exv10w1






Exhibit 10.1




STANDBY EQUITY DISTRIBUTION AGREEMENT




          THIS AGREEMENT dated as of January 20, 2011 (this “Agreement”) between YA GLOBAL
MASTER SPV LTD., a Cayman Islands exempt limited partnership (the “Investor”), and ALON USA
ENERGY, INC. a corporation organized and existing under the laws of the State of Delaware (the
“Company”).




          WHEREAS, the parties desire that, upon the terms and subject to the conditions contained
herein, the Company shall issue and sell to the Investor, from time to time as provided herein, and
the Investor shall purchase from the Company up to $25,000,000 of the Company’s common stock, par
value $0.01 per share (the “Common Stock”); and




          WHEREAS, the offer and sale of the shares of Common Stock issuable hereunder have been
registered by the Company in accordance with the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder (the “Securities Act”), on a registration statement
on Form S-3.




          NOW, THEREFORE, the parties hereto agree as follows:




Article I. Certain Definitions



Section 1.01 “Advance” shall mean the portion of the Commitment Amount requested by the
Company in the Advance Notice.



Section 1.02 “Advance Date” shall mean the 1st Trading Day after expiration
of the applicable Pricing Period for each Advance.



Section 1.03 “Advance Notice” shall mean a written notice in the form of Exhibit
A attached hereto to the Investor executed by an officer of the Company and setting forth the
Advance amount that the Company requests from the Investor.



Section 1.04 “Advance Notice Date” shall mean each date the Company delivers (in
accordance with Section 2.01(b) of this Agreement) to the Investor an Advance Notice requiring the
Investor to advance funds to the Company, subject to the terms of this Agreement.



Section 1.05 “Base Prospectus” shall mean the Company’s prospectus accompanying the
Registration Statement.



Section 1.06 “Affiliate” shall have the meaning set forth in Section 3.07.



Section 1.07 “By-laws” shall have the meaning set forth in Section 4.03.



Section 1.08 “Certificate of Incorporation” shall have the meaning set forth in Section
4.03.



Section 1.09 “Closing” shall mean one of the closings of a purchase and sale of Common
Stock pursuant to Section 2.02.







 









 







Section 1.10 “Closing Price” means, for any Trading Day, the last trade of the Common
Stock for such date on the Principal Market as reported by Bloomberg L.P.



Section 1.11 “Commitment Amount” shall mean the aggregate amount of up to $23,500,000
(which may be increased to up to $25,000,000 by written notice from the Company to the Investor,
provided that at the time of such notice, the Company’s Registration Statement allows for the
offering of the additional $1,500,000 of shares of Common Stock) which the Investor has agreed to
provide to the Company in order to purchase the Shares pursuant to the terms and conditions of this
Agreement; provided that, the Company shall not effect any sales under this Agreement and the
Investor shall not have the obligation to purchase shares of Common Stock under this Agreement to
the extent that after giving effect to such purchase and sale the aggregate number of shares of
Common Stock issued under this Agreement would exceed 19.9% of the outstanding shares of Common
Stock as of the date of this Agreement except that such limitation shall not apply in the event
that the Company (i) obtains the approval of its stockholders as required by the applicable rules
of the New York Stock Exchange for issuances of Common Stock in excess of such amount or (ii)
obtains a written opinion from outside counsel to the Company that such approval is not required,
which opinion shall be reasonably satisfactory to the Investor.



Section 1.12 “Commitment Fee” shall have the meaning set forth in 12.06(a).



Section 1.13 “Commitment Period” shall mean the period commencing on the Effective
Date, and expiring upon the termination of this Agreement in accordance with Section 10.02.



Section 1.14 “Commitment Shares” shall have the meaning set forth in Section 12.04.



Section 1.15 “Common Stock” shall have the meaning set forth in the recitals of this
Agreement.



Section 1.16 “Company Indemnitees” shall have the meaning set forth in Section 5.02.



Section 1.17 “Condition Satisfaction Date” shall have the meaning set forth in Section
7.01.



