UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
    
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): July 3, 2017 (June 30, 2017)
DELEK US HOLDINGS, INC.
(Exact Name of Registrant as Specified in Charter)
   
 
 
 
Delaware
001-694426
35-2581557
(State or Other Jurisdiction
of Incorporation or Organization)
(Commission
File Number)
(I.R.S. Employer
Identification No.)
 
 
 
7102 Commerce Way
Brentwood, Tennessee 37027
(Address of Principal Executive Offices)
37027
(Zip Code)
 
 
Registrant’s telephone number, including area code: (615) 771-6701
 
Delek Holdco, Inc.
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company o
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  o







EXPLANATORY NOTE
On June 30, 2017, the mergers (the “Mergers”) pursuant to the Agreement and Plan of Merger, dated as of January 2, 2017, by and among Delek US Holdings, Inc., a Delaware corporation (“Old Delek”), Delek Holdco, Inc., a Delaware corporation (the “Registrant”), Dione Mergeco, Inc., a Delaware corporation (“Delek Merger Sub”), Astro Mergeco, Inc., a Delaware corporation (“Alon Merger Sub”), and Alon USA Energy, Inc. (“Alon”), as amended by the First Amendment, dated as of February 27, 2017, and the Second Amendment, dated as of April 21, 2017 (as so amended, the “Merger Agreement”), were completed. The Mergers and the Merger Agreement were previously described in the Registration Statement on Form S-4 (Registration No. 333-216298) filed by the Registrant (as amended, the “Registration Statement”) and the definitive joint proxy statement/prospectus of Old Delek and Alon, dated May 30, 2017, that forms a part of the Registration Statement (the “Joint Proxy Statement/Prospectus”).
Upon consummation of the Mergers, Delek Merger Sub merged with and into Old Delek, with Old Delek surviving as a wholly owned subsidiary of the Registrant, and Astro Merger Sub merged with and into Alon, with Alon surviving as a direct and indirect wholly owned subsidiary of the Registrant. The Mergers were effective as of July 1, 2017 (the “Effective Time”).
By reason of the Mergers, at the Effective Time, the Registrant became the parent public reporting company. The Registrant also changed its name to Delek US Holdings, Inc. immediately prior to the Effective Time. In addition, the former public reporting company, Old Delek, changed its name to Delek US Energy, Inc. This Current Report on Form 8-K is being filed for the purpose of establishing the Registrant as the successor issuer to Old Delek and Alon pursuant to Rule 12g-3(c) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and to disclose events, including the consummation of the Mergers and entry into specified agreements, which are required to be disclosed on Form 8-K with respect to the Registrant and Old Delek.
Item 1.01.
Entry Into a Material Definitive Agreement.
In connection with the Mergers, Alon, the Registrant and U.S. Bank National Association, as trustee (the “Trustee”) entered into a First Supplemental Indenture (the “Supplemental Indenture”), effective as of July 1, 2017, supplementing the Indenture, dated as of September 16, 2013 (the “Indenture”), pursuant to which Alon issued its 3.00% Convertible Senior Notes due 2018 (the “Notes”), which were convertible into shares of Alon’s common stock, par value $0.01 per share (“Alon Common Stock”) or cash or a combination of cash and Alon Common Stock, all as provided in the Indenture. The Supplemental Indenture provides that, as of the Effective Time, the right to convert each $1,000 principal amount of the Notes based on a number of shares of Alon Common Stock equal to the Conversion Rate (as defined in the Indenture) in effect immediately prior to the Mergers was changed into a right to convert each $1,000 principal amount of Notes into or based on a number of shares of common stock, par value $0.01 per share, of the Registrant (“Registrant Common Stock”) equal to the Conversion Rate in effect immediately prior to the Mergers. In addition, the Supplemental Indenture provides that, as of the Effective Time, the Registrant fully and unconditionally guaranteed, on a senior basis, Alon’s obligations under the Notes.
The foregoing description of the Supplemental Indenture is only a summary, does not purport to be complete and is qualified in its entirety by reference to the Supplemental Indenture, which is filed as Exhibit 10.1 to this Current Report on Form 8-K, and is incorporated herein by reference.
Item 2.01.
Completion of Acquisition or Disposition of Assets.
On June 30, 2017, the Mergers pursuant to the Merger Agreement were completed and became effective as of the Effective Time. The Mergers and the Merger Agreement were previously described in the Registration Statement and the Joint Proxy Statement/Prospectus. Upon consummation of the Mergers, Delek Merger Sub merged with and into Old Delek, with Old Delek surviving as a wholly owned subsidiary of the Registrant, and Astro Merger Sub merged with and into Alon, with Alon surviving as a direct and indirect wholly owned subsidiary of the Registrant.
Subject to the terms and conditions of the Merger Agreement, at the Effective Time, each issued and outstanding share of Alon Common Stock, other than shares owned by Old Delek and its subsidiaries or held in the


treasury of Alon, was converted into the right to receive 0.504 of a share of Registrant Common Stock, or, in the case of fractional shares of Registrant Common Stock, cash (without interest) in an amount equal to the product of (i) such fractional part of a share of Registrant Common Stock multiplied by (ii) $25.96 per share, which was the volume weighted average price of the Old Delek common stock, par value $0.01 per share (“Old Delek Common Stock”) as reported on the NYSE Composite Transactions Reporting System for the twenty (20) consecutive New York Stock Exchange (“NYSE”) full trading days ending on June 30, 2017. Each outstanding share of restricted Alon Common Stock was assumed by the Registrant and converted into a restricted stock award denominated in shares of Registrant Common Stock.
In addition, subject to the terms and conditions of the Merger Agreement, each share of Old Delek Common Stock or fraction thereof issued and outstanding immediately prior to the Effective Time (other than Old Delek Common Stock held in the treasury of Old Delek) was converted at the Effective Time into the right to receive one validly issued, fully paid and non‑assessable share of Registrant Common Stock or such fraction thereof equal to the fractional share of Registrant Common Stock. All existing Old Delek stock options, restricted stock awards and stock appreciation rights were converted into equivalent rights with respect to Registrant Common Stock.
The foregoing description of the Merger Agreement is only a summary, does not purport to be complete and is qualified in its entirety by reference to (i) the Merger Agreement, which is filed as Exhibit 2.1 to the Current Report on Form 8-K filed by Old Delek with the Securities and Exchange Commission (“SEC”) on January 3, 2017, (ii) the First Amendment to the Merger Agreement, filed as Exhibit 2.6 to the Annual Report on Form 10-K filed by Old Delek with the SEC on February 28, 2017 and (iii) the Second Amendment to the Merger Agreement, filed as Exhibit 2.3 to the Quarterly Report on Form 10-Q filed by Old Delek with the SEC on May 9, 2017, each of which is incorporated herein by reference, and (iv) the description of the Merger Agreement contained in the Registration Statement and the Joint Proxy Statement/Prospectus.
Pursuant to Rule 12g-3(c) under the Exchange Act, the Registrant is the successor issuer to Old Delek and Alon. The shares of Registrant Common Stock are deemed to be registered under Section 12(b) of the Exchange Act, and the Registrant is subject to the informational requirements of the Exchange Act, and the rules and regulations promulgated thereunder. The Registrant hereby reports this succession in accordance with Rule 12g-3(f) under the Exchange Act. The shares of Registrant Common Stock were approved for listing on the NYSE and will trade under the symbol “DK”.
Item 3.01.
Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
Prior to the Mergers, the shares of Old Delek Common Stock were registered pursuant to Section 12(b) of the Exchange Act and listed on the NYSE, and the shares of Alon Common Stock were registered pursuant to Section 12(b) of the Exchange Act and listed on the NYSE. As a result of the Mergers, each of Old Delek and Alon has requested that the NYSE file a Form 25 to withdraw the shares of the Old Delek Common Stock and the Alon Common Stock, respectively, from listing on the NYSE. Both the shares of the Old Delek Common Stock and the Alon Common Stock were suspended from trading on the NYSE as of the close of business on June 30, 2017. As of the date hereof, each of Old Delek and Alon has filed a Form 15 with the SEC to terminate the registration under the Exchange Act of the shares of Old Delek Common Stock and the Alon Common Stock, respectively, and suspend the reporting obligations under Section 15(d) of the Exchange Act of Old Delek and Alon, respectively. The information set forth in Item 2.01 of this Form 8-K is incorporated by reference into this Item 3.01.
Item 3.03.
Material Modification to Rights of Security Holders.
The information set forth in Items 2.01, 3.01 and 5.03 of this Form 8-K are incorporated herein by reference to this Item 3.03.
The issuance of shares of Registrant Common Stock in connection with the Mergers was registered under the Securities Act of 1933, as amended, pursuant to the Registration Statement. The Joint Proxy Statement/Prospectus contains additional information about the Mergers and the other transactions contemplated by the Merger


