ALON USA ENERGY, INC. (NYSE:ALJ) Files An 8-K Other Events
Item 8.01. Other Events.
Legal Proceedings Regarding the Merger with Delek
As previously disclosed, on January 2, 2017, Alon USA Energy, Inc.
(Alon), Delek US Holdings, Inc. (Delek), Delek Holdco, Inc., a
wholly owned subsidiary of Delek (HoldCo), Dione Mergeco, Inc., a
wholly owned subsidiary of HoldCo (Dione Mergeco) and Astro
Mergeco, Inc., a wholly owned subsidiary of HoldCo (Astro Mergeco),
entered into an Agreement and Plan of Merger (the Merger
Agreement), as amended by the First Amendment to the Merger
Agreement, dated as of February 27, 2017, and the Second Amendment
to the Merger Agreement, dated as of April 21, 2017. On May 30,
2017, Alon and Delek filed a definitive joint proxy statement,
which was supplemented on June 16, 2017 (as supplemented, the Proxy
Statement) with the Securities and Exchange Commission for the
solicitation of proxies in connection with special meetings of
Alons and Deleks stockholders to be held on June 28, 2017 and June
29, 2017, respectively, to vote upon, among other things, matters
necessary to complete the mergers of Dione Mergeco with and into
Delek, with Delek surviving as a wholly owned subsidiary of HoldCo,
and Astro Mergeco with and into Alon, with Alon surviving (the
Mergers).
(Alon), Delek US Holdings, Inc. (Delek), Delek Holdco, Inc., a
wholly owned subsidiary of Delek (HoldCo), Dione Mergeco, Inc., a
wholly owned subsidiary of HoldCo (Dione Mergeco) and Astro
Mergeco, Inc., a wholly owned subsidiary of HoldCo (Astro Mergeco),
entered into an Agreement and Plan of Merger (the Merger
Agreement), as amended by the First Amendment to the Merger
Agreement, dated as of February 27, 2017, and the Second Amendment
to the Merger Agreement, dated as of April 21, 2017. On May 30,
2017, Alon and Delek filed a definitive joint proxy statement,
which was supplemented on June 16, 2017 (as supplemented, the Proxy
Statement) with the Securities and Exchange Commission for the
solicitation of proxies in connection with special meetings of
Alons and Deleks stockholders to be held on June 28, 2017 and June
29, 2017, respectively, to vote upon, among other things, matters
necessary to complete the mergers of Dione Mergeco with and into
Delek, with Delek surviving as a wholly owned subsidiary of HoldCo,
and Astro Mergeco with and into Alon, with Alon surviving (the
Mergers).
As previously disclosed in a Form 8-K filed on June 16, 2017, three
purported stockholders of Alon and one purported stockholder of
Delek have filed four lawsuits in connection with the Mergers. One
of these plaintiffs had filed a motion seeking to preliminarily
enjoin the Alon stockholder vote, but withdrew the motion on June
19, 2017. Alon has determined to voluntarily supplement the Proxy
Statement as described in this Current Report on Form 8-K in order
to moot certain of the plaintiffs unmeritorious disclosure claims,
alleviate the costs, risks and uncertainties inherent in litigation
and provide additional information to its stockholders. Nothing in
this Current Report on Form 8-K shall be deemed an admission of the
legal necessity or materiality under applicable laws of any of the
disclosures set forth herein. To the contrary, Alon specifically
denies all allegations in the aforementioned lawsuits, including
without limitation, that any additional disclosure was or is
required.
purported stockholders of Alon and one purported stockholder of
Delek have filed four lawsuits in connection with the Mergers. One
of these plaintiffs had filed a motion seeking to preliminarily
enjoin the Alon stockholder vote, but withdrew the motion on June
19, 2017. Alon has determined to voluntarily supplement the Proxy
Statement as described in this Current Report on Form 8-K in order
to moot certain of the plaintiffs unmeritorious disclosure claims,
alleviate the costs, risks and uncertainties inherent in litigation
and provide additional information to its stockholders. Nothing in
this Current Report on Form 8-K shall be deemed an admission of the
legal necessity or materiality under applicable laws of any of the
disclosures set forth herein. To the contrary, Alon specifically
denies all allegations in the aforementioned lawsuits, including
without limitation, that any additional disclosure was or is
required.
