the
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number of unsubscribed shares available to you, and any excess
subscription payments received by the subscription agent will be
returned to you by mail, without interest or deduction, as soon
as practicable after the expiration date of the rights offering.
To the extent the amount you actually paid in connection with
the exercise of the over-subscription right is less than the
aggregate subscription price of the maximum number of
unsubscribed shares of convertible preferred stock available to
you pursuant to the over-subscription right, you will be
allocated the number of unsubscribed shares for which you
actually paid in connection with the over-subscription right.
Conversion
of the Convertible Preferred Stock to Common Stock
Each share of convertible preferred stock will initially be
convertible into 1.344 shares of common stock, which is
equivalent to a conversion price of $7.44 per share, subject to
adjustment upon the occurrence of certain events.
Record
Date
The record date for the rights offering, which was the date used
to determine the stockholders entitled to receive subscription
rights,
was ,
2010.
Exercise
Price
The exercise price for each subscription right is $10.00 per
share.
Conditions
to the Rights Offering
The rights offering is not conditioned upon stockholder approval
of the rights offering or to us raising a minimum amount in the
rights offering (see Risk Factors Completion
of the rights offering is not subject to us raising a minimum
offering amount and therefore proceeds may be insufficient to
meet our objectives, thereby increasing the risk to investors in
this offering.). We may cancel or terminate the rights
offering at any time in our sole discretion. If we cancel or
terminate the offering, the subscription rights will expire
without value, and all exercise payments received by the
subscription agent will be returned promptly, without interest
or deduction. See Extensions, Amendments and
Termination.
Expiration
of the Rights Offering
The subscription rights expire, if not previously exercised, at
6:00 p.m., New York City time,
on ,
2010, unless the exercise period is extended by us. We currently
do not intend to extend the exercise period. If you choose not
to fully exercise your subscription rights, your relative
ownership in us will be diluted. The subscription rights holders
who do not exercise or sell their subscription rights prior to
the expiration of the rights offering will lose any value
represented by their subscription rights, and the shares of
convertible preferred stock into which your subscription rights
are exercisable will be available to the rights holders who
exercise their over-subscription rights. We will not be required
to satisfy your attempt to exercise subscription rights if the
subscription agent receives your rights certificate and payment
of the exercise price relating to your exercise after your
subscription rights expire, regardless of when you transmitted
the documents, except when you have timely transmitted the
documents under the guaranteed delivery procedures described
below.
Terms of
the 8.75% Series A Convertible Preferred Stock
The shares of convertible preferred stock to be issued in the
rights offering will be 8.75% Series A Convertible
Preferred Stock, $0.01 par value per share. We are offering
up to an aggregate of 4,000,000 shares of convertible
preferred stock. The terms of the convertible preferred stock
are as follows:
Rank. The convertible preferred stock will
rank senior to all of our common stock, both as to payment of
dividends and as to distributions of assets upon the
liquidation, dissolution or winding up of our company, whether
voluntary or involuntary.
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Maturity. The convertible preferred stock is
perpetual, and therefore does not have a maturity date.
Dividends. The convertible preferred stock
will rank senior to our common stock with respect to the payment
of dividends. Holders of shares of convertible preferred stock
will be entitled to receive, when, as and if declared by the
board of directors out of funds legally available for such
purpose, dividends at an annual rate of 8.75% of the per share
stated value of the convertible preferred stock. The initial per
share stated value of the convertible preferred stock is $10.00,
and is subject to adjustment in the event of any stock dividend,
stock split, combination or other similar recapitalization with
respect to the convertible preferred stock. Dividends on the
convertible preferred stock will be payable quarterly in arrears
in, at our election, cash, shares of common stock or a
combination of cash and shares of common stock, commencing on
the last calendar day of the first full fiscal quarter following
the date of original issuance of the convertible preferred
stock. If we elect to pay any dividends in shares of common
stock, the amount of those dividends will be computed based on a
3.0% discount from the average of the Volume Weighted Closing
Price (as defined below) of the common stock over the 20
consecutive trading days immediately preceding the fifth trading
day immediately preceding the record date for the payment of
dividends. If we elect to pay all or any portion of a dividend
in shares of common stock, we will pay cash in lieu of any
fractional share to which a holder would otherwise be entitled.
The amount of dividends payable per share of convertible
preferred stock for each full quarterly dividend period will be
computed by dividing the annual dividend amount by four. The
amount of dividends payable for the initial dividend period and
for any other period shorter than a full quarterly dividend
period will be prorated on the basis of a
360-day year
of twelve
30-day
months.
The Volume Weighted Closing Price for each trading
day will be the product of (a) the total number of shares
of our common stock traded on that day on the New York Stock
Exchange or, if our common stock is not listed or admitted to
trading on the New York Stock Exchange, on the principal
national securities exchange on which our common stock is listed
or admitted to trading, or, if our common stock is not listed or
admitted to trading on any national securities exchange, on the
principal inter-dealer quotation system on which our common
stock is quoted; and (b) the last reported sale price
regular way or, in case no sale takes place on such day, the
average of the closing bid and ask prices regular way on such
trading day, in either case as reported by the New York
Stock Exchange, or, if our common stock is not listed or
admitted to trading on the New York Stock Exchange, on the
principal national securities exchange on which our common stock
is listed or admitted to trading, or, if our common stock is not
listed or admitted to trading on any national securities
exchange, the average of the bid and ask prices for such day on
the principal inter-dealer quotation system on which our common
stock is quoted, or, if our common stock is not quoted on any
such inter-dealer quotation system, the average of the bid and
ask prices for such day as furnished by any New York Stock
Exchange member firm selected from time to time by us for that
purpose, or, if no such bid and ask prices can be obtained from
any such firm, the fair market value of one share of our common
stock on such day as determined in good faith by our board of
directors.
Dividends on the convertible preferred stock will be fully
cumulative and will accumulate without interest from the date of
original issuance of the convertible preferred stock. Dividends
on the convertible preferred stock will accrue regardless of
whether: (a) our agreements, including our credit
facilities, at any time prohibit the current payment of
dividends, (b) there are funds legally available for the
payment of such dividends, or (c) such dividends are
authorized by our board of directors.
No dividends or other distributions, other than dividends
payable solely in shares of common stock, may be paid or set
apart for payment on, and no purchase, redemption or other
acquisition may be made by us, of any shares of our capital
stock ranking junior as to the payment of dividends to the
convertible preferred stock unless and until all accumulated and
unpaid dividends on the convertible preferred stock, including
the full dividend for the then-current quarterly dividend
period, has been paid or declared and set apart for payment.
If at any time any dividend on any of our capital stock ranking
senior as to payment of dividends to the convertible preferred
stock is in default, in whole or in part, no dividend may be
paid or declared and set apart for payment on the convertible
preferred stock unless and until all accumulated and unpaid
dividends with respect to that senior ranking dividend stock,
including the full dividend for the then-current dividend
period, has been paid or declared and set apart for payment,
without interest. No full dividends may be paid or declared and
set apart for payment on any of our capital stock ranking, as to
payment of dividends, equally
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with the convertible preferred stock for any period unless full
cumulative dividends have been, or contemporaneously are, paid
or declared and set apart for payment on the convertible
preferred stock for all dividend periods terminating on or prior
to the date of payment of those full cumulative dividends. No
full dividends may be paid or declared and set apart for payment
on the convertible preferred stock for any period unless full
cumulative dividends have been, or contemporaneously are, paid
or declared and set apart for payment on any such equally
ranking dividend stock for all dividend periods terminating on
or prior to the date of payment of those full cumulative
dividends. When dividends are not paid in full upon the
convertible preferred stock and any equally ranking dividend
stock, all dividends paid or declared and set apart for payment
upon shares of convertible preferred stock and the equally
ranking dividend stock will be paid or declared and set apart
for payment pro rata, so that the amount of dividends paid or
declared and set apart for payment per share on the convertible
preferred stock and the equally ranking dividend stock will in
all cases bear to each other the same ratio that accumulated and
unpaid dividends per share on the shares of convertible
preferred stock and equally ranking dividend stock bear to each
other.
Liquidation. The convertible preferred stock
will rank senior to the common stock with respect to the
distributions of assets upon the liquidation, dissolution or
winding up of our company, whether voluntary or involuntary. In
the event of a liquidation, dissolution or winding up of our
company, we will pay to the holder of convertible preferred
stock, prior to the payment to any holder of common stock, an
amount equal to $10.00 per share of convertible preferred stock
(as adjusted from time to time to reflect any stock dividends,
splits, combinations or other similar recapitalization with
respect to the shares of convertible preferred stock) and all
accumulated, accrued and unpaid dividends on such share, if any,
whether or not declared, to the date of final distribution to
the holders of shares of convertible preferred stock.
Conversion. At any time, holders of
convertible preferred stock may elect to convert their
convertible preferred stock into common stock. Each share of
convertible preferred stock will initially be convertible into
1.344 shares of common stock, which is equivalent to a
conversion price of $7.44 per share, subject to adjustment upon
the occurrence of certain events. The conversion rate will be
adjusted from time to time upon the occurrence of certain
events, including dividends, splits, combinations or other
similar recapitalization with respect to the shares of common
stock or convertible preferred stock, and the issuance of
rights, warrants, options or other securities to all
stockholders. Cash will be paid in lieu of any fractional share
of common stock to which a holder would otherwise be entitled
upon conversion. In connection with any conversion, you would
receive a payment in an amount equal to all declared and unpaid
dividends on your shares of convertible preferred stock to the
date of conversion (which may, at our election, be in the form
of cash, shares of common stock or a combination of cash and
shares of common stock), but after conversion you would no
longer be entitled to the dividends, liquidation preference or
other rights attributable to holders of the convertible
preferred stock.
From and after the third anniversary of the date on which the
convertible preferred stock is first issued, if over a period of
30 consecutive trading days the average Volume Weighted Closing
Price of our common stock for any 20 days during such
30-day
period equals or exceeds 130% of the then-prevailing conversion
price per share, we may, at our option, require that some or all
then outstanding shares of convertible preferred stock be
automatically converted into a number of shares of our common
stock equal to $10.00 (as adjusted from time to time to reflect
any stock dividends, splits, combinations or other similar
recapitalization with respect to the shares of common stock)
divided by the then-prevailing conversion price. In addition to
issuing the necessary number of whole shares of common stock in
connection with the automatic conversion, we will pay cash in
lieu of any fractional share to which a holder would otherwise
be entitled. In addition, in connection with such automatic
conversion you would receive a payment in an amount equal to all
declared and unpaid dividends on your shares of convertible
preferred stock to the date of conversion (which may, at our
election, be in the form of cash, shares of common stock or a
combination of cash and shares of common stock), but after
conversion you would no longer be entitled to the dividends,
liquidation preference or other rights attributable to holders
of the convertible preferred stock.
Voting. Holders of the convertible preferred
stock will generally have limited voting rights. We may not,
without the consent or affirmative vote of the holders of at
least
662/3%
of the outstanding shares of convertible preferred stock, voting
separately as a class, (a) authorize, create or issue any
shares of any other class or series of capital stock ranking
senior to the convertible preferred stock as to dividends or
upon liquidation, or
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(b) amend, alter or repeal any provision of our certificate
of incorporation or bylaws in a manner that adversely affects
the powers, preferences or rights of the convertible preferred
stock.
In addition, if at any time dividends on the convertible
preferred stock shall be in arrears in an amount equal to six
quarterly dividends thereon (whether or not consecutive), all
the holders of shares of the convertible preferred stock, voting
as a single class with any other preferred stock or preference
securities having similar voting rights that are exercisable
during a period of default on the payment of dividends, shall be
entitled at the next annual or special meeting of our
stockholders to elect two additional directors to our board of
directors. Such voting right and the term of the directors so
elected will expire at such time when all accrued and unpaid
dividends for all previous quarterly dividend periods and for
the current quarterly dividend period on all shares of the
convertible preferred stock then outstanding shall have been
declared and paid or set apart for payment. At any meeting held
for the purpose of electing directors at which the holders of
the convertible preferred stock and any other preferred stock or
preference securities having similar voting rights that are
exercisable during a period of default on the payment of
dividends shall have the right to elect directors, the presence
in person or by proxy of the holders of shares representing a
majority in voting power of the then outstanding shares of the
convertible preferred stock and any other preferred stock or
preference securities having similar voting rights that are
exercisable during a period of default on the payment of
dividends shall be required and shall be sufficient to
constitute a quorum of such class for the election of directors
by such class. The affirmative vote of the holders of shares
constituting a majority of the shares of convertible preferred
stock and any other preferred stock or preference securities
having similar voting rights present at such meeting, in person
or by proxy, voting as a class, shall be sufficient to elect any
such director.
Redemption. The holders of the convertible
preferred stock may not redeem the convertible preferred stock.
From and after the third anniversary of the date on which the
convertible preferred stock is first issued, if over a period of
30 consecutive trading days the average Volume Weighted Closing
Price of our common stock for any 20 days during such
30-day
period equals or exceeds 130% of the then-prevailing conversion
price per share, we may, at our option, redeem some or all of
the outstanding shares of convertible preferred stock for cash
at a price of $10.00 per share of convertible preferred stock
(as adjusted to reflect any stock dividends, splits,
combinations or other similar recapitalization with respect to
the shares of convertible preferred stock) plus all accumulated,
accrued and unpaid dividends, if any, whether or not declared,
to the date of redemption, on the shares of convertible
preferred stock being redeemed (which may, at our election, be
in the form of cash, shares of common stock or a combination of
cash and shares of common stock). We are not required to set
aside funds to redeem the convertible preferred stock.
Other Terms. We will not be required to pay
any tax that may be payable in respect of any transfer involved
in the issue and delivery of common stock upon conversion of
convertible preferred stock in a name other than that of the
holder of the shares of convertible preferred stock being
converted, nor will we be required to issue or deliver any such
shares or other securities or property unless and until the
person or persons requesting the issuance has paid to us the
amount of any tax owing or has established to our satisfaction
that the tax has been paid.
The terms of the convertible preferred stock will be set forth
in the Certificate of Designations of the 8.75% Series A
Convertible Preferred Stock to be filed prior to the
consummation of the rights offering. The summary of the terms of
the convertible preferred stock above is not intended to be
complete and is subject to, and qualified in its entirety by
reference to, our certificate of incorporation and the
Certificate of Designations.
Rights
Certificates
Promptly after the date of this prospectus, the subscription
agent will send a rights certificate to each holder of our
common stock that is entitled to receive a rights certificate
and that is registered on our stockholder registry maintained at
The Bank of New York Mellon, the transfer agent for our common
stock. If you own your shares of common stock through a broker,
bank or other nominee, you will not receive an actual rights
certificate. If you wish to obtain a separate rights
certificate, you should promptly contact your broker, bank or
other nominee and request a separate certificate. It is not
necessary to have a physical rights certificate in order to
exercise or sell your subscription rights.
32
Issuance
of Our Convertible Preferred Stock
If you properly exercise your subscription rights, you will be
deemed to own shares of the convertible preferred stock
immediately after the expiration of the rights offering. We will
issue a Direct Registration System book-entry statement
representing the shares of convertible preferred stock to you or
DTC on your behalf, as the case may be, promptly after the
completion of the rights offering and after all pro rata
allocations and adjustments have been completed. We have the
discretion to delay distribution of any shares you may elect to
purchase by exercise of subscription rights if necessary to
comply with state securities laws. No interest will be paid to
you on the funds you deposit with the subscription agent.
Fractional
Subscription Rights and Common Stock
We will not issue fractional subscription rights or cash in lieu
of fractional subscription rights. Fractional subscription
rights will be eliminated by rounding to the nearest whole
share, with such adjustments as may be necessary to ensure that
we offer 4,000,000 shares of convertible preferred stock in
the rights offering. In the event that, because of the rounding
of fractional subscription rights, the rights offering would
have been subscribed in an amount in excess of
4,000,000 shares of convertible preferred stock, all
holders subscription rights will be reduced in an
equitable manner. Any excess subscription funds will be promptly
returned, without interest or deduction.
If, upon conversion of the convertible preferred stock, a holder
would be entitled to receive a fractional interest in a share of
our common stock, we will, upon conversion, pay in lieu of such
fractional interest, cash in an amount equal to the product of
(a) the Closing Price (as defined in the next sentence) of
a share of common stock on the fifth trading day immediately
preceding the date on which shares of common stock are issued
upon conversion of a share of convertible preferred stock, and
(b) such fraction of a share. The Closing Price
for each trading day will be the last reported sale price
regular way or, in case no sale takes place on such day, the
average of the closing bid and ask prices regular way on such
trading day, in either case as reported by the New York Stock
Exchange, or, if our common stock is not listed or admitted to
trading on the New York Stock Exchange, on the principal
national securities exchange on which our common stock is listed
or admitted to trading, or, if our common stock is not listed or
admitted to trading on any national securities exchange, the
average of the bid and ask prices for such day on the principal
inter-dealer quotation system on which our common stock is
quoted, or, if our common stock is not quoted on any such
inter-dealer quotation system, the average of the bid and ask
prices for such day as furnished by any New York Stock Exchange
member firm selected from time to time by us for that purpose,
or, if no such bid and ask prices can be obtained from any such
firm, the fair market value of one share of our common stock on
such day as determined in good faith by our board of directors.
Method of
Purchase Exercise of Subscription Rights
You may exercise your subscription rights by properly completing
and signing your rights certificate. You must deliver your
rights certificate, together with any required signature
guarantees or other supplemental documentation, to The Bank of
New York Mellon, which is acting as the subscription agent for
the rights offering. The subscription agent will not accept a
facsimile transmission of your completed rights certificate.
This delivery must be accompanied by full payment of the
exercise price for each share of convertible preferred stock you
wish to purchase. If you send your rights certificate by mail,
we recommend that you send it by registered mail, properly
insured, with return receipt requested. If you cannot deliver
your rights certificate to the subscription agent prior to the
expiration of the rights offering, you may follow the guaranteed
delivery procedures described below under
Guaranteed Delivery Procedures.
Method of
Payment of Exercise Price
Your payment of the exercise price must be made in
U.S. dollars for the full number of shares of convertible
preferred stock you are purchasing pursuant to the exercise of
subscription rights by:
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certified check drawn upon a U.S. bank payable to the
subscription agent;
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cashiers check drawn upon a U.S. bank or express
money order payable to the subscription agent; or
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wire transfer of funds to the account maintained by the
subscription agent for the purpose of the rights offering at:
[ ].
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To confirm receipt of your wire transfer, you may call the
subscription agent at [ ]. You may also
wish to send to the subscription agent by facsimile transmission
at [ ] a confirmation of your wiring
instructions to alert the subscription agent to your incoming
wire transfer.
The subscription agent will not accept non-certified checks
drawn on personal or business accounts. The subscription agent
will accept payment only by certified check, cashiers
check, express money order or wire transfer of funds.
Receipt
of Payment
Your payment will be considered received by the subscription
agent only upon receipt of payment in the manner set forth above.
We will retain any interest earned on the payments held by the
subscription agent before your shares have been issued to you or
your payment is returned to you because your exercise has not
been satisfied for any reason.
Delivery
of Rights Certificate and Payment
You should deliver your rights certificate, payment of the
exercise price (unless you decide to wire your payment) and any
notices of guaranteed delivery to the subscription agent by
mail, hand delivery or overnight courier to:
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Mail:
The Bank of New York Mellon
c/o BNY
Mellon Shareowner Services
Attn: Corporate Action Dept.,
27th
Floor
P.O. Box [ ]
South Hackensack, NJ 07606
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Hand Delivery or Overnight Courier:
The Bank of New York Mellon
c/o BNY
Mellon Shareowner Services
Attn: Corporate Action Dept.,
27th
Floor
480 Washington Boulevard
Jersey City, NJ 07310
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Payment of the exercise price by wire transfer may be made as
provided above under Method of Payment
of Exercise Price.
If you have questions about whether your completed rights
certificate or payment has been received, you may call the
subscription agent at [ ].
Your delivery to an address other than the address set forth
above or by any method other than as set forth above will not
constitute valid delivery.
Calculation
of Subscription Rights Exercised
If you do not indicate the number of subscription rights being
exercised, or do not forward full payment of the exercise price
for each share of convertible preferred stock you wish to
purchase, then you will be deemed to have exercised your
subscription rights with respect to the maximum number of
convertible preferred stock that may be purchased using the
total amount that you delivered to the subscription agent.
Unexercised
Subscription Rights
In the event that any portion of the subscription rights are not
exercised by the holders thereof prior to the expiration of the
rights offering, including through the exercise of
over-subscription rights, we have the option, but not the
obligation, to offer the shares of convertible preferred stock
that were subject to such unexercised subscription rights, at
the same price per share, to persons and entities that did not
hold shares of our common stock as of the record date.
34
Your
Funds Will Be Held by the Subscription Agent Until Shares of
Convertible Preferred Stock Are Issued
The subscription agent will hold your payment of the exercise
price in a segregated account with other payments received from
other rights holders until we issue your shares to you upon
consummation of the rights offering.
Signature
Guarantee May Be Required
Your signature on your rights certificate must be guaranteed by
an eligible institution if you are exercising your subscription
rights, unless:
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your rights certificate provides that shares are to be delivered
to you as record holder of those subscription rights; or
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you are an eligible institution.
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An eligible institution is a financial
institution, which term includes most commercial banks,
savings and loan associations and brokerage houses, that is a
participant in any of the following:
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the Securities Transfer Agents Medallion Program;
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the New York Stock Exchange, Inc. Medallion Signature
Program; or
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the Stock Exchanges Medallion Program.