Agreement, including information concerning the interests of directors, executive officers and affiliates of Old Delek and Alon in the Mergers.
Item 5.01.
Changes in Control of Registrant.
The information set forth in Item 2.01 of this Form 8-K is incorporated by reference into this Item 5.01.
Item 5.02.
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Registrant – Board of Directors
In connection with the consummation of the Mergers, effective as of the Effective Time, each of Assaf Ginzburg and Frederec Green resigned from their respective positions as directors of the Registrant, and William J. Finnerty, Carlos E. Jordá, Charles L. Leonard, Gary M. Sullivan, Jr., Shlomo Zohar and Avi Geffen were elected to the Board of Directors of the Registrant (the “Board”). Ezra Uzi Yemin remained as a director of the Registrant. Each of Messrs. Finnerty, Jordá, Leonard, Sullivan and Zohar qualifies as an independent director under applicable SEC rules and regulations and the rules of the NYSE. The Audit Committee, Compensation Committee and Nominating and Governance Committees of the Board are comprised of the same directors as those who comprised such committees of the board of directors of Old Delek immediately prior to the Effective Time.
Registrant – Executive Officers
As of the Effective Time, the Registrant’s principal executive officer and president is Ezra Uzi Yemin., the Registrant’s principal financial officer and principal accounting officer is Kevin Kremke, and the Registrant’s principal operating officer is Frederec Green. Certain biographical and other information concerning the foregoing individuals is set forth below.
Ezra Uzi Yemin (Age – 49) is Chairman of the Board, Chief Executive Officer and President of the Registrant. He served as the Chairman of the Board of Directors of Old Delek from December 2012 to the Effective Time, as its Chief Executive Officer from June 2004 to the Effective Time and as its President and a director from April 2001 to the Effective Time. He has also served as the chairman of the board of directors and chief executive officer of Delek Logistics GP, LLC (“Logistics GP”) since April 2012 and as the chairman of the board of directors of Alon since May 2015. He served as the chairman of Old Delek’s board of directors’ Compensation Committee from its inception in May 2006 until March 2013. Mr. Yemin also served as Old Delek’s treasurer from April 2001 to November 2003 and as its secretary from May 2001 to August 2005. Mr. Yemin’s duties include the formulation of the Registrant’s policies and strategic direction, oversight of executive officers, and overall responsibility for the Registrant’s operations and performance.
Frederec C. Green (Age – 52) is Executive Vice President and Chief Operating Officer of the Registrant. He served as Old Delek’s Chief Operating Officer since November 2016, an Executive Vice President since May 2009 and was the primary operational officer for Old Delek’s refining operations from January 2005 to December 2016. Mr. Green has also served as a member of the board of directors and an executive vice president of Logistics GP since April 2012 and as a member of the board of directors of Alon since May 2015. Mr. Green has more than 25 years of experience in the refining industry, including 14 years at Murphy Oil USA, Inc., where he served as a senior vice president during his last six years. Mr. Green has experience ranging from crude oil and feedstock supply, through all aspects of managing a refining business to product trading, transportation and sales.
Kevin L. Kremke (Age – 44) is Executive Vice President and Chief Financial Officer of the Registrant. He served as Old Delek’s Executive Vice President since April 2017 and its Chief Financial Officer since June 2017. Prior to joining Old Delek in April 2017, Mr. Kremke served as the Chief Financial Officer of Ciner Resources Corporation and Ciner Resources LP (NYSE: CINR), a publicly traded master limited partnership, since June 2014, and as director of the general partner of Ciner Resources LP, since December 2014. His responsibilities at Ciner Resources Corporation included overseeing the overall financing activities, strategic planning, investor relations, treasury and accounting. He also has served on the audit committee of American Natural Soda Ash Corporation


since June 2014. From August 2011 to February 2014, Mr. Kremke served as the vice president of finance and strategic planning at Cheniere Energy, Inc.
Item 5.03.
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Immediately prior to the Effective Time, the Registrant amended its Amended and Restated Certificate of Incorporation to change its name to “Delek US Holdings, Inc.” and Old Delek amended its Second Amended and Restated Certificate of Incorporation to change its name to “Delek US Energy, Inc.” In addition, the Registrant amended its Amended and Restated Bylaws to reflect the name “Delek US Holdings, Inc.”
The Amended and Restated Certificate of Incorporation, as amended, and the Amended and Restated Bylaws of the Registrant are substantially identical to the Second Amended and Restated Certificate of Incorporation and the Third Amended and Restated Bylaws of Old Delek as in effect immediately prior to the consummation of the Mergers.
The Amended and Restated Certificate of Incorporation, the Certificate of Amendment of Amended and Restated Certificate of Incorporation, and the Amended and Restated Bylaws of the Registrant are attached as Exhibits 3.1, 3.2 and 3.3, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.
Item 8.01. Other Events.
On June 30, 2017, Old Delek issued a press release announcing the closing of the Mergers. A copy of such press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
Item 9.01.
Financial Statements and Exhibits.
(a)
Financial Statements of Business Acquired.
The financial statements of Alon required by this item were previously filed and incorporated by reference in the Registration Statement, and are incorporated herein by reference.
(b)
Pro Forma Financial Information.
The pro forma financial information required by this item was previously filed in the Registration Statement, and is incorporated herein by reference.


(d)
Exhibits
2.1
Agreement and Plan of Merger (the “Merger Agreement”), dated as of January 2, 2017, by and among Delek US Holdings, Inc., Delek Holdco, Inc., Dione Mergeco, Inc., Astro Mergeco, Inc. and Alon USA Energy, Inc. (incorporated by reference to Exhibit 2.1 to Old Delek’s Current Report on Form 8-K, filed with the SEC on January 3, 2017).
2.2
First Amendment to the Merger Agreement, dated as of February 27, 2017 (incorporated by reference to Exhibit 2.6 to the Annual Report on Form 10-K filed by Old Delek with the SEC on February 28, 2017).
2.3
Second Amendment to the Merger Agreement, dated as of April 21, 2017 (incorporated by reference to Exhibit 2.3 to the Quarterly Report on Form 10-Q filed by Old Delek with the SEC on May 9, 2017).
3.1
Amended and Restated Certificate of Incorporation of Delek US Holdings, Inc. (f/k/a Delek Holdco, Inc.), dated as of April 20, 2017 (incorporated by reference to Exhibit 3.3 to Amendment No. 3 to the Registration Statement, filed by the Registrant with the SEC on April 24, 2017).
3.2
Certificate of Amendment of Amended and Restated Certificate of Incorporation of Delek US Holdings, Inc. (f/k/a Delek Holdco, Inc.), dated as of June 30, 2017.
3.3
Amended and Restated Bylaws of Delek US Holdings, Inc. (f/k/a Delek Holdco, Inc.), as amended, effective as of July 1, 2017.
10.1
First Supplemental Indenture, effective as of July 1, 2017, by and among Alon USA Energy, Inc., Delek US Holdings Inc. (f/k/a Delek Holdco, Inc.) and U.S. Bank National Association, as Trustee.
99.1
Press Release of Delek US Holdings, Inc., dated June 30, 2017.




SIGNATURES
Pursuant to the requirements of the Exchange Act, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
DELEK US HOLDINGS, INC.
    
Date: July 3, 2017        By:     /s/ Kevin Kremke    
Kevin Kremke
EVP / Chief Financial Officer / Secretary



EXHIBIT INDEX
Exhibit No.      Description
2.1
Agreement and Plan of Merger (the “Merger Agreement”), dated as of January 2, 2017, by and among Delek US Holdings, Inc., Delek Holdco, Inc., Dione Mergeco, Inc., Astro Mergeco, Inc. and Alon USA Energy, Inc. (incorporated by reference to Exhibit 2.1 to Old Delek’s Current Report on Form 8-K, filed with the SEC on January 3, 2017).
2.2
First Amendment to the Merger Agreement, dated as of February 27, 2017 (incorporated by reference to Exhibit 2.6 to the Annual Report on Form 10-K filed by Old Delek with the SEC on February 28, 2017).
2.3
Second Amendment to the Merger Agreement, dated as of April 21, 2017 (incorporated by reference to Exhibit 2.3 to the Quarterly Report on Form 10-Q filed by Old Delek with the SEC on May 9, 2017).
3.1
Amended and Restated Certificate of Incorporation of Delek US Holdings, Inc. (f/k/a Delek Holdco, Inc.), dated as of April 20, 2017 (incorporated by reference to Exhibit 3.3 to Amendment No. 3 to the Registration Statement, filed by the Registrant with the SEC on April 24, 2017).
3.2
Certificate of Amendment of Amended and Restated Certificate of Incorporation of Delek US Holdings, Inc. (f/k/a Delek Holdco, Inc.), dated as of June 30, 2017.
3.3
Amended and Restated Bylaws of Delek US Holdings, Inc. (f/k/a Delek Holdco, Inc.), as amended, effective as of July 1, 2017.
10.1
First Supplemental Indenture, effective as of July 1, 2017, by and among Alon USA Energy, Inc., Delek US Holdings Inc. (f/k/a Delek Holdco, Inc.) and U.S. Bank National Association, as Trustee.
99.1
Press Release of Delek US Holdings, Inc., dated June 30, 2017.


