DELEK US HOLDINGS, INC. (NYSE:DK) Files An 8-K Other Events

13

DELEK US HOLDINGS, INC. (NYSE:DK) Files An 8-K Other Events

Item 8.01

Other Events
Legal Proceedings Regarding the Merger with Alon USA Energy, Inc.
As previously disclosed, on January 2, 2017, Delek US Holdings,
Inc. (Delek), Alon USA Energy, Inc. (Alon), Delek Holdco, Inc., a
wholly owned subsidiary of Delek (HoldCo), Dione Mergeco, Inc., a
wholly owned subsidiary of HoldCo (Delek Merger Sub) and Astro
Mergeco, Inc., a wholly owned subsidiary of HoldCo (Alon Merger
Sub) 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, Delek and Alon filed a definitive joint proxy statement (the
Proxy Statement) with the Securities and Exchange Commission for
the solicitation of proxies in connection with special meetings of
Deleks and Alons stockholders to be held on June 29, 2017 and June
28, 2017, respectively, to vote upon, among other things, matters
necessary to complete the mergers of Delek Merger Sub with and into
Delek, with Delek surviving as a wholly owned subsidiary of HoldCo,
and Alon Merger Sub with and into Alon, with Alon surviving (the
Mergers).
On June 2, 2017, Steven Page, a purported stockholder of Alon (the
Page Plaintiff), filed a putative class action complaint against
Alon and the members of Alons Board of Directors (the Alon
Individual Defendants) on behalf of a purported class of all Alon
stockholders other than defendants and their affiliates in the
United States District Court for the District of Delaware (the
Delaware District Court). This case is captioned Stephen Page v.
Alon USA Energy Inc., et al., Case No. 1:17-cv-00671-RGA (D.
Del.).>>The complaint alleges that (1) Alon and the Alon
Individual Defendants violated Section 14(a) of the Securities
Exchange Act of 1934, as amended (the Exchange Act), and Rule 14a-9
promulgated thereunder, by filing the Proxy Statement, which
allegedly fails to disclose and/or misrepresents material
information about the proposed Mergers, and (2) the Alon Individual
Defendants, as alleged control persons of Alon, violated Section
20(a) of the Exchange Act in connection with the filing of the
allegedly materially deficient Proxy Statement. The Page Plaintiff
has asked the Delaware District Court to, among other things, (i)
certify the case as a class action, (ii) enjoin Alon and the Alon
Individual Defendants from proceeding with the stockholder vote on
the proposed Mergers or consummating the proposed Mergers unless
and until Alon discloses the material information allegedly omitted
from the Proxy Statement, (iii) rescind the proposed Mergers to the
extent they are consummated before injunctive relief is granted,
and (iv) award the Page Plaintiff damages in the event the proposed
Mergers are consummated as well as attorneys and experts fees and
costs. The Page Plaintiff has filed a motion for preliminary
injunction asking the Delaware District Court to preliminarily
enjoin the stockholder vote until Alon discloses the material
information allegedly omitted from the Proxy Statement. The
Delaware District Court has set a hearing on the motion for
preliminary injunction, currently set for June 22, 2017. A copy of
the complaint is attached as Exhibit 99.1 hereto and incorporated
by reference herein.
On June 2, 2017, David Phelps, a purported stockholder of Delek
(the Phelps Plaintiff), filed a putative class action complaint
against Delek, HoldCo, and members of Deleks Board of Directors
(the Delek Individual Defendants) on behalf of a purported class of
all Delek stockholders other than defendants and their affiliates
in the United States District Court for the Middle District of
Tennessee, Nashville Division (the Tennessee District Court). The
case is captioned David Phelps v. Delek US Holdings, Inc., et al.,
Case No. 3:17-cv-00910 (M.D. Tenn.). The complaint alleges that (1)
Delek and the Delek Individual Defendants violated Section 14(a) of
the Exchange Act, and Rule 14a-9 promulgated thereunder, by filing
the Proxy Statement, which allegedly fails to disclose and/or
misrepresents material information about the proposed Mergers, and
(2) the Delek Individual Defendants, as control persons of Delek,
violated Section 20(a) of the Exchange Act in connection with the
filing of the allegedly materially deficient Proxy Statement. The
Phelps Plaintiff has asked the Tennessee District Court to, among
other things, (i) certify the case as a class action, (ii) enjoin
Delek and the Delek Individual Defendants from proceeding with the
stockholder vote on the proposed Mergers or consummating the
proposed Mergers unless and until Delek discloses the material
information allegedly omitted from the Proxy Statement, and (iii)
award the Phelps Plaintiff damages in the event the proposed
Mergers are consummated as well as reasonable attorneys and experts
fees and expenses. A copy of the complaint is attached as Exhibit
99.2 hereto and incorporated by reference herein.