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Notice to
Nominees
If you are a broker, bank or other nominee who holds shares of
our common stock for the account of others on the record date,
you should notify the beneficial owners of the shares for whom
you are the nominee and of the rights offering as soon as
possible to learn their intentions with respect to exercising or
selling their subscription rights pursuant to their
Beneficial Owner Election Form. You should obtain
instructions from the beneficial owner, as set forth in the
instructions we have provided to you for your distribution to
beneficial owners. If the beneficial owner so instructs, you
should complete the appropriate rights certificate and submit it
to the subscription agent with the proper payment. If you hold
shares of our common stock for the account(s) of more than one
beneficial owner, you may exercise the number of subscription
rights to which all beneficial owners in the aggregate otherwise
would have been entitled had they been direct holders of our
common stock on the record date, provided that you, as a nominee
record holder, make a proper showing to the subscription agent
by submitting the form entitled Nominee Holder
Certification which is provided with your rights offering
materials.
Beneficial
Owners
If you hold shares of our common stock through a broker, bank or
other nominee, you will need to have your broker, bank or other
nominee act for you if you wish to exercise or sell your
subscription rights. If you wish to exercise or sell your
subscription rights, you should complete and return to your
broker, bank or other nominee the form entitled Beneficial
Owner Election Form. You should receive this form from
your broker, bank or other nominee with the other rights
offering materials. You should contact your broker, bank or
other nominee if you believe you are entitled to participate in
the rights offering but have not received this form. If you wish
to obtain a separate rights certificate, you should promptly
contact the broker, bank or other nominee and request that a
separate rights certificate be issued to you.
If you hold certificates of our common stock directly and would
prefer to have your broker, bank or other nominee act for you,
you should promptly contact your broker, bank or other nominee
and request it to effect the transactions for you. If you wish
to exercise or sell your subscription rights, you should
complete and return to your broker, bank or other nominee the
form entitled Beneficial Owner Election Form. You
should receive this form from your broker, bank or other nominee
with the other rights offering materials.
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If you wish to exercise or not exercise your subscription
rights, the Beneficial Owner Election Form must be
completed and returned to your broker, bank or other nominee
such that it will actually be received by your broker, bank or
other nominee by 6:00 p.m., New York City time,
on ,
2010, the last business day prior to the scheduled expiration
date of the rights offering
of ,
2010, which may be extended by us in our sole discretion. If you
wish to sell some or all of your subscription rights, the
Beneficial Owner Election Form must be completed and
returned to your broker, bank or other nominee such that it will
actually be received by your broker, bank or other nominee by
6:00 p.m., New York City time,
on ,
2010, the fifth business day prior to the scheduled expiration
date of the rights offering
of ,
2010, which may be extended by us in our sole discretion.
We will not charge a brokerage commission or a fee to rights
holders for exercising their subscription rights. If you
exercise your subscription rights through a broker, bank or
other nominee, however, you will be responsible for any fees
charged by your broker, bank or nominee. If you sell your
subscription rights, you will be responsible for any fees or
commissions relating to that sale.
Instructions
for Completing Your Rights Certificate
You should read and follow the instructions accompanying the
rights certificate carefully.
If you want to exercise your subscription rights, you should
send your rights certificate with the payment of the exercise
price to the subscription agent. Payment can also be made by
wire transfer, but you still need to send your rights
certificate to the subscription agent. Do not send your rights
certificate and exercise price payment to us or the information
agent.
You are responsible for the method of delivery of your rights
certificate. If you send your rights certificate by mail, we
recommend that you send it by registered mail, properly insured,
with return receipt requested. You should allow a sufficient
number of days to ensure delivery of your rights certificate to
the subscription agent prior to the expiration of the rights
offering.
No
Revocation of Exercise of Subscription Rights
Once you have exercised your subscription rights, you may not
revoke or withdraw your exercise. Unless our board of directors
cancels or terminates the rights offering, all exercises of
subscription rights are irrevocable, even if you later learn
information that you consider to be unfavorable to the exercise
of your subscription rights. You should not exercise your
subscription rights unless you are certain that you wish to
purchase shares of convertible preferred stock at an exercise
price of $10.00 per share.
Determinations
Regarding the Exercise of Your Subscription Rights
We will decide all questions concerning the timeliness,
validity, form and eligibility of your exercise of your
subscription rights and our determinations will be final and
binding. We, in our sole discretion, may waive any defect or
irregularity, or permit a defect or irregularity to be corrected
within the time period as we may determine. We may reject the
exercise of any of your subscription rights because of any
defect or irregularity in the exercise, and we may accept your
exercise only to the extent of the payment received if you or
your broker, bank or other nominee sends an incorrect payment
amount. We will not receive or accept any exercise of
subscription rights until all irregularities have been waived by
us or cured by you by the time that we decide, in our sole
discretion.
Neither we nor the subscription agent will be under any duty to
notify you of any defect or irregularity in connection with the
submission of your rights certificate, and we will not be liable
for failure to notify you of any defect or irregularity. We
reserve the right to reject your exercise of subscription rights
if it is not in accordance with the terms of the rights offering
or in proper form. We and the subscription agent will also not
accept your exercise of subscription rights if we and the
subscription agent believe, in our sole discretion, that our
issuance of shares of our convertible preferred stock to you
could be deemed unlawful under applicable law or is materially
burdensome to us.
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Guaranteed
Delivery Procedures
If you wish to exercise your subscription rights, but you do not
have sufficient time to deliver the rights certificate
evidencing your subscription rights to the subscription agent
prior to the expiration of the rights offering, you may exercise
your subscription rights by the following guaranteed delivery
procedures:
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deliver to the subscription agent prior to the expiration of the
rights offering the exercise price payment for each share of
convertible preferred stock you elected to purchase pursuant to
the exercise of subscription rights in the manner set forth
above under Method of Payment of Exercise
Price;
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deliver to the subscription agent prior to the expiration of the
rights offering the form entitled Notice of Guaranteed
Delivery; and
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deliver the properly completed rights certificate evidencing
your subscription rights being exercised and the related nominee
holder certification, if applicable, with any required
signatures guaranteed, to the subscription agent within three
(3) business days following the date you submit your Notice
of Guaranteed Delivery.
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Your Notice of Guaranteed Delivery must be delivered in
substantially the same form provided with the Instructions for
Completion of Rights Certificates, which will be distributed to
you with your rights certificate. Your Notice of Guaranteed
Delivery must include a signature guarantee from an eligible
institution, acceptable to the subscription agent. A form of
that guarantee is included with the Notice of Guaranteed
Delivery.
In your Notice of Guaranteed Delivery, you must provide:
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your name;
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the number of subscription rights represented by your rights
certificate and the number of shares of our convertible
preferred stock you are purchasing under your subscription
rights; and
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your guarantee that you will deliver to the subscription agent a
rights certificate evidencing the subscription rights you are
exercising within three (3) business days following the
date the subscription agent receives your Notice of Guaranteed
Delivery.
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You may deliver your Notice of Guaranteed Delivery to the
subscription agent in the same manner as your rights certificate
at the address set forth above under Delivery
of Rights Certificate and Payment. You may alternatively
transmit your Notice of Guaranteed Delivery to the subscription
agent by facsimile transmission at [ ].
To confirm facsimile deliveries, you may call
[ ].
The information agent will send you additional copies of the
form of Notice of Guaranteed Delivery if you need them. Banks
and brokerage firms should call the information agent at
[ ] to request additional copies of the
form of Notice of Guaranteed Delivery. All other persons should
call toll-free at [ ].
Subscription
Agent and Information Agent
We have appointed The Bank of New York Mellon to act as
subscription agent and information agent for the rights
offering. We will pay all customary fees and expenses of the
subscription agent and the information agent related to the
rights offering, except for fees, applicable brokerage
commissions, taxes and other expenses relating to the sale of
subscription rights by the subscription agent, all of which will
be for the account of the transferor of the subscription rights.
We also have agreed to indemnify the subscription agent and the
information agent from liabilities that they may incur in
connection with the rights offering.
Transferability
of Subscription Rights
The subscription rights will be transferable commencing
on ,
2010 and will continue to be transferable until 4:00 p.m.,
New York City time,
on ,
2010, the last business day prior to the expiration date of the
rights offering, which may be extended by us in our sole
discretion.
37
Method of
Selling Subscription Rights
You may seek to sell your subscription rights through normal
investment channels. We anticipate that the subscription rights
will be eligible to trade on the NYSE from the commencement of
the rights offering until 4:00 p.m., New York City time,
on ,
2010, the last business day prior to the scheduled expiration
date of the rights offering, which may be extended by us in our
sole discretion. The subscription rights are a new issue of
securities, however, and do not have an established trading
market. We cannot give you any assurance that a market for the
subscription rights will develop or, if a market does develop,
as to how long it will continue or at what prices the
subscription rights will trade. Therefore, we cannot assure you
that you will be able to sell any of your subscription rights or
as to the value you may receive in a sale. Commissions and
applicable taxes or broker fees may apply if you sell your
subscription rights.
Method of
Transferring Subscription Rights
You may transfer the subscription rights evidenced by a single
rights certificate by completing Box 4 and Box 5,
Section II of your rights certificate in accordance with
the instructions on your rights certificate. A portion of the
subscription rights evidenced by a single rights certificate
representing full and not any fractional subscription rights may
be transferred by delivering to the subscription agent a rights
certificate properly endorsed for transfer, with instructions to
register that portion of the subscription rights indicated in
the name of the transferee and to issue a new rights certificate
to the transferee evidencing the transferred subscription rights.
If you wish to transfer all or a portion of your subscription
rights, you should allow a sufficient amount of time prior to
the expiration of the rights offering for the transfer
instructions to be received and processed by the subscription
agent and the subscription rights evidenced by the new rights
certificates to be exercised or sold by the recipients of the
rights certificates. The required time will depend upon the
method by which delivery of the rights certificates and payment
is made and the number of transactions you instruct the
subscription agent to effect. Please bear in mind that the
rights offering period is limited. Neither we nor the
subscription agent shall have any liability to a transferee or
you if rights certificates or any other required documents are
not received in time for exercise or sale prior to the
expiration of the rights offering.
A new rights certificate will be issued to you upon the partial
sale of subscription rights. However, unless you make other
arrangements with the subscription agent, you must pick up your
new rights certificate representing your unused subscription
rights at the subscription agents address set forth above
under Delivery of Rights Certificate and
Payment.
Selling
Subscription Rights through the Subscription Agent
If you hold your subscription rights in your own name, you may
seek to sell or transfer your subscription rights through the
subscription agent. If you wish to have the subscription agent
seek to sell your subscription rights, you must check the
applicable box in Box 4 and Box 5, Section II of
your rights certificate and deliver your rights certificate to
the subscription agent. If you want the subscription agent to
seek to sell only a portion of your subscription rights, you
must include instructions setting forth what you would like done.
If the subscription agent sells subscription rights for you, it
will send you a check for the net proceeds from the sale of any
of your subscription rights as soon as practicable after the
expiration of the rights offering. If your subscription rights
can be sold, the sale will be deemed to have been made at the
weighted average net sale price of all subscription rights sold
by the subscription agent regardless of the price actually
received by the subscription agent for the sale of your
subscription rights. The subscription agent will charge a
transaction fee of $[ ] per sale
transaction for each holder of subscription rights whose
subscription rights are sold in that transaction and any
applicable taxes, regardless of the number of subscription
rights sold in that transaction. The aggregate fees charged by
the subscription agent for selling subscription rights will be
deducted from the aggregate sale price for all such subscription
rights in determining the weighted average net sale price of all
such subscription rights. Neither we nor the subscription agent
can give you any assurance that the subscription agent will be
able to sell your subscription rights.
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The subscription agent must have received your properly executed
rights certificate and appropriate instructions before
6:00 p.m., New York City time,
on ,
2010, the fifth business days before the expiration date of the
rights offering. If less than all sales orders received by the
subscription agent are filled, it will prorate the sales
proceeds among you and the other holders of subscription rights
based on the number of subscription rights that each holder has
instructed the subscription agent to sell, regardless of when
the instructions are received by it. The subscription agent is
required to sell your subscription rights only if it is able to
find buyers. If the subscription agent cannot sell your
subscription rights by 4:00 p.m., New York City time,
on ,
2010, the third business day prior to the expiration date of the
rights offering, the subscription agent will return your rights
certificate to you by overnight delivery.
Foreign
Stockholders
If you are a rights holder whose address is outside the United
States, and if it is not, in our sole judgment, unlawful to do
so, the subscription agent will mail rights certificates to you.
To exercise your subscription rights, you must notify the
subscription agent on or prior to 6:00 pm, New York City time,
on ,
2010, the expiration date of the rights offering (unless the
exercise period is extended by us), and take all other steps
which are necessary to exercise your subscription rights, on or
prior to that time. If you do not follow these procedures prior
to the expiration date of the rights offering, your subscription
rights will expire.
The rights offering is not being made in any state or other
jurisdiction in which it would be unlawful to do so, nor are we
selling to you, or accepting any offers from you to purchase,
shares of convertible preferred stock if you are a resident of
any such state or other jurisdiction. If necessary, we may delay
commencement of the rights offering in certain states or other
jurisdictions in order to comply with the securities law
requirements of those states or other jurisdictions. In
addition, in certain circumstances, in order to comply with
applicable state securities laws, we may not be able to honor
all over-subscription rights even if we have shares of
convertible preferred stock available. We do not anticipate that
there will be any changes in the rights offering, and we may, in
our sole discretion, decline to make modifications to the terms
of the rights offering requested by regulators in states or
other jurisdictions, in which case stockholders who live in
those states or other jurisdictions will not be eligible to
participate in the rights offering.
Procedures
for DTC Participants
We expect that subscription rights may be exercised through the
facilities of DTC. If your subscription rights are held of
record through DTC, you may exercise your subscription rights
for each beneficial holder by instructing DTC, or having your
broker instruct DTC, to transfer your subscription rights from
your account to the account of the subscription agent, together
with certification as to the aggregate number of subscription
rights you are exercising and the exercise price for each share
you are purchasing pursuant to your exercise of your
subscription rights.
Extensions,
Amendments and Termination
The period for exercising the subscription rights will be
extended as required by applicable law and may be extended if we
decide that changes in the market price of our common stock
warrant an extension or if we decide to give rights holders more
time to exercise their subscription rights. We may extend the
expiration date by giving oral or written notice to the
subscription agent and information agent prior to the scheduled
expiration of the rights offering. If we elect to extend the
exercise period, we will issue a press release announcing the
extension no later than 9:00 a.m., New York City time, on
the business day prior to the most recently announced expiration
date.
We reserve the right, in our sole discretion, to amend or modify
the terms of the rights offering.
In addition, while we have no intention of terminating the
rights offering, we have reserved the right to terminate the
rights offering in the event that unforeseen circumstances
occur, including a change in the market price of our common
stock, between the date of this prospectus and the scheduled
expiration of the rights offering. If the rights offering is
terminated, we will issue a press release announcing the
termination, and the subscription agent will return as soon as
practicable all exercise payments, without interest and
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deduction. If you hold your shares in street name,
it may take longer for you to receive payment because the
subscription agent will send payment through the record holder
of your shares.
No Board
Recommendation
Neither we nor our board of directors has made any
recommendation as to whether you should exercise or sell your
subscription rights. You should make those decisions based upon
your own assessment of your best interests. However, if you do
not exercise or sell your subscription rights, you will lose any
value inherent in the subscription rights, and if you do not
exercise your subscription rights, your percentage ownership
interest in us will be diluted.
Stockholder
Indications
Alon Israel, which owns approximately 76% of our outstanding
common stock, has indicated its intention to exercise its basic
subscription rights to purchase approximately $30 million
of convertible preferred stock. If Alon Israel exercises its
basic subscription rights in full and no other subscription
rights are exercised, Alon Israel would own approximately 77.69%
of our common stock assuming Alon Israel fully converts the
convertible preferred stock held by it to common stock
immediately following completion of the rights offering.
Listing
of Convertible Preferred Stock
The convertible preferred stock is a new issue of securities
with no established trading market. We intend to apply to list
the convertible preferred stock on the New York Stock Exchange.
If approved for listing, we expect trading of the convertible
preferred stock to begin within days after the
expiration of the rights offering. Listing of the convertible
preferred stock does not guarantee that a trading market for the
convertible preferred stock will develop. If there is no active
trading market, or the trading market is not sustained, you may
not be able to sell your convertible preferred stock or be able
to sell your convertible preferred stock at a price that is
satisfactory to you. In the event there is not an active trading
market in the convertible preferred stock, because there is no
maturity date for the convertible preferred stock, conversion of
the convertible preferred stock into shares of our common stock
and the sale of those shares of common stock or redemption by us
of your shares of convertible preferred stock may be the only
way for you to liquidate your investment in any shares of
convertible preferred stock you purchase in the rights offering.
Common
Stock and Convertible Preferred Stock
On the record date for the rights offering, there
were shares
of our common stock outstanding. Assuming that the rights
offering is fully subscribed, 4,000,000 shares of
convertible preferred stock will be outstanding immediately
after the rights offering. Based upon the initial conversion
rate and assuming 54,181,329 shares of our common stock
were outstanding immediately prior to the expiration of the
rights offering, 5,376,400 shares of common stock would be
issuable upon the conversion of the convertible preferred stock,
and we would have 59,557,729 shares of common stock
outstanding, assuming the full conversion of the convertible
preferred shares, immediately after the closing of the rights
offering.
Questions
About Exercising Subscription Rights
If you have any questions about or require assistance regarding
the procedure for exercising your subscription rights, including
the procedure if you have lost your rights certificate or would
like additional copies of this prospectus, the Instructions for
Completion of the Rights Certificates or the Notice of
Guaranteed Delivery, please contact the information agent at
[ ].
If you have any questions about whether your completed rights
certificate or payment has been received, please contact the
subscription agent at [ ].
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MATERIAL
UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The following discussion is a summary of the material federal
income tax consequences of the rights offering to holders of
common stock that hold such stock as a capital asset for federal
income tax purposes. This discussion is based on laws,
regulations, rulings and decisions in effect on the date of this
prospectus, all of which are subject to change (possibly with
retroactive effect) and to differing interpretations. This
discussion applies only to holders that are U.S. persons,
meaning (a) a citizen or resident of the United States,
(b) a domestic corporation, (c) any estate (other than
a foreign estate), and (d) any trust so long as a court
within the United States is able to exercise primary supervision
over the administration of the trust and one or more
U.S. persons have the authority to control all substantial
decisions of the trust, or a trust that elects to be so treated.
Generally, for federal income tax purposes an estate is
classified as a foreign estate based on the location
of the estate assets, the country of the estates
domiciliary administration, and the nationality and residency of
the domiciliary personal representative.
This discussion does not address all aspects of federal income
taxation that may be relevant to holders in light of their
particular circumstances or to holders who may be subject to
special tax treatment under the Code, including, but not limited
to, holders who are subject to the alternative minimum tax,
holders who are dealers in securities or foreign currency,
foreign persons (defined as all persons other than
U.S. persons), insurance companies, tax-exempt
organizations, banks, financial institutions, broker-dealers,
holders who hold common stock as part of a hedge, straddle,
conversion or other risk reduction transaction, or holders who
acquired common stock pursuant to the exercise of compensatory
stock options or warrants or otherwise as compensation.
We have not sought, and will not seek, a ruling from the
Internal Revenue Service regarding the federal income tax
consequences of the rights offering or the related share
issuances. The following summary does not address the tax
consequences of the rights offering or the related share
issuance under foreign, state, or local tax laws. Accordingly,
each recipient of subscription rights should consult its tax
advisor with respect to the particular tax consequences of the
rights offering or the related share issuances.
The material federal income tax consequences for a
U.S. person holding common stock on receipt of subscription
rights under the rights offering will be as follows:
Subscription
Rights
Receipt. The distribution by a corporation to
the holders of its common stock of subscription rights to
acquire its convertible preferred stock will be treated for tax
purposes as a distribution of the convertible preferred stock
itself. The distribution by a corporation of convertible
preferred stock to holders of its common stock will not be
taxable unless the distribution of such stock would result in a
disproportionate distribution. In general, a
distribution of convertible preferred stock will be treated as
disproportionate when considering all relevant facts and
circumstances such as the time within which the conversion right
must be exercised, the dividend rate, the marketability of the
stock and the conversion price, the distribution is likely to
result in some stockholders exercising their conversion rights
and receiving common stock and others receiving money or other
property (e.g., the receipt by non-converting stockholders of
convertible preferred stock redemption proceeds). According to
applicable Treasury regulations, a distribution of convertible
preferred stock is unlikely to result in a disproportionate
distribution under circumstances where (a) the conversion
right may be exercised over a long period (e.g., 20 years)
and (b) the dividend rate is consistent with market
conditions at the time the convertible preferred stock is
distributed. In contrast, applicable Treasury regulations
provide that a distribution of convertible preferred stock is
likely to result in a disproportionate distribution under
circumstances where (a) the conversion right must be
exercised within a relatively short period (e.g., four months)
and (b) taking into account additional factors such as the
conversion price, dividend rate, redemption provisions and
marketability of the convertible preferred stock it may be
anticipated that some stockholders will exercise their
conversion right and some will not.