Delaware The First State Page 1 6264347 8100 Authentication: 202812467 SR# 20175041759 Date: 06-30-17 You may verify this certificate online at corp.delaware.gov/authver.shtml I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF “DELEK HOLDCO, INC.”, CHANGING ITS NAME FROM "DELEK HOLDCO, INC." TO "DELEK US HOLDINGS, INC.", FILED IN THIS OFFICE ON THE THIRTIETH DAY OF JUNE, A.D. 2017, AT 11:56 O`CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE EFFECTIVE DATE OF THE AFORESAID CERTIFICATE OF AMENDMENT IS THE THIRTIETH DAY OF JUNE, A.D. 2017 AT 11:59 O'CLOCK P.M. A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE KENT COUNTY RECORDER OF DEEDS. EXHIBIT 3.2

 
that: CERTIFICATE OF AMENDMENT OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF DELEK HOLDCO, INC. Dated June 30,2017 State of Delaware Secretary of State Division of Corporations Delivered 11:55 AM 06/30/2017 FILED 11:56 A.M 06/30/2017 SR 20175041759 - File Number 6264347 Delek Holdco, Inc., a Delaware corporation (the 14Corporation"), does hereby certify FIRST: Article First of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended to read in its entirety as follows: The name of the corporation is Delek US Holdings, Inc. SECOND: The foregoing amendment was duly adopted in accordance with the provisions of Section 242 of the Delaware General Corporation Law. THIRD: The foregoing amendment shall be effective as of 11 :59 p.m. (local time in Wilmington, Delaware) on June 30, 2017. [Signature pagefo//ows]

 
IN WTINESS WHEREOF. the CotpOration has caused this Certificate of Amendment to be signed by its duly authorized officers as of the date set forth above. DELEK HOLDCO, INC. ---------------------··-~-·-

 


Exhibit 3.3
 
 
Amended and Restated Bylaws
of
Delek US Holdings, Inc.
(formerly Delek Holdco, Inc.)
 
Adopted as of July 1, 2017
 
 
ARTICLE I
 
OFFICES
 
Section 1.01   Registered Office . The registered office of the corporation in the State of Delaware shall be in the City of Dover, County of Kent, Delaware 19904 and the name of its registered agent shall be United Corporate Services, Inc.
 
Section 1.02   Other Offices . The corporation also may have offices at such other places, both within and without the State of Delaware, as the Board of Directors may from time to time determine or the business of the corporation may require.
 
ARTICLE II
 
MEETINGS OF STOCKHOLDERS
 
Section 2.01   Place of Meeting . All meetings of stockholders shall be held at such place, either within or without the State of Delaware, as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting. The Board of Directors may, in its sole discretion and subject to such guidelines and procedures as the Board of Directors may from time to time adopt, determine that the meeting shall not be held at any specific place, but may instead be held solely by means of remote communication.
 
Section 2.02   Annual Meeting . The annual meeting of stockholders shall be held at such date and time as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting.
 
(a)   Nominations of persons for election to the Board of Directors and the proposal of business to be considered by the stockholders shall be made at an annual meeting of stockholders (i) pursuant

 

to the corporation’s notice of such meeting, (ii) by or at the direction of the Board of Directors or (iii) by any stockholder of the corporation who was a stockholder of record at the time of giving of the notice provided for in this section, who is entitled to vote at such meeting and who complies with the notice procedures set forth in this section. For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (iii) of this subsection (a), the stockholder must have given timely notice thereof in writing to the Secretary of the corporation and such other business must be a proper matter for stockholder action. To be timely, a stockholder’s notice shall be delivered to the Secretary at the principal executive office of the corporation not less than 90 calendar days, nor more than 120 calendar days, prior to the one-year anniversary of the preceding year’s annual meeting. In the event that the date of any annual meeting is more than 30 days before or more than 30 days after the one-year anniversary of the previous year’s annual meeting, notice by a stockholder, to be timely, must be so delivered not earlier than 90 calendar days prior to such annual meeting and not later than 10 days following the day on which public announcement of the date of such meeting is first made by the corporation. In no event shall the public announcement of an adjournment of an annual meeting commence a new time period for the giving of a stockholder’s notice as described above.
 
(b)   A stockholder’s notice to the Secretary must set forth (i) as to each person whom the stockholder proposes to nominate for election or reelection as a director, all information relating to such person that is required to be disclosed in a solicitation of proxies for the election of directors in an election contest, or that is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and such nominated person’s written consent to serve as a director if elected; (ii) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and (iii) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made: (A) the name and address of such stockholder, as they appear on the corporation’s books, and of such beneficial owner; (B) the class and number of shares of the corporation’s capital stock that are owned beneficially and of record by such stockholder and by any such beneficial owner; (C) any option, warrant, convertible security or similar right with an exercise or conversion privilege with an exercise price, conversion right or other payment or settlement mechanism related to any class of shares of the corporation’s capital stock whether or not subject to settlement in shares of the corporation’s capital stock (collectively, “Derivative Instruments”) directly or indirectly held by such stockholder or any such beneficial owner, and such stockholder’s written representation as to the accuracy of the foregoing; and (D) a description of (u) any derivative positions in any securities of the corporation that are owned beneficially or of record by such stockholder or any such beneficial owner, (v) any hedging or other transaction or series of transactions, agreement, arrangement, or understanding with respect to any of the corporation’s securities entered into or made by such stockholder or any such beneficial

 

owner, (w) any short interest of such stockholder or any such beneficial owner in any security of the corporation (which shall be present if such person has the opportunity to profit, directly or indirectly from any decrease in the value of the subject security), (x) any rights of such stockholder or any such beneficial owner to dividends on shares of the corporation’s capital stock that are separated or separable from the underlying shares, (y) any proportionate interest in shares of the corporation’s capital stock or Derivative Instruments held, directly or indirectly, by any general or limited partnership in which such stockholder or any such beneficial owner is a general partner, and (z) any performance related fees that such stockholder or any such beneficial owner is entitled to receive based on any increase or decrease in the value of shares of the corporation’s capital stock or Derivative Instruments. The stockholder’s notice to the corporation shall be updated by the stockholder upon any changes in the information provided pursuant to Section 2.02(b)(iii) after the date of the notice but prior to the date of the meeting. For purposes of these bylaws, the term “beneficial owner” and “beneficial ownership” shall have the meaning ascribed to such terms in Rule 13d-3 under the Exchange Act, and shall be determined in accordance with such rule.
 
(c)   For purposes of this Section 2.02, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the corporation with the Securities and Exchange Commission pursuant to the Exchange Act or furnished by the corporation to stockholders.
 
(d)   Notwithstanding the foregoing provisions of this Section 2.02, a stockholder also shall comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the nomination of persons for election to the Board of Directors or the proposal of business to be considered by the stockholders at a meeting of stockholders. Nothing in this Section 2.02 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.
 
(e)   Only such persons who are nominated in accordance with the procedures set forth in these bylaws shall be eligible to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth herein. Except as otherwise provided by law, the corporation’s certificate of incorporation, as amended or restated (the “Certificate of Incorporation”) or these bylaws, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth herein and, if any proposed nomination or business was not made or proposed in compliance these bylaws, to declare that such non-compliant proposal or nomination be disregarded.
 
Section 2.03   Voting List . The officer who has charge of the stock ledger of the corporation shall prepare and make, at least 10 days before every meeting of stockholders, a complete list of the stockholders

 

entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least 10 days prior to the meeting (a) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (b) during ordinary business hours, at the principal place of business of the corporation. In the event that the corporation determines to make the list available on an electronic network, the corporation may take reasonable steps to ensure that such information is available only to stockholders of the corporation. If the meeting is to be held at a specific place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.
 
Section 2.04   Special Meeting . Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by applicable law or by the Certificate of Incorporation, may be called by the Chairman of the Board or the President from time to time, and shall be called by the Secretary upon written request by a majority of the Board of Directors. Such request shall state the purposes of the proposed meeting. No business other than that stated in the corporation’s notice of a special meeting of stockholders shall be transacted at such special meeting.
 
Section 2.05   Notice of Meeting . Written notice of the annual meeting of stockholders and each special meeting of stockholders, stating the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meetings, and, in the case of a special meeting, the purpose or purposes thereof, shall be given to each stockholder entitled to vote thereat, not less than 10 nor more than 60 days before the meeting, unless allowed by applicable law and in accordance with Section 5.01 herein.
 
Section 2.06   Quorum . The holders of a majority of the shares of all classes of the corporation’s capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at any meeting of stockholders, except as otherwise provided by applicable law or by the Certificate of Incorporation. Notwithstanding the other provisions of the Certificate of Incorporation or these bylaws, the holders of a majority of the shares of the corporation’s capital stock entitled to vote thereat, present in person or represented by proxy, whether or not a quorum is present, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified.