SUPPLEMENT TO THE DEFINITIVE PROXY STATEMENT
Alon is providing additional information regarding the Proxy
Statement to its stockholders. These disclosures should be read in
connection with the Proxy Statement, which should be read in its
entirety. To the extent that the information set forth herein
differs from or updates information contained in the Proxy
Statement, the information set forth herein shall supersede or
supplement the information in the Proxy Statement. Defined terms
used but not defined herein have the meanings set forth in the
Proxy Statement. Without admitting in any way that the disclosures
below are material or otherwise required by law, Alon makes the
following amended and supplemental disclosures (with additional
language in bold and underlined text below):
Statement to its stockholders. These disclosures should be read in
connection with the Proxy Statement, which should be read in its
entirety. To the extent that the information set forth herein
differs from or updates information contained in the Proxy
Statement, the information set forth herein shall supersede or
supplement the information in the Proxy Statement. Defined terms
used but not defined herein have the meanings set forth in the
Proxy Statement. Without admitting in any way that the disclosures
below are material or otherwise required by law, Alon makes the
following amended and supplemental disclosures (with additional
language in bold and underlined text below):
The disclosure in the fourth paragraph on page 82 of the Proxy
Statement is hereby supplemented by amending and restating the
paragraph in its entirety to read as follows:
Statement is hereby supplemented by amending and restating the
paragraph in its entirety to read as follows:
On March 2, 2015, Delek delivered a letter to the Alon Board
requesting approval for purposes of Section 203 with respect to the
potential purchase by Delek of some or all of the Alon shares held
by Alon Israel. In response, the Alon Board formed a special
committee consisting of independent directors – Ron Haddock, Ilan
Cohen, Yeshayahu Pery and Zalman Segal>(the 203 Special
Committee) and authorized it to review, negotiate and evaluate
Deleks request and make a recommendation to the Alon Board.
requesting approval for purposes of Section 203 with respect to the
potential purchase by Delek of some or all of the Alon shares held
by Alon Israel. In response, the Alon Board formed a special
committee consisting of independent directors – Ron Haddock, Ilan
Cohen, Yeshayahu Pery and Zalman Segal>(the 203 Special
Committee) and authorized it to review, negotiate and evaluate
Deleks request and make a recommendation to the Alon Board.
The disclosure in the first full paragraph on page 83 of the Proxy
Statement is hereby supplemented by amending and restating the
paragraph in its entirety to read as follows:
Statement is hereby supplemented by amending and restating the
paragraph in its entirety to read as follows:
In addition, during early April 2015, Delek negotiated with the 203
Special Committee certain revisions and amendments to the
Stockholder Agreement, including a standstill provision prohibiting
Delek from acquiring additional shares that would result in Delek
owning more than 49.99% of the outstanding Alon common stock before
the 12-month anniversary of the closing of Deleks purchase of the
Alon shares from Alon Israel. The Amended and Restated Stockholder
Agreement, entered into on April 14, 2015, also permitted Delek to
nominate its own slate of directors, if it chose to do so, for
Alons 2016 annual meeting of stockholders.>>Specifically, the
Stockholder Agreement included, among others, the following terms:
Special Committee certain revisions and amendments to the
Stockholder Agreement, including a standstill provision prohibiting
Delek from acquiring additional shares that would result in Delek
owning more than 49.99% of the outstanding Alon common stock before
the 12-month anniversary of the closing of Deleks purchase of the
Alon shares from Alon Israel. The Amended and Restated Stockholder
Agreement, entered into on April 14, 2015, also permitted Delek to
nominate its own slate of directors, if it chose to do so, for
Alons 2016 annual meeting of stockholders.>>Specifically, the
Stockholder Agreement included, among others, the following terms:
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Until May 14, 2016, neither Delek nor any of its affiliates
and associates will own, acquire, or attempt to acquire any of Alon’s common stock or preferred stock (collectively, the “Alon USA Capital Stock”), or securities that are settled in or represent the right to acquire Alon USA Capital Stock, in excess of 49.99 percent of the outstanding shares of Alon USA Capital Stock on an as-converted basis, or, in the event of a Triggering Transaction, 51 percent of the outstanding shares. A Triggering Transaction is defined as (a) the public disclosure of an acquisition of shares by any person (other than Delek, any of its affiliates or associates or affiliates of Alon) of Alon USA Capital |
Stock representing 15 percent or more of the outstanding voting
power of Alon USA Capital Stock that has been approved by the
Alon Board for purposes of Section 203 of the Delaware General
Corporation Law or (b) a bona fide tender or exchange offer by
any person (other than Alon, Delek or any of its affiliates or
associates) to purchase outstanding shares of Alon USA Capital
Stock if such offer is not withdrawn or terminated.