Section 1.18 “Consolidation Event” shall have the meaning set forth in Section 6.06.



Section 1.19 “Damages” shall mean any loss, claim, damage, liability, costs and
expenses (including, without limitation, reasonable attorney’s fees and disbursements and costs and
expenses of expert witnesses and investigation).



Section 1.20 “Effective Date” shall mean the date hereof.



Section 1.21 “Environmental Laws” shall have the meaning set forth in Section 4.10.



Section 1.22 “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.



Section 1.23 “Indemnified Liabilities” shall have the meaning set forth in Section
5.01.






 









 







Section 1.24 “Investor Indemnitees” shall have the meaning set forth in Section 5.01.



Section 1.25 “Market Price” shall mean the lowest daily VWAP of the Common Stock during
the relevant Pricing Period which is greater than or equal to the Minimum Acceptable Price.



Section 1.26 “Material Adverse Effect” shall mean any condition, circumstance, or
situation that has resulted in, or would reasonably be expected to result in (i) a material adverse
effect on the legality, validity or enforceability of this Agreement or the transactions
contemplated herein, (ii) a material adverse effect on the results of operations, assets, business
or condition (financial or otherwise) of the Company, taken as a whole, or (iii) a material adverse
effect on the Company’s ability to perform in any material respect on a timely basis its
obligations under this Agreement.



Section 1.27 “Maximum Advance Amount” shall be $1,000,000, or such other amount as may
be agreed upon with the mutual consent of the parties.



Section 1.28 “Minimum Acceptable Price” or “MAP” shall have the meaning set
forth in Section 2.01(c).



Section 1.29 “Overallotment Notice” shall have the meaning set forth in Section
2.01(b).



Section 1.30 “Ownership Limitation” shall have the meaning set forth in Section
2.01(a).



Section 1.31 “Person” shall mean an individual, a corporation, a partnership, an
association, a trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.



Section 1.32 “Plan of Distribution” shall have the meaning set forth in Section 6.01.



Section 1.33 “Pricing Period” shall mean the 5 consecutive Trading Days after the
Advance Notice Date, subject to the Minimum Acceptable Price limitation.



Section 1.34 “Principal Market” shall mean the New York Stock Exchange, the Nasdaq
Global Select Market, the Nasdaq Global Market, the Nasdaq Capital Market, the OTC Bulletin Board,
or the NYSE Euronext, whichever is at the time the principal trading exchange or market for the
Common Stock.



Section 1.35 “Prospectus” shall mean the Base Prospectus, as supplemented by any
Prospectus Supplement.



Section 1.36 “Prospectus Supplement” shall mean any prospectus supplement to the Base
Prospectus filed with the SEC pursuant to Rule 424(b) under the Securities Act.



Section 1.37 “Purchase Price” shall be set at 98.5% of the Market Price during the
Pricing Period.



Section 1.38 “Registration Statement” shall mean the Company’s shelf registration
statement filed with the SEC under the Securities Act on Form S-3 (Registration Number 333-171111)
(or





 









 







another registration statement on a form promulgated by the SEC for which the Company then
qualifies and which form shall be available for the registration of the offer and sale of the
Shares) with respect to Shares to be offered and sold by the Company, as such Registration
Statement may be amended and supplemented from time to time and including any information deemed to
be a part thereof pursuant to Rule 430B under the Securities Act and any successor registration
statement filed by the Company with the SEC under the Securities Act on a form promulgated by the
SEC for which the Company then qualifies and which form shall be available for the registration of
the sale of Shares to the Investor.



Section 1.39 “SEC” shall have the meaning set forth in the recitals of this Agreement.



Section 1.40 “SEC Documents” shall have the meaning set forth in Section 4.05.



Section 1.41 “Securities Act” shall have the meaning set forth in the recitals of this
Agreement.



Section 1.42 “Settlement Document” shall have the meaning set forth in Section 2.02(a).



Section 1.43 “Shares” shall mean the shares of Common Stock to be issued from time to
time hereunder pursuant to Advances and the Commitment Shares.