On June 13, 2017, Joseph Adler, a purported stockholder of Alon
(the Adler Plaintiff), filed a putative class action complaint
against Alon, the Alon Board, Delek, HoldCo, Delek Merger Sub, and
Alon Merger Sub (collectively, the Defendants) on behalf of a
purported class of all Alon stockholders other than the Defendants
and their affiliates in the Delaware District Court. This case is
captioned Joseph Adler v. Alon USA Energy, Inc., et al., Case No.
1:17-cv-00742-UNA (D. Del.).>>The complaint alleges that (1)
Alon and the Alon Individual Defendants violated Section 14(a) of
the Exchange Act, and Rule 14a-9 promulgated thereunder, by filing
the Proxy Statement, which allegedly fails to disclose and/or
misrepresents material information about the proposed Mergers, and
(2) the Alon Individual Defendants, Delek, HoldCo, Delek Merger
Sub, and Alon Merger Sub, as alleged control persons of Alon,
violated Section 20(a) of the Exchange Act in connection with the
filing of the allegedly materially deficient Proxy Statement. The
Adler Plaintiff has asked the Delaware District Court to, among
other things, (i) enjoin Defendants from proceeding with,
consummating, or closing the proposed Mergers (ii) rescind the
proposed Mergers to the extent they are consummated, (iii) direct
the Alon Individual Defendants to disclose the material information
allegedly omitted from the Proxy Statement, (iv) declare that
Defendants violated Section 14(a) of the Exchange Act and Rule
14a-9 promulgated thereunder, and/or Section 20(a) of the Exchange
Act, and (v) award the Adler Plaintiff attorneys and experts fees
and costs. A copy of the complaint is attached as Exhibit 99.3
hereto and incorporated by reference herein.
On June 15, 2017, Arkansas Teacher Retirement System, a purported
stockholder of Alon (the Arkansas Plaintiff), filed a putative
class action complaint against the Defendants on behalf of a class
of all Alon stockholders other than the Defendants and their
affiliates in the Court of
Chancery of the State of Delaware (the Chancery Court). This case
is captioned Arkansas Teacher Retirement System v. Alon USA Energy,
Inc., et al., Case No. 2017-0453.>>The complaint alleges that
(1) Delek, HoldCo, Delek Merger Sub, and Alon Merger Sub breached
their fiduciary duties allegedly owed to the Arkansas Plaintiff and
purported class by improperly using their position as Alons
controlling stockholder to obtain buyout terms from Alon at an
unfairly discounted price, and by filing the Proxy Statement, which
allegedly fails to disclose and/or misrepresents material
information about the proposed Mergers, and (2) the Alon Individual
Defendants breached their fiduciary duties allegedly owed to the
Arkansas Plaintiff and purported class by engaging in conduct that
led to the sale of Alons shares at an unfairly discounted price,
and by filing the Proxy Statement which allegedly fails to disclose
and/or misrepresents material information about the proposed
Mergers. Specifically, the Arkansas Plaintiff alleges that the
Proxy Statement failed to accurately disclose certain revisions and
amendments made to an amended and restated stockholder agreement
entered into between Alon and Delek in 2015, including the terms of
a standstill provision, restriction on the nomination of directors,
provisions on transfer restrictions, related party transactions,
and corporate opportunities agreed to therein, as well as alleged
breaches of the stockholder agreement, which allegedly led to an
inaccurate depiction of the continuing negotiations between Alon
and Delek throughout the negotiation process. The Arkansas
Plaintiff further alleges that the Proxy Statement misrepresents
that members of the special committee of the Alon Board of
Directors (the Special Committee) were independent. Specifically,
the Arkansas Plaintiff alleges that at least three members of the
six-member Special Committee were not independent of Delek because:
(1) chairman David Wiessman allegedly has an indirect financial
interest in Delek as a beneficial owner of Delek stock through
personal investments in Alon Israel Oil Company, Ltd. (Alon Israel)
and Bielsol Investments (1987) Ltd., and previously served as CEO,
Executive Chairman, Chairman and/or President of various Alon
Israel subsidiaries; and (2) Delek allegedly controlled the
replacement of two directors on the Special Committee. The Arkansas
Plaintiff further alleges that the Proxy Statement failed to
disclose sufficient information regarding the process, negotiations
and discussions that led to the prospective appointments of Mr.