 

 
Section 2.07   Voting . When a quorum is present at any meeting of the stockholders, all elections of directors shall be determined by a plurality of the votes cast, and, except as otherwise required by law, the Certificate of Incorporation or these bylaws, all other matters shall be determined by a majority of the votes cast affirmatively or negatively. In determining the number of votes cast, shares abstaining from voting or otherwise not voted on a matter (including elections) will not be treated as votes cast. The provisions of this Section 2.07 will govern with respect to all votes of the stockholders unless the matter is one upon which, by express provision of applicable law, of the Certificate of Incorporation or of these bylaws, a different vote is required, in which case such express provision shall govern and control the decision of such matter. Every stockholder having the right to vote shall be entitled to vote in person, or by proxy appointed by an instrument in writing subscribed by such stockholder or by a transmission permitted by law and filed with the Secretary of the corporation before, or at the time of, the meeting, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. Every proxy must be appointed in accordance with the Delaware General Corporation Law. Each proxy shall be revocable unless expressly provided therein to be irrevocable or unless made irrevocable by law. If such instrument shall designate two or more persons to act as proxies, unless such instrument shall provide the contrary, a majority of such persons present at any meeting at which their powers thereunder are to be exercised shall have and may exercise all the powers of voting or giving consents thereby conferred, or if only one be present, then such powers may be exercised by that one; or, if an even number attend and a majority do not agree on any particular issue, each proxy so attending shall be entitled to exercise such powers in respect of the same portion of the shares as he is of the proxies representing such shares.
 
Section 2.08   Voting of Stock of Certain Holders . Shares of the corporation’s capital stock standing in the name of another corporation, domestic or foreign, may be voted by such officer, agent, or proxy as the bylaws or equivalent organizational documents of such corporation may prescribe, or in the absence of such provision, as the Board of Directors of such corporation may determine. Shares standing in the name of a deceased person may be voted by the executor or administrator of such deceased person, either in person or by proxy. Shares standing in the name of a guardian, conservator, or trustee may be voted by such fiduciary, either in person or by proxy, but no such fiduciary shall be entitled to vote shares held in such fiduciary capacity without a transfer of such shares into the name of such fiduciary. Shares standing in the name of a receiver may be voted by such receiver. A stockholder whose shares are pledged shall be entitled to vote such shares, unless in the transfer by the pledgor on the books of the corporation, the stockholder has expressly empowered the pledgee to vote thereon, in which case only the pledgee, or the stockholder’s proxy, may represent the stock and vote thereon.
 
Section 2.09   Treasury Stock . The corporation shall not vote, directly or indirectly, shares of its own capital stock owned by it; and such shares shall not be counted in determining the total number of outstanding shares of the corporation’s capital stock and for quorum purposes.
 

 

Section 2.10   Record Date . In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders, or to receive payment of any dividend or other distribution or allotment of any rights or to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may, except as otherwise required by law, fix a record date, which record date shall not precede the date on which the resolution fixing the record date is adopted by the Board of Directors and which record date shall not be more than 60 nor less than 10 days before the date of such meeting of stockholders, nor more than 60 days prior to the time for such other action as described above. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held, and, for determining stockholders entitled to receive payment of any dividend or other distribution or allotment of rights or to exercise any rights of change, conversion or exchange of stock or for any other purpose, the record date shall be at the close of business on the day on which the Board of Directors adopts a resolution relating thereto.
 
A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
 
Section 2.11   Inspectors of Elections; Opening and Closing the Polls . The Board of Directors by resolution shall appoint one or more inspectors, which inspector or inspectors may include individuals who serve the corporation in other capacities, including, without limitation, as officers, employees, agents or representatives, to act at each meeting of stockholders and make a written report thereof. One or more persons may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate has been appointed to act or is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or her duties, shall take and sign an oath to faithfully execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall have the duties prescribed by law.
 
ARTICLE III
 
BOARD OF DIRECTORS
 
Section 3.01   Powers . The business and affairs of the corporation shall be managed by or under the direction of its Board of Directors, which may exercise all such powers of the corporation and do all such lawful acts and things as are not by applicable law or by the Certificate of Incorporation or by these bylaws directed or required to be exercised or done by the stockholders.
 

 

Section 3.02   Number, Election and Term . Except as otherwise provided in the Certificate of Incorporation, the number of directors that shall constitute the whole Board of Directors shall be not fewer than three nor more than fifteen. Such number of directors shall from time to time be fixed and determined by the directors and shall be set forth in the notice of any meeting of stockholders held for the purpose of electing directors. The directors shall be elected at the annual meeting of stockholders, except as provided in Section 3.03, and each director elected shall hold office until his or her successor shall be elected and qualified or until such director’s earlier resignation or removal. Directors need not be residents of the State of Delaware or stockholders of the corporation. Any director may resign at any time upon notice given in writing or by electronic transmission to the corporation.
 
“Electronic transmission,” as used in these bylaws, means any form of communication not directly involving the physical transmission of paper that creates a record that may be retained, retrieved and reviewed by the recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.
 
Section 3.03   Vacancies, Additional Directors, and Removal From Office . If any vacancy occurs in the Board of Directors caused by death, resignation, retirement, disqualification, or removal from office of any director, or otherwise, or if any new directorship is created by an increase in the authorized number of directors as provided in Section 3.02 or otherwise, a majority of the directors then in office, though less than a quorum, or a sole remaining director, may choose a successor or fill the newly created directorship. Any director so chosen shall hold office until the next election and until his or her successor shall be duly elected and qualified, unless sooner displaced.
 
Section 3.04   Regular Meeting . A regular meeting of the Board of Directors shall be held each year, without other notice than this bylaw, at the place of, and immediately following, the annual meeting of stockholders; and other regular meetings of the Board of Directors shall be held each year, at such time and place as the Board of Directors may provide, by resolution, either within or without the State of Delaware, without other notice than such resolution. Unless otherwise restricted by the Certificate of Incorporation, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors or such committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at the meeting.
 
Section 3.05   Special Meeting . A special meeting of the Board of Directors may be called by the Chairman of the Board of Directors or by the President of the corporation and shall be called by the Secretary on the written request of any two directors. The Chairman or President so calling, or the directors so requesting, any such meeting shall fix the time and any place, either within or without the State of Delaware, as the place for holding such meeting. Special meeting may also be held by means of conference telephone or other communications equipment as set forth in Section 3.04.
 

 

Section 3.06   Notice of Special Meeting . Notice of special meetings of the Board of Directors shall be given to each director in writing by hand delivery, first-class mail, overnight mail or courier service, confirmed facsimile transmission or electronic transmission or orally by telephone at least 48 hours prior to the time of such meeting. Notice shall be given in accordance with Section 5.01. Any director may waive notice of any meeting in accordance with 5.02. Neither the business to be transacted at, nor the purpose of, any special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting, except that notice shall be given of any proposed amendment to the bylaws if it is to be adopted at any special meeting or with respect to any other matter where notice is required under applicable law.
 
Section 3.07   Quorum . A majority of the Board of Directors shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, and the vote of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by law, by the Certificate of Incorporation or by these bylaws. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
 
Section 3.08   Action Without Meeting . Unless otherwise restricted by the Certificate of Incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof as provided in Article IV of these bylaws, may be taken without a meeting if all the members of the Board of Directors or of such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or such committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
 
Section 3.09   Compensation . The Board of Directors shall have authority to determine from time to time the amount of compensation, if any, that shall be paid to its members for their services as directors and as members of standing or special committees of the Board of Directors. The Board of Directors shall also have power, in its discretion, to provide for and to pay to directors rendering services to the corporation not ordinarily rendered by directors as such, special compensation appropriate to the value of such services as determined by the Board of Directors from time to time. No provision of these bylaws shall be construed to preclude any director from serving the corporation in any other capacity and receiving compensation therefor.
 

 

ARTICLE IV
 
COMMITTEES OF THE BOARD OF DIRECTORS
 
Section 4.01   Designation, Powers and Name . The Board of Directors may, by resolution passed by a majority of the whole Board of Directors, designate one or more committees of the Board of Directors, including, if the Board of Directors shall so determine, an Executive Committee, each such committee to consist of one or more of the directors of the corporation in accordance with applicable laws. The committee shall have and may exercise such of the powers of the Board of Directors in the management of the business and affairs of the corporation as may be provided in such resolution but no such committee shall have the power or authority to (a) approve, adopt or recommend to the stockholders any action or matter (other than the election or removal of directors) required by applicable law to be submitted to the stockholders for approval or (b) adopt, amend or repeal any of these bylaws. The committee may authorize the seal of the corporation to be affixed to all papers that may require it. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.
 
Section 4.02   Minutes . Each committee of the Board of Directors shall keep regular minutes of its proceedings and report the same to the Board of Directors when required.
 
Section 4.03   Compensation . Members of committees may be allowed compensation for attending committee meetings, if the Board of Directors shall so determine, in accordance with Section 3.09.
 