Section 1.44 “Trading Day” shall mean any day during which the Principal Market shall
be open for business.



Section 1.45 “VWAP” means, for any Trading Day, the daily volume weighted average price
of the Common Stock for such date on the Principal Market as reported by Bloomberg L.P. (based on a
Trading Day from 9:00 a.m. (New York City time) to 4:02 p.m. (New York City time)).




Article II. Advances




Section 2.01 Advances; Mechanics. Subject to the terms and conditions of this Agreement
(including, without limitation, the provisions of Article VII hereof), the Company, at its sole and
exclusive option, may issue and sell to the Investor, and the Investor shall purchase from the
Company, shares of Common Stock on the following terms:




	 	(a)	 	Advance Notice. At any time during the Commitment Period, the Company may
require the Investor to purchase shares of Common Stock by delivering an Advance Notice to
the Investor, subject to the conditions set forth in Section 7.01; provided, however, that
(i) the amount for each Advance as designated by the Company in the applicable Advance
Notice shall not be more than the Maximum Advance Amount, (ii) the aggregate amount of the
Advances (including any additional amounts sold pursuant to an Overallotment Notice)
pursuant to this Agreement shall not exceed the Commitment Amount, and (iii) in no event
shall the number of shares of Common Stock issuable to the Investor pursuant to an Advance
(including any additional amounts sold pursuant to an Overallotment Notice) cause the
aggregate number of shares of Common Stock beneficially owned (as calculated pursuant to
Section 13(d) of the Exchange Act) by the Investor and its affiliates to exceed 4.99% of
the then outstanding Common Stock (the “Ownership




 









 






	 	 	 	Limitation”). Notwithstanding any other provision in this Agreement, the Company
and the Investor acknowledge and agree that upon the Investor’s receipt of a valid Advance
Notice, and, if applicable, upon the Investor’s receipt of a valid Overallotment Notice, the
parties shall be deemed to have entered into an unconditional contract binding on both
parties for the purchase and sale of Shares pursuant to such Advance Notice or Overallotment
Notice in accordance with the terms of this Agreement; provided that the Company shall have
the right to change the Minimum Acceptable Price during the Pricing Period, subject to
Section 2.01(c).






	 	(b)	 	Overallotment Notice. If the Closing Price of the Common Stock on the last
day of the Pricing Period is greater than both (i) the arithmetic average of the daily
VWAPs for the each day of the Pricing Period that is not an Excluded Day and other than the
last day in the Pricing Period, and (ii) the Closing Price for the 4th day of
the Pricing Period, and provided that the 4th day of the Pricing Period is not
an Excluded Day, then the Company shall have the option, exercisable no later than noon
Eastern Time on the Business Day immediately following the last day of such Pricing Period,
by providing notice to the Investor (an “Overallotment Notice”), to elect to sell
up to an additional 50% of the number of shares of Common Stock purchased by the Investor
pursuant to the Advance related to such Pricing Period and set forth in the Settlement
Document at a price per share equal to the Purchase Price.






	 	(c)	 	Minimum Acceptable Price.






	 	(i)	 	In relation to each Advance, the Company can set a minimum acceptable price
at which it is willing to sell its shares to the Investor by (x) indicating a minimum
acceptable price on the space provided on the Advance Notice (the “Initial
MAP”), and/or (y) changing the Initial MAP, or if no Initial MAP was set, adding a
minimum acceptable price, at any time during a Pricing Period, by providing notice to
the Investor (a “MAP Change Notice”) setting forth a subsequent minimum
acceptable price (the “Subsequent MAP” and each of the Initial MAP and the
Subsequent MAP a “MAP” or “Minimum Acceptable Price”). Any Subsequent
MAP shall take effect beginning on the Trading Day immediately following the day that
the MAP Change Notice was received by the Investor. With respect to an Advance Notice
issued by the Company with a MAP (including a Subsequent MAP), (A) the amount of the
Advance set forth in such Advance Notice shall automatically be reduced by 20% for each
Trading Day during the Pricing Period that the VWAP of the Common Stock is below the
MAP in effect on such Trading Day (each such day, an “Excluded Day”), and (B)
each Excluded Day shall be excluded from the Pricing Period for purposes of determining
the Market Price.