power of Alon USA Capital Stock that has been approved by the
Alon Board for purposes of Section 203 of the Delaware General
Corporation Law or (b) a bona fide tender or exchange offer by
any person (other than Alon, Delek or any of its affiliates or
associates) to purchase outstanding shares of Alon USA Capital
Stock if such offer is not withdrawn or terminated.
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Until May 14, 2016, all shares of Alon USA Capital stock
owned by Delek and its affiliates and associates will be voted, in Deleks discretion, on any matter put to a vote of the Alon stockholders either as recommended by the Alon Board or proportionally with the votes cast by all other holders of Alon USA Capital Stock, except for certain matters (including voting on a merger or sale of all or substantially all assets of Alon, amendments to Alons certificate of incorporation, dissolution of Alon or issuance of Alon USA Capital Stock) as to each of which Delek and its affiliates and associates may vote their shares in their sole discretion. However, in the event of a Triggering Transaction, Delek and its affiliates and associates will not vote, or otherwise take any action with respect to, any shares of Alon USA Capital Stock in excess of 49.99 percent of the voting power of the outstanding shares of Alon USA Capital Stock at any meeting of Alon stockholders. |
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Until the election of directors at Alon’s 2016 annual
meeting of stockholders (the “2016 Alon Annual Meeting”), the Alon Board shall only nominate directors for election that are recommended by a committee of the Alon Board consisting solely of two or more independent directors of Alon (the “Independent Nominating Committee”). At any Alon stockholder meeting held prior to the 2016 Alon Annual Meeting, Delek will vote all Alon USA Capital Stock Delek, its affiliates and associates hold (i) in favor of all director nominees nominated by the Independent Nominating Committee, provided, however, that a specified number of such director nominees constituting less than a majority of the Alon Board shall be persons designated by Delek who are reasonably acceptable to the Independent Nominating Committee to serve as members of the Alon Board, (ii) against any other nominees and (iii) against the removal of any member of the Alon Board if the Independent Nominating Committee so recommends. |
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The bylaws of Alon were amended to provide that, until the
final adjournment of the 2016 Alon Annual Meeting, the affirmative vote of at least 90% of the Alon Board shall be required to remove or replace the chairman of the Alon Board without cause. |
For additional information, please see the Stockholder Agreement,
which is filed as an exhibit and is incorporated by reference
herein.
which is filed as an exhibit and is incorporated by reference
herein.
Safe Harbor Provisions Regarding Forward-Looking Statements
This communication 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
proposed merger with Alon.
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
proposed merger with Alon.
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 expected timing and likelihood of completion of
the proposed merger, including the timing, receipt and terms and
conditions of any required governmental and regulatory approvals
of the proposed merger that could reduce anticipated benefits or
cause the parties to abandon the transaction, the ability to
successfully integrate the businesses, the occurrence of any
event, change or other circumstances that could give rise to the
termination of the merger agreement, the possibility that
stockholders of Delek may not approve the issuance of new shares
of common stock in the merger or that stockholders of Alon may
not approve the merger agreement, the risk that the parties may
not be able to satisfy the conditions to the proposed transaction
in a timely manner or at all, risks related to disruption of
management time from ongoing business operations due to the
proposed transaction, the risk that any announcements relating to
the proposed transaction could have adverse effects on the market
price of Deleks common stock or Alon’s common stock, the risk
that the proposed transaction and its announcement could have an
adverse effect on the ability of Delek 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
among others, may affect these forward-looking statements. These
factors include but are not limited to: risks and uncertainties
related to the expected timing and likelihood of completion of
the proposed merger, including the timing, receipt and terms and
conditions of any required governmental and regulatory approvals
of the proposed merger that could reduce anticipated benefits or
cause the parties to abandon the transaction, the ability to
successfully integrate the businesses, the occurrence of any
event, change or other circumstances that could give rise to the
termination of the merger agreement, the possibility that
stockholders of Delek may not approve the issuance of new shares
of common stock in the merger or that stockholders of Alon may
not approve the merger agreement, the risk that the parties may
not be able to satisfy the conditions to the proposed transaction
in a timely manner or at all, risks related to disruption of
management time from ongoing business operations due to the
proposed transaction, the risk that any announcements relating to
the proposed transaction could have adverse effects on the market
price of Deleks common stock or Alon’s common stock, the risk
that the proposed transaction and its announcement could have an
adverse effect on the ability of Delek 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 contained in Deleks and Alons filings with the United
States Securities and Exchange Commission.