ARTICLE V
 
NOTICE
 
Section 5.01   General . Whenever under the provisions of applicable law, the Certificate of Incorporation or these bylaws, notice is required to be given to any director, member of any committee, or stockholder, such notice need not be delivered personally, but may be given in writing and or mailed to such director, member, or stockholder; provided that in the case of a director or a member of any committee such notice may be given orally by telephone, overnight mail or courier service, facsimile transmission, electronic mail or similar medium of communication; provided further that in the case of a stockholder, notice may be given by a form of electronic transmission consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written notice to the corporation. If mailed, notice to a director, member of a committee, or stockholder shall be deemed to be given five days after deposit in the United States mail first class in a sealed envelope, with postage thereon prepaid,

 

addressed, in the case of a stockholder, to the stockholder at the stockholder’s address as it appears on the records of the corporation or, in the case of a director or a member of a committee, to such person at his or her business address. If given by overnight mail or courier service, such notice shall be deemed adequately delivered twenty-four (24) hours after it was delivered to the overnight mail or courier service company. If sent by facsimile transmission, notice to a director or member of a committee shall be deemed to be given when the facsimile is transmitted and notice to a stockholder shall be deemed to be given when directed to a number at which the stockholder has consented to receive notice. If sent by e-mail transmission, notice to a director or member of a committee shall be deemed to be given when the e-mail is transmitted and notice to a stockholder shall be deemed to be given when directed to an electronic mail address at which the stockholder has consented to receive notice. If posted on an electronic network together with separate notice to the stockholder of such specific posting, notice to a stockholder shall be deemed given upon the later of (a) such posting, and (b) the giving of such separate notice; and if sent by any other form of electronic transmission, notice shall be deemed given to a stockholder when directed to the stockholder, in accordance with the stockholder’s consent.
 
Section 5.02   Waiver . Whenever notice is required to be given under applicable law, the Certificate of Incorporation, or these bylaws, a written waiver, signed by the person or persons entitled to said notice, or a waiver by electronic transmission by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to such notice. Attendance of a person at a meeting shall constitute waiver of notice of such meeting except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any annual or special meeting of the stockholders or the Board of Directors or a committee thereof need be specified in any waiver of notice of such meeting.
 
ARTICLE VI
 
OFFICERS
 
Section 6.01   Officers . The officers of the corporation shall be a Chairman of the Board and a Vice Chairman of the Board (if such offices are created by the Board of Directors), a Chief Executive Officer, a President, a Chief Financial Officer, one or more Vice Presidents, any one or more of which may be designated Executive Vice President or Senior Vice President, a Secretary and a Treasurer. The Board of Directors may appoint such other officers and agents, including Chief Operating Officer, Assistant Vice Presidents, Assistant Secretaries, and Assistant Treasurers, in each case as the Board of Directors shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined by the Board. Any two or more offices may be held by the same person. No officer shall execute, acknowledge, verify or countersign any instrument on behalf of the corporation in more than one capacity, if such instrument is required by law, by these bylaws or by any act of the corporation to be executed, acknowledged, verified, or countersigned by two or more officers. The Chairman

 

and Vice Chairman of the Board shall be elected from among the directors. With the foregoing exceptions, none of the other officers need be a director, and none of the officers need be a stockholder of the corporation.
 
Section 6.02   Election and Term of Office . The officers of the corporation shall be elected annually by the Board of Directors at its first regular meeting held after the annual meeting of stockholders or as soon thereafter as conveniently possible. Each officer shall hold office until his or her successor shall have been elected and qualified or until the effective date of his or her earlier resignation or removal, or until he or she shall cease to be a director in the case of the Chairman and the Vice Chairman.
 
Section 6.03   Removal and Resignation . Any officer or agent elected or appointed by the Board of Directors may be removed without cause by the affirmative vote of a majority of the Board of Directors whenever, in its judgment, the best interests of the corporation shall be served thereby, but such removal shall be without prejudice to the contractual rights, if any, of the person so removed. Any officer may resign at any time upon written notice to the corporation. Any such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
 
Section 6.04   Vacancies . Any vacancy occurring in any office of the corporation by death, resignation, removal, or otherwise, may be filled by the Board of Directors.
 
Section 6.05   Salaries . The salaries of all officers and agents of the corporation shall be fixed by the Board of Directors or a committee thereof or pursuant to the direction of the Board of Directors or a committee thereof; and no officer shall be prevented from receiving such salary by reason of his or her also being a director.
 
Section 6.06   Chairman of the Board . The Chairman of the Board (if such office is created by the Board of Directors) shall preside at all meetings of the Board of Directors or of the stockholders of the corporation. The Chairman shall formulate and submit to the Board of Directors or the Executive Committee matters of general policy for the corporation and shall perform such other duties as usually appertain to the office or as may be prescribed by the Board of Directors or the Executive Committee.
 
Section 6.07   Vice Chairman of the Board . The Vice Chairman of the Board (if such office is created by the Board of Directors) shall, in the absence or disability of the Chairman of the Board, perform the duties and exercise the powers of the Chairman of the Board. The Vice Chairman shall perform such other duties as from time to time may be prescribed by the Board of Directors or the Executive Committee or assigned by the Chairman of the Board.
 
Section 6.08   Chief Executive Officer . The Chief Executive Officer shall be the chief executive officer of the corporation and, subject to the control of the Board of Directors, shall in general supervise and control the business and affairs of the corporation. In the absence of the Chairman of the Board or the Vice Chairman

 

of the Board (if such offices are created by the Board), the Chief Executive Officer shall preside at all meetings of the Board of Directors and of the stockholders. The Chief Executive Officer may also preside at any such meeting attended by the Chairman or Vice Chairman of the Board if he or she is so designated by the Chairman, or in the Chairman’s absence by the Vice Chairman. The Chief Executive Officer shall have the power to appoint and remove subordinate officers, agents and employees, except those elected or appointed by the Board of Directors. The Chief Executive Officer shall keep the Board of Directors and the Executive Committee fully informed and shall consult them concerning the business of the corporation. He or she may sign, with the Treasurer, Secretary or any other officer of the corporation thereunto authorized by the Board of Directors, certificates for shares of the corporation and any deeds, bonds, mortgages, contracts, checks, notes, drafts, or other instruments that the Board of Directors has authorized to be executed, except in cases where the signing and execution thereof has been expressly delegated by these bylaws or by the Board of Directors to some other officer or agent of the corporation, or shall be required by law to be otherwise executed. The Chief Executive Officer shall vote, or give a proxy to any other officer of the corporation to vote, all shares of stock of any other corporation standing in the name of the corporation and in general he or she shall perform all other duties normally incident to the office of Chief Executive Officer and such other duties as may be prescribed by the stockholders, the Board of Directors, or the Executive Committee from time to time.
 
Section 6.09   President . The President shall be the chief operating officer of the corporation, subject to the control of the Board of Directors, and shall have general and active management and control of the day-to-day business and affairs of the corporation and shall report directly to the Chief Executive Officer, if the Board of Directors creates such a position. The President shall perform such other duties as from time to time are assigned to him or her by the Chief Executive Officer, the Board of Directors or the Executive Committee. In the absence of the Chief Executive Officer, or in the event of his or her inability or refusal to act, the President shall perform the duties and exercise the powers of the Chief Executive Officer. The President shall perform such other duties as from time to time may be assigned to him or her by the Chief Executive Officer, the Board of Directors or the Executive Committee.
 
Section 6.10   Chief Financial Officer . The Chief Financial Officer shall serve as the principal advisor to the corporation in all matters relating to financial risks, financial planning and record-keeping. The Chief Financial Officer shall report directly to the Chief Executive Officer. The Chief Financial Officer shall be responsible for and shall direct agents and employees in the performance of all financial duties and services for and on behalf of the corporation. The Chief Financial Officer shall perform such other duties and exercise such other powers as are commonly incidental to the office of the Chief Financial Officer, and such other duties as from time to time are assigned to him or her by the Chief Executive Officer, the Board of Directors or the Executive Committee.
 
Section 6.11   Vice Presidents . In the absence of the President, or in the event of his or her inability or refusal to act, the Executive Vice President (or in the event there shall be no Vice President designated Executive Vice President, any Vice President designated by the Board) shall perform the duties and exercise

 

the powers of the President. Any Vice President may sign, with the Secretary or Assistant Secretary, certificates for shares of the corporation. The Vice Presidents shall perform such other duties as from time to time may be assigned to them by the Chief Executive Officer, the President, the Board of Directors or the Executive Committee.
 