	 	(ii)	 	The number of Shares to be issued and delivered to the Investor at each
Closing (in accordance with Section 2.02 of this Agreement) with respect to an Advance
Notice with a MAP shall be determined based on the Advance Notice amount as reduced
pursuant to Section 2.01(c)(i)(A) above, provided however, with respect to each
Excluded Day the Investor shall purchase and the Company shall sell Shares (in a total
amount for each Excluded Day not to exceed 20% of the amount of the Advance set forth
in such Advance Notice) in an amount equal to (y) the number of Shares sold by






 












 






	 	 	 	the Investor on such Excluded Day, and (z) the number of additional Shares
that the Investor may elect to purchase provided the Investor notifies the Company of any
such election before 4:15 p.m. Eastern Time on the Trading Day immediately following such
Excluded Day, in each case at a price per share equal to the MAP in effect on such
Excluded Day (without any further discount).






	 	(d)	 	Date of Delivery of Advance Notice. Advance Notices shall be delivered in
accordance with the instructions set forth on the bottom of Exhibit A. An Advance Notice
shall be deemed delivered on (i) the Trading Day if it is received by facsimile or
otherwise by the Investor prior to 7:00 pm Eastern Time, or (ii) the immediately succeeding
Trading Day if it is received by facsimile or otherwise after 7:00 pm Eastern Time on a
Trading Day or at any time on a day which is not a Trading Day. No Advance Notice may be
deemed delivered on a day that is not a Trading Day.
	 
	 	(e)	 	Ownership Limitation; Commitment Amount. In connection with each Advance
Notice delivered by the Company, any portion of an Advance (including any additional
amounts sold pursuant to an Overallotment Notice) that would (i) cause the Investor to
exceed the Ownership Limitation or (ii) cause the aggregate amount of Advances (including
any additional amounts sold pursuant to an Overallotment Notice) shall automatically be
withdrawn and Investor shall notify the Company within 1 Trading Day after each Advance
Notice Date of the amount of such withdrawn portion of an Advance, if applicable.
	 
	 	(f)	 	Registration Limitation. In connection with each Advance Notice, any portion
of an Advance (including any additional amounts sold pursuant to an Overallotment Notice)
that would cause the aggregate offering price or number of Shares, as the case may be, to
exceed the aggregate offering price or number of shares of Common Stock available for
issuance and sale under the Registration Statement shall automatically be deemed to be
withdrawn by the Company with no further action required by the Company.
	 
	 	(g)	 	Sales Notice. The Investor shall (i) provide the Company with a report
attached to each Settlement Document detailing the total number of shares of Common Stock
sold by the Investor on each day during the Pricing Period and (ii) upon request by the
Company (A) provide the Company a report of its sales on a any particular day during the
Pricing Period and (B) provide the Company a report which shall include the number of
shares of the Company’s Common Stock sold by the Investor between the last such report and
the date of the request and the number of shares of the Company’s common stock held by the
Investor at such time.




Section 2.02 Closings. Each Closing shall take place as soon as practicable after each
Advance Date in accordance with the procedures set forth below. In connection with each Closing
the Company and the Investor shall fulfill each of its obligations as set forth below:





	 	(a)	 	On each Advance Date, the Investor shall deliver to the Company a written document
(each a “Settlement Document”) setting forth the amount of the Advance (taking into
account any adjustments pursuant to Section 2.01), the Purchase Price, the number of shares
of Common Stock to be issued and subscribed for (which in no event will be




 









 












	 	 	 	greater than the Ownership Limitation), and a report by Bloomberg, LP indicating the VWAP
for each of the Trading Days during the Pricing Period, in each case taking into account the
terms and conditions of this Agreement. The Settlement Document shall be in the form
attached hereto as Exhibit B.