Wiessman to HoldCos board of directors and of Ron Haddock to Delek
Logistics board of directors. Further, the Arkansas Plaintiff
alleges that the Special Committee process was tainted by the
retention of J.P. Morgan, which allegedly has an undisclosed
conflict of interest because J.P. Morgan affiliates allegedly
currently own approximately 2.5% of Deleks stock, a stake that was
allegedly increased during negotiations for the Mergers. The
Arkansas Plaintiff further alleges that, until October 2016, the
Special Committee was not sufficiently empowered to negotiate a
transaction with Delek or consider alternatives thereto. Further,
the Arkansas Plaintiff alleges that the merger consideration
undervalues Alons shares and that J.P. Morgans discounted cash flow
analyses understate Alons per-share value. The Arkansas Plaintiff
has asked the Chancery Court to, among other things, (i) certify
the case as a class action, (ii) declare that Defendants have
breached their fiduciary duties owed to the Arkansas Plaintiff and
purported class, (iii) award damages to the Arkansas Plaintiff and
purported class in an amount to be determined at trial, (iv) award
additional shares of Delek common stock to the Arkansas Plaintiff
and purported class in the event the proposed Merger is
consummated, and (v) award the Arkansas Plaintiff attorneys and
experts fees. A copy of the complaint is attached as Exhibit 99.4
hereto and incorporated by reference herein.
Delek and the Delek Individual Defendants believe that the Page
Plaintiffs, Phelps Plaintiffs, Adler Plaintiffs and Arkansas
Plaintiffs claims are without merit. Delek cannot predict the
outcome of or estimate the possible loss or range of loss from
these matters. It is possible that additional, similar complaints
may be filed or the complaints described above may be amended. If
this occurs, Delek does not intend to announce the filing of each
additional, similar complaint or any amended complaint unless it
contains materially new or different allegations.
In order to moot plaintiffs unmeritorious disclosure claims,
alleviate the costs, risks and uncertainties inherent in litigation
and provide additional information to its stockholders, Delek has
determined to voluntarily supplement the Proxy Statement as
described in this Current Report on Form 8-K. 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, Delek specifically
denies all allegations in the foregoing complaints, including
without limitation, that any additional disclosure was or is
required.
SUPPLEMENT TO THE DEFINITIVE PROXY STATEMENT
Delek 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, Delek makes the
following amended and supplemental disclosures (with additional
language in bold and underlined text below):
The disclosure in the table on page 157 of the Proxy Statement is
hereby supplemented by adding the following paragraph after the
table:
Total adjusted EBITDA>represents earnings before net income
attributable to non-controlling interest, income tax expense,
interest expense, depreciation and amortization and gain on
disposition of assets. Adjusted EBITDA is a non-GAAP financial
measure because it excludes amounts included in net earnings, the
most directly comparable measure calculated in accordance with
GAAP. This measure therefore should be reviewed with caution and
should not be considered as an alternative to net earnings or other
measures derived in accordance with GAAP.
The disclosure in the table on page 159 of the Proxy Statement is
hereby supplemented by adding the following table, which provides
the calculation of unlevered free cash flows:
($ in millions)
CY2017E
CY2018E
CY2019E
CY2020E
CY2021E
Total adjusted EBITDA(1)
$
$
$
$
$
Less: Capital expenditures
$
(129
)
$
(238
)
$
(360
)
$
(176
)
$
(80
)
Less: Payment for income tax
$
(37
)
$
(63
)
$
(84
)
$
(110
)
$
(144
)
Less: Changes in working capital
$
$
(6
)
$
(3
)
$
(3
)
$
(3
)
Plus: Net proceeds from disposition of assets
$
$
$
$
$
Less: Equity earnings of investees
$
(7
)
$
(7
)
$
(7
)
$
(6
)
$
(6
)
Unlevered free cash flows(2)
$
$
$
(26
)
$
$
($ in millions)
CY2022E
CY2023E
CY2024E
CY2025E
CY2026E
Total adjusted EBITDA(1)
$
$
$
$
$
Less: Capital expenditures
$
(52
)
$
(53
)
$
(84
)
$
(85
)
$
(31
)
Less: Payment for income tax
$
(132
)
$
(111
)
$
(74
)
$
(61
)
$
(69
)
Less: Changes in working capital
$
(3
)
$
(3
)
$
(3
)
$
(3
)
$
(3
)
Plus: Net proceeds from disposition of assets
$
$
$
$
$
Less: Equity earnings of investees
$
(6
)
$
(6
)
$
(6
)
$
(6
)
$
(6
)
Unlevered free cash flows(2)
$
$
$
$
$
(1) Total adjusted EBITDA>represents earnings before net income
attributable to non-controlling interest, income tax expense,
interest expense,>depreciation and amortization>and gain on
disposition of assets. Adjusted EBITDA is a non-GAAP financial
measure because it excludes amounts included in net earnings, the
most directly comparable measure calculated in accordance with
GAAP. This measure therefore should be reviewed with caution and
should not be considered as an alternative to net earnings or other
measures derived in accordance with GAAP.