Because the determination of whether or not a distribution of
convertible preferred stock will be treated as disproportionate
is based on all relevant facts and circumstances, and because
the applicable Treasury regulations only provide specific
guidance in the more extreme cases referred to above, it is not
possible to
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definitively conclude whether the currently contemplated
distribution of subscription rights (or a distribution of the
convertible preferred stock) to holders of common stock would be
considered to result in a disproportionate
distribution. Nevertheless, for information reporting and other
United States federal income tax purposes, we believe that the
distribution of subscription rights should not be treated as
substantially disproportionate, and thus should not be treated
as a taxable event to you, based primarily on the following
considerations: (a) the fact that the right to convert the
convertible preferred stock into common stock (which continues
for the life of the convertible preferred stock) is
substantially longer than the four-month period used by
regulations described above to illustrate a set of circumstances
under which full conversion is unlikely to occur and thus a
distribution is substantially disproportionate; (b) the
fact that there is no current market for convertible preferred
stock (and no assurance that a market for the convertible
preferred stock will develop) indicates that any convertible
preferred stock stockholder that desired to liquidate such
holders investment prior to redemption of the convertible
preferred stock would likely have to convert such stock into
common stock; and (c) the fact that we cannot redeem the
preferred stock except in cases in which all holders would be
expected to have already converted, and even then might elect to
automatically convert all the shares of convertible preferred
stock to shares of common stock instead of redeeming it for
cash, is inconsistent with the assumption that some holders of
the preferred will end up with cash while others end up with
common stock. Because of the uncertainty of the law, however,
the Internal Revenue Service may assert that your receipt of
subscription rights is currently taxable, with the consequences
described below under the heading
Alternative Treatment of Subscription
Rights. It is uncertain whether this position would be
sustained by a court if challenged by the Internal Revenue
Service. The remainder of the discussion under this heading
Subscription Rights assumes that
the distribution of the subscription rights in the rights
offering will not result in a disproportionate
distribution.
Tax Basis and Holding Period. The tax basis of
the subscription rights you receive will be zero unless either
(a) the fair market value of the subscription rights on the
date distributed is equal to at least 15% of the fair market
value on such date of the common stock with respect to which the
subscription rights are received or (b) you elect, by
attaching a statement to your federal income tax return for the
taxable year in which the subscription rights are received, to
allocate part of your tax basis of such common stock to the
subscription rights. We do not believe that the fair market
value of the subscription rights satisfies the 15% threshold.
If, however, you elect to allocate part of your tax basis to the
subscription rights, then upon exercise of the subscription
rights, your tax basis in the common stock will be allocated
between the common stock and the subscription rights in
proportion to their respective fair market values on the date
the subscription rights are distributed. Your holding period for
the subscription rights received in the rights offering will
include your holding period for the common stock with respect to
which the subscription rights were received.
Expiration. You will not recognize any gain or
loss if you allow the subscription rights received in the rights
offering to expire, and your tax basis in the common stock with
respect to which such subscription rights were distributed will
be equal to the tax basis of such common stock immediately
before the receipt of the subscription rights in the rights
offering.
Exercise; Tax Basis in and Holding Period of Convertible
Preferred Stock. You will not recognize any gain
or loss upon the exercise of the subscription rights received in
the rights offering. The tax basis of the convertible preferred
stock acquired through exercise of the subscription rights will
equal the sum of the exercise price for the convertible
preferred stock and your tax basis, if any, in the subscription
rights as described above. Your holding period for the
convertible preferred stock acquired through exercise of the
subscription rights will begin on the date the subscription
rights are exercised.
Alternative
Treatment of Subscription Rights
Receipt of the Subscription Rights. If the
Internal Revenue Service were to successfully assert that the
distribution of the subscription rights in the rights offering
resulted in a disproportionate distribution, each
holder would be considered to have received a distribution with
respect to such holders common stock in an amount equal to
the fair market value of the subscription rights received by
such holder on the date of the distribution. This distribution
generally would be taxed as dividend income to the extent of
your ratable share of our current and accumulated earnings and
profits. We believe that it has accumulated earnings and profits
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as of the end of its 2009 taxable year, and that it may have
positive earnings and profits during 2010, but the precise
amounts of such current or accumulated earnings and profits
cannot be known at this time. The amount of any distribution in
excess of our earnings and profits will be applied to reduce,
but not below zero, your tax basis in your common stock, and any
excess generally will be taxable to you as capital gain
(long-term, if your holding period with respect to your common
stock is more than one year as of the date of distribution).
Under current law, so long as certain holding period
requirements are satisfied, the maximum federal income tax rate
on most dividends received by individuals before January 1,
2011 is generally 15%.
Tax Basis and Holding Period. Under this
alternative view, your tax basis in the subscription rights
received pursuant to the rights offering would be equal to their
fair market value on the date of distribution, and the holding
period for the subscription rights would begin upon receipt. The
remainder of the discussion under this heading
Alternative Treatment of the Subscription
Rights assumes that a holders receipt of
subscription rights in the rights offering is a taxable event.
Expiration. If your subscription rights lapse
without being exercised, you will recognize a capital loss equal
to your tax basis in such expired subscription rights. The
deductibility of capital losses is subject to limitations.
Exercise; Tax Basis in and Holding Period of the Convertible
Preferred Stock. You will not recognize any gain
or loss upon the exercise of the subscription rights received in
the rights offering. The tax basis of the convertible preferred
stock acquired through exercise of the subscription rights will
equal the sum of the exercise price for the convertible
preferred stock and your tax basis in the subscription rights as
described above. The holding period for the convertible
preferred stock acquired through exercise of the subscription
rights will begin on the date the subscription rights are
exercised.
Convertible
Preferred Stock
Dividends. Distributions with respect to your
convertible preferred stock will generally be treated as
dividends to the extent of our current or accumulated earnings
and profits in the year of distribution. Distributions in excess
of our earnings and profits will be applied to reduce, but not
below zero, your tax basis in the convertible preferred stock,
and any excess generally will be taxable as capital gain to you
(long-term if the holding period for your convertible preferred
stock is more than one year at the time of the distribution).
Under current law, so long as certain holding period
requirements are satisfied, the maximum federal income tax rate
on most dividends received by individuals before January 1,
2011 is generally 15%.
Adjustments. In general, anti-dilution
adjustments do not result in constructive distributions.
However, in certain circumstances, an adjustment to the
conversion ratio of the convertible preferred stock, or the
failure to make such an adjustment, may result in constructive
distributions taxable as described in the preceding paragraph.
In such event, your tax basis in the convertible preferred stock
would be increased by the amount of any such dividend.
Conversion. In the event that unpaid dividends
have accrued with respect to your convertible preferred stock in
an amount in excess of the amount that was distributed to you
(which we will refer to herein as an excess dividend
arrearage amount), the conversion of convertible preferred
stock into common stock may result in a constructive
distribution to you. The amount of such a constructive
distribution would be the lesser of (a) the amount by which
the fair market value of the common stock received upon
conversion of your convertible preferred stock exceeds the issue
price of the converted convertible preferred stock, or
(b) the excess dividend arrearage amount. The amount of any
such constructive distribution would be treated for tax purposes
in the manner described under the heading
Convertible Preferred Stock Dividends, above.
The aggregate tax basis of any shares of common stock that you
receive with respect to any excess dividend arrearage amount
(which we will refer to herein as excess dividend
arrearage common stock) will be increased by the amount of
such constructive distribution, and your holding period for any
such shares will begin on the date of the conversion. Subject to
the foregoing, you will not recognize gain or loss upon the
conversion of shares of convertible preferred stock into shares
of our common stock (except to the extent of cash, if any,
received in lieu of fractional shares of common stock). Your tax
basis in the shares of common stock (other than excess dividend
arrearage common stock described above) will equal your tax
basis in the
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shares of convertible preferred stock exchanged therefore, and
your holding period with respect to the shares of common stock
(other than excess dividend arrearage common stock described
above) will include your holding period for the shares of
convertible preferred stock exchanged therefor. The receipt of
cash (if any) in lieu of a fractional interest in a share of
common stock will be taxed as if the fractional share of common
stock had been issued and then redeemed for cash. Accordingly,
you will generally recognize gain or loss in an amount equal to
the difference between the amount of cash received for the
fractional interest and your tax basis in the fractional
interest.
Redemption. Under section 302 of the
Code, a redemption of convertible preferred stock generally will
be treated as a sale or exchange if such redemption completely
terminates your entire actual and constructive stock interest in
our equity or is either substantially
disproportionate or is not essentially equivalent to
a dividend with respect to you. In determining whether any
of these tests is met, you must take into account the shares of
stock actually owned by you as well as the shares of stock
constructively owned by you under the constructive ownership
rules of section 318 of the Code. Under these constructive
ownership rules, you will be deemed to own any shares of our
capital stock that are owned, actually and in some cases
constructively, by certain related individuals or entities and
any shares of our capital stock that you have a right to acquire
by exercise of any option or by conversion of exchange of a
security. A redemption of shares of your convertible preferred
stock will be treated as substantially
disproportionate if (a) your percentage ownership of
our outstanding voting stock (including all classes of stock
that have voting rights) is reduced immediately after the
redemption to less than 80% of your percentage interest in such
stock immediately before the redemption, (b) your
percentage ownership of our outstanding common stock (both
voting and non-voting) immediately after the redemption is
reduced to less than 80% of such percentage ownership
immediately before the redemption, and (c) you own,
immediately after the redemption, less than 50% of the total of
combined voting power of all classes of our stock entitled to
vote. A redemption of shares of your convertible preferred stock
will be treated as not essentially equivalent to a
dividend if you experience a meaningful
reduction in your percentage interest in our equity as a
result of the redemption. Depending on your particular
circumstances, taking into account whether you are part of
management or our board of directors, even a small reduction in
your stock ownership interest in us may satisfy this test. If
the redemption is treated as a sale or exchange, you will
recognize capital gain or loss equal to the difference between
the amount received in the redemption and your tax basis in the
convertible preferred stock immediately before the redemption.
Such capital gain or loss will be long-term if you have held the
convertible preferred stock for more than one year. If the
redemption does not constitute a sale or exchange, the receipt
of cash will be treated as a distribution with respect to the
convertible preferred stock.
Effect of Section 306 on Sale or
Redemption. Section 306 of the Code provides
rules under which gain on a sale or redemption of certain
preferred stock received in tax-free transactions
(Section 306 Stock) may instead be treated as a
dividend. As part of these rules, if stock rights with respect
to preferred stock are issued as a non-taxable distribution,
such stock rights are treated as Section 306 Stock, and the
preferred stock received upon exercise of those rights is also
treated as Section 306 Stock. Thus, assuming that the
distribution of subscription rights is treated as a non-taxable
distribution, as we believes it should be, then your
subscription rights will be treated as Section 306 Stock,
and any convertible preferred stock you acquire by exercising
those rights will also be Section 306 Stock, with the
following results: (a) if you sell the convertible
preferred stock, your gain on the sale will be treated as
ordinary income (rather than as capital gain) to the extent of
the lesser of the fair market value of the subscription rights
at the time of their distribution and your allocable share of
the our current and accumulated earnings and profits as of that
date; (b) if your convertible preferred stock is redeemed
by us, the full amount you receive will be treated as a
distribution from us (and thus taxable as a dividend to the
extent we have, at that time, current or accumulated earnings
and profits) rather than as proceeds from a sale or redemption;
and (c) if your convertible preferred stock is converted
into common stock, the common stock will not be treated as
Section 306 Stock.
44
PLAN OF
DISTRIBUTION
On or
about ,
2010, we will distribute the subscription rights, rights
certificates and copies of this prospectus to the holders of our
common stock that are entitled to subscription rights and are
registered on our stockholder registry maintained at The Bank of
New York Mellon. The subscription rights holders who wish to
exercise their subscription rights and purchase shares of our
convertible preferred stock must complete the rights certificate
and return it with payment for the shares to the subscription
agent at the following address:
|
|
|
By Mail:
The Bank of New York Mellon
c/o BNY
Mellon Shareowner Services
Attn: Corporate Action Dept.,
27th
Floor
P.O. Box [ ]
South Hackensack, NJ 07606
|
|
By Hand Delivery or Overnight Courier:
The Bank of New York Mellon
c/o BNY
Mellon Shareowner Services
Attn: Corporate Action Dept.,
27th
Floor
480 Washington Boulevard
Jersey City, NJ 07310
|
See The Rights Offering Method of
Purchase Exercise of Subscription Rights. If
you have any questions, you should contact the information agent.
In the event that the rights offering is not fully subscribed,
holders of subscription rights who exercise all of their
subscription rights pursuant to their basic subscription right
will have the opportunity to subscribe for unsubscribed rights
pursuant to the over-subscription right. See further the section
of this prospectus entitled The Rights Offering.
In the event that any portion of the subscription rights are not
exercised by the holders thereof prior to the expiration of the
rights offering, including through the exercise of
over-subscription rights, we have the option, but not the
obligation, to offer the shares of convertible preferred stock
that were subject to such unexercised rights, at the same price
per share, to persons and entities that did not hold shares of
our common stock as of the record date.
Alon Israel, which owns approximately 76% of our outstanding
common stock, has indicated its intention to exercise its basic
subscription rights to purchase approximately $30 million
of convertible preferred stock.
Currently, we have not employed any brokers, dealers or
underwriters in connection with the solicitation for exercise of
subscription rights in the rights offering. During the rights
offering period, we may decide to engage a dealer-manager to
coordinate the marketing of the rights offering and to solicit
stockholders to exercise their subscription rights. If we
determine to engage a dealer-manager we intend to file a report
with the SEC to disclose the terms of the agreement, including
commission, fees and reimbursement arrangements. We will pay the
fees and expenses of The Bank of New York Mellon, as
subscription agent and information agent, except for fees,
applicable brokerage commissions, taxes and other expenses
relating to the sale of subscription rights by the subscription
agent, all of which will be for the account of the transferor of
the subscription rights, and we have agreed to indemnify the
subscription agent and the information agent from certain
liabilities in connection with the offering. We will pay out-of
pocket expenses, including payments to legal advisors,
accountants and subscription agents, printing costs, mailing
costs and filing fees estimated to total approximately
$ .
45
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL HOLDERS AND MANAGEMENT
The following table presents information regarding the number of
shares of Alon common stock beneficially owned as of
August 1, 2010 by each of Alons directors, each
executive officer of Alon named in the Summary Compensation
Table included in our 2010 Proxy Statement, which is
incorporated by reference herein, and all directors and
executive officers of Alon as a group. In addition, the table
presents information about each person known by Alon to
beneficially own 5% or more of Alons outstanding common
stock. The table also presents the potential effects of the
rights offering on the ownership of common stock (assuming
conversion of the convertible preferred stock immediately after
consummation of the rights offering) if only Alon Israel
exercises its basic subscription rights and no other shares of
convertible preferred stock are sold. Unless otherwise indicated
by footnote, the beneficial owner exercises sole voting and
investment power over the shares. The percentage of outstanding
shares is calculated on the basis of 54,181,329 shares of
Alon common stock outstanding as of August 1, 2010.
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|
|
|
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|
|
|
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Beneficial Share Ownership
|
|
|
|
|
|
|
|
|
|
Percent of
|
|
|
|
|
|
|
|
|
|
Outstanding Shares
|
|
|
|
|
|
|
|
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|
if only Alon Israel
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Percent of
|
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|
Exercises Basic
|
|
|
|
Number
|
|
|
Outstanding
|
|
|
Subscription
|
|
|
|
of Shares
|
|
|
Shares
|
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Rights
|
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|
Directors, Executive Officers and 5% Stockholders
|
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|
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Directors and Executive Officers:
|
|
|
|
|
|
|
|
|
|
|
|
|
David Wiessman(1)
|
|
|
2,715,519
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|
|
|
5.01
|
%
|
|
|
4.85
|
%
|
Itzhak Bader
|
|
|
|
|
|
|
|
|
|
|
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Boaz Biran
|
|
|
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|
|
|
|
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Shlomo Even
|
|
|
|
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|
|
|
|
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Avinadav Grinshpon
|
|
|
|
|
|
|
|
|
|
|
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Ron W. Haddock
|
|
|
22,583
|
|
|
|
*
|
|
|
|
*
|
|
Jeff D. Morris(2)
|
|
|
100
|
|
|
|
*
|
|
|
|
*
|
|
Yeshayahu Pery
|
|
|
|
|
|
|
|
|
|
|
|
|
Zalman Segal
|
|
|
10,083
|
|
|
|
*
|
|
|
|
*
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|
Avraham Shochat(3)
|
|
|
8,696
|
|
|
|
*
|
|
|
|
*
|
|
Joseph Israel(4)
|
|
|
7,258
|
|
|
|
*
|
|
|
|
*
|
|
Shai Even(4)
|
|
|
|
|
|
|
|
|
|
|
|
|
Michael Oster(4)
|
|
|
93
|
|
|
|
*
|
|
|
|
*
|
|
Harlin R. Dean(5)
|
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|
7,446
|
|
|
|
*
|
|
|
|
*
|
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All directors and executive officers as a group
(18 persons)(1)(2)(4)
|
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|
2,791,278
|
|
|
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5.15
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%
|
|
|
4.98
|
%
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Other 5% or more Stockholders
|
|
|
|
|
|
|
|
|
|
|
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Alon Israel Oil Company, Ltd.(6)(7)
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41,183,097
|
|
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76.01
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%
|
|
|
77.69
|
%
|
Africa-Israel Investments Ltd.(8)
|
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6,255,313
|
|
|
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11.55
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%
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10.74
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%
|
|
|
|
* |
|
Indicates less than 1% |
|
(1) |
|
Includes: (a) a right to exchange a 2.71% ownership
interest in Alon Israel held in trust by Eitan Shmueli, as
trustee, of which Mr. Wiessman is the sole beneficiary, for
a 2.71% ownership interest in certain subsidiaries of Alon
Israel, including Alon, which if exercised in full as of
August 1, 2010 would represent 1,468,314 shares of
Alon common stock; and (b) 1,247,205 shares of Alon
common stock held by Mr. Wiessman. |
|
(2) |
|
Jeff D. Morris, Claire A. Hart (an executive officer of Alon)
and Joseph A. Concienne, III (an executive officer of Alon)
each own shares of non-voting stock of Alon Assets and Alon
Operating. Alon Assets and Alon Operating are subsidiaries of
Alon through which Alon conducts substantially all of its
business. As |
46
|
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|
|
|
of August 1, 2010, there were 239,462.65 shares of
capital stock of Alon Assets outstanding and
89,921.92 shares of capital stock of Alon Operating
outstanding. Messrs. Morris, Hart and Concienne each own
shares of non-voting stock of Alon Assets and Alon Operating as
set forth in the following table: |
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|
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Alon Assets
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Alon Operating
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|
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Non-Voting
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Percent of all
|
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|
Non-Voting
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|
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Percent of all
|
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Name of Beneficial Owner
|
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Common Stock
|
|
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Common Stock
|
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Common Stock
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|
Common Stock
|
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Jeff D. Morris
|
|
|
10,689.4
|
|
|
|
4.46
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%
|
|
|
4,014.1
|
|
|
|
4.46
|
%
|
Claire A. Hart
|
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2,672.2
|
|
|
|
1.12
|
|
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|
1,003.4
|
|
|
|
1.12
|
|
Joseph A. Concienne
|
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|
1,413.4
|
|
|
|
0.59
|
|
|
|
530.7
|
|
|
|
0.59
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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Total
|
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|
14,775.0
|
|
|
|
6.17
|
%
|
|
|
5,548.2
|
|
|
|
6.17
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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The individuals named in the table above hold options to
purchase an aggregate of 2,793.5 shares of Alon Assets and
1,049.1 shares of Alon Operating. Subject to the
satisfaction of specified performance targets and certain
acceleration events, these options vest in full by
December 31, 2010 (assuming the continued employment of the
individuals). |
|
(3) |
|
Shares of Alon common stock are held in trust by Sian Holdings
Enterprises LTD., which is an entity controlled by
Mr. Shochat. |
|
(4) |
|
Pursuant to the Alon USA Energy, Inc. Amended and Restated 2005
Incentive Compensation Plan, on March 7, 2007 Alon made
grants of Stock Appreciation Rights (SARs) to
certain officers at a grant price of $28.46 per share. On
January 25, 2010, Alon amended the March 7, 2007 SARs
grants to extend the exercise period. The SARs granted on
March 7, 2007 vest as follows: 50% on March 7, 2009,
25% on March 7, 2010 and 25% on March 7, 2011 and are
exercisable (as amended) during the
3-year
period following the date of vesting. |
|
|
|
Pursuant to the Alon USA Energy, Inc. Amended and Restated 2005
Incentive Compensation Plan, on January 25, 2010 Alon made
grants of SARs to certain officers at a grant price of $16.00
per share. The SARs granted on January 25, 2010 vest as
follows: 50% on December 10, 2011, 25% on December 10,
2012 and 25% on December 10, 2013 and are exercisable
during the
365-day
period following the date of vesting. |
|
|
|
When exercised, the SARs are convertible into shares of Alon
common stock, the number of which will be determined at the time
of exercise by calculating the difference between the closing
price of Alon common stock on the exercise date and the grant
price of the SARs (the Spread), multiplying the
Spread by the number of SARs being exercised and then dividing
the product by the closing price of Alon common stock on the
exercise date. In no event may a SAR be exercised if the Spread
is not a positive number. On August 2, 2010, the reported
closing price for Alon common stock on the NYSE was $6.67 which
was less than the respective grant prices, and, as a result, no
shares are reflected in this table in respect of the SARs. |
|
(5) |
|
Harlin R. Dean, Alons Senior Vice President-Legal,
Secretary and General Counsel, resigned effective July 16,
2010. Pursuant to Mr. Deans Form 4s on file with
the SEC on July 16, 2010, he beneficially owned
7,446 shares of Alon common stock on such date. |
|
(6) |
|
Alon Israel filed a Schedule 13D/A with the SEC on
January 5, 2010 reporting that Alon Israel beneficially
owned 41,183,097 shares of Alon common stock, of which it
had sole investment and voting power over 40,952,082 shares
and shared investment and voting power over 231,015 shares
owned by Tabris Investments Inc. (a wholly-owned subsidiary of
Alon Israel). The address of Alon Israel and Tabris is Europark
(France Building), Kibbutz Yakum 60972, Israel. |
47
|
|
|
|
|
As of August 1, 2010, Alon Israel had 6,215,185 ordinary
shares outstanding, which were owned of record as follows: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percent of
|
|
|
|
Number of
|
|
|
Outstanding
|
|
Record Holder
|
|
Shares
|
|
|
Shares
|
|
|
Bielsol Investments (1987) Ltd. (a)
|
|
|
3,131,375
|
|
|
|
50.38
|
%
|
Several Purchase Organizations of the Kibbutz Movement (b)
|
|
|
2,915,497
|
|
|
|
46.91
|
|
Mr. Eitan Shmueli, as trustee (c)
|
|
|
168,313
|
|
|
|
2.71
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
6,215,185
|
|
|
|
100.00
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
(a) |
|
Bielsol Investments (1987) Ltd. is a privately held Israeli
limited liability company that is beneficially owned
(1) 80.0% by Shebug Ltd., an Israeli limited liability
company that is
wholly-owned
by the family of Shraga Biran, the father of Boaz Biran, one of
Alons directors, and (2) 20.0% by David Wiessman, the
Executive Chairman of the Board. The address of Bielsol
Investments (1987) Ltd. is 1 Denmark St., Petach-Tivka,
Israel. |
|
(b) |
|
The Kibbutz Movement is a combination of approximately 270
economic cooperatives, or purchase organizations, engaged in
agriculture, industry and commerce in Israel. The shares of Alon
Israel shown in the table above as owned by several purchase
organizations of the Kibbutz Movement are owned of record by
nine such purchase organizations. Each of the purchase
organizations that owns of record 5% or more of the outstanding
shares of Alon Israel is shown on the following table: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Percent of
|
|
|
Number of
|
|
Outstanding
|
Purchase Organization
|
|
Shares
|
|
Shares
|
|
Granot Cooperative Regional Organization Corporation (i)
|
|
|
505,172
|
|
|
|
8.13
|
%
|
Mishkey Emek Hayarden Ltd.