Section 6.12   Secretary . The Secretary shall (a) keep the minutes of the meetings of the stockholders, the Board of Directors and committees of the Board of Directors; (b) see that all notices are duly given in accordance with the provisions of these bylaws and as required by law; (c) be custodian of the corporate records and of the seal of the corporation, and see that the seal of the corporation or a facsimile thereof is affixed to all certificates for shares prior to the issue thereof and to all documents, the execution of which on behalf of the corporation under its seal is duly authorized in accordance with the provisions of these bylaws; (d) keep or cause to be kept a register of the post office address of each stockholder which shall be furnished by such stockholder; (e) sign with the President, or an Executive Vice President or Vice President, certificates for shares of the corporation, the issue of which shall have been authorized by resolution of the Board of Directors; (f) have general charge of the stock transfer books of the corporation; and (g) in general, perform all duties normally incident to the office of Secretary and such other duties as from time to time may be assigned to him by the Chief Executive Officer, the President, the Board of Directors or the Executive Committee.
 
Section 6.13   Treasurer . If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his or her duties in such sum and with such surety or sureties as the Board of Directors shall determine. The Treasurer shall (a) have charge and custody of and be responsible for all funds and securities of the corporation; (b) receive and give receipts for moneys due and payable to the corporation from any source whatsoever and deposit all such moneys in the name of the corporation in such banks, trust companies, or other depositories as shall be selected in accordance with the provisions of Section 7.03 of these bylaws; (c) prepare, or cause to be prepared, for submission at each regular meeting of the Board of Directors, at each annual meeting of the stockholders, and at such other times as may be required by the Board of Directors, the Chief Executive Officer, the President or the Executive Committee, a statement of financial condition of the corporation in such detail as may be required; and (d) in general, perform all the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him by the Chief Executive Officer, the President, the Chief Financial Officer, the Board of Directors or the Executive Committee.
 
Section 6.14   Assistant Secretary and Treasurer . The Assistant Secretaries and Assistant Treasurers shall, in general, perform such duties as shall be assigned to them by the Chief Financial Officer, the Secretary or the Treasurer, respectively, or by the President, the Board of Directors, or the Executive Committee. The Assistant Secretaries and Assistant Treasurers shall, in the absence of the Secretary or Treasurer, respectively, perform all functions and duties which such absent officers may delegate, but such delegation shall not relieve the absent officer from the responsibilities and liabilities of his or her office. The Assistant Secretaries may sign, with the President or a Vice President, certificates for shares of the

 

corporation, the issue of which shall have been authorized by a resolution of the Board of Directors. The Assistant Treasurers shall respectively, if required by the Board of Directors, give bonds for the faithful discharge of their duties in such sums and with such sureties as the Board of Directors shall determine.
 
ARTICLE VII
 
CONTRACTS, CHECKS AND DEPOSITS
 
Section 7.01   Contracts . Subject to the provisions of Section 6.01, the Board of Directors may authorize any officer, officers, agent, or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances.
 
Section 7.02   Checks . All checks, demands, drafts, or other orders for the payment of money, notes, or other evidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers or such agent or agents of the corporation, and in such manner, as the Board of Directors may determine.
 
Section 7.03   Deposits . All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies, or other depositories as the Board of Directors may select.
 
ARTICLE VIII
 
CERTIFICATES OF STOCK
 
Section 8.01   Issuance . Each stockholder of this corporation shall be entitled to a certificate or certificates representing the number of shares of capital stock registered in his or her name on the books of the corporation unless the Board of Directors has provided by resolution or resolutions that some or all of any or all classes of shares of the corporation stock shall be uncertificated shares. The certificates shall be in such form as may be determined by the Board of Directors, shall be issued in numerical order and shall be entered in the books of the corporation as they are issued. They shall exhibit the holder’s name and number of shares and shall be signed by the President or a Vice President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary. If any certificate is countersigned (1) by a transfer agent other than the corporation or any employee of the corporation, or (2) by a registrar other than the corporation or any employee of the corporation, any other signature on the certificate may be a facsimile.
 
If the corporation shall be authorized to issue more than one class of stock or more than one series of any class, the powers, designations, preferences, and relative, participating, optional, or other special rights of each class of stock or series thereof and the qualifications, limitations, or restrictions of such

 

preferences and rights shall be set forth in full or summarized on the face or back of the certificate which the corporation shall issue to represent such class of stock; provided that, except as otherwise provided by applicable law, in lieu of the foregoing requirements, there may be set forth on the face or back of such certificate, a statement that the corporation will furnish such information without charge to each stockholder who so requests. All certificates surrendered to the corporation for transfer shall be canceled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and canceled, except that in the case of a lost, stolen, destroyed, or mutilated certificate a new one may be issued therefor upon such terms and with such indemnity, if any, to the corporation as the Board of Directors may prescribe. Certificates shall not be issued representing fractional shares of stock.
 
Section 8.02   Lost Certificates . The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen, or destroyed certificate or certificates, or his or her legal representative, to give the corporation a bond sufficient to indemnity it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.
 
Section 8.03   Transfers . Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate, and record the transaction upon its books. Transfers of shares shall be made only on the books of the corporation by the registered holder thereof, or by his or her attorney thereunto authorized by power of attorney and filed with the Secretary of the corporation or the transfer agent.
 
Section 8.04   Registered Stockholders . The corporation shall be entitled to treat the holder of record of any share or shares of the corporation’s capital stock as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware.
 
ARTICLE IX
 
DIVIDENDS
 
Section 9.01   Declaration . Subject to the provisions of the Certificate of Incorporation, the Board of Directors may declare dividends with respect to the shares of the corporation’s capital stock at any regular

 

or special meeting, pursuant to applicable law. Dividends may be paid in cash, in property, or in shares of the corporation’s capital stock, subject to the provisions of the Certificate of Incorporation.
 
Section 9.02   Reserve . Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the Board of Directors shall think conducive to the interest of the corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created.
 
ARTICLE X
 
INDEMNIFICATION AND INSURANCE
 
Section 10.01   Third Party Actions . The corporation shall indemnify any director or officer of the corporation, and may indemnify any other person, who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.
 
Section 10.02   Actions by or in the Right of the Corporation . The corporation shall indemnify any director or officer and may indemnify any other person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable

 

to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the Court of Chancery or such other court shall deem proper.
 
Section 10.03   Mandatory Indemnification . To the extent that a present or former director or officer of the corporation has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in Sections 10.01 and 10.02, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith.
 
Section 10.04   Determination of Conduct . Any indemnification under Section 10.01 or 10.02 (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in Section 10.01 or 10.02. Such determination shall be made (a) by a majority vote of directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (c) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (d) by the stockholders.
 
Section 10.05   Payment of Expenses in Advance . Expenses (including attorney’s fees) incurred by an officer or director in defending a civil, criminal, administrative or investigative action, suit, or proceeding shall be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in this Article X. Any such expenses incurred by an employee or agent of the corporation at its discretion may be paid by the corporation upon receipt of such an undertaking.
 
Section 10.06   Indemnity Not Exclusive . The indemnification and advancement of expenses provided or granted hereunder shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the Certificate of Incorporation, any other bylaw, agreement, vote of stockholders, or disinterested directors or otherwise, both as to action in a person’s official capacity and as to action in another capacity while holding such office.
 
 
 
Section 10.07
Definitions . For purposes of this Article X:
 
(a)   “the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which,

 

if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee, or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Article X with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued;
 
(b)   “other enterprises” shall include employee benefit plans;
 
(c)   “fines” shall include any excise taxes assessed on a person with respect to any employee benefit plan;
 
(d)   “serving at the request of the corporation” shall include any service as a director, officer, employee, or agent of the corporation that imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants or beneficiaries; and
 
(e)   a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the corporation” as referred to in this Article X.
 
Section 10.08   Continuation of Indemnity . The indemnification and advancement of expenses provided by or granted pursuant to this Article X shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
 
Section 10.09   Insurance, Contracts and Funding . The corporation may purchase and maintain insurance on behalf of any person who was or is a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under the Delaware General Corporation Law. The corporation, without further stockholder approval, may enter into contracts with any director, officer, employee or agent in furtherance of the provisions of this section and may create a trust fund, grant a security interest or use other means (including, without limitation, a letter of credit) to ensure that payment of such amounts as may be necessary to effect indemnification as provided in this section.
 

 

ARTICLE XI
 
MISCELLANEOUS
 
Section 11.01   Seal . The corporate seal, if one is authorized by the Board of Directors, shall have inscribed thereon the name of the corporation, and the words “Corporate Seal, Delaware.” The seal may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced.
 
Section 11.02   Books . The books of the corporation may be kept (subject to applicable law) outside the State of Delaware at the offices of the corporation, or at such other place or places as may be designated from time to time by the Board of Directors.
 
ARTICLE XII
 
AMENDMENT
 
Except as otherwise provided by the Certificate of Incorporation, the Board of Directors is expressly authorized to adopt, alter, amend or repeal any and all of the bylaws of the corporation and the bylaws of the corporation may be adopted, altered, amended or repealed by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) of all of the outstanding shares of capital stock of the corporation entitled to vote thereon, voting together as a single class.
 