	 	(b)	 	Promptly after receipt of the Settlement Document with respect to each Advance (and, in
any event, not later than three Trading Days after receipt thereof), the Company will
instruct its transfer agent to electronically transfer and register in the name of the
Investor the total number of shares issuable to the Investor pursuant to the Advance as
specified in the Settlement Document by crediting the Investor’s account or its designee’s
account at the Depository Trust Company through its Deposit Withdrawal Agent Commission
System or by such other means of delivery as may be mutually agreed upon by the parties
hereto (which in all cases will be covered by an effective Registration Statement) and upon
doing so shall promptly deliver to the Investor confirmation (a “Confirmation”)
that it has authorized and instructed its transfer agent to process such issuance.
Promptly upon the Investor’s receipt of such Confirmation (and, in any event, not later
than one Trading Day after receipt thereof) the Investor shall pay the total aggregate
Purchase Price due to the Company as set forth in the Settlement Document in same day funds
to an account designated by the Company. No fractional shares shall be issued, and any
fractional amounts shall be rounded to the next higher whole number of shares.
	 
	 	(c)	 	On or prior to the Advance Date, each of the Company and the Investor shall deliver to
the other all documents, instruments and writings required to be delivered by either of
them pursuant to this Agreement in order to implement and effect the transactions
contemplated herein.
	 
	 	(d)	 	The parties hereto agree in good faith to (i) adjust any errors in the Settlement
Document and (ii) make or return such payments and deliver or return such Shares to the
extent required by any such adjustment to the Settlement Document, in each case as soon as
reasonably practicable.




Section 2.03 Hardship. In the event the Investor sells shares of the Company’s Common
Stock after receipt of an Advance Notice and the Company fails to perform its obligations as
mandated in Section 2.02, the Company agrees that in addition to and in no way limiting the rights
and obligations set forth in Article V hereto and in addition to any other remedy to which the
Investor is entitled at law or in equity, including, without limitation, specific performance, the
Investor shall be entitled to an injunction or injunctions to prevent such breaches of this
Agreement and to specifically enforce, without the posting of a bond or other security, the terms
and provisions of this Agreement.




Article III. Representations and Warranties of Investor




               Investor hereby represents and warrants to, and agrees with, the Company that the following
are true and correct as of the date hereof and as of each Advance Date:


Section 3.01 Organization and Authorization. The Investor is duly organized, validly
existing and in good standing under the laws of the Cayman Islands and has all requisite power and





 









 







authority to purchase and hold the Shares. The decision to invest and the execution and delivery
of this Agreement by such Investor, the performance by such Investor of its obligations hereunder
and the consummation by such Investor of the transactions contemplated hereby have been duly
authorized and requires no other proceedings on the part of the Investor. The undersigned has the
right, power and authority to execute and deliver this Agreement and all other instruments on
behalf of the Investor. This Agreement has been duly executed and delivered by the Investor and,
assuming the execution and delivery hereof and acceptance thereof by the Company, will constitute
the legal, valid and binding obligations of the Investor, enforceable against the Investor in
accordance with its terms.



Section 3.02 Evaluation of Risks. The Investor has such knowledge and experience in
financial, tax and business matters as to be capable of evaluating the merits and risks of, and
bearing the economic risks entailed by, an investment in the Company and of protecting its
interests in connection with this transaction. It recognizes that its investment in the Company
involves a high degree of risk.



Section 3.03 No Legal Advice From the Company. The Investor acknowledges that it had the
opportunity to review this Agreement and the transactions contemplated by this Agreement with its
own legal counsel and investment and tax advisors. The Investor is relying solely on such counsel
and advisors and not on any statements or representations of the Company or any of the Company’s
representatives or agents for legal, tax or investment advice with respect to this investment, the
transactions contemplated by this Agreement or the securities laws of any jurisdiction.