|
|
|
489,012
|
|
|
|
7.87
|
%
|
Miskey Hanegev Export Ltd.
|
|
|
476,209
|
|
|
|
7.66
|
%
|
Mishkey Darom Cooperative Regional Organization Corporation
|
|
|
385,519
|
|
|
|
6.20
|
%
|
Mishkey Galil elyon Cooperative Regional Organization Corporation
|
|
|
391,005
|
|
|
|
6.30
|
%
|
Alonit Cooperative Regional Organization Corporation
|
|
|
405,394
|
|
|
|
6.53
|
%
|
|
|
|
|
(i)
|
Itzhak Bader, one of Alons directors, is Chairman of
Granot Cooperative Regional Organization Corporation.
|
|
|
|
|
|
The purchase organizations of the Kibbutz Movement have granted
a holding company, or the Holding Company, an irrevocable power
of attorney to vote all of the shares of Alon Israel held by
such purchase organizations. The Holding Company is an Israeli
limited liability company that is owned by nine organizations of
the Kibbutz Movement, some of which are also stockholders of
Alon Israel. One of Alons directors, Mr. Bader, is
Chairman of the Holding Company. |
|
(c) |
|
The shares of Alon Israel held by Mr. Eitan Shmueli are
held by him as trustee of a trust which David Wiessman, the
Executive Chairman of the Board, is the sole beneficiary. These
shares are treated as non-voting shares. |
|
|
|
Bielsol Investments (1987) Ltd., the purchase organizations
of the Kibbutz Movement and the Holding Company are parties to a
stockholders agreement. Under that agreement: |
|
|
|
|
|
Certain major decisions made by Alon Israel require the approval
of more than 75% of the voting interests in Alon Israel or of
more than 75% of the board of directors of Alon Israel, as
applicable. The provisions of the stockholders agreement
relating to approval of major transactions involving Alon Israel
also apply to approval of major transactions involving
significant subsidiaries of Alon Israel, including Alon.
|
|
|
|
The number of directors of Alon Israel must be between three and
12. The provision under the agreement currently allows Bielsol
Investments (1987) Ltd. to elect six directors and the
purchase organizations of the Kibbutz Movement to elect five
directors.
|
|
|
|
There are various rights of first refusal among the stockholders
who are party to the agreement.
|
48
|
|
|
(7) |
|
Alon Israel has caused, or has agreed to cause, up to
$15.0 million of letters of credit to be issued for the
benefit of Krotz Springs. Alon Israel has the option to withdraw
the $15.0 million letters of credit and acquire shares of
preferred stock of Alon Refining Louisiana, Inc. (Alon
Louisiana), a subsidiary of Alon, in an amount equal to
such withdrawn letters of credit. The shares of Alon
Louisianas preferred stock acquired upon withdrawal of the
$15.0 million letters of credit are exchangeable under
certain circumstances for shares of Alon common stock.
Additionally, Alon has an option to issue shares of Alon common
stock to Alon Israel in satisfaction of the payment obligations
under promissory notes to be issued by a subsidiary of Alon in
the event of a draw of any of the $15.0 million letters of
credit. For more information, see Certain Relationships
and Related Party Transactions Transactions with
Management and Others Transactions with Alon
Israel Alon Louisiana Preferred Stock Purchase
Agreement and Certain Relationships and Related
Party Transactions Transactions with Management and
Others Transactions with Alon Israel
Stockholders Agreement. |
|
(8) |
|
Africa-Israel Investments Ltd. (Africa Israel) filed
a Schedule 13D/A on March 1, 2010 reporting that
Africa Israel beneficially owned 6,255,313 shares of Alon
common stock, which includes 2,579,774 shares held directly
by Africa Israel and up to 3,675,539 shares underlying an
option exercisable by Africa Israel during certain exercise
windows, and which is mandatorily exercisable on July 1,
2011 if not exercised prior thereto. The option may only be
exercised one time by Africa Israel, for all shares of Alon
common stock issuable thereunder, during one of the following
exercise periods: (a) during the first five trading days of
the trading period window for Alon common stock on or after
January 1, 2010; (b) during the first five trading
days of the trading period window for Alon common stock on or
after July 1, 2010; or (c) during the first five
trading days of the trading period window for Alon common stock
on or after January 1, 2011. To the extent Africa Israel
exercises the option during one of the exercise windows that is
prior to the mandatory exercise date on July 1, 2011, the
number of shares to be issued will be less than 3,675,539. |
|
|
|
According to Africa Israels Schedule 13D/A filed on
March 1, 2010, it has sole investment and voting power over
6,255,313 shares of Alon common stock and, due to the right
of first offer provided by Africa Israel to Alon Israel under a
share exchange agreement, Africa Israel may be deemed to share
investment and voting power over the 6,255,313 shares of
Alon common stock with Alon Israel. Each of Lev Leviev, Izzy
Cohen, Chaim Erez, Avinadav Grinshpon, Eitan Haber, Shmuel
Shkedi, Rami Guzman, Zipora Samet, Jacques Zimmerman, Shaul
Dabby, Avi Barzilay, Gidi Kadusi, Ronit Cohen Nissan, Ron
Fainaro, Zviya Leviev Eliazarov and Ron Maor, the directors and
executive officers of Africa Israel, may be deemed to possess
shared investment and voting power over such shares of Alon
common stock by virtue of their positions with Africa Israel.
Each such director and/or executive officer disclaims beneficial
ownership of all such shares. Furthermore, Lev Leviev, as
controlling stockholder of Africa Israel, may be deemed to share
beneficial ownership (both investment and voting power) of all
of the shares of Alon common stock that are held by Africa
Israel. Mr. Leviev disclaims beneficial ownership of all of
such shares, except to the extent of his pecuniary interest
therein. |
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Africa Israel is a publicly-held Israeli limited liability
company that is listed on the TASE. As of March 1, 2010,
based on information available to us, Africa Israel is
beneficially owned (a) 74.83% by Lev Leviev, an Israeli
citizen, and (b) 25.17% by public stockholders. One of
Alons directors, Avinadav Grinshpon, is a director and
Vice Chairman of Africa Israel. The address of Africa Israel is
4 Derech Hahoresh, Yahud, Israel. |
49
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS
Review,
Approval or Ratification of Transactions with Related
Persons
Alons corporate governance guidelines, which were adopted
by Alons board of directors on July 7, 2005, require
that the board of directors exercise appropriate oversight with
respect to all related-party transactions. All related party
transactions are submitted to a committee of disinterested
directors for approval. The board of directors and the
respective disinterested directors believe that the following
transactions and relationships were reasonable and in the best
interest of Alon.
Transactions
with Management and Others
Transactions
with Alon Israel.
Alon is party to transactions with Alon Israel and certain of
its subsidiaries, including Blue Square and Dor-Alon. As of
August 1, 2010, Alon Israel was the beneficial owner of
approximately 76% of Alons outstanding common stock. Alon
Israel is the controlling shareholder of Blue Square and
Dor-Alon. Certain of our directors, including
Messrs. Wiessman and Biran, have beneficial ownership
interests in Alon Israel as described in footnote 6 to the
Security Ownership of Certain Beneficial Holders and
Management table.
Collateral
Fee Agreement.
On March 9, 2010, Alon entered into a line letter with
Israel Discount Bank of New York (IDB), pursuant to
which IDB agreed to provide a line of credit to Alon in a
maximum amount of $60.0 million. The collateral supporting
the line of credit is currently comprised of a security interest
in a $30.0 million deposit account maintained at IDB by
Alon Israel. On August 5, 2010, in consideration for
maintaining the deposit at IDB as collateral under the line
letter, Alon entered into a Collateral Fee Agreement with Alon
Israel whereby it agreed to pay a fee to Alon Israel based upon
a formula set forth in the agreement which includes, among other
items, costs to Alon Israel associated with the deposit.
Currently the fee is 6.00% per annum, and Alon expects to pay
approximately $1.05 million in fees during 2010. The
initial term of the Collateral Fee Agreement will end on
December 31, 2010 and will be automatically extended for
six month terms thereafter unless terminated by either party
after the initial term with 30 days prior written notice.
Sale
of Richmond Beach.
On June 1, 2010, Alon sold a parcel of land at Richmond
Beach, Washington for $19.5 million to BSRE Point Wells, LP
(BSRE), a subsidiary of Blue Square, pursuant to a
Purchase and Sale Agreement dated April 22, 2010. In
connection with the sale, Alon entered into a development
agreement with BSRE. The agreement provides that Alon and BSRE
intend to cooperate in the development and construction of a
mixed-use residential and planned community real estate project
on the land. As part of this agreement, Alon agreed to pay a
quarterly development fee of $0.4 million beginning
July 1, 2010 in exchange for the right to participate in
the potential profits realized by BSRE from the development of
the land.
Sale
of HEP Limited Partnership Units.
In connection with a contribution of certain pipeline, product
terminal and storage tank assets to HEP in 2005, Alon received,
in addition to $120.0 million in cash, 937,500 subordinated
Class B limited partnership units, or limited partnership
units, in HEP. On January 22, 2010, Alon sold
(a) 150,200 limited partnership units to Blue Square for
approximately $6.0 million, (b) 150,200 limited
partnership units to Dor-Alon for approximately
$6.0 million, and (c) 287,258 limited partnership
units to Alon Israel for cash equivalents with aggregate
principal value of $12.75 million. In each transaction, the
price per HEP Unit was based on the average closing price of
HEPs publicly traded Class A limited partnership
units for the 30 days preceding the closing of such
transaction.
50
Alon
Louisiana Preferred Stock Purchase Agreement.
Pursuant to the terms of a Series A Preferred Stock
Purchase Agreement (the Stock Purchase Agreement),
dated as of July 3, 2008, by and between Alon Refining
Louisiana, Inc. (Alon Louisiana), a subsidiary of
Alon, and Alon Israel, Alon Louisiana issued to Alon Israel
80,000 shares of its non-voting Series A Preferred
Stock, par value $1,000.00 per share, or the non-voting
preferred stock, for an aggregate purchase price of
$80.0 million. On July 3, 2008, we completed the
acquisition of all of the capital stock of the refining business
located in Krotz Springs, Louisiana, from Valero Energy
Corporation, through a subsidiary of Alon Louisiana, Alon
Refining Krotz Springs, Inc. (Krotz Springs).
The purchase price was $333.0 million in cash plus
approximately $141.5 million for working capital, including
inventories. The cash portion of the purchase price and working
capital payment were funded in part by proceeds from the sale of
the non-voting preferred stock to Alon Israel.
Pursuant to the terms of the Stock Purchase Agreement, Alon
Israel caused letters of credit in the amount of
$55.0 million (the Original L/Cs) to be issued
for the benefit of Bank of America, N.A. in order to support the
borrowing base of Krotz Springs under the Loan and Security
Agreement by and among Alon Louisiana, Krotz Springs, Bank of
America, N.A. and the banks and financial institutions listed on
the signature page thereto as Lenders.
Stockholders
Agreement.
Non-Voting Preferred Stock. In connection with
the Stock Purchase Agreement, Alon, Alon Louisiana, Alon Israel
and Alon Louisiana Holdings, Inc. (Alon Louisiana
Holdings), a subsidiary of Alon and the holder of all of
the outstanding shares of common stock of Alon Louisiana,
entered into a Stockholders Agreement (the Original
Stockholders Agreement), dated as of July 3, 2008. On
March 31, 2009, Alon, Alon Louisiana, Alon Israel and Alon
Louisiana Holdings entered into an Amended and Restated
Stockholders Agreement (the Stockholders Agreement),
which amended and restated the terms of the Original
Stockholders Agreement. On December 31, 2009, Alon, Alon
Louisiana, Alon Israel and Alon Louisiana Holdings, entered into
an amendment (the First Amendment) to the
Stockholders Agreement, which provided for the acceleration of
the mandatory exchange of the non-voting preferred stock for
shares of Alons common stock from July 3, 2011 to
December 31, 2009. Pursuant to the First Amendment, Alon
issued 7,351,051 shares of Alons common stock in
exchange for all of the non-voting preferred stock. The
7,351,051 shares of Alon common stock issued to Alon Israel
in exchange for the non-voting preferred stock represented
(a) the $80.0 million par value of the non-voting
preferred stock plus the amount of dividends accruing thereon
through July 3, 2011, divided by (b) the $14.39 per
share value for Alon common stock established for purposes of
the exchange pursuant to the terms of the Stockholders Agreement.
L/Cs. Pursuant to the Stockholders Agreement,
Alon Israel agreed to cause letters of credit to be issued in
favor of Krotz Springs in an aggregate amount up to
$25.0 million (the Additional L/Cs and,
together with the Original L/Cs, the L/Cs) and Alon
Israel was granted an option (the L/C Option),
exercisable at any time the L/Cs are outstanding (but subject to
the terms of the credit facilities and other binding obligations
of Alon Louisiana), to withdraw the L/Cs and acquire shares of
non-voting preferred stock of Alon Louisiana in an amount equal
to such withdrawn L/Cs.
Alon Louisiana Holdings or Alon (subject to the terms of their
respective existing credit facilities and other binding
obligations) agreed to pay Alon Israel a fee (which is subject
to adjustment) in consideration for causing the issuance of the
L/Cs. Alon agreed to use its best efforts and to cause its
affiliates to use their respective best efforts (subject to the
terms of the respective existing credit facilities and other
binding obligations) to (a) replace the L/Cs with its own
resources or by obtaining funds or other support through
commercially reasonable arrangements with third party financing
sources or (b) otherwise secure the release of the letters
of credit support requirements. As of August 1, 2010,
$65.0 million of the $80.0 million L/Cs have been
replaced and the fees payable to Alon Israel in connection with
the L/Cs have been deferred.
The Stockholders Agreement provides that, in the event a
beneficiary of an L/C draws upon any L/C, Alon Louisiana
Holdings shall issue and deliver to Alon Israel a promissory
note in a principal amount equal
51
to the amount of such draw and bearing interest at a rate of
10.75% per annum. The promissory note will contain an option on
the part of Alon, to issue shares of Alons common stock in
satisfaction of the payment obligations thereunder on the first
day Alons securities trading window opens after the
issuance of the promissory note.
Registration Rights Agreement. Pursuant
to the terms of a Registration Rights Agreement with Alon
Israel, Alon has provided Alon Israel with registration rights,
including demand registration rights and piggy-back
registration rights, with respect to Alon common stock owned by
Alon Israel. Alons obligations are subject to limitations
relating to a minimum amount of common stock required for
registration, the timing of registration and other similar
matters. Alon is obligated to pay all expenses incidental to
such registration, excluding underwriters discounts and
commissions and certain legal fees and expenses.
SCS Beverage. On February 29, 2004, Alon
sold 17 licenses for the sale of alcoholic beverages at 17
stores in New Mexico to SCS Beverage, Inc., a corporation
treated as a pass-through entity that is wholly owned by Jeff D.
Morris, Alons Chief Executive Officer. Under rules and
regulations of the New Mexico Alcohol and Gaming Division, a
holder of a license to sell alcoholic beverages in New Mexico
must provide substantial documentation in the application for
and annual renewal of the license, including detailed
questionnaires and fingerprints of the officers and directors of
each entity beneficially owning 10% or more of the holder of the
license. Alon engaged in this transaction to expedite the
process of renewing the licenses by limiting the required
disclosures to one individual stockholder. The purchase price
paid by SCS Beverage consisted of approximately
$2.6 million for the 17 licenses and approximately
$0.2 million for the inventory of alcoholic beverages on
the closing date. The purchase price was paid by SCS Beverage
issuing to Alon a demand promissory note in the amount of
$2.8 million. The demand note is payable solely by
transferring the licenses and inventory existing at the time of
payment back to Alon. The demand note is secured by a pledge of
the licenses and the inventory and a pledge of 100% of the stock
of SCS Beverage. Pursuant to the purchase and sale agreement,
SCS Beverage granted Alon an option to re-acquire the licenses
at any time at a purchase price equal to the same purchase price
paid by SCS Beverage to acquire the licenses.
As the holder of the New Mexico licenses, SCS Beverage is the
only party entitled to purchase alcoholic beverages to be sold
at the locations covered by the licenses and to receive revenues
from the sale of alcoholic beverages at those locations.
Simultaneously with the transfer of the licenses, SCS Beverage
entered into a premises lease with Alon to lease space at each
of the locations covered by the licenses for the purpose of
conducting the alcoholic beverages concessions. The total annual
payments by SCS Beverage to Alon under this premises lease
agreement have averaged approximately $1.89 million over
the last three fiscal years and are subject to adjustment by
Alon based on the volume of sales of alcoholic beverages at the
locations covered by the licenses. To date, the profits realized
by SCS Beverage from the sale of alcoholic beverages at these
locations have not exceeded lease payments by SCS Beverage to
Alon, and Alon anticipates that this will continue to be the
case in the future. As a result, Mr. Morris has not
received any economic benefit from the ownership of SCS
Beverage, and Alon does not anticipate that Mr. Morris will
derive any economic benefit from his ownership of SCS Beverage
in the future.
Alon Assets and Alon Operating Dividends. In
connection with dividend payments by Alon to its stockholders in
2009, Messrs. Morris, Hart and Concienne were paid
dividends on the shares held by them in Alon Operating. The
total dividends paid to Messrs. Morris, Hart and Concienne
from Alon Operating in (a) 2009 were $416,650.68,
$104,156.72 and $55,091.36, respectively, and (b) 2010, to
date, were $310,375.57, $77,589.48 and $41,039.20, respectively.
In 2009 and 2010, to date, no dividend payments were made by
Alon Assets.
Alon Refining Louisiana, Inc. Dividends. Alon
Israel owned 80,000 shares of non-voting preferred stock of
Alon Louisiana during 2008 and 2009. Dividends accrue on each
share of such non-voting preferred stock at a rate of 10.75% per
annum. No dividends were paid in respect of such shares of
non-voting preferred stock in 2008 or 2009. On December 31,
2009 Alon Israel exchanged such shares of non-voting preferred
stock for shares of Alon common stock. For more information, see
Transactions with Management and Others
Transactions with Alon Israel Stockholders Agreement
Non-Voting Preferred Stock.
52
MARKET
PRICE OF AND DIVIDENDS ON THE REGISTRANTS COMMON
EQUITY
Market
Information
Our common stock is traded on the New York Stock Exchange under
the symbol ALJ.
The following table sets forth the quarterly high and low sales
prices of our common stock on the New York Stock Exchange:
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Quarterly Period
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High
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Low
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2010
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Second Quarter
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$
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7.92
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$
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6.04
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First Quarter
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8.08
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6.52
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2009
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Fourth Quarter
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$
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10.18
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$
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6.60
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Third Quarter
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11.20
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8.20
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Second Quarter
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15.90
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9.92
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First Quarter
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15.46
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8.76
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2008
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Fourth Quarter
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$
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14.91
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$
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6.19
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Third Quarter
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17.00
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7.31
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Second Quarter
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17.85
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11.31
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First Quarter
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27.88
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11.62
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On ,
2010, the last closing sale price reported on the NYSE for our
common stock was
$ per share.