 
 

 


Exhibit 10.1

FIRST SUPPLEMENTAL INDENTURE

THIS FIRST SUPPLEMENTAL INDENTURE (this “ Supplemental Indenture ”) dated effective as of July 1, 2017 is by and among Alon USA Energy, Inc., a Delaware corporation (the “ Company ”), Delek Holdco, Inc., a Delaware corporation (“ Holdco ” and “ Guarantor ”), and U.S. Bank National Association, as trustee under the Indenture referred to below (the “ Trustee ”).
W I T N E S S E T H:
WHEREAS, the Company and the Trustee are parties to an Indenture, dated as of September 16, 2013 (the “ Indenture ”), pursuant to which the Company issued its 3.00% Convertible Senior Notes due 2018 (the “ Notes ”), which are currently convertible into shares of the Company’s Common Stock (as defined in the Indenture) or cash or a combination of cash and Common Stock, all as provided in Section 4.03 of the Indenture;
WHEREAS, Holdco is currently a wholly owned subsidiary of Delek US Holdings, Inc., a Delaware corporation (“ Delek US ”);
WHEREAS, the Company entered into an Agreement and Plan of Merger, dated as of January 2, 2017 (the “ Merger Agreement ”), by and among, among others, Delek US, Holdco, Astro Mergeco, Inc., a Delaware corporation and wholly owned subsidiary of Holdco (“ Astro Merger Sub ”), and the Company, as amended from time to time;
WHEREAS, pursuant to the Merger Agreement and subject to the terms and conditions therein, among other things, Astro Merger Sub will merge with and into the Company (the “ Alon Merger ”), and the Company will continue as the surviving entity of the Alon Merger as a wholly-owned subsidiary of Holdco;
WHEREAS, pursuant to the Merger Agreement and subject to the terms and conditions and exceptions therein, at the effective time of the Alon Merger (the “ Effective Time ”), a Merger Event (as defined in the Indenture) will occur, as a result of which the Common Stock will be converted into the right to receive and be exchangeable for 0.504 shares of common stock, par value $0.01 per share, of Holdco (the “ Holdco Common Stock ,” with such number of shares of Holdco Common Stock being a “Unit of Reference Property” as defined in the Indenture);
WHEREAS, in accordance with Section 4.07(a) of the Indenture, at the Effective Time, the right to convert each $1,000 principal amount of Notes based on a number of shares of Common Stock equal to the Conversion Rate in effect immediately prior to such Merger Event, which, for the avoidance of doubt, is 74.2405 shares of Common Stock per $1,000 principal amount of Notes, will, without the consent of the Holders, be changed into a right to convert each $1,000 principal amount of Notes into or based on a number of Units of Reference Property equal to the Conversion Rate in effect immediately prior to such Merger Event, in accordance with the terms of the Indenture and this Supplemental Indenture;



WHEREAS, in accordance with Section 4.07(a) of the Indenture, as of the Effective Time, Holdco desires to fully and unconditionally guarantee on a senior basis the Company’s obligations under the Notes;
WHEREAS, pursuant to Section 8.01 of the Indenture, the Company and the Trustee may enter into indentures supplemental to the Indenture for the purpose of, among other things, (i) in connection with a Merger Event, providing for the rights of the Holders to convert the Notes into Reference Property, including any adjustments required thereunder, and (ii) adding guarantees with respect to the Notes;
WHEREAS, in connection with the execution and delivery of this Supplemental Indenture and the Merger, the Trustee has received an Officer’s Certificate and an Opinion of Counsel as contemplated by Sections 5.07, 8.04 and 9.03 of the Indenture; and
WHEREAS, the Company and Holdco have requested that the Trustee execute and deliver this Supplemental Indenture and have satisfied all requirements necessary to make this Supplemental Indenture a valid instrument in accordance with its terms.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, Holdco and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
Article I

DEFINITIONS
Section 1.1
Definitions in the Supplemental Indenture . A term defined in the Indenture has the same meaning when used in this Supplemental Indenture unless such term is otherwise defined herein or amended or supplemented pursuant to this Supplemental Indenture. The words “herein,” “hereof,” “hereunder,” and words of similar import refer to this Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision.
ARTICLE II     

EFFECT OF ALON MERGER ON CONVERSION RIGHTS
Section 2.1
Conversion Right . In accordance with and subject to the provisions of Section 4.07(a) of the Indenture, from and after the Effective Time, in lieu of any rights to convert Notes into or based on shares of Common Stock, the Holders of Notes shall thereafter be entitled to convert each $1,000 principal amount of Notes into or based on a number of Units of Reference Property equal to the Conversion Rate in effect immediately prior to the Effective Time; provided that, in accordance with Section 4.03 of the Indenture, at and after the Effective Time, (x) the Company will continue to have the right to determine the Settlement Method upon conversion of the Notes pursuant to Section 4.03(a)(i) of the Indenture and (y) (i) any amount payable in

2

cash upon conversion of the Notes in accordance with Section 4.03 of the Indenture shall continue to be payable in cash, (ii) the number of shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 4.03 of the Indenture shall instead be deliverable in Units of Reference Property and (iii) the Daily VWAP and the Last Reported Sale Price will, to the extent reasonably possible, be calculated based on the value of a Unit of Reference Property, as determined in good faith by the Company in accordance with the Indenture, and the definitions of VWAP Trading Day and VWAP Market Disruption Event shall be determined by reference to the components of a Unit of Reference Property.

Section 2.2
Dividend Threshold Amount . From and after the Effective Time, the Dividend Threshold Amount, as defined in Section 4.04(d) of the Indenture, shall be adjusted to equal (x) the Dividend Threshold Amount immediately prior to the Effective Time, divided by (y) the number of shares of Holdco Common Stock that a holder of one share of Alon USA Common Stock will receive in the Merger Event.
Section 2.3
Further Adjustments to Conversion Rate. From and after the Effective Time, the Conversion Rate shall be subject to adjustments as nearly equivalent to the adjustments provided for in Article 4 of the Indenture as determined from time to time by the Board of Directors or the board of directors of Holdco.
ARTICLE III     

HOLDCO GUARANTEE
Section 3.1
Guarantee . At and after the Effective Time, Holdco hereby fully and unconditionally guarantees on a senior basis the Company’s obligations under the Notes. Holdco agrees that its guarantee hereunder constitutes a guarantee of payment when due and not a guarantee of collection and that such guarantee shall not be subject to any reduction, limitation, impairment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Company’s obligations under the Notes.
ARTICLE IV     

MISCELLANEOUS
Section 4.1
Trustee Matters . The Trustee accepts the Indenture, as supplemented hereby, and agrees to perform the same upon the terms and conditions set forth therein, as supplemented hereby. The Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein so provided. The recitals contained in this Supplemental Indenture shall be taken as the statements of the Company and the Trustee assumes no responsibility for their correctness. The Trustee

3

makes no representation as to the validity or sufficiency of this Supplemental Indenture.
Section 4.2
No Third-Party Beneficiaries . Nothing in this Supplemental Indenture, express or implied, shall give to any Person, other than the parties to the Indenture, as supplemented hereby, and their successors, and to the Holders of the Notes, any benefit of any legal or equitable right, remedy or claim under the Indenture, as supplemented hereby.
Section 4.3
Ratification of Indenture . The Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided. Except as otherwise expressly provided herein, no duties, responsibilities or liabilities are assumed, or shall be construed to be assumed, by the Trustee by reason of this Supplemental Indenture. This Supplemental Indenture is executed and accepted by the Trustee subject to all the terms and conditions set forth in the Indenture with the same force and effect as if those terms and conditions were repeated at length herein and made applicable to the Trustee with respect hereto.
Section 4.4
Governing Law . THIS SUPPLEMENTAL INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE COMPANY, HOLDCO, THE HOLDERS BY THEIR ACCEPTANCE OF THE SECURITIES AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 4.5
Counterparts . This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
[Signature Page Follows]

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IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture to be duly executed as of the date first written above.
ALON USA ENERGY, INC.



By: /s/ Shai Even    
    Name: Shai Even
    Title: EVP & CFO

DELEK HOLDCO, INC. (GUARANTOR)



By: /s/ Kevin Kremke    
    Name: Kevin Kremke
    Title: CFO/EVP/Secretary

By: /s/ Danny Norris    
    Name: Danny Norris
    Title: VP-CAO


U.S. BANK, NATIONAL ASSOCIATION, as Trustee



By: /s/ Mauri J. Cowen    
    Name: Maurie J. Cowen
    Title: Vice President


5


DKCLOSESALJTRANSACTIO_IMAGE1.JPG
Delek US Holdings Announces Closing of the Acquisition of Alon USA
•
Combination creates a Permian-focused company with refining, logistics, retail and marketing operations
•
Annual synergies of $85 million to $105 million expected to be achieved in 2018
•
Creates ability to unlock significant logistics value through future potential drop downs to Delek Logistics Partners, LP
•
Combined company benefits from Delek US’ strong balance sheet
•
Expected to be highly accretive to earnings per share in 2018

BRENTWOOD, Tenn. — June 30, 2017 — Delek US Holdings, Inc. (NYSE: DK) (“Delek US”) today announced the closing of the acquisition of the remaining outstanding shares of Alon USA Energy, Inc. (NYSE: ALJ) (“Alon”) common stock in an all-stock transaction. The close of this transaction will be effective at 12:02 a.m. Eastern Time on July 1, 2017. Under terms of the agreement, the owners of the remaining outstanding shares in Alon will receive a fixed exchange ratio of 0.5040 Delek US shares for each share of Alon, with cash paid in lieu of fractional shares. Prior to this transaction, Delek US owned approximately 33.7 million shares, or 47 percent, of the common stock of Alon. Following closing, Delek US will have approximately 82.0 million shares outstanding.