Section 3.04 Investment Purpose. The securities are being purchased by the Investor for its
own account, and for investment purposes. The Investor agrees not to assign or in any way transfer
the Investor’s rights to the securities or any interest therein and acknowledges that the Company
will not recognize any purported assignment or transfer except in accordance with applicable
Federal and state securities laws. No other person has or will have a direct or indirect
beneficial interest in the securities. The Investor agrees not to sell, hypothecate or otherwise
transfer the Investor’s securities unless the securities are registered under Federal and
applicable state securities laws or unless, in the opinion of counsel satisfactory to the Company,
an exemption from such laws is available.



Section 3.05 Investor Status. The Investor is an “Accredited Investor” as that
term is defined in Rule 501(a)(3) of Regulation D of the Securities Act and a “Qualified
Institutional Buyer” as that term is defined in Rule 144A under the Securities Act.



Section 3.06 Information. The Investor and its advisors (and its counsel), if any, have
been furnished with all materials relating to the business, finances and operations of the Company
and information it deemed material to making an informed investment decision. The Investor and its
advisors, if any, have been afforded the opportunity to ask questions of the Company and its
management. The Investor understands that its investment involves a high degree of risk. The
Investor is in a position regarding the Company, which, based upon employment, family relationship
or economic bargaining power, enabled and enables such Investor to obtain information from the
Company in order to evaluate the merits and risks of this investment. The





 









 







Investor has sought such accounting, legal and tax advice, as it has considered necessary to make
an informed investment decision with respect to this transaction.



Section 3.07 Not an Affiliate. The Investor is not an officer, director or a person that
directly, or indirectly through one or more intermediaries, controls or is controlled by, or is
under common control with the Company or any “Affiliate” of the Company (as that term is
defined in Rule 405 of the Securities Act).



Section 3.08 Trading Activities. The Investor’s trading activities with respect to the
Company’s Common Stock shall be in compliance with all applicable federal and state securities
laws, rules and regulations and the rules and regulations of the Principal Market on which the
Common Stock is listed or traded. Neither the Investor nor its affiliates has an open short
position in the Common Stock, the Investor agrees that it shall not, and that it will cause its
affiliates not to, (i) engage in any short sales of or any other hedging transactions with respect
to the Common Stock or (ii) purchase any shares of Common Stock except for Common Stock purchased
in connection with this Agreement, provided that the Company acknowledges and agrees that upon
receipt of an Advance Notice the Investor has the right to sell the shares to be issued to the
Investor pursuant to the Advance Notice prior to receiving such shares.




Article IV. Representations and Warranties of the Company




     Except as stated below, on the disclosure schedules attached hereto or in the SEC Documents,
the Company hereby represents and warrants to, the Investor that the following are true and correct
as of the date hereof:


Section 4.01 Organization and Qualification. The Company is duly incorporated, validly
existing and in good standing under the laws of the State of Delaware and has all requisite
corporate power to own its properties and to carry on its business as now being conducted. Each of
the Company and its subsidiaries is duly qualified as a foreign corporation to do business and is
in good standing in every jurisdiction in which the nature of the business conducted by it makes
such qualification necessary, except to the extent that the failure to be so qualified or be in
good standing would not have a Material Adverse Effect.



Section 4.02 Authorization, Enforcement, Compliance with Other Instruments. (i) The
Company has the requisite corporate power and authority to enter into and perform this Agreement
and any related agreements, in accordance with the terms hereof and thereof, (ii) the execution and
delivery of this Agreement and any related agreements by the Company and the consummation by it of
the transactions contemplated hereby and thereby, have been duly authorized by the Company’s Board
of Directors and no further consent or authorization is required by the Company, its Board of
Directors or its stockholders, (iii) this Agreement and any related agreements have been duly
executed and delivered by the Company, (iv) this Agreement and assuming the execution and delivery
thereof and acceptance by the Investor, any related agreements, constitute the valid and binding
obligations of the Company enforceable against the Company in accordance with their terms, except
as such enforceability may be limited by general principles of equity or applicable bankruptcy,
insolvency, reorganization, moratorium,





 









 







liquidation or similar laws relating to, or affecting generally, the enforcement of creditors’
rights and remedies.