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 contained in Deleks and Alons filings with the United
States Securities and Exchange Commission.
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. Alon undertakes no obligation to update or revise
any such forward-looking statements, except as required by
applicable law or regulation.
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. Alon undertakes no obligation to update or revise
any such forward-looking statements, except as required by
applicable law or regulation.
No Offer or Solicitation
This communication relates to a proposed business combination
between Delek and Alon. This announcement is for informational
purposes only and is neither an offer to purchase, nor a
solicitation of an offer to sell, any securities or the
solicitation of any vote in any jurisdiction to the proposed
transactions or otherwise, nor shall there be any sale,
issuance or transfer of securities in any jurisdiction in
contravention of applicable law. No offer of securities shall
be made except by means of a prospectus meeting the
requirements of Section 10 of the Securities Act of 1933, as
amended.
between Delek and Alon. This announcement is for informational
purposes only and is neither an offer to purchase, nor a
solicitation of an offer to sell, any securities or the
solicitation of any vote in any jurisdiction to the proposed
transactions or otherwise, nor shall there be any sale,
issuance or transfer of securities in any jurisdiction in
contravention of applicable law. No offer of securities shall
be made except by means of a prospectus meeting the
requirements of Section 10 of the Securities Act of 1933, as
amended.
Additional Information and Where to Find It
This communication may be deemed to be solicitation material in
respect of the proposed transaction between Delek and Alon. In
connection with the proposed transaction, Holdco filed a
registration statement on Form S-4 with the SEC (Registration
Statement No. 333-216298), which was declared effective by the
SEC on May 26, 2017. Delek and Alon have filed a joint proxy
statement/prospectus and will file other relevant documents
concerning the proposed merger with the SEC. Delek and Alon
began mailing the definitive joint proxy statement/prospectus
to their respective security holders on May 30, 2017. The
definitive joint proxy statement/prospectus, dated May 30,
2017, contains important information about Delek, Alon, the
proposed merger and related matters. This communication is not
a substitute for the proxy statement, registration statement,
proxy statement/prospectus or any other documents that Delek or
Alon may file with the SEC or send to stockholders in
connection with the proposed transaction. STOCKHOLDERS OF DELEK
AND ALON ARE URGED TO READ ALL RELEVANT DOCUMENTS FILED WITH
THE SEC, INCLUDING THE PROXY STATEMENT(S), REGISTRATION
STATEMENT(S) AND/OR PROXY STATEMENT/PROSPECTUS, BECAUSE THEY
WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED
TRANSACTION. The definitive proxy statement(s) (when available)
will be mailed to stockholders of Delek and/or Alon, as
applicable. Investors and security holders will be able to
obtain copies of these documents, including the proxy
statement/prospectus, and other documents filed with the SEC
(when available) free of charge at the SEC’s website,
http://www.sec.gov. Copies of documents filed with the SEC by
Delek will be made available free of charge on Deleks website
at http://www.delekus.com or by contacting Delek’s Investor
Relations Department by phone at 615-435-1366. Copies of
documents filed with the SEC by Alon will be made available
free of charge on Alon’s website at http://www.alonusa.com or
by contacting Alon’s Investor Relations Department by phone at
972-367-3808.