Holders
As of the record date for the rights offering, there were
approximately 30 common stockholders of record.
Dividends
On March 14, 2008, we paid a regular quarterly cash
dividend of $0.04 per share of our common stock. In connection
with our cash dividend payment to stockholders, the
non-controlling interest stockholders of Alon Assets and Alon
Operating received an aggregate cash dividend of
$0.121 million.
On June 13, 2008, we paid a regular quarterly cash dividend
of $0.04 per share of our common stock. In connection with our
cash dividend payment to stockholders, the non-controlling
interest stockholders of Alon Assets and Alon Operating received
an aggregate cash dividend of $0.121 million.
On September 12, 2008, we paid a regular quarterly cash
dividend of $0.04 per share of our common stock. In connection
with our cash dividend payment to stockholders, the
non-controlling interest stockholders of Alon Assets and Alon
Operating received an aggregate cash dividend of $0.
On December 12, 2008, we paid a regular quarterly cash
dividend of $0.04 per share of our common stock. In connection
with our cash dividend payment to stockholders, the
non-controlling interest stockholders of Alon Assets and Alon
Operating received an aggregate cash dividend of
$0.144 million.
On April 2, 2009, we paid a regular quarterly cash dividend
of $0.04 per share of our common stock. In connection with our
cash dividend payment to stockholders, the non-controlling
interest stockholders of Alon Assets and Alon Operating received
an aggregate cash dividend of $0.144 million.
53
On June 15, 2009, we paid a regular quarterly cash dividend
of $0.04 per share of our common stock. In connection with our
cash dividend payment to stockholders, the non-controlling
interest stockholders of Alon Assets and Alon Operating received
an aggregate cash dividend of $0.144 million.
On September 15, 2009, we paid a regular quarterly cash
dividend of $0.04 per share of our common stock. In connection
with our cash dividend payment to stockholders, the
non-controlling interest stockholders of Alon Assets and Alon
Operating received an aggregate cash dividend of
$0.144 million.
On December 15, 2009, we paid a regular quarterly cash
dividend of $0.04 per share of our common stock. In connection
with our cash dividend payment to stockholders, the
non-controlling interest stockholders of Alon Assets and Alon
Operating received an aggregate cash dividend of
$0.144 million.
On March 31, 2010, we paid a regular quarterly cash
dividend of $0.04 per share. In connection with our cash
dividend payment to stockholders, the non-controlling interest
stockholders of Alon Assets and Alon Operating received an
aggregate cash dividend of $0.144 million.
On June 15, 2010, we paid a regular quarterly cash dividend
of $0.04 per share of our common stock. In connection with our
cash dividend payment to stockholders, the non-controlling
interest stockholders of Alon Assets and Alon Operating received
an aggregate cash dividend of $0.285 million.
LEGAL
MATTERS
The validity of the subscription rights and the shares of
convertible preferred stock and common stock offered by this
prospectus will be passed upon for us by Jones Day, Dallas,
Texas.
EXPERTS
The consolidated financial statements of Alon USA Energy, Inc.
and subsidiaries as of December 31, 2009 and 2008, for each
of the years in the three-year period ended December 31,
2009, and managements assessment of the effectiveness of
internal control over financial reporting as of
December 31, 2009, have been incorporated by reference
herein in reliance upon the reports of KPMG LLP, independent
registered public accounting firm, incorporated by reference
herein, and upon the authority of said firm as experts in
accounting and auditing. The audit report covering the
December 31, 2009 financial statements refers to the
implementation by Alon of the authoritative guidance for fair
value measurements as it relates to financial instruments
effective January 1, 2008.
WHERE YOU
CAN FIND MORE INFORMATION
We maintain an Internet website at www.alonusa.com. All of our
reports filed with the SEC (including annual reports on
Form 10-K,
quarterly reports on
Form 10-Q,
current reports on
Form 8-K,
and proxy statements) are accessible through the Investor
Relations section of our website, free of charge, as soon as
reasonably practicable after electronic filing. The public may
read and copy any materials that we file with the SEC at the
SECs Public Reference Room at 100 F Street, NE,
Room 1580, Washington, DC 20549. You may obtain information
on the operation of the Public Reference Room by calling the SEC
at
1-800-SEC-0330.
The SEC maintains an Internet site that contains reports, proxy
and information statements, and other information regarding
issuers that file electronically with the SEC at www.sec.gov.
We have filed with the SEC a registration statement under the
Securities Act that registers the distribution of the securities
offered hereby. The registration statement, including the
attached exhibits and schedules, contains additional relevant
information about us and the securities being offered. This
prospectus, which forms part of the registration statement,
omits certain of the information contained in the registration
statement in accordance with the rules and regulations of the
SEC. Reference is hereby made to the registration statement and
related exhibits for further information with respect to us and
the securities offered hereby. Statements contained in this
prospectus concerning the provisions of any document are not
necessarily complete and, in each instance, reference is made to
the copy of such document filed as an exhibit to the
registration statement or otherwise filed with the SEC. Each
such statement is qualified in its entirety by such reference.
54
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
We incorporate by reference in this prospectus the documents
listed below, each of which should be considered an important
part of this prospectus.
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Our 2009 Annual Report on
Form 10-K;
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Our 2010 Definitive Proxy Statement on Schedule 14A (only
those portions incorporated by reference into our 2009 Annual
Report on
Form 10-K);
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Our Quarterly Reports on
Form 10-Q
for the fiscal quarters ended March 31, 2010 and
June 30, 2010;
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Our Current Reports on
Form 8-K
filed on January 5, 2010, January 27, 2010,
March 2, 2010, May 7, 2010 (excluding the information
furnished under item 2.02), June 4, 2010,
June 21, 2010, July 19, 2010 and August 13,
2010; and
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The description of our common stock, par value $0.01 per share,
included under the caption Description of Capital
Stock in our Registration Statement on
Form S-1
filed with the SEC on July 28, 2005 (Registration
No. 333-124797).
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Any statement incorporated by reference in this prospectus from
an earlier dated document that is inconsistent with a statement
contained in this prospectus or in any other document filed
after the date of the earlier dated document, but prior to the
date hereof, which also is incorporated by reference herein,
shall be deemed to be modified or superseded for purposes of
this prospectus by such statement contained in this prospectus
or in any other document filed after the date of the earlier
dated document, but prior to the date hereof, which also is
incorporated by reference herein.
Any person, including any beneficial owner, to whom this
prospectus is delivered may request copies of this prospectus
and any of the documents incorporated by reference in this
prospectus, without charge, by written or oral request directed
to Alon USA Energy, Inc., Attention: Investor Relations, 7616
LBJ Freeway, Suite 300, Dallas, Texas 75251, telephone
(972) 367-3600,
on the Investor Relations section of our website at
http://www.alonusa.com
or from the SEC through the SECs website at the web
address provided under the heading Where You Can Find More
Information. Documents incorporated by reference are
available without charge, excluding any exhibits to those
documents unless the exhibit is specifically incorporated by
reference into those documents.
55
Alon USA Energy, Inc.
4,000,000 Subscription Rights
to Subscribe for up to 4,000,000 Shares of
8.75% Series A Convertible
Preferred Stock at $10.00 per Share
5,376,400 Shares of Common
Stock Issuable Upon Conversion of 8.75% Series A
Convertible Preferred Stock
1,700,000 Shares of Common
Stock Issuable as Dividends on Shares of 8.75% Series A
Convertible Preferred Stock
PROSPECTUS
,
2010
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 13.
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Other
Expenses of Issuance and Distribution.
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The following table sets forth the costs and expenses to be paid
by us in connection with the sale of the shares of common stock
being registered hereby. All amounts are estimates except for
the Securities and Exchange Commission, or SEC, registration fee.
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Securities and Exchange Commission registration fee
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$
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[ ]
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Subscription agent fees and expenses
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[ ]
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Information agent fees and expenses
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[ ]
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Accounting fees and expenses
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[ ]
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Legal fees and expenses
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[ ]
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Printing and miscellaneous expenses
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[ ]
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Total
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$
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[ ]
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Item 14.
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Indemnification
of Directors and Officers.
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We are a Delaware corporation. Section 145 of the Delaware
General Corporation Law authorizes a court to award, or a
corporations board of directors to grant, indemnity under
certain circumstances to directors, officers employees or agents
in connection with actions, suits or proceedings, by reason of
the fact that the person is or was a director, officer, employee
or agent, against expenses and liabilities incurred in such
actions, suits or proceedings so long as they acted in good
faith and in a manner the person reasonably believed to be in,
or not opposed to, the best interests of the company, and with
respect to any criminal action if they had no reasonable cause
to believe their conduct was unlawful. With respect to suits by
or in the right of such corporation, however, indemnification is
generally limited to attorneys fees and other expenses and
is not available if such person is adjudged to be liable to such
corporation unless the court determines that indemnification is
appropriate.
As permitted by Delaware law, our certificate of incorporation
includes a provision that eliminates the personal liability of
our directors to Alon or our stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability:
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for any breach of the directors duty of loyalty to us or
our stockholders;
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for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law;
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under section 174 of the Delaware General Corporation Law
regarding unlawful dividends and stock purchases; or
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for any transaction for which the director derived an improper
personal benefit.
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As permitted by Delaware law, our certificate of incorporation
provides that:
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we are required to indemnify our directors and officers to the
fullest extent permitted by Delaware law, subject to very
limited exceptions;
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we may indemnify our other employees and agents to the fullest
extent permitted by Delaware law, subject to very limited
exceptions;
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we are required to advance expenses (including without
limitation, attorneys fees), as incurred, to our directors
and officers in connection with a legal proceeding to the
fullest extent permitted by Delaware law, subject to very
limited exceptions;
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we may advance expenses, as incurred, to our employees and
agents in connection with a legal proceeding; and
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the rights conferred in our certificate of incorporation are not
exclusive.
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II-1
We have entered into Indemnification Agreements with each of our
directors and officers to give these directors and officers
additional contractual assurances regarding the scope of the
indemnification set forth in our certificate of incorporation
and to provide additional procedural protections. At present,
there is no pending litigation or proceeding involving any of
our directors, officers or employees regarding which
indemnification is sought, nor are we aware of any threatened
litigation that may result in claims for indemnification.
The indemnification provisions in our certificate of
incorporation and the Indemnification Agreements entered into
with our directors and officers may be sufficiently broad to
permit indemnification of our directors and officers for
liabilities arising under the Securities Act.
Under Delaware law, corporations also have the power to purchase
and maintain insurance for directors, officers, employees and
agents.
We and our subsidiaries are covered by liability insurance
policies which indemnify our and our subsidiaries
directors and officers against loss arising from claims by
reason of their legal liability for acts as such directors,
officers, or trustees, subject to limitations and conditions as
set forth in the policies.
The foregoing discussion of our certificate of incorporation and
Delaware law is not intended to be exhaustive and is qualified
in its entirety by such certificate of incorporation or law.
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Item 15.
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Recent
Sales of Unregistered Securities
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None.
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Item 16.
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Exhibits
and Financial Statement Schedules.
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(a) The following exhibits are filed herewith:
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Exhibit No.
|
|
Description of Exhibit
|
|
|
3
|
.1
|
|
Amended and Restated Certificate of Incorporation of Alon USA
Energy, Inc. (incorporated by reference to Exhibit 3.1 to
Form S-1/A,
filed by Alon on July 7, 2005, SEC File
No. 333-124797).
|
|
3
|
.2
|
|
Amended and Restated Bylaws of Alon USA Energy, Inc.
(incorporated by reference to Exhibit 3.2 to
Form S-1/A,
filed by Alon on July 14, 2005, SEC File
No. 333-124797).
|
|
4
|
.1
|
|
Specimen Common Stock Certificate (incorporated by reference to
Exhibit 4.1 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
4
|
.2
|
|
Indenture, dated as of October 22, 2009, by and among Alon
Refining Krotz Springs, Inc. and Wilmington Trust FSB, as
Trustee (incorporated by reference to Exhibit 4.1 to
Form 8-K,
filed by Alon on October 23, 2009, SEC File
No. 001-32567).
|
|
4
|
.3
|
|
Form of Certificate of Designation of the 8.75% Series A
Convertible Preferred Stock.*
|
|
4
|
.4
|
|
Specimen Subscription Rights Certificate.*
|
|
4
|
.5
|
|
Specimen 8.75% Series A Convertible Preferred Stock
Certificate.*
|
|
4
|
.6
|
|
Form of Subscription Agent Agreement.
|
|
5
|
.1
|
|
Opinion of Jones Day.
|
|
10
|
.1
|
|
Trademark License Agreement, dated as of July 31, 2000,
among Finamark, Inc., Atofina Petrochemicals, Inc. and SWBU,
L.P. (incorporated by reference to Exhibit 10.3 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.2
|
|
First Amendment to Trademark License Agreement, dated as of
April 11, 2001, among Finamark, Inc., Atofina
Petrochemicals, Inc. and SWBU, L.P. (incorporated by reference
to Exhibit 10.4 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.3
|
|
Pipeline Lease Agreement, dated as of December 12, 2007,
between Plains Pipeline, L.P. and Alon USA, L.P. (incorporated
by reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on February 2, 2008, SEC File
No. 001-32567).
|
II-2
|
|
|
|
|
Exhibit No.
|
|
Description of Exhibit
|
|
|
10
|
.4
|
|
Pipeline Lease Agreement, dated as of February 21, 1997,
between Navajo Pipeline Company and American Petrofina Pipe Line
Company (incorporated by reference to Exhibit 10.6 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.5
|
|
Amendment and Supplement to Pipeline Lease Agreement, dated as
of August 31, 2007, by and between HEP Pipeline Assets,
Limited Partnership and Alon USA, LP (incorporated by reference
to Exhibit 10.1 to
Form 10-Q,
filed by Alon on November 8, 2007).
|
|
10
|
.6
|
|
Contribution Agreement, dated as of January 25, 2005, among
Holly Energy Partners, L.P., Holly Energy Partners
Operating, L.P., T & R Assets, Inc., Fin-Tex Pipe Line
Company, Alon USA Refining, Inc., Alon Pipeline Assets, LLC,
Alon Pipeline Logistics, LLC, Alon USA, Inc. and Alon USA, LP
(incorporated by reference to Exhibit 10.7 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.7
|
|
Pipelines and Terminals Agreement, dated as of February 28,
2005, between Alon USA, LP and Holly Energy Partners, L.P.
(incorporated by reference to Exhibit 10.8 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.8
|
|
Pipeline Lease Agreement, dated as of December 12, 2007,
between Plains Pipeline, L.P. and Alon USA, LP (incorporated by
reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on February 5, 2008, SEC File
No. 001-32567).
|
|
10
|
.9
|
|
Liquor License Purchase Agreement, dated as of May 12,
2003, between Southwest Convenience Stores, LLC and SCS
Beverage, Inc. (incorporated by reference to Exhibit 10.34
to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.10
|
|
Premises Lease, dated as of May 12, 2003, between Southwest
Convenience Stores, LLC and SCS Beverage, Inc. (incorporated by
reference to Exhibit 10.35 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.11
|
|
Registration Rights Agreement, dated as of July 6, 2005,
between Alon USA Energy, Inc. and Alon Israel Oil Company, Ltd.
(incorporated by reference to Exhibit 10.22 to
Form S-1/A,
filed by Alon on July 7, 2005, SEC File
No. 333-124797).
|
|
10
|
.12
|
|
Registration Rights Agreement, dated October 22, 2009,
between Alon Refining Krotz Springs, Inc. and
Jefferies & Company, Inc. (incorporated by reference
to Exhibit 10.2 to
Form 8-K,
filed by Alon on October 23, 2009, SEC File
No. 001-32567).
|
|
10
|
.13
|
|
Amended Revolving Credit Agreement, dated as of June 22,
2006, among Alon USA, LP, EOC Acquisition, LLC, Israel Discount
Bank of New York, Bank Leumi USA and certain other guarantor
companies and financial institutions from time to time named
therein (incorporated by reference to Exhibit 10.2 to
Form 8-K,
filed by Alon on June 26, 2006, SEC File
No. 001-32567).
|
|
10
|
.14
|
|
First Amendment to Amended Revolving Credit Agreement, dated as
of August 4, 2006, to the Amended Revolving Credit
Agreement, dated as of June 22, 2006, among Alon USA, LP,
EOC Acquisition, LLC, Israel Discount Bank of New York, Bank
Leumi USA and certain other guarantor companies and financial
institutions from time to time named therein (incorporated by
reference to Exhibit 10.25 to
Form 10-K,
filed by Alon on March 15, 2007 SEC File
No. 001-32567).
|
|
10
|
.15
|
|
Waiver, Consent, Partial Release and Second Amendment, dated as
of February 28, 2007, to the Amended Revolving Credit
Agreement, dated as of June 22, 2006, Alon USA, LP,
Edgington Oil Company, LLC, Israel Discount Bank of New York,
Bank Leumi USA and certain other guarantor companies and
financial institutions from time to time named therein
(incorporated by reference to Exhibit 10.2 to
Form 8-K,
filed by Alon on March 5, 2007, SEC File
No. 001-32567).
|
|
10
|
.16
|
|
Third Amendment to Amended Revolving Credit Agreement, dated as
of June 29, 2007, to the Amended Revolving Credit
Agreement, dated as of June 22, 2006, among Alon USA
Energy, Inc., Alon USA, LP, the guarantor companies and
financial institutions named therein, Israel Discount Bank of
New York and Bank Leumi USA (incorporated by reference to
Exhibit 10.1 to
Form 8-K,
filed by Alon on July 20, 2007, SEC File
No. 001-32567).
|
II-3
|
|
|
|
|
Exhibit No.
|
|
Description of Exhibit
|
|
|
10
|
.17
|
|
Waiver, Consent, Partial Release and Fourth Amendment, dated as
of July 2, 2008, by and among Alon USA, LP, Israel Discount
Bank of New York, Bank Leumi USA and certain other guarantor
companies and financial institutions from time to time named
therein (incorporated by reference to Exhibit 10.4 to
Form 8-K,
filed by Alon on July 10, 2008, SEC File
No. 001-32567).
|
|
10
|
.18
|
|
Fifth Amendment to Amended Revolving Credit Agreement, dated as
of July 31, 2009, by and among Alon USA, LP, Israel
Discount Bank of New York, Bank Leumi USA and certain other
guarantor companies and financial institutions from time to time
named therein (incorporated by reference to Exhibit 10.3 to
Form 10-Q,
filed by Alon on August 6, 2009, SEC File
No. 001-32567).
|
|
10
|
.19
|
|
Sixth Amendment to Amended Revolving Credit Agreement, dated as
of May 10, 2010, by and among Alon USA, LP, Israel Discount
Bank of New York, Bank Leumi USA and certain other guarantor
companies and financial institutions from time to time named
therein (incorporated by reference to Exhibit 10.1 to
Form 10-Q,
filed by Alon on May 10, 2010, SEC File
No. 001-32567).
|
|
10
|
.20
|
|
Seventh Amendment to Amended Revolving Credit Agreement, dated
as of June 1, 2010, by and among Alon USA, LP, Israel
Discount Bank of New York, Bank Leumi USA and certain other
guarantor companies and financial institutions from time to time
named therein (incorporated by reference to Exhibit 10.1 to
Form 10-Q,
filed by Alon on August 9, 2010, SEC File
No. 001-32567).
|
|
10
|
.21
|
|
Eighth Amendment to Amended Revolving Credit Agreement, dated as
of June 16, 2010, by and among Alon USA, LP, Israel
Discount Bank of New York, Bank Leumi USA and certain other
guarantor companies and financial institutions from time to time
named therein (incorporated by reference to Exhibit 10.2 to
Form 10-Q,
filed by Alon on August 9, 2010, SEC File
No. 001-32567).
|
|
10
|
.22
|
|
Revolving Credit Line Agreement, dated March 9, 2010, by
and between Alon and Israel Discount Bank of New York
(incorporated by reference to Exhibit 10.96 to
Form 10-K,
filed by Alon on March 16, 2010, SEC File
No. 001-32567).
|
|
10
|
.23
|
|
Credit Agreement, dated March 15, 2010 (as amended,
supplemented or otherwise modified from time to time), among
Alon Refining Krotz Springs, Inc., each other party joined as a
borrower thereunder from time to time, the Lenders party
thereto, and Bank Hapoalim B.M., as Administrative Agent
(incorporated by reference to Exhibit 10.97 to
Form 10-K,
filed by Alon on March 16, 2010, SEC File
No. 001-32567).
|
|
10
|
.24
|
|
Amendment No. 1 to Credit Agreement, dated May 28,
2010 (as amended, supplemented or otherwise modified from time
to time), among Alon Refining Krotz Springs, Inc., each other
party joined as a borrower thereunder from time to time, the
Lenders party thereto, and Bank Hapoalim B.M., as Administrative
Agent (incorporated by reference to Exhibit 10.3 to
Form 10-Q,
filed by Alon on August 9, 2010, SEC File
No. 001-32567).
|
|
10
|
.25
|
|
Amendment No. 2 to Credit Agreement, dated June 15,
2010 (as amended, supplemented or otherwise modified from time
to time), among Alon Refining Krotz Springs, Inc., each other
party joined as a borrower thereunder from time to time, the
Lenders party thereto, and Bank Hapoalim B.M., as Administrative
Agent (incorporated by reference to Exhibit 10.4 to
Form 10-Q,
filed by Alon on August 9, 2010, SEC File
No. 001-32567).
|
|
10
|
.26
|
|
Amendment No. 3 to Credit Agreement, dated August 11,
2010 (as amended, supplemented or otherwise modified from time
to time), among Alon Refining Krotz Springs, Inc., each other
party joined as a borrower thereunder from time to time, the
Lenders party thereto, and Bank Hapoalim B.M., as Administrative
Agent (incorporated by reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on August 13, 2010, 2010, SEC File No.