(2) Unlevered free cash flow is a non-GAAP financial measure
because it excludes amounts included in net earnings, the most
directly comparable measure calculated in accordance with GAAP.
This measure therefore should be reviewed with caution and should
not be considered as an alternative to net earnings or other
measures derived in accordance with GAAP.
The disclosure in the table on page 161 of the Proxy Statement is
hereby supplemented by adding the following the table, which
provides the calculation of unlevered free cash flows:
($ in millions)
CY2017E
CY2018E
CY2019E
CY2020E
CY2021E
Total adjusted EBITDA(1)
$
$
$
$
$
Less: Capital expenditures
$
(70
)
$
(113
)
$
(198
)
$
(131
)
$
(66
)
Less: Payment for income tax
$
(38
)
$
(61
)
$
(66
)
$
(79
)
$
(105
)
Less: Changes in working capital
$
$
(5
)
$
(2
)
$
(2
)
$
(2
)
Plus: Net proceeds from disposition of assets
$
$
$
$
$
Less: Equity earnings of investees
$
(7
)
$
(7
)
$
(7
)
$
(6
)
$
(6
)
Unlevered free cash flows(2)
$
$
$
$
$
($ in millions)
CY2022E
CY2023E
CY2024E
CY2025E
CY2026E
Total adjusted EBITDA(1)
$
$
$
$
$
Less: Capital expenditures
$
(52
)
$
(53
)
$
(84
)
$
(85
)
$
(31
)
Less: Payment for income tax
$
(87
)
$
(72
)
$
(44
)
$
(36
)
$
(46
)
Less: Changes in working capital
$
(2
)
$
(2
)
$
(2
)
$
(2
)
$
(2
)
Plus: Net proceeds from disposition of assets
$
$
$
$
$
Less: equity earnings of investees
$
(6
)
$
(6
)
$
(6
)
$
(6
)
$
(6
)
Unlevered free cash flows(2)
$
$
$
$
$
(1) Total adjusted EBITDA>represents earnings before net income
attributable to non-controlling interest, income tax expense,
interest expense,>depreciation and amortization>and gain on
disposition of assets. Adjusted EBITDA is a non-GAAP financial
measure because it excludes amounts included in net earnings, the
most directly comparable measure calculated in accordance with
GAAP. This measure therefore should be reviewed with caution and
should not be considered as an alternative to net earnings or other
measures derived in accordance with GAAP.
(2) Unlevered free cash flow is a non-GAAP financial measure
because it excludes amounts included in net earnings, the most
directly comparable measure calculated in accordance with GAAP.
This measure therefore should be reviewed with caution and should
not be considered as an alternative to net earnings or other
measures derived in accordance with GAAP.
The disclosure in the table on page 163 of the Proxy Statement is
hereby supplemented by adding the following the table, which
provides the calculation of unlevered free cash flows:
($ in millions)
CY2017E
CY2018E
CY2019E
CY2020E
CY2021E
Total adjusted EBITDA
(1)
$
$
$
$
$
Less: Capital expenditures
$
(89
)
$
(159
)
$
(85
)
$
(77
)
$
(54
)
Less: Payment for income tax
$
(28
)
$
(46
)
$
(67
)
$
(68
)
$
(114
)
Less: Changes in working capital
$
$
(25
)
$
$
$
Less: Taxes on gain from sale of retail assets
$
(70
)
$
$
$
$
Less: Joint venture investments
$
(5
)
$
$
(8
)
$
(1
)
$
(1
)
Unlevered free cash flows(2)
$
$
$
$
$
($ in millions)
CY2022E
CY2023E
CY2024E
CY2025E
CY2026E
Total adjusted EBITDA(1)
$
$
$
$
$
Less: Capital expenditures
$
(55
)
$
(106
)
$
(57
)
$
(108
)
$
(60
)
Less: Payment for income tax
$
(117
)
$
(99
)
$
(123
)
$
(102
)
$
(130
)
Less: Changes in net working capital
$
$
$
$
$
Less: Joint venture investments
$
$
$
$
$
Less: Other MAPCO/tax
$
$
$
$
$
Unlevered free cash flows(2)
$
$
$
$
$
(1) Total adjusted EBITDA>represents earnings before net income
attributable to non-controlling interest, income tax expense,
interest expense,>depreciation and amortization>and gain on
disposition of assets. Adjusted EBITDA is a non-GAAP financial
measure because it excludes amounts included in net earnings, the
most directly comparable measure calculated in accordance with
GAAP. This measure therefore should be reviewed with caution and
should not be considered as an alternative to net earnings or other
measures derived in accordance with GAAP.