respect of the proposed transaction between Delek and Alon. In
connection with the proposed transaction, Holdco filed a
registration statement on Form S-4 with the SEC (Registration
Statement No. 333-216298), which was declared effective by the
SEC on May 26, 2017. Delek and Alon have filed a joint proxy
statement/prospectus and will file other relevant documents
concerning the proposed merger with the SEC. Delek and Alon
began mailing the definitive joint proxy statement/prospectus
to their respective security holders on May 30, 2017. The
definitive joint proxy statement/prospectus, dated May 30,
2017, contains important information about Delek, Alon, the
proposed merger and related matters. This communication is not
a substitute for the proxy statement, registration statement,
proxy statement/prospectus or any other documents that Delek or
Alon may file with the SEC or send to stockholders in
connection with the proposed transaction. STOCKHOLDERS OF DELEK
AND ALON ARE URGED TO READ ALL RELEVANT DOCUMENTS FILED WITH
THE SEC, INCLUDING THE PROXY STATEMENT(S), REGISTRATION
STATEMENT(S) AND/OR PROXY STATEMENT/PROSPECTUS, BECAUSE THEY
WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED
TRANSACTION. The definitive proxy statement(s) (when available)
will be mailed to stockholders of Delek and/or Alon, as
applicable. Investors and security holders will be able to
obtain copies of these documents, including the proxy
statement/prospectus, and other documents filed with the SEC
(when available) free of charge at the SEC’s website,
http://www.sec.gov. Copies of documents filed with the SEC by
Delek will be made available free of charge on Deleks website
at http://www.delekus.com or by contacting Delek’s Investor
Relations Department by phone at 615-435-1366. Copies of
documents filed with the SEC by Alon will be made available
free of charge on Alon’s website at http://www.alonusa.com or
by contacting Alon’s Investor Relations Department by phone at
972-367-3808.
Participants in the Solicitation
Delek and its directors and executive officers, and Alon and
its directors and executive officers, may be deemed to be
participants in the solicitation of proxies from the holders of
Delek common stock and Alon common stock in respect of the
proposed transaction. Information about the directors and
executive officers of Delek is set forth in the proxy statement
for Deleks 2017 Annual Meeting of Stockholders, which was filed
with the SEC on April 6, 2017, and in the other documents filed
after the date thereof by Delek with the SEC. Information about
the directors and executive officers of Alon is set forth in
the Annual Report on Form 10-K/A, which was filed with the SEC
on May 1, 2017, and in the other documents filed after the date
thereof by Alon with the SEC. Investors may obtain additional
information regarding the interests of such participants by
reading the proxy statement/prospectus regarding the proposed
transaction when it becomes available. You may obtain free
copies of these documents as described in the preceding
paragraph.
its directors and executive officers, may be deemed to be
participants in the solicitation of proxies from the holders of
Delek common stock and Alon common stock in respect of the
proposed transaction. Information about the directors and
executive officers of Delek is set forth in the proxy statement
for Deleks 2017 Annual Meeting of Stockholders, which was filed
with the SEC on April 6, 2017, and in the other documents filed
after the date thereof by Delek with the SEC. Information about
the directors and executive officers of Alon is set forth in
the Annual Report on Form 10-K/A, which was filed with the SEC
on May 1, 2017, and in the other documents filed after the date
thereof by Alon with the SEC. Investors may obtain additional
information regarding the interests of such participants by
reading the proxy statement/prospectus regarding the proposed
transaction when it becomes available. You may obtain free
copies of these documents as described in the preceding
paragraph.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
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Exhibit Number
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Description
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99.1
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Amended and Restated Stockholder Agreement between
Delek US Holdings, Inc. and Alon USA Energy, Inc. dated April 14, 2015 (incorporated by reference to Exhibit 99.2 to Schedule 13D filed with the SEC on May 26, 2016 by Delek US Holdings, Inc.). |
About ALON USA ENERGY, INC. (NYSE:ALJ)
Alon USA Energy, Inc. is an independent refiner and marketer of petroleum products, operating primarily in the South Central, Southwestern and Western regions of the United States. The Company operates through three segments: refining and marketing, asphalt and retail. Its refineries produce petroleum products, including various grades of gasoline, diesel fuel, jet fuel, petrochemicals, petrochemical feedstocks, asphalt and other petroleum-based products. The Company holds interests in Alon USA Partners, LP, which owns a crude oil refinery in Big Spring, Texas. The Company’s refining and marketing segment includes sour crude oil refinery located in Big Spring, Texas, a light sweet crude oil refinery located in Krotz Springs, Louisiana and heavy crude oil refineries located in Paramount, Bakersfield and Long Beach, California (California refineries). It owns or operates approximately 10 asphalt terminals. It operates approximately 310 owned and leased convenience store sites.