Section 4.03 Capitalization. The authorized capital stock of the Company consists of
100,000,000 shares of Common Stock and 10,000,000 shares of preferred stock (“Preferred
Stock”), of which as of September 30, 2010, 54,181,329 shares of Common Stock are issued and
outstanding and 4,000,000 shares of Preferred Stock are issued and outstanding. All of such
outstanding shares have been validly issued and are fully paid and nonassessable. Except as
disclosed in the SEC Documents, no shares of Common Stock are subject to preemptive rights or any
other similar rights or any liens or encumbrances suffered or permitted by the Company. Except as
disclosed in the SEC Documents, as of the date hereof, (i) there are no outstanding options,
warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating
to, or securities or rights convertible into, any shares of capital stock of the Company, or
contracts, commitments, understandings or arrangements by which the Company is or may become bound
to issue additional shares of capital stock of the Company or options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights
convertible into, any shares of capital stock of the Company and (ii) there are no agreements or
arrangements under which the Company is obligated to register the sale of any of their securities
under the Securities Act (except pursuant to this Agreement). Except as set forth in the SEC
Documents, there are no securities or instruments containing anti-dilution or similar provisions
that will be triggered by this Agreement or any related agreement or the consummation of the
transactions described herein or therein. The Company has furnished or made available to the
Investor true and correct copies of the Company’s Certificate of Incorporation, as amended and as
in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s
By-laws, as in effect on the date hereof (the “By-laws”), and the terms of all securities
convertible into or exercisable for Common Stock and the material rights of the holders thereof in
respect thereto.



Section 4.04 No Conflict. The execution, delivery and performance of this Agreement by the
Company and the consummation by the Company of the transactions contemplated hereby will not (i)
result in a violation of the Certificate of Incorporation, any certificate of designations of any
outstanding series of preferred stock of the Company or By-laws or (ii) conflict with or constitute
a default (or an event which with notice or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which the Company or any of its subsidiaries is a party, or
result in a violation of any law, rule, regulation, order, judgment or decree (including federal
and state securities laws and regulations and the rules and regulations of the Principal Market on
which the Common Stock is quoted) applicable to the Company or any of its subsidiaries or by which
any material property or asset of the Company is bound or affected and which would cause a Material
Adverse Effect. Except as disclosed in the SEC Documents, neither the Company nor its subsidiaries
is in violation of any term of or in default under its Articles of Incorporation or By-laws or
their organizational charter or by-laws, respectively, or any material contract, agreement,
mortgage, indebtedness, indenture, instrument, judgment, decree or order or any statute, rule or
regulation applicable to the Company or its subsidiaries that would cause a Material Adverse
Effect. The business of the Company and its subsidiaries is not being conducted in violation of
any material law, ordinance or regulation of any governmental entity. Except as specifically
contemplated by this Agreement and as required





 









 







under the Securities Act and any applicable state securities laws, the Company is not required to
obtain any consent, authorization or order of, or make any filing or registration with, any court
or governmental agency in order for it to execute, deliver or perform any of its obligations under
or contemplated by this Agreement in accordance with the terms hereof or thereof except as such
consent, authorization or order has been obtained as of the date hereof. All consents,
authorization, orders, filings and registrations which the Company is required to make or obtain
pursuant to the preceding sentence have been obtained or effected on or prior to the date hereof.
The Company and its subsidiaries are not aware of any fact or circumstance which is reasonably
expected to give rise to any of the foregoing.