001-32567).
|
|
10
|
.27
|
|
Credit Agreement, dated May 28, 2010, by and between Alon
Refining Krotz Springs, Inc. and Goldman Sachs Bank USA, as
Issuing Bank (incorporated by reference to Exhibit 10.5 to
Form 10-Q,
filed by Alon on August 9, 2010, SEC File
No. 001-32567).
|
II-4
|
|
|
|
|
Exhibit No.
|
|
Description of Exhibit
|
|
|
10
|
.28
|
|
Amended and Restated Credit Agreement, dated as of June 29,
2007, among Southwest Convenience Stores, LLC, the lenders party
thereto and Wachovia Bank, National Association (incorporated by
reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on July 2, 2007, SEC
File No. 001-32567).
|
|
10
|
.29
|
|
Credit Agreement, dated as of June 22, 2006, among Alon USA
Energy, Inc., the lenders party thereto and Credit Suisse
(incorporated by reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on June 26, 2006, SEC File
No. 001-32567).
|
|
10
|
.30
|
|
Amendment No. 1 to the Credit Agreement, dated as of
February 28, 2007, by and among Alon USA Energy, Inc., the
lenders party thereto and Credit Suisse (incorporated by
reference to Exhibit 10.3 to
Form 8-K,
filed by Alon on March 5, 2007, SEC File
No. 001-32567).
|
|
10
|
.31
|
|
Second Amended and Restated Credit Agreement, dated as of
February 28, 2007, among Paramount Petroleum Corporation,
Bank of America, N.A. and certain other guarantor companies and
financial institutions from time to time named therein
(incorporated by reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on March 5, 2007, SEC File
No. 001-32567).
|
|
10
|
.32
|
|
First Amendment to Second Amended and Restated Credit Agreement,
dated as of March 30, 2007, among Paramount Petroleum
Corporation, Bank of America, N.A. and certain other guarantor
companies and financial institutions from time to time named
therein (incorporated by reference to Exhibit 10.37 to
Form 10-K,
filed by Alon on March 11, 2008, SEC File
No. 001-32567).
|
|
10
|
.33
|
|
Term Loan Agreement, dated as of July 3, 2008, by and among
Alon Refining Louisiana, Inc., Alon Refining Krotz Springs,
Inc., the lenders party thereto and Credit Suisse, as
administrative agent and collateral agent (incorporated by
reference to Exhibit 10.2 to
Form 8-K,
filed by Alon on July 10, 2008, SEC File
No. 001-32567).
|
|
10
|
.34
|
|
First Amendment Agreement, dated as of April 9, 2009, by
and among Alon Refining Louisiana, Inc., Alon Refining Krotz
Springs, Inc., the lenders party thereto and Wells Fargo Bank,
National Association, as successor to Credit Suisse, Cayman
Islands Branch, as agent (incorporated by reference to
Exhibit 10.1 to
Form 10-Q,
filed by Alon on August 6, 2009, SEC File
No. 001-32567).
|
|
10
|
.35
|
|
Loan and Security Agreement, dated as of July 3, 2008, by
and among Alon Refining Louisiana, Inc., Alon Refining Krotz
Springs, Inc., the lenders party thereto and Bank of America,
N.A., as administrative agent (incorporated by reference to
Exhibit 10.3 to
Form 8-K,
filed by Alon on July 10, 2008, SEC File
No. 001-32567).
|
|
10
|
.36
|
|
First Amendment to Loan and Security Agreement, dated as of
December 18, 2008, by and among Alon Refining Louisiana,
Inc., Alon Refining Krotz Springs, Inc., the lenders party
thereto and Bank of America, N.A. (incorporated by reference to
Exhibit 10.28 to
Form 10-K,
filed by Alon on April 10, 2009, SEC File
No. 001-32567).
|
|
10
|
.37
|
|
Second Amendment to Loan and Security Agreement, dated as of
April 9, 2009, by and among Alon Refining Louisiana, Inc.,
Alon Refining Krotz Springs, Inc., the lenders party thereto and
Bank of America, N.A., as agent (incorporated by reference to
Exhibit 10.2 to
Form 8-K,
filed by Alon on April 27, 2009, SEC File
No. 001-32567).
|
|
10
|
.38
|
|
Amended and Restated Loan and Security Agreement, dated as of
October 22, 2009 (as amended, supplemented or otherwise
modified from time to time), among Alon Refining Louisiana,
Inc., Alon Refining Krotz Springs, Inc., each other party joined
as a borrower thereunder from time to time, the Lenders party
thereto, and Bank of America, N.A., as Agent (incorporated by
reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on October 23, 2009, SEC File
No. 001-32567).
|
|
10
|
.39
|
|
Purchase Agreement, dated October 13, 2009, between Alon
Refining Krotz Springs, Inc. and Jefferies & Co.
(incorporated by reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on October 19, 2009, SEC File
No. 001-32567).
|
|
10
|
.40
|
|
Management and Consulting Agreement, dated as of August 1,
2003, among Alon USA, Inc., Alon Israel Oil Company, Ltd. and
Alon USA Energy, Inc. (incorporated by reference to
Exhibit 10.21 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
II-5
|
|
|
|
|
Exhibit No.
|
|
Description of Exhibit
|
|
|
10
|
.41
|
|
Amendment, dated as of June 17, 2005, to the Management and
Consulting Agreement, dated as of August 1, 2003, among
Alon USA, Inc., Alon Israel Oil Company, Ltd. and Alon USA
Energy, Inc. (incorporated by reference to Exhibit 10.21.1
to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.42
|
|
Executive Employment Agreement, dated as of July 31, 2000,
between Jeff D. Morris and Alon USA GP, Inc., as amended by the
Amendment to Executive/Management Employment Agreement, dated
May 1, 2005 (incorporated by reference to
Exhibit 10.23 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.43
|
|
Second Amendment to Executive Employment Agreement, dated as of
November 4, 2008, between Jeff D. Morris and Alon USA GP,
LLC (incorporated by reference to Exhibit 10.9 to
Form 10-Q,
filed by Alon on November 7, 2008, SEC File
No. 001-32567).
|
|
10
|
.44
|
|
Executive Employment Agreement, dated as of July 31, 2000,
between Claire A. Hart and Alon USA GP, Inc., as amended by
the Amendment to Executive/Management Employment Agreement,
dated May 1, 2005 (incorporated by reference to
Exhibit 10.24 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.45
|
|
Second Amendment to Executive Employment Agreement, dated as of
November 4, 2008, between Claire A. Hart and Alon USA GP,
LLC (incorporated by reference to Exhibit 10.10 to
Form 10-Q,
filed by Alon on November 7, 2008, SEC File
No. 001-32567).
|
|
10
|
.46
|
|
Executive Employment Agreement, dated as of February 5,
2001, between Joseph A. Concienne, III and Alon USA GP,
Inc., as amended by the Amendment to Executive/Management
Employment Agreement, dated May 1, 2005 (incorporated by
reference to Exhibit 10.25 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.47
|
|
Second Amendment to Executive Employment Agreement, dated as of
November 4, 2008, between Joseph A. Concienne, III and
Alon USA GP, LLC. (incorporated by reference to
Exhibit 10.11 to
Form 10-Q,
filed by Alon on November 7, 2008, SEC File
No. 001-32567).
|
|
10
|
.48
|
|
Amended and Restated Management Employment Agreement, dated as
of August 9, 2006, between Harlin R. Dean and Alon USA GP,
LLC (incorporated by reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on August 10, 2006, SEC File
No. 001-32567).
|
|
10
|
.49
|
|
Amendment to Amended and Restated Management Employment
Agreement, dated as of November 4, 2008, between Harlin R.
Dean and Alon USA GP, LLC (incorporated by reference to
Exhibit 10.12 to
Form 10-Q,
filed by Alon on November 7, 2008, SEC File
No. 001-32567).
|
|
10
|
.50
|
|
Management Employment Agreement, dated as of September 1,
2000, between Yosef Israel and Alon USA GP, LLC (incorporated by
reference to Exhibit 10.33 to
Form 10-K,
filed by Alon on March 15, 2006, SEC File
No. 001-32567).
|
|
10
|
.51
|
|
Amendment to Executive/Management Employment Agreement, dated as
of May 1, 2005 between Yosef Israel and Alon USA GP, LLC
(incorporated by reference to Exhibit 10.34 to
Form 10-K,
filed by Alon on March 15, 2006, SEC File
No. 001-32567).
|
|
10
|
.52
|
|
Second Amendment to Executive/Management Employment Agreement,
dated as of November 4, 2008, between Yosef Israel and Alon
USA GP, LLC (incorporated by reference to Exhibit 10.13 to
Form 10-Q,
filed by Alon on November 7, 2008, SEC File
No. 001-32567).
|
|
10
|
.53
|
|
Executive Employment Agreement, dated as of August 1, 2003,
between Shai Even and Alon USA GP, LLC (incorporated by
reference to Exhibit 10.49 to
Form 10-K,
filed by Alon on March 15, 2007, SEC File
No. 001-32567).
|
|
10
|
.54
|
|
Amendment to Executive Employment Agreement, dated as of
November 4, 2008, between Shai Even and Alon USA GP,
LLC. (incorporated by reference to Exhibit 10.14 to
Form 10-Q,
filed by Alon on November 7, 2008, SEC File
No. 001-32567).
|
|
10
|
.55
|
|
Agreement of Principles of Employment, dated as of July 6,
2005, between David Wiessman and Alon USA Energy, Inc.
(incorporated by reference to Exhibit 10.50 to
Form S-1/A,
filed by Alon on July 7, 2005, SEC File
No. 333-124797).
|
|
10
|
.56
|
|
Management Employment Agreement, dated as of October 30,
2008, between Michael Oster and Alon USA GP, LLC (incorporated
by reference to Exhibit 10.71 to
Form 10-K,
filed by Alon on April 10, 2009, SEC File
No. 001-32567).
|
II-6
|
|
|
|
|
Exhibit No.
|
|
Description of Exhibit
|
|
|
10
|
.57
|
|
Annual Cash Bonus Plan (incorporated by reference to
Exhibit 10.27 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.58
|
|
Description of 10% Bonus Plan (incorporated by reference to
Exhibit 10.28 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.59
|
|
Description of Annual Bonus Plans (incorporated by reference to
Exhibit 10.2 to
Form 10-Q,
filed by Alon on May 6, 2008, SEC File
No. 001-32567).
|
|
10
|
.60
|
|
Change of Control Incentive Bonus Program (incorporated by
reference to Exhibit 10.29 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.61
|
|
Description of Director Compensation (incorporated by reference
to Exhibit 10.30 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.62
|
|
Form of Director Indemnification Agreement (incorporated by
reference to Exhibit 10.31 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.63
|
|
Form of Officer Indemnification Agreement (incorporated by
reference to Exhibit 10.32 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.64
|
|
Form of Director and Officer Indemnification Agreement
(incorporated by reference to Exhibit 10.33 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.65
|
|
Alon Assets, Inc. 2000 Stock Option Plan (incorporated by
reference to Exhibit 10.36 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.66
|
|
Alon USA Operating, Inc. 2000 Stock Option Plan (incorporated by
reference to Exhibit 10.37 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.67
|
|
Incentive Stock Option Agreement, dated as of July 31,
2000, between Alon Assets, Inc. and Jeff D. Morris, as
amended by the Amendment to the Incentive Stock Option
Agreement, dated June 30, 2002 (incorporated by reference
to Exhibit 10.38 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.68
|
|
Second Amendment to Incentive Stock Option Agreement, dated as
of November 4, 2008, between Jeff D. Morris and Alon
Assets, Inc. (incorporated by reference to Exhibit 10.15 to
Form 10-Q,
filed by Alon on November 7, 2008, SEC File
No. 001-32567).
|
|
10
|
.69
|
|
Shareholder Agreement, dated as of July 31, 2000, between
Alon Assets, Inc. and Jeff D. Morris, as amended by the
Amendment to the Shareholder Agreement, dated June 30, 2002
(incorporated by reference to Exhibit 10.39 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.70
|
|
Incentive Stock Option Agreement, dated as of July 31,
2000, between Alon USA Operating, Inc. and Jeff D. Morris, as
amended by the Amendment to the Incentive Stock Option
Agreement, dated June 30, 2002 (incorporated by reference
to Exhibit 10.40 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.71
|
|
Second Amendment to Incentive Stock Option Agreement, dated as
of November 4, 2008, between Jeff D. Morris and Alon USA
Operating, Inc. (incorporated by reference to Exhibit 10.16
to
Form 10-Q,
filed by Alon on November 7, 2008, SEC File
No. 001-32567).
|
|
10
|
.72
|
|
Shareholder Agreement, dated as of July 31, 2000, between
Alon USA Operating, Inc. and Jeff D. Morris, as amended by the
Amendment to the Shareholder Agreement, dated June 30, 2002
(incorporated by reference to Exhibit 10.41 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.73
|
|
Incentive Stock Option Agreement, dated as of July 31,
2000, between Alon Assets, Inc. and Claire A. Hart, as amended
by the Amendment to the Incentive Stock Option Agreement, dated
June 30, 2002 and July 25, 2002 (incorporated by
reference to Exhibit 10.42 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.74
|
|
Shareholder Agreement, dated as of July 31, 2000, between
Alon Assets, Inc. and Claire A. Hart, as amended by the
Amendment to the Shareholder Agreement, dated June 30, 2002
(incorporated by reference to Exhibit 10.43 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC
File No. 333-124797).
|
II-7
|
|
|
|
|
Exhibit No.
|
|
Description of Exhibit
|
|
|
10
|
.75
|
|
Incentive Stock Option Agreement, dated as of July 31,
2000, between Alon USA Operating, Inc. and Claire A. Hart, as
amended by the Amendment to the Incentive Stock Option
Agreement, dated June 30, 2002 and July 25, 2002
(incorporated by reference to Exhibit 10.44 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.76
|
|
Shareholder Agreement, dated as of July 31, 2000, between
Alon USA Operating, Inc. and Claire A. Hart, as amended by the
Amendment to the Shareholder Agreement, dated June 30, 2002
(incorporated by reference to Exhibit 10.45 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.77
|
|
Incentive Stock Option Agreement, dated as of February 5,
2001, between Alon Assets, Inc. and Joseph A.
Concienne, III, as amended by the Amendment to the
Incentive Stock Option Agreement, dated July 25, 2002
(incorporated by reference to Exhibit 10.46 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.78
|
|
Shareholder Agreement, dated as of February 5, 2001,
between Alon Assets, Inc. and Joseph A. Concienne, III
(incorporated by reference to Exhibit 10.47 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.79
|
|
Incentive Stock Option Agreement, dated as of February 5,
2001, between Alon USA Operating, Inc. and Joseph A.
Concienne, III, as amended by the Amendment to the
Incentive Stock Option Agreement, dated July 25, 2002
(incorporated by reference to Exhibit 10.48 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.80
|
|
Shareholder Agreement, dated as of February 5, 2001,
between Alon USA Operating, Inc. and Joseph A.
Concienne, III (incorporated by reference to
Exhibit 10.49 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.81
|
|
Agreement, dated as of July 6, 2005, among Alon USA Energy,
Inc., Alon USA, Inc., Alon USA Capital, Inc., Alon USA
Operating, Inc., Alon Assets, Inc., Jeff D. Morris, Claire A.
Hart and Joseph A. Concienne, III (incorporated by
reference to Exhibit 10.52 to
Form S-1/A,
filed by Alon on July 7, 2005, SEC File
No. 333-124797).
|
|
10
|
.82
|
|
Alon USA Energy, Inc. Amended and Restated 2005 Incentive
Compensation Plan (incorporated by reference to
Exhibit 10.1 to
Form 8-K,
filed by Alon on May 7, 2010, SEC File
No. 001-32567).
|
|
10
|
.83
|
|
Form of Restricted Stock Award Agreement relating to Director
Grants pursuant to Section 12 of the Alon USA Energy, Inc.
2005 Incentive Compensation Plan (incorporated by reference to
Exhibit 10.1 to
Form 8-K,
filed by Alon on August 5, 2005, SEC File
No. 001-32567).
|
|
10
|
.84
|
|
Form of Restricted Stock Award Agreement relating to Participant
Grants pursuant to Section 8 of the Alon USA Energy, Inc.
2005 Incentive Compensation Plan (incorporated by reference to
Exhibit 10.1 to
Form 8-K,
filed by Alon on August 23, 2005, SEC File
No. 001-32567).
|
|
10
|
.85
|
|
Form II of Restricted Stock Award Agreement relating to
Participant Grants pursuant to Section 8 of the Alon USA
Energy, Inc. 2005 Incentive Compensation Plan (incorporated by
reference to Exhibit 10.3 to
Form 8-K,
filed by Alon on November 8, 2005, SEC File
No. 001-32567).
|
|
10
|
.86
|
|
Form of Appreciation Rights Award Agreement relating to
Participant Grants pursuant to Section 7 of the Alon USA
Energy, Inc. 2005 Incentive Compensation Plan (incorporated by
reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on March 12, 2007, SEC File
No. 001-32567).
|
|
10
|
.87
|
|
Form of Amendment to Appreciation Rights Award Agreement
relating to Participant Grants pursuant to Section 7 of the
Alon USA Energy, Inc. 2005 Incentive Compensation Plan
(incorporated by reference to Exhibit 10.2 to
Form 8-K,
filed by Alon on January 27, 2010, SEC File
No. 001-32567).
|
|
10
|
.88
|
|
Form II of Appreciation Rights Award Agreement relating to
Participant Grants pursuant to Section 7 of the Alon USA
Energy, inc. 2005 Incentive Compensation Plan (incorporated by
reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on January 27, 2010, SEC
File No. 001-32567).
|
II-8
|
|
|
|
|
Exhibit No.
|
|
Description of Exhibit
|
|
|
10
|
.89
|
|
Purchase and Sale Agreements, dated as of February 13,
2006, between Alon Petroleum Pipe Line, LP and Sunoco Pipelines,
LP, (incorporated by reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on February 13, 2006, SEC File
No. 001-32567).
|
|
10
|
.90
|
|
Stock Purchase Agreement, dated as of April 28, 2006, among
Alon USA Energy, Inc., The Craig C. Barto and Gisele M.
Barto Living Trust, Dated April 5, 1991, The Jerrel C.
Barto and Janice D. Barto Living Trust, Dated March 18,
1991, W. Scott Lovejoy, III and Mark R. Milano
(incorporated by reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on May 2, 2006, SEC
File No. 001-32567).
|
|
10
|
.91
|
|
First Amendment to Stock Purchase Agreement, dated as of
June 30, 2006, among Alon USA Energy, Inc., The Craig C.
Barto and Gisele M. Barto Living Trust, Dated April 5,
1991, The Jerrel C. Barto and Janice D. Barto Living Trust,
Dated March 18, 1991, W. Scott Lovejoy III and Mark R.
Milano (incorporated by reference to Exhibit 10.1 to
Form 10-Q,
filed by Alon on November 14, 2006, SEC File
No. 001-32567).
|
|
10
|
.92
|
|
Second Amendment to Stock Purchase Agreement, dated as of
July 31, 2006, among Alon USA Energy, Inc., The Craig C.
Barto and Gisele M. Barto Living Trust, Dated April 5,
1991, The Jerrel C. Barto and Janice D. Barto Living Trust,
Dated March 18, 1991, W. Scott Lovejoy III and Mark R.
Milano (incorporated by reference to Exhibit 10.2 to
Form 10-Q,
filed by Alon on November 14, 2006, SEC File
No. 001-32567).
|
|
10
|
.93
|
|
Agreement and Plan of Merger, dated as of April 28, 2006,
among Alon USA Energy, Inc., Apex Oil Company, Inc.,
Edgington Oil Company, and EOC Acquisition, LLC (incorporated by
reference to Exhibit 10.2 to
Form 8-K,
filed by Alon on May 2, 2006, SEC File
No. 001-32567).
|
|
10
|
.94
|
|
Agreement and Plan of Merger, dated March 2, 2007, by and
among Alon USA Energy, Inc., Alon USA Interests, LLC, ALOSKI,
LLC, Skinnys, Inc. and the Davis Shareholders (as defined
therein) (incorporated by reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on March 6, 2007, SEC File
No. 001-32567).
|
|
10
|
.95
|
|
Stock Purchase Agreement, dated May 7, 2008, between Valero
Refining and Marketing Company and Alon Refining Krotz Springs,
Inc. (incorporated by reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on May 13, 2008, SEC File
No. 001-32567).
|
|
10
|
.96
|
|
First Amendment to Stock Purchase Agreement, dated as of
July 3, 2008, by and among Valero Refining and Marketing
Company, Alon Refining Krotz Springs, Inc. and Valero Refining
Company-Louisiana (incorporated by reference to
Exhibit 10.1 to
Form 8-K,
filed by Alon on July 10, 2008, SEC File
No. 001-32567).
|
|
10
|
.97
|
|
Series A Preferred Stock Purchase Agreement, dated as of
July 3, 2008, by and between Alon Refining Louisiana, Inc.
and Alon Israel Oil Company, Ltd. (incorporated by reference to
Exhibit 10.5 to
Form 8-K,
filed by Alon on July 10, 2008, SEC File
No. 001-32567).
|
|
10
|
.98
|
|
Stockholders Agreement, dated as of July 3, 2008, by and
among Alon USA Energy, Inc., Alon Refining Louisiana, Inc., Alon
Louisiana Holdings, Inc. and Alon Israel Oil Company, Ltd.