(2) Unlevered free cash flow is a non-GAAP financial measure
because it excludes amounts included in net earnings, the most
directly comparable measure calculated in accordance with GAAP.
This measure therefore should be reviewed with caution and should
not be considered as an alternative to net earnings or other
measures derived in accordance with GAAP.
The disclosure on page 164 of the Proxy Statement is hereby
supplemented by adding the following additional disclosure after
the second complete paragraph on the page:
Synergies
The Special Committee approved the use of projected synergies
consisting of operational savings of $14 million in 2018, corporate
savings of $54 million in 2018 and commercial savings of $39
million in 2018 and thereafter.
The disclosure in the first paragraph on page 148 of the Proxy
Statement is hereby supplemented by amending and restating the
paragraph to read as follows:
J.P. Morgan calculated the unlevered free cash flows that Alon is
expected to generate from fiscal year 2017 through fiscal year 2026
based upon the Alon Projections and the Alon Projections Excluding
Growth Projects. For each set of projections, J.P. Morgan also
calculated a range of terminal values of Alon at the end of the ten
year period ending on December 31, 2026 by applying a perpetual
growth rate ranging from 0.0% to 1.0% to the unlevered free cash
flow of Alon during the terminal period of the projections. This
perpetual growth rate range was selected by J.P. Morgan on the
basis of J.P. Morgans professional judgment and experience. The
unlevered free cash flows and the range of terminal values were
then discounted to present values as of December 31, 2016 using a
range of discount rates from 9.5% to 11.5%. This discount rate
range was based upon J.P. Morgans analysis of the weighted average
cost of capital of Alon.
The disclosure in the third paragraph on page 148 of the Proxy
Statement is hereby supplemented by amending and restating the
paragraph to read as follows:
J.P. Morgan also calculated the unlevered free cash flows that
Delek is expected to generate from fiscal year 2017 through fiscal
year 2026 based upon the Delek Projections. J.P. Morgan also
calculated a range of terminal values of Delek at the end of the
ten year period ending on December 31, 2026 by applying a perpetual
growth rate ranging from 0.0% to 1.0% to the unlevered free cash
flow of Delek during the terminal period of the projections. This
perpetual growth rate range was selected by J.P. Morgan on the
basis of J.P. Morgans professional judgment and experience. The
unlevered free cash flows and the range of terminal values were
then discounted to present values as of December 31, 2016 using a
range of discount rates from 9.5% to 11.5%. This discount rate
range was based upon J.P. Morgans analysis of the weighted average
cost of capital of Delek.
The disclosure in the fifth paragraph on page 148 of the Proxy
Statement is hereby supplemented by amending and restating the
paragraph to read as follows:
J.P. Morgan also conducted an additional discounted cash flow
analysis of the present value of the Synergies, which reflect
operational, corporate and commercial synergies net of
implementation costs. The Synergies were discounted to present
value using a range of discount rates from 9.5% to 11.5% (based
upon J.P. Morgans analysis of the weighted average cost of capital
of Alon and Delek)>and a perpetual growth rate ranging from 0.0%
to 1.0%. This perpetual growth rate range was selected by J.P.
Morgan on the basis of J.P. Morgans professional judgment and
experience. The analysis indicated a range of implied values for
the Synergies of $673.0 million to $864.0 million.
As noted above, J.P. Morgan applied the same perpetual growth rate
range of 0.0% to 1.0% in connection with its calculation of a range
of terminal values for each of Alon and Delek. In addition, J.P.
Morgan applied the same perpetual growth rate of 0.0% to 1.0% in
determining the additional discounted cash flow analysis of the
present value of the Synergies.