Uzi Yemin, Chairman, President and Chief Executive Officer of Delek US, stated, “With the transaction now complete, I want to welcome the Alon employees, and we look forward to integrating Alon’s operations into Delek. We will be focused on working together to grow the combined organization and achieve meaningful synergies across the business. The combined refining operation will be one of the largest buyers of crude from the Permian Basin among the independent refiners. We also will have the ability to unlock additional value with an estimated $70 million to $85 million of annual logistics EBITDA from Alon’s assets through future potential drop downs to Delek Logistics Partners. The combined company will create a platform for future logistics projects to support a larger refining system.”

Yemin continued, “We believe this strategic combination creates a larger, more diverse company that is well positioned to take advantage of opportunities in the market and better navigate the cyclical nature of our business. Our strong financial position, combined with the ability to achieve $85 million to $105 million of expected synergies and unlock logistics value, should allow our capital allocation program to include initiatives to improve operations, take advantage of growth opportunities and return cash to shareholders, as we work to drive long-term value creation for our shareholders.”

The combined company will primarily be led by Delek US’ management team, with Uzi Yemin serving as Chairman, President and Chief Executive Officer, Fred Green as Executive Vice President and Chief Operating Officer and Kevin Kremke as Executive Vice President and Chief Financial Officer. The Special Committee of Alon’s board of directors nominated David Wiessman as a new director to be added to the Delek US board and Ron Haddock as a new director to be added to the board of Delek Logistics GP, LLC, which is Delek Logistics Partners, LP’s (NYSE: DKL) (“Delek Logistics”) general partner. As outlined in the merger agreement, within 30 days after the closing of the transaction, Delek US will increase the size of its board of directors by one seat and appoint Mr. Wiessman to such newly created seat. In addition, the board of directors of Delek Logistics’ general partner will increase the size of its board of directors by one seat and appoint Mr. Haddock to such newly created seat.

Combined Operations Overview
Following the close on July 1, the combined company will have a broad platform consisting of refining, logistics, retail and wholesale marketing, as well as renewables and asphalt operations:
•
The refining system will have approximately 300,000 barrels per day of crude throughput capacity consisting of four locations and an integrated retail platform that includes approximately 300 locations serving central and west Texas and New Mexico.
•
Logistics operations will include Delek Logistics, which can benefit from future drop downs and organic projects to support a larger refining system.
•
The marketing operation will supply over 350 wholesale locations, have unbranded wholesale sales of approximately 145,000 barrels per day of light products in 13 states, and have utilization of 450,000 barrels per month of space on the Colonial Pipeline System.
•
The company will have an integrated asphalt business consisting of operations primarily in Texas, Arkansas, Oklahoma, California and Washington approaching 1.0 million tons of sales on an annual basis. This operation is supported through a combination of production and supply/exchange volume with 14 asphalt terminals in the operation.
•
The biodiesel/renewable diesel assets, with a total capacity of approximately 61.0 million gallons per year, will include biodiesel plants in Cleburne, Texas and Crossett, Arkansas, and a renewable diesel and jet fuel plant in California.

Delek US will have a large presence in the Permian Basin. Its refining system will initially have access to approximately 207,000 barrels per day of Permian sourced crude out of an approximately 300,000-barrel-per-day crude throughput system, which equates to approximately 69 percent of the crude slate. This will result in the combined company being one of the largest buyers of Permian sourced crude among the independent refiners, creating opportunities to benefit from economies of scale in both refining and logistics. As a result of this combination, there will be a larger marketing presence with retail locations and wholesale marketing operations in the region that are integrated with the Big Spring, Texas refinery. From a logistics standpoint, the system will have access to crude oil pipelines, trucking and gathering operations in the area, in addition to Delek Logistics’ RIO joint venture crude oil pipeline in west Texas. This larger system also enhances the opportunities for Delek Logistics to expand its current participation in the highly attractive Permian Basin by supporting a larger operation.

About Delek US Holdings, Inc.
Following the close of this transaction on July 1, 2017, Delek US Holdings, Inc. will be a diversified downstream energy company with assets in petroleum refining, logistics, asphalt, renewable fuels and convenience store retailing. The refining assets will consist of refineries operated in Tyler and Big Spring, Texas, El Dorado, Arkansas and Krotz Springs, Louisiana with a combined nameplate crude throughput capacity of 302,000 barrels per day. Delek US Holdings will own 100 percent of the general partner and 81.6 percent of the limited partner interest in Alon USA Partners, LP (NYSE: ALDW), which owns a crude oil refinery in Big Spring, Texas, with a crude oil throughput capacity of 73,000 barrels per day and an integrated wholesale marketing business.

The logistics operations primarily consist of Delek Logistics Partners, LP. Delek US Holdings, Inc. and its affiliates also own approximately 63 percent (including the 2 percent general partner interest) of Delek Logistics Partners, LP. Delek Logistics Partners, LP (NYSE: DKL) is a growth-oriented master limited partnership focused on owning and operating midstream energy infrastructure assets.

The asphalt operations will consist of owned or operated asphalt terminals serving markets from Tennessee to the west coast through a combination of non-blended asphalt purchased from third parties and produced at the Big Spring, Texas and El Dorado, Arkansas refineries. The renewables operations will consist of plants in Texas and Arkansas that produce biodiesel fuel and a renewable diesel facility in California.

The convenience store retail business is the largest 7-Eleven licensee in the United States and operates approximately 300 convenience stores which also market motor fuels in central and west Texas and New Mexico.

Safe Harbor Provisions Regarding Forward-Looking Statements
This press release contains forward-looking statements that are based upon current expectations and involve a number of risks and uncertainties. Statements concerning current estimates, expectations and projections about future results, performance, prospects, opportunities, plans, actions and events and other statements, concerns, or matters that are not historical facts are “forward-looking statements,” as that term is defined under the federal securities laws.  These forward-looking statements include, but are not limited to, statements regarding the integration of the combined companies following the Alon transaction, transition plans, synergies, opportunities, anticipated future performance and financial position, and other factors.

Investors are cautioned that the following important factors, among others, may affect these forward-looking statements. These factors include but are not limited to: risks and uncertainties related to the ability to successfully integrate the businesses of Delek US and Alon, risks related to disruption of management time from ongoing business operations due to the integration implementation, the risk that any announcements relating to the integration could have adverse effects on the market price of Delek US' common stock, the risk that the transaction could have an adverse effect on the ability of Delek US and Alon to retain customers and retain and hire key personnel and maintain relationships with their suppliers and customers and on their operating results and businesses generally, the risk that problems may arise in successfully integrating the businesses of the companies, which may result in the combined company not operating as effectively and efficiently as expected, the risk that the combined company may be unable to achieve cost-cutting synergies or it may take longer than expected to achieve those synergies, uncertainty related to timing and amount of future share repurchases and dividend payments, risks and uncertainties with respect to the quantities and costs of crude oil we are able to obtain and the price of the refined petroleum products we ultimately sell; gains and losses from derivative instruments; management's ability to execute its strategy of growth through acquisitions and the transactional risks associated with acquisitions and dispositions; acquired assets may suffer a diminishment in fair value as a result of which we may need to record a write-down or impairment in carrying value of the asset; changes in the scope, costs, and/or timing of capital and maintenance projects; operating hazards inherent in transporting, storing and processing crude oil and intermediate and finished petroleum products; our competitive position and the effects of competition; the projected growth of the industries in which we operate; general economic and business conditions affecting the southern United States; and other risks described in Delek US’ filings with the United States Securities and Exchange Commission (the “SEC”), including the Form S-4 (Registration Statement No. 333-216298) filed by Delek Holdco, Inc., which was declared effective by the SEC on May 26, 2017.

Forward-looking statements should not be read as a guarantee of future performance or results and will not be accurate indications of the times at or by which such performance or results will be achieved.  Forward-looking information is based on information available at the time and/or management's good faith belief with respect to future events, and is subject to risks and uncertainties that could cause actual performance or results to differ materially from those expressed in the statements.  Delek US undertakes no obligation to update or revise any such forward-looking statements, except as required by applicable law or regulation.

Delek US Investor / Media Relations Contact:
Keith Johnson
Delek US Holdings, Inc.
Vice President of Investor Relations
615-435-1366