(incorporated by reference to Exhibit 10.6 to
Form 8-K,
filed by Alon on July 10, 2008, SEC
File No. 001-32567).
|
|
10
|
.99
|
|
Amended and Restated Stockholders Agreement dated as of
March 31, 2009, by and among Alon USA Energy, Inc., Alon
Refining Louisiana, Inc., Alon Louisiana Holdings, Inc. and Alon
Israel Oil Company, Ltd. (incorporated by reference to
Exhibit 10.88 to
Form 10-K,
filed by Alon on April 10, 2009, SEC File
No. 001-32567).
|
|
10
|
.100
|
|
First Amendment to Amended and Restated Stockholders Agreement
dated as of December 31, 2009, by and among Alon USA
Energy, Inc., Alon Refining Louisiana, Inc., Alon Louisiana
Holdings, Inc. and Alon Israel Oil Company, Ltd. (incorporated
by reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on January 5, 2010, SEC File
No. 001-32567).
|
|
10
|
.101
|
|
Offtake Agreement, dated as of July 3, 2008, by and between
Valero Marketing and Supply Company and Alon Refining Krotz
Springs, Inc. (incorporated by reference to Exhibit 10.9 to
Form 10-Q,
filed by Alon on August 8, 2008, SEC File
No. 001-32567).
|
II-9
|
|
|
|
|
Exhibit No.
|
|
Description of Exhibit
|
|
|
10
|
.102
|
|
Earnout Agreement, dated as of July 3, 2008, by and between
Valero Refining and Marketing Company and Alon Refining Krotz
Springs, Inc. (incorporated by reference to Exhibit 10.10
to
Form 10-Q,
filed by Alon on August 8, 2008, SEC File
No. 001-32567).
|
|
10
|
.103
|
|
First Amendment to Earnout Agreement, dated as of
August 27, 2009, by and between Valero Refining and
Marketing Company and Alon Refining Krotz Springs, Inc.
(incorporated by reference to Exhibit 10.1 to
Form 10-Q,
filed by Alon on November 6, 2009, SEC File
No. 001-32567).
|
|
10
|
.104
|
|
Amended and Restated Supply and Offtake Agreement, dated
May 28, 2010 by and between Alon Refining Krotz Springs,
Inc. and J. Aron & Company (incorporated by reference
to Exhibit 10.6 to
Form 10-Q,
filed by Alon on August 9, 2010, SEC File
No. 001-32567).
|
|
12
|
.1
|
|
Statement Regarding Computation of Ratio of Earnings to Fixed
Charges.*
|
|
21
|
.1
|
|
Subsidiaries of Alon USA Energy, Inc.*
|
|
23
|
.1
|
|
Consent of KPMG LLP.*
|
|
23
|
.2
|
|
Consent of Jones Day (included in Exhibit 5.1).
|
|
24
|
.1
|
|
Power of Attorney.*
|
|
99
|
.1
|
|
Form of Instructions for Completion of Alon USA Energy, Inc.
Rights Certificates.*
|
|
99
|
.2
|
|
Form of Notice of Guaranteed Delivery for Rights Certificates
Issued by Alon USA Energy, Inc.*
|
|
99
|
.3
|
|
Form of Letter to Stockholders who are Record Holders.*
|
|
99
|
.4
|
|
Form of Letter to Stockholders who are Beneficial Holders.*
|
|
99
|
.5
|
|
Form of Letter to Clients of Stockholders who are Beneficial
Holders.*
|
|
99
|
.6
|
|
Form of Beneficial Owner Election Form.*
|
|
99
|
.7
|
|
Form of Nominee Holder Certification.*
|
|
|
|
|
|
Filed under confidential treatment request. |
|
* |
|
Filed or furnished herewith. |
|
|
|
To be filed by amendment. |
The undersigned registrant hereby undertakes:
(a) (1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933 (the
Securities Act);
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
II-10
(4) That, for the purpose of determining liability under
the Securities Act to any purchaser, if the registrant is
subject to Rule 430C, each prospectus filed pursuant to
Rule 424(b) as part of a registration statement relating to
an offering, other than registration statements relying on
Rule 430B or other than prospectuses filed in reliance on
Rule 430A, shall be deemed to be part of and included in
the registration statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such
first use, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such date of first use.
(b) That, for purposes of determining liability under the
Securities Act, each filing of the registrants annual
report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans annual report pursuant
to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities shall be deemed to be the initial bona fide
offering thereof.
(c) To supplement the prospectus, after the expiration of
the subscription period, to set forth the results of the
subscription offer and the terms of any subsequent reoffering
thereof.
(d) That insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
II-11
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in Dallas, State of Texas, on this 23rd day of
August, 2010.
ALON USA ENERGY, INC.
Jeff D. Morris
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Jeff
D. Morris
Jeff
D. Morris
|
|
Chief Executive Officer and Director (Principal Executive
Officer)
|
|
August 23, 2010
|
|
|
|
|
|
/s/ David
Wiessman
David
Wiessman
|
|
Executive Chairman of the Board
|
|
August 23, 2010
|
|
|
|
|
|
/s/ Shai
Even
Shai
Even
|
|
Chief Financial Officer (Principal Financial and Accounting
Officer)
|
|
August 23, 2010
|
|
|
|
|
|
/s/ Itzhak
Bader
Itzhak
Bader
|
|
Director
|
|
August 23, 2010
|
|
|
|
|
|
/s/ Boaz
Biran
Boaz
Biran
|
|
Director
|
|
August 23, 2010
|
|
|
|
|
|
/s/ Shlomo
Even
Shlomo
Even
|
|
Director
|
|
August 23, 2010
|
|
|
|
|
|
/s/ Avinadav
Grinshpon
Avinadav
Grinshpon
|
|
Director
|
|
August 23, 2010
|
|
|
|
|
|
/s/ Ron
W. Haddock
Ron
W. Haddock
|
|
Director
|
|
August 23, 2010
|
|
|
|
|
|
/s/ Yeshayuhu
Pery
Yeshayuhu
Pery
|
|
Director
|
|
August 23, 2010
|
|
|
|
|
|
/s/ Zalman
Segal
Zalman
Segal
|
|
Director
|
|
August 23, 2010
|
|
|
|
|
|
/s/ Avraham
Baiga Shochat
Avraham
Baiga Shochat
|
|
Director
|
|
August 23, 2010
|
II-12
EXHIBIT INDEX
|
|
|
|
|
Exhibit No.
|
|
Description of Exhibit
|
|
|
3
|
.1
|
|
Amended and Restated Certificate of Incorporation of Alon USA
Energy, Inc. (incorporated by reference to Exhibit 3.1 to
Form S-1/A,
filed by Alon on July 7, 2005, SEC File
No. 333-124797).
|
|
3
|
.2
|
|
Amended and Restated Bylaws of Alon USA Energy, Inc.
(incorporated by reference to Exhibit 3.2 to
Form S-1/A,
filed by Alon on July 14, 2005, SEC File
No. 333-124797).
|
|
4
|
.1
|
|
Specimen Common Stock Certificate (incorporated by reference to
Exhibit 4.1 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
4
|
.2
|
|
Indenture, dated as of October 22, 2009, by and among Alon
Refining Krotz Springs, Inc. and Wilmington Trust FSB, as
Trustee (incorporated by reference to Exhibit 4.1 to
Form 8-K,
filed by Alon on October 23, 2009, SEC File
No. 001-32567).
|
|
4
|
.3
|
|
Form of Certificate of Designation of the 8.75% Series A
Convertible Preferred Stock.*
|
|
4
|
.4
|
|
Specimen Subscription Rights Certificate.*
|
|
4
|
.5
|
|
Specimen 8.75% Series A Convertible Preferred Stock
Certificate.*
|
|
4
|
.6
|
|
Form of Subscription Agent Agreement.
|
|
5
|
.1
|
|
Opinion of Jones Day.
|
|
10
|
.1
|
|
Trademark License Agreement, dated as of July 31, 2000,
among Finamark, Inc., Atofina Petrochemicals, Inc. and SWBU,
L.P. (incorporated by reference to Exhibit 10.3 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.2
|
|
First Amendment to Trademark License Agreement, dated as of
April 11, 2001, among Finamark, Inc., Atofina
Petrochemicals, Inc. and SWBU, L.P. (incorporated by reference
to Exhibit 10.4 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.3
|
|
Pipeline Lease Agreement, dated as of December 12, 2007,
between Plains Pipeline, L.P. and Alon USA, L.P. (incorporated
by reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on February 2, 2008, SEC File
No. 001-32567).
|
|
10
|
.4
|
|
Pipeline Lease Agreement, dated as of February 21, 1997,
between Navajo Pipeline Company and American Petrofina Pipe Line
Company (incorporated by reference to Exhibit 10.6 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.5
|
|
Amendment and Supplement to Pipeline Lease Agreement, dated as
of August 31, 2007, by and between HEP Pipeline Assets,
Limited Partnership and Alon USA, LP (incorporated by reference
to Exhibit 10.1 to
Form 10-Q,
filed by Alon on November 8, 2007).
|
|
10
|
.6
|
|
Contribution Agreement, dated as of January 25, 2005, among
Holly Energy Partners, L.P., Holly Energy Partners
Operating, L.P., T & R Assets, Inc., Fin-Tex Pipe Line
Company, Alon USA Refining, Inc., Alon Pipeline Assets, LLC,
Alon Pipeline Logistics, LLC, Alon USA, Inc. and Alon USA, LP
(incorporated by reference to Exhibit 10.7 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.7
|
|
Pipelines and Terminals Agreement, dated as of February 28,
2005, between Alon USA, LP and Holly Energy Partners, L.P.
(incorporated by reference to Exhibit 10.8 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.8
|
|
Pipeline Lease Agreement, dated as of December 12, 2007,
between Plains Pipeline, L.P. and Alon USA, LP (incorporated by
reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on February 5, 2008, SEC File
No. 001-32567).
|
|
10
|
.9
|
|
Liquor License Purchase Agreement, dated as of May 12,
2003, between Southwest Convenience Stores, LLC and SCS
Beverage, Inc. (incorporated by reference to Exhibit 10.34
to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.10
|
|
Premises Lease, dated as of May 12, 2003, between Southwest
Convenience Stores, LLC and SCS Beverage, Inc. (incorporated by
reference to Exhibit 10.35 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.11
|
|
Registration Rights Agreement, dated as of July 6, 2005,
between Alon USA Energy, Inc. and Alon Israel Oil Company, Ltd.
(incorporated by reference to Exhibit 10.22 to
Form S-1/A,
filed by Alon on July 7, 2005, SEC File
No. 333-124797).
|
E-1
|
|
|
|
|
Exhibit No.
|
|
Description of Exhibit
|
|
|
10
|
.12
|
|
Registration Rights Agreement, dated October 22, 2009,
between Alon Refining Krotz Springs, Inc. and
Jefferies & Company, Inc. (incorporated by reference
to Exhibit 10.2 to
Form 8-K,
filed by Alon on October 23, 2009, SEC File
No. 001-32567).
|
|
10
|
.13
|
|
Amended Revolving Credit Agreement, dated as of June 22,
2006, among Alon USA, LP, EOC Acquisition, LLC, Israel Discount
Bank of New York, Bank Leumi USA and certain other guarantor
companies and financial institutions from time to time named
therein (incorporated by reference to Exhibit 10.2 to
Form 8-K,
filed by Alon on June 26, 2006, SEC File
No. 001-32567).
|
|
10
|
.14
|
|
First Amendment to Amended Revolving Credit Agreement, dated as
of August 4, 2006, to the Amended Revolving Credit
Agreement, dated as of June 22, 2006, among Alon USA, LP,
EOC Acquisition, LLC, Israel Discount Bank of New York, Bank
Leumi USA and certain other guarantor companies and financial
institutions from time to time named therein (incorporated by
reference to Exhibit 10.25 to
Form 10-K,
filed by Alon on March 15, 2007 SEC File
No. 001-32567).
|
|
10
|
.15
|
|
Waiver, Consent, Partial Release and Second Amendment, dated as
of February 28, 2007, to the Amended Revolving Credit
Agreement, dated as of June 22, 2006, Alon USA, LP,
Edgington Oil Company, LLC, Israel Discount Bank of New York,
Bank Leumi USA and certain other guarantor companies and
financial institutions from time to time named therein
(incorporated by reference to Exhibit 10.2 to
Form 8-K,
filed by Alon on March 5, 2007, SEC File
No. 001-32567).
|
|
10
|
.16
|
|
Third Amendment to Amended Revolving Credit Agreement, dated as
of June 29, 2007, to the Amended Revolving Credit
Agreement, dated as of June 22, 2006, among Alon USA
Energy, Inc., Alon USA, LP, the guarantor companies and
financial institutions named therein, Israel Discount Bank of
New York and Bank Leumi USA (incorporated by reference to
Exhibit 10.1 to
Form 8-K,
filed by Alon on July 20, 2007, SEC File
No. 001-32567).
|
|
10
|
.17
|
|
Waiver, Consent, Partial Release and Fourth Amendment, dated as
of July 2, 2008, by and among Alon USA, LP, Israel Discount
Bank of New York, Bank Leumi USA and certain other guarantor
companies and financial institutions from time to time named
therein (incorporated by reference to Exhibit 10.4 to
Form 8-K,
filed by Alon on July 10, 2008, SEC File
No. 001-32567).
|
|
10
|
.18
|
|
Fifth Amendment to Amended Revolving Credit Agreement, dated as
of July 31, 2009, by and among Alon USA, LP, Israel
Discount Bank of New York, Bank Leumi USA and certain other
guarantor companies and financial institutions from time to time
named therein (incorporated by reference to Exhibit 10.3 to
Form 10-Q,
filed by Alon on August 6, 2009, SEC File
No. 001-32567).
|
|
10
|
.19
|
|
Sixth Amendment to Amended Revolving Credit Agreement, dated as
of May 10, 2010, by and among Alon USA, LP, Israel Discount
Bank of New York, Bank Leumi USA and certain other guarantor
companies and financial institutions from time to time named
therein (incorporated by reference to Exhibit 10.1 to
Form 10-Q,
filed by Alon on May 10, 2010, SEC File
No. 001-32567).
|
|
10
|
.20
|
|
Seventh Amendment to Amended Revolving Credit Agreement, dated
as of June 1, 2010, by and among Alon USA, LP, Israel
Discount Bank of New York, Bank Leumi USA and certain other
guarantor companies and financial institutions from time to time
named therein (incorporated by reference to Exhibit 10.1 to
Form 10-Q,
filed by Alon on August 9, 2010, SEC File
No. 001-32567).
|
|
10
|
.21
|
|
Eighth Amendment to Amended Revolving Credit Agreement, dated as
of June 16, 2010, by and among Alon USA, LP, Israel
Discount Bank of New York, Bank Leumi USA and certain other
guarantor companies and financial institutions from time to time
named therein (incorporated by reference to Exhibit 10.2 to
Form 10-Q,
filed by Alon on August 9, 2010, SEC File
No. 001-32567).
|
|
10
|
.22
|
|
Revolving Credit Line Agreement, dated March 9, 2010, by
and between Alon and Israel Discount Bank of New York
(incorporated by reference to Exhibit 10.96 to
Form 10-K,
filed by Alon on March 16, 2010, SEC File
No. 001-32567).
|
E-2
|
|
|
|
|
Exhibit No.
|
|
Description of Exhibit
|
|
|
10
|
.23
|
|
Credit Agreement, dated March 15, 2010 (as amended,
supplemented or otherwise modified from time to time), among
Alon Refining Krotz Springs, Inc., each other party joined as a
borrower thereunder from time to time, the Lenders party
thereto, and Bank Hapoalim B.M., as Administrative Agent
(incorporated by reference to Exhibit 10.97 to
Form 10-K,
filed by Alon on March 16, 2010, SEC File
No. 001-32567).
|
|
10
|
.24
|
|
Amendment No. 1 to Credit Agreement, dated May 28,
2010 (as amended, supplemented or otherwise modified from time
to time), among Alon Refining Krotz Springs, Inc., each other
party joined as a borrower thereunder from time to time, the
Lenders party thereto, and Bank Hapoalim B.M., as Administrative
Agent (incorporated by reference to Exhibit 10.3 to
Form 10-Q,
filed by Alon on August 9, 2010, SEC File
No. 001-32567).
|
|
10
|
.25
|
|
Amendment No. 2 to Credit Agreement, dated June 15,
2010 (as amended, supplemented or otherwise modified from time
to time), among Alon Refining Krotz Springs, Inc., each other
party joined as a borrower thereunder from time to time, the
Lenders party thereto, and Bank Hapoalim B.M., as Administrative
Agent (incorporated by reference to Exhibit 10.4 to
Form 10-Q,
filed by Alon on August 9, 2010, SEC File
No. 001-32567).
|
|
10
|
.26
|
|
Amendment No. 3 to Credit Agreement, dated August 11,
2010 (as amended, supplemented or otherwise modified from time
to time), among Alon Refining Krotz Springs, Inc., each other
party joined as a borrower thereunder from time to time, the
Lenders party thereto, and Bank Hapoalim B.M., as Administrative
Agent (incorporated by reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on August 13, 2010, 2010, SEC File
No. 001-32567).
|
|
10
|
.27
|
|
Credit Agreement, dated May 28, 2010, by and between Alon
Refining Krotz Springs, Inc. and Goldman Sachs Bank USA, as
Issuing Bank (incorporated by reference to Exhibit 10.5 to
Form 10-Q,
filed by Alon on August 9, 2010, SEC File
No. 001-32567).
|
|
10
|
.28
|
|
Amended and Restated Credit Agreement, dated as of June 29,
2007, among Southwest Convenience Stores, LLC, the lenders party
thereto and Wachovia Bank, National Association (incorporated by
reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on July 2, 2007, SEC File
No. 001-32567).
|
|
10
|
.29
|
|
Credit Agreement, dated as of June 22, 2006, among Alon USA
Energy, Inc., the lenders party thereto and Credit Suisse
(incorporated by reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on June 26, 2006, SEC File
No. 001-32567).
|
|
10
|
.30
|
|
Amendment No. 1 to the Credit Agreement, dated as of
February 28, 2007, by and among Alon USA Energy, Inc., the
lenders party thereto and Credit Suisse (incorporated by
reference to Exhibit 10.3 to
Form 8-K,
filed by Alon on March 5, 2007, SEC File
No. 001-32567).
|
|
10
|
.31
|
|
Second Amended and Restated Credit Agreement, dated as of
February 28, 2007, among Paramount Petroleum Corporation,
Bank of America, N.A. and certain other guarantor companies and
financial institutions from time to time named therein
(incorporated by reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on March 5, 2007, SEC File
No. 001-32567).
|
|
10
|
.32
|
|
First Amendment to Second Amended and Restated Credit Agreement,
dated as of March 30, 2007, among Paramount Petroleum
Corporation, Bank of America, N.A. and certain other guarantor
companies and financial institutions from time to time named
therein (incorporated by reference to Exhibit 10.37 to
Form 10-K,
filed by Alon on March 11, 2008, SEC File
No. 001-32567).
|
|
10
|
.33
|
|
Term Loan Agreement, dated as of July 3, 2008, by and among
Alon Refining Louisiana, Inc., Alon Refining Krotz Springs,
Inc., the lenders party thereto and Credit Suisse, as
administrative agent and collateral agent (incorporated by
reference to Exhibit 10.2 to
Form 8-K,
filed by Alon on July 10, 2008, SEC File
No. 001-32567).
|
|
10
|
.34
|
|
First Amendment Agreement, dated as of April 9, 2009, by
and among Alon Refining Louisiana, Inc., Alon Refining Krotz
Springs, Inc., the lenders party thereto and Wells Fargo Bank,
National Association, as successor to Credit Suisse, Cayman
Islands Branch, as agent (incorporated by reference to
Exhibit 10.1 to
Form 10-Q,
filed by Alon on August 6, 2009, SEC
File No. 001-32567).
|
E-3
|
|
|
|
|
Exhibit No.
|
|
Description of Exhibit
|
|
|
10
|
.35
|
|
Loan and Security Agreement, dated as of July 3, 2008, by
and among Alon Refining Louisiana, Inc., Alon Refining Krotz
Springs, Inc., the lenders party thereto and Bank of America,
N.A., as administrative agent (incorporated by reference to
Exhibit 10.3 to
Form 8-K,
filed by Alon on July 10, 2008, SEC File
No. 001-32567).
|
|
10
|
.36
|
|
First Amendment to Loan and Security Agreement, dated as of
December 18, 2008, by and among Alon Refining Louisiana,
Inc., Alon Refining Krotz Springs, Inc., the lenders party
thereto and Bank of America, N.A. (incorporated by reference to
Exhibit 10.28 to
Form 10-K,
filed by Alon on April 10, 2009, SEC File
No. 001-32567).
|
|
10
|
.37
|
|
Second Amendment to Loan and Security Agreement, dated as of
April 9, 2009, by and among Alon Refining Louisiana, Inc.,
Alon Refining Krotz Springs, Inc., the lenders party thereto and
Bank of America, N.A., as agent (incorporated by reference to
Exhibit 10.2 to
Form 8-K,
filed by Alon on April 27, 2009, SEC File
No. 001-32567).
|
|
10
|
.38
|
|
Amended and Restated Loan and Security Agreement, dated as of
October 22, 2009 (as amended, supplemented or otherwise
modified from time to time), among Alon Refining Louisiana,
Inc., Alon Refining Krotz Springs, Inc., each other party joined
as a borrower thereunder from time to time, the Lenders party
thereto, and Bank of America, N.A., as Agent (incorporated by
reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on October 23, 2009, SEC File
No. 001-32567).
|
|
10
|
.39
|
|
Purchase Agreement, dated October 13, 2009, between Alon
Refining Krotz Springs, Inc. and Jefferies & Co.