The disclosure in the first paragraph under the heading Discounted
Cash Flow Analyses on page 126 of the Proxy Statement is hereby
supplemented by amending and restating the paragraph to read as
follows:
TPH performed separate discounted cash flow analyses of Delek and
Alon by calculating the estimated present value of the standalone
unlevered, after-tax free cash flows that Delek and Alon were
forecasted to generate, in each case as of December 27, 2016.
Unlevered, after-tax free cash flows were defined as EBITDA, minus
capital expenditures, minus taxes, minus changes in working capital
(including the adjustment for Alons RINs (discussed below) and
termination expenses with respect to Alons supply and offtake
agreement with J. Aron Company) and plus/minus other one-time
adjustments reflected in the Forecasts, such as transaction taxes
associated with Deleks sale of MAPCO and the projected receipt of
sale proceeds for certain of Alons assets.>>For these
analyses, TPH used cash flow estimates for Delek and Alon through
2020, in each case as reflected in the Forecasts. TPH calculated
terminal values for Delek and Alon using two different exit
valuation methodologies, which are described below.
The disclosure in the table of select unaudited forecasted
financial information of Delek under the subheading Unaudited
Forecasted Financial Information Prepared by Delek-Delek on page
153 of the Proxy Statement is hereby supplemented by amending and
restating the line item Leverage free cash flow in the first column
of such table to read as follows: Levered free cash flows (b).
The disclosure in the table of select unaudited forecasted
financial information of Delek under the subheading Unaudited
Forecasted Financial Information Prepared by Delek-Delek on page
153 of the Proxy Statement is hereby supplemented by inserting the
following footnote (b) after the table:
(b) Levered free cash flows is defined as projected EBITDA, plus
dividends from non-controlling interest, minus taxes, minus
projected capital expenditures, minus projected expenditures for
turnarounds, minus projected interest expense and minus the
projected increase in net working capital.
The disclosure in the table of select unaudited forecasted
financial information of Alon under the subheading Unaudited
Forecasted Financial Information Prepared by Delek-Alon on page 155
of the Proxy Statement is hereby supplemented by amending and
restating the line item Leverage free cash flow in the first column
of such table to read as follows: Levered free cash flows (b).
The disclosure in the table of select unaudited forecasted
financial information of Alon under the subheading Unaudited
Forecasted Financial Information Prepared by Delek-Alon on page 155
of the Proxy Statement is hereby supplemented by inserting the
following footnote (b) after the table:
(b) Levered free cash flows is defined as projected EBITDA, plus
dividends from non-controlling interest, minus taxes, minus
projected capital expenditures, minus projected expenditures for
turnarounds, minus projected interest expense and minus the
projected increase in net working capital.
Safe Harbor Provisions Regarding Forward-Looking Statements
This Current Report on Form 8-K 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, integration and 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 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.
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 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.
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. 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 Deleks 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.
>
Item 9.01 Financial Statements and Exhibits
(a)
Financial statements of businesses acquired.
Not applicable.
(b)
Pro forma financial information.
Not applicable.
(c)
Shell company transactions.
Not applicable.
(d)
Exhibits.
99.1
Complaint filed by Stephen Page on June 2, 2017 in the United
States District Court for the District of Delaware.
99.2
Complaint filed by David Phelps on June 2, 2017 in the United
States District Court for the Middle District of Tennessee.
99.3
Complaint filed by Joseph Adler on June 13, 2017 in the
United States District Court for the District of Delaware.
99.4
Complaint filed by Arkansas Teacher Retirement System on June
15, 2017 in the Chancery Court for the State of Delaware.


About DELEK US HOLDINGS, INC. (NYSE:DK)

Delek US Holdings, Inc. is an integrated energy business focused on petroleum refining, the transportation, storage and wholesale of crude oil, intermediate and refined products and convenience store retailing. The Company operates through three segments: Refining, Logistics and Retail. Its Refining Segment operates independent refineries in Tyler, Texas, and El Dorado, Arkansas with a combined design crude distillation capacity of approximately 155,000 barrels per day (bpd). The Logistics Segment gathers, transports and stores crude oil and markets, distributes, transports and stores refined products in select regions of the southeastern United States and west Texas for both its refining segment and third parties. Its Retail Segment markets gasoline, diesel, other refined petroleum products and convenience merchandise through a network of over 360 Company-operated retail fuel and convenience stores located in Alabama, Arkansas, Georgia, Kentucky, Mississippi, Tennessee and Virginia.

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