(incorporated by reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on October 19, 2009, SEC File
No. 001-32567).
|
|
10
|
.40
|
|
Management and Consulting Agreement, dated as of August 1,
2003, among Alon USA, Inc., Alon Israel Oil Company, Ltd. and
Alon USA Energy, Inc. (incorporated by reference to
Exhibit 10.21 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.41
|
|
Amendment, dated as of June 17, 2005, to the Management and
Consulting Agreement, dated as of August 1, 2003, among
Alon USA, Inc., Alon Israel Oil Company, Ltd. and Alon USA
Energy, Inc. (incorporated by reference to Exhibit 10.21.1
to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.42
|
|
Executive Employment Agreement, dated as of July 31, 2000,
between Jeff D. Morris and Alon USA GP, Inc., as amended by the
Amendment to Executive/Management Employment Agreement, dated
May 1, 2005 (incorporated by reference to
Exhibit 10.23 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.43
|
|
Second Amendment to Executive Employment Agreement, dated as of
November 4, 2008, between Jeff D. Morris and Alon USA GP,
LLC (incorporated by reference to Exhibit 10.9 to
Form 10-Q,
filed by Alon on November 7, 2008, SEC File
No. 001-32567).
|
|
10
|
.44
|
|
Executive Employment Agreement, dated as of July 31, 2000,
between Claire A. Hart and Alon USA GP, Inc., as amended by the
Amendment to Executive/Management Employment Agreement, dated
May 1, 2005 (incorporated by reference to
Exhibit 10.24 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.45
|
|
Second Amendment to Executive Employment Agreement, dated as of
November 4, 2008, between Claire A. Hart and Alon USA GP,
LLC (incorporated by reference to Exhibit 10.10 to
Form 10-Q,
filed by Alon on November 7, 2008, SEC File
No. 001-32567).
|
|
10
|
.46
|
|
Executive Employment Agreement, dated as of February 5,
2001, between Joseph A. Concienne, III and Alon USA GP,
Inc., as amended by the Amendment to Executive/Management
Employment Agreement, dated May 1, 2005 (incorporated by
reference to Exhibit 10.25 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.47
|
|
Second Amendment to Executive Employment Agreement, dated as of
November 4, 2008, between Joseph A. Concienne, III and
Alon USA GP, LLC. (incorporated by reference to
Exhibit 10.11 to
Form 10-Q,
filed by Alon on November 7, 2008, SEC File
No. 001-32567).
|
|
10
|
.48
|
|
Amended and Restated Management Employment Agreement, dated as
of August 9, 2006, between Harlin R. Dean and Alon USA GP,
LLC (incorporated by reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on August 10, 2006, SEC File
No. 001-32567).
|
E-4
|
|
|
|
|
Exhibit No.
|
|
Description of Exhibit
|
|
|
10
|
.49
|
|
Amendment to Amended and Restated Management Employment
Agreement, dated as of November 4, 2008, between Harlin R.
Dean and Alon USA GP, LLC (incorporated by reference to
Exhibit 10.12 to
Form 10-Q,
filed by Alon on November 7, 2008, SEC File
No. 001-32567).
|
|
10
|
.50
|
|
Management Employment Agreement, dated as of September 1,
2000, between Yosef Israel and Alon USA GP, LLC (incorporated by
reference to Exhibit 10.33 to
Form 10-K,
filed by Alon on March 15, 2006, SEC File
No. 001-32567).
|
|
10
|
.51
|
|
Amendment to Executive/Management Employment Agreement, dated as
of May 1, 2005 between Yosef Israel and Alon USA GP, LLC
(incorporated by reference to Exhibit 10.34 to
Form 10-K,
filed by Alon on March 15, 2006, SEC File
No. 001-32567).
|
|
10
|
.52
|
|
Second Amendment to Executive/Management Employment Agreement,
dated as of November 4, 2008, between Yosef Israel and Alon
USA GP, LLC (incorporated by reference to Exhibit 10.13 to
Form 10-Q,
filed by Alon on November 7, 2008, SEC File
No. 001-32567).
|
|
10
|
.53
|
|
Executive Employment Agreement, dated as of August 1, 2003,
between Shai Even and Alon USA GP, LLC (incorporated by
reference to Exhibit 10.49 to
Form 10-K,
filed by Alon on March 15, 2007, SEC File
No. 001-32567).
|
|
10
|
.54
|
|
Amendment to Executive Employment Agreement, dated as of
November 4, 2008, between Shai Even and Alon USA GP, LLC.
(incorporated by reference to Exhibit 10.14 to
Form 10-Q,
filed by Alon on November 7, 2008, SEC File
No. 001-32567).
|
|
10
|
.55
|
|
Agreement of Principles of Employment, dated as of July 6,
2005, between David Wiessman and Alon USA Energy, Inc.
(incorporated by reference to Exhibit 10.50 to
Form S-1/A,
filed by Alon on July 7, 2005, SEC File
No. 333-124797).
|
|
10
|
.56
|
|
Management Employment Agreement, dated as of October 30,
2008, between Michael Oster and Alon USA GP, LLC (incorporated
by reference to Exhibit 10.71 to
Form 10-K,
filed by Alon on April 10, 2009, SEC File
No. 001-32567).
|
|
10
|
.57
|
|
Annual Cash Bonus Plan (incorporated by reference to
Exhibit 10.27 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.58
|
|
Description of 10% Bonus Plan (incorporated by reference to
Exhibit 10.28 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.59
|
|
Description of Annual Bonus Plans (incorporated by reference to
Exhibit 10.2 to
Form 10-Q,
filed by Alon on May 6, 2008, SEC File
No. 001-32567).
|
|
10
|
.60
|
|
Change of Control Incentive Bonus Program (incorporated by
reference to Exhibit 10.29 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.61
|
|
Description of Director Compensation (incorporated by reference
to Exhibit 10.30 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.62
|
|
Form of Director Indemnification Agreement (incorporated by
reference to Exhibit 10.31 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.63
|
|
Form of Officer Indemnification Agreement (incorporated by
reference to Exhibit 10.32 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.64
|
|
Form of Director and Officer Indemnification Agreement
(incorporated by reference to Exhibit 10.33 to
Form S-1,
filed by Alon on May 11, 2005, SEC File
No. 333-124797).
|
|
10
|
.65
|
|
Alon Assets, Inc. 2000 Stock Option Plan (incorporated by
reference to Exhibit 10.36 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.66
|
|
Alon USA Operating, Inc. 2000 Stock Option Plan (incorporated by
reference to Exhibit 10.37 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.67
|
|
Incentive Stock Option Agreement, dated as of July 31,
2000, between Alon Assets, Inc. and Jeff D. Morris, as
amended by the Amendment to the Incentive Stock Option
Agreement, dated June 30, 2002 (incorporated by reference
to Exhibit 10.38 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.68
|
|
Second Amendment to Incentive Stock Option Agreement, dated as
of November 4, 2008, between Jeff D. Morris and Alon
Assets, Inc. (incorporated by reference to Exhibit 10.15 to
Form 10-Q,
filed by Alon on November 7, 2008, SEC File
No. 001-32567).
|
E-5
|
|
|
|
|
Exhibit No.
|
|
Description of Exhibit
|
|
|
10
|
.69
|
|
Shareholder Agreement, dated as of July 31, 2000, between
Alon Assets, Inc. and Jeff D. Morris, as amended by the
Amendment to the Shareholder Agreement, dated June 30, 2002
(incorporated by reference to Exhibit 10.39 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.70
|
|
Incentive Stock Option Agreement, dated as of July 31,
2000, between Alon USA Operating, Inc. and Jeff D. Morris, as
amended by the Amendment to the Incentive Stock Option
Agreement, dated June 30, 2002 (incorporated by reference
to Exhibit 10.40 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.71
|
|
Second Amendment to Incentive Stock Option Agreement, dated as
of November 4, 2008, between Jeff D. Morris and Alon USA
Operating, Inc. (incorporated by reference to Exhibit 10.16
to
Form 10-Q,
filed by Alon on November 7, 2008, SEC File
No. 001-32567).
|
|
10
|
.72
|
|
Shareholder Agreement, dated as of July 31, 2000, between
Alon USA Operating, Inc. and Jeff D. Morris, as amended by the
Amendment to the Shareholder Agreement, dated June 30, 2002
(incorporated by reference to Exhibit 10.41 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.73
|
|
Incentive Stock Option Agreement, dated as of July 31,
2000, between Alon Assets, Inc. and Claire A. Hart, as amended
by the Amendment to the Incentive Stock Option Agreement, dated
June 30, 2002 and July 25, 2002 (incorporated by
reference to Exhibit 10.42 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.74
|
|
Shareholder Agreement, dated as of July 31, 2000, between
Alon Assets, Inc. and Claire A. Hart, as amended by the
Amendment to the Shareholder Agreement, dated June 30, 2002
(incorporated by reference to Exhibit 10.43 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.75
|
|
Incentive Stock Option Agreement, dated as of July 31,
2000, between Alon USA Operating, Inc. and Claire A. Hart, as
amended by the Amendment to the Incentive Stock Option
Agreement, dated June 30, 2002 and July 25, 2002
(incorporated by reference to Exhibit 10.44 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.76
|
|
Shareholder Agreement, dated as of July 31, 2000, between
Alon USA Operating, Inc. and Claire A. Hart, as amended by the
Amendment to the Shareholder Agreement, dated June 30, 2002
(incorporated by reference to Exhibit 10.45 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.77
|
|
Incentive Stock Option Agreement, dated as of February 5,
2001, between Alon Assets, Inc. and Joseph A.
Concienne, III, as amended by the Amendment to the
Incentive Stock Option Agreement, dated July 25, 2002
(incorporated by reference to Exhibit 10.46 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.78
|
|
Shareholder Agreement, dated as of February 5, 2001,
between Alon Assets, Inc. and Joseph A. Concienne, III
(incorporated by reference to Exhibit 10.47 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.79
|
|
Incentive Stock Option Agreement, dated as of February 5,
2001, between Alon USA Operating, Inc. and Joseph A.
Concienne, III, as amended by the Amendment to the
Incentive Stock Option Agreement, dated July 25, 2002
(incorporated by reference to Exhibit 10.48 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.80
|
|
Shareholder Agreement, dated as of February 5, 2001,
between Alon USA Operating, Inc. and Joseph A.
Concienne, III (incorporated by reference to
Exhibit 10.49 to
Form S-1/A,
filed by Alon on June 17, 2005, SEC File
No. 333-124797).
|
|
10
|
.81
|
|
Agreement, dated as of July 6, 2005, among Alon USA Energy,
Inc., Alon USA, Inc., Alon USA Capital, Inc., Alon USA
Operating, Inc., Alon Assets, Inc., Jeff D. Morris, Claire A.
Hart and Joseph A. Concienne, III (incorporated by
reference to Exhibit 10.52 to
Form S-1/A,
filed by Alon on July 7, 2005, SEC File
No. 333-124797).
|
|
10
|
.82
|
|
Alon USA Energy, Inc. Amended and Restated 2005 Incentive
Compensation Plan (incorporated by reference to
Exhibit 10.1 to
Form 8-K,
filed by Alon on May 7, 2010, SEC
File No. 001-32567).
|
E-6
|
|
|
|
|
Exhibit No.
|
|
Description of Exhibit
|
|
|
10
|
.83
|
|
Form of Restricted Stock Award Agreement relating to Director
Grants pursuant to Section 12 of the Alon USA Energy, Inc.
2005 Incentive Compensation Plan (incorporated by reference to
Exhibit 10.1 to
Form 8-K,
filed by Alon on August 5, 2005, SEC File
No. 001-32567).
|
|
10
|
.84
|
|
Form of Restricted Stock Award Agreement relating to Participant
Grants pursuant to Section 8 of the Alon USA Energy, Inc.
2005 Incentive Compensation Plan (incorporated by reference to
Exhibit 10.1 to
Form 8-K,
filed by Alon on August 23, 2005, SEC File
No. 001-32567).
|
|
10
|
.85
|
|
Form II of Restricted Stock Award Agreement relating to
Participant Grants pursuant to Section 8 of the Alon USA
Energy, Inc. 2005 Incentive Compensation Plan (incorporated by
reference to Exhibit 10.3 to
Form 8-K,
filed by Alon on November 8, 2005, SEC File
No. 001-32567).
|
|
10
|
.86
|
|
Form of Appreciation Rights Award Agreement relating to
Participant Grants pursuant to Section 7 of the Alon USA
Energy, Inc. 2005 Incentive Compensation Plan (incorporated by
reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on March 12, 2007, SEC File
No. 001-32567).
|
|
10
|
.87
|
|
Form of Amendment to Appreciation Rights Award Agreement
relating to Participant Grants pursuant to Section 7 of the
Alon USA Energy, Inc. 2005 Incentive Compensation Plan
(incorporated by reference to Exhibit 10.2 to
Form 8-K,
filed by Alon on January 27, 2010, SEC File
No. 001-32567).
|
|
10
|
.88
|
|
Form II of Appreciation Rights Award Agreement relating to
Participant Grants pursuant to Section 7 of the Alon USA
Energy, inc. 2005 Incentive Compensation Plan (incorporated by
reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on January 27, 2010, SEC File
No. 001-32567).
|
|
10
|
.89
|
|
Purchase and Sale Agreements, dated as of February 13,
2006, between Alon Petroleum Pipe Line, LP and Sunoco Pipelines,
LP, (incorporated by reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on February 13, 2006, SEC File
No. 001-32567).
|
|
10
|
.90
|
|
Stock Purchase Agreement, dated as of April 28, 2006, among
Alon USA Energy, Inc., The Craig C. Barto and Gisele M.
Barto Living Trust, Dated April 5, 1991, The Jerrel C.
Barto and Janice D. Barto Living Trust, Dated March 18,
1991, W. Scott Lovejoy, III and Mark R. Milano
(incorporated by reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on May 2, 2006, SEC
File No. 001-32567).
|
|
10
|
.91
|
|
First Amendment to Stock Purchase Agreement, dated as of
June 30, 2006, among Alon USA Energy, Inc., The Craig C.
Barto and Gisele M. Barto Living Trust, Dated April 5,
1991, The Jerrel C. Barto and Janice D. Barto Living Trust,
Dated March 18, 1991, W. Scott Lovejoy III and Mark R.
Milano (incorporated by reference to Exhibit 10.1 to
Form 10-Q,
filed by Alon on November 14, 2006, SEC File
No. 001-32567).
|
|
10
|
.92
|
|
Second Amendment to Stock Purchase Agreement, dated as of
July 31, 2006, among Alon USA Energy, Inc., The Craig C.
Barto and Gisele M. Barto Living Trust, Dated April 5,
1991, The Jerrel C. Barto and Janice D. Barto Living Trust,
Dated March 18, 1991, W. Scott Lovejoy III and Mark R.
Milano (incorporated by reference to Exhibit 10.2 to
Form 10-Q,
filed by Alon on November 14, 2006, SEC File
No. 001-32567).
|
|
10
|
.93
|
|
Agreement and Plan of Merger, dated as of April 28, 2006,
among Alon USA Energy, Inc., Apex Oil Company, Inc.,
Edgington Oil Company, and EOC Acquisition, LLC (incorporated by
reference to Exhibit 10.2 to
Form 8-K,
filed by Alon on May 2, 2006, SEC File
No. 001-32567).
|
|
10
|
.94
|
|
Agreement and Plan of Merger, dated March 2, 2007, by and
among Alon USA Energy, Inc., Alon USA Interests, LLC,
ALOSKI, LLC, Skinnys, Inc. and the Davis Shareholders (as
defined therein) (incorporated by reference to Exhibit 10.1
to
Form 8-K,
filed by Alon on March 6, 2007, SEC File
No. 001-32567).
|
|
10
|
.95
|
|
Stock Purchase Agreement, dated May 7, 2008, between Valero
Refining and Marketing Company and Alon Refining Krotz Springs,
Inc. (incorporated by reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on May 13, 2008, SEC File
No. 001-32567).
|
E-7
|
|
|
|
|
Exhibit No.
|
|
Description of Exhibit
|
|
|
10
|
.96
|
|
First Amendment to Stock Purchase Agreement, dated as of
July 3, 2008, by and among Valero Refining and Marketing
Company, Alon Refining Krotz Springs, Inc. and Valero Refining
Company-Louisiana (incorporated by reference to
Exhibit 10.1 to
Form 8-K,
filed by Alon on July 10, 2008, SEC File
No. 001-32567).
|
|
10
|
.97
|
|
Series A Preferred Stock Purchase Agreement, dated as of
July 3, 2008, by and between Alon Refining Louisiana, Inc.
and Alon Israel Oil Company, Ltd. (incorporated by reference to
Exhibit 10.5 to
Form 8-K,
filed by Alon on July 10, 2008, SEC File
No. 001-32567).
|
|
10
|
.98
|
|
Stockholders Agreement, dated as of July 3, 2008, by and
among Alon USA Energy, Inc., Alon Refining Louisiana, Inc., Alon
Louisiana Holdings, Inc. and Alon Israel Oil Company, Ltd.
(incorporated by reference to Exhibit 10.6 to
Form 8-K,
filed by Alon on July 10, 2008, SEC
File No. 001-32567).
|
|
10
|
.99
|
|
Amended and Restated Stockholders Agreement dated as of
March 31, 2009, by and among Alon USA Energy, Inc., Alon
Refining Louisiana, Inc., Alon Louisiana Holdings, Inc. and Alon
Israel Oil Company, Ltd. (incorporated by reference to
Exhibit 10.88 to
Form 10-K,
filed by Alon on April 10, 2009, SEC File
No. 001-32567).
|
|
10
|
.100
|
|
First Amendment to Amended and Restated Stockholders Agreement
dated as of December 31, 2009, by and among Alon USA
Energy, Inc., Alon Refining Louisiana, Inc., Alon Louisiana
Holdings, Inc. and Alon Israel Oil Company, Ltd. (incorporated
by reference to Exhibit 10.1 to
Form 8-K,
filed by Alon on January 5, 2010, SEC File
No. 001-32567).
|
|
10
|
.101
|
|
Offtake Agreement, dated as of July 3, 2008, by and between
Valero Marketing and Supply Company and Alon Refining Krotz
Springs, Inc. (incorporated by reference to Exhibit 10.9 to
Form 10-Q,
filed by Alon on August 8, 2008, SEC File
No. 001-32567).
|
|
10
|
.102
|
|
Earnout Agreement, dated as of July 3, 2008, by and between
Valero Refining and Marketing Company and Alon Refining Krotz
Springs, Inc. (incorporated by reference to Exhibit 10.10
to
Form 10-Q,
filed by Alon on August 8, 2008, SEC File
No. 001-32567).
|
|
10
|
.103
|
|
First Amendment to Earnout Agreement, dated as of
August 27, 2009, by and between Valero Refining and
Marketing Company and Alon Refining Krotz Springs, Inc.
(incorporated by reference to Exhibit 10.1 to
Form 10-Q,
filed by Alon on November 6, 2009, SEC File
No. 001-32567).
|
|
10
|
.104
|
|
Amended and Restated Supply and Offtake Agreement, dated
May 28, 2010 by and between Alon Refining Krotz Springs,
Inc. and J. Aron & Company (incorporated by reference
to Exhibit 10.6 to
Form 10-Q,
filed by Alon on August 9, 2010, SEC File
No. 001-32567).
|
|
12
|
.1
|
|
Statement Regarding Computation of Ratio of Earnings to Fixed
Charges.*
|
|
21
|
.1
|
|
Subsidiaries of Alon USA Energy, Inc.*
|
|
23
|
.1
|
|
Consent of KPMG LLP.*
|
|
23
|
.2
|
|
Consent of Jones Day (included in Exhibit 5.1).
|
|
24
|
.1
|
|
Power of Attorney.*
|
|
99
|
.1
|
|
Form of Instructions for Completion of Alon USA Energy, Inc.
Rights Certificates.*
|
|
99
|
.2
|
|
Form of Notice of Guaranteed Delivery for Rights Certificates
Issued by Alon USA Energy, Inc.*
|
|
99
|
.3
|
|
Form of Letter to Stockholders who are Record Holders.*
|
|
99
|
.4
|
|
Form of Letter to Stockholders who are Beneficial Holders.*
|
|
99
|
.5
|
|
Form of Letter to Clients of Stockholders who are Beneficial
Holders.*
|
|
99
|
.6
|
|
Form of Beneficial Owner Election Form.*
|
|
99
|
.7
|
|
Form of Nominee Holder Certification.*
|
|
|
|
|
|
Filed under confidential treatment request. |
|
* |
|
Filed or furnished herewith. |
|
|
|
To be filed by amendment. |
E-8