Section 4.05 SEC Documents; Financial Statements. Except as set forth in Schedule 4.05,
the Common Stock is registered pursuant to Section 12(g) of the Exchange Act and the Company has
filed all reports, schedules, forms, statements and other documents required to be filed by it with
the SEC under the Exchange Act for the two years preceding the date hereof (or such shorter period
as the Company was required by law or regulation to file such material) (all of the foregoing filed
prior to the date hereof or amended after the date hereof and all exhibits included therein and
financial statements and schedules thereto and documents incorporated by reference therein, being
hereinafter referred to as the “SEC Documents”) on timely basis or has received a valid
extension of such time of filing and has filed any such SEC Document prior to the expiration of any
such extension. The Company has delivered to the Investors or their representatives, or made
available through the SEC’s website at http://www.sec.gov, true and complete copies of the SEC
Documents. As of their respective dates, the SEC Documents complied in all material respects with
the requirements of the Exchange Act and the rules and regulations of the SEC promulgated
thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were
filed with the SEC, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. As of their
respective dates, the financial statements of the Company included in the SEC Documents complied as
to form in all material respects with applicable accounting requirements and the published rules
and regulations of the SEC with respect thereto. Such financial statements have been prepared in
accordance with generally accepted accounting principles, consistently applied, during the periods
involved (except (i) as may be otherwise indicated in such financial statements or the notes
thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly present in all material respects
the financial position of the Company as of the dates thereof and the results of its operations and
cash flows for the periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments). No other information provided by or on behalf of the Company to the
Investor which is not included in the SEC Documents contains any untrue statement of a material
fact or omits to state any material fact necessary in order to make the statements therein, in the
light of the circumstance under which they are or were made, not misleading.



Section 4.06 No Default. Except as disclosed in the SEC Documents, the Company is not in
default in the performance or observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust or other material instrument or
agreement to which it is a party or by which it is or its property is bound and neither the
execution, nor the delivery by the Company, nor the performance by the Company of its





 









 







obligations under this Agreement or any of the exhibits or attachments hereto will conflict with or
result in the breach or violation of any of the terms or provisions of, or constitute a default or
result in the creation or imposition of any lien or charge on any assets or properties of the
Company under its Certificate of Incorporation, By-Laws, any material indenture, mortgage, deed of
trust or other material agreement applicable to the Company or instrument to which the Company is a
party or by which it is bound, or any statute, or any decree, judgment, order, rules or regulation
of any court or governmental agency or body having jurisdiction over the Company or its properties,
in each case which default, lien or charge is reasonably likely to cause a Material Adverse Effect.



Section 4.07 Absence of Events of Default. Except for matters described in the SEC
Documents and/or this Agreement, no Event of Default, as defined in the respective agreement to
which the Company is a party, and no event which, with the giving of notice or the passage of time
or both, would become an Event of Default (as so defined), has occurred and is continuing, which
would have a Material Adverse Effect.



Section 4.08 Intellectual Property Rights. The Company and its subsidiaries own or possess
adequate rights or licenses to use all material trademarks, trade names, service marks, service
mark registrations, service names, patents, patent rights, copyrights, inventions, licenses,
approvals, governmental authorizations, trade secrets and rights necessary to conduct their
respective businesses as now conducted. The Company and its subsidiaries do not have any
knowledge of any infringement by the Company or its subsidiaries of trademark, trade name rights,
patents, patent rights, copyrights, inventions, licenses, service names, service marks, service
mark registrations, trade secret or other similar rights of others, and, to the knowledge of the
Company, there is no claim, action or proceeding being made or brought against, or to the Company’s
knowledge, being threatened against the Company or its subsidiaries regarding trademark, trade
name, patents, patent rights, invention, copyright, license, service names, service marks, service
mark registrations, trade secret or other infringement; and the Company is not aware of any facts
or circumstances which might give rise to any of the foregoing.



Section 4.09 Employee Relations. Neither the Company nor any of its subsidiaries is
involved in any labor dispute nor, to the knowledge of the Company or any of its subsidiaries, is
any such dispute threatened, in each case which is reasonably likely to cause a Material Adverse
Effect.



Section 4.10 Environmental Laws. Except as would not have a Material Adverse Effect, the
Company and its subsidiaries are (i) in compliance with any and all applicable material foreign,
federal, state and local laws and regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their respective businesses and
(iii) are in compliance with all terms and conditions of any such permit, license or approval.



Section 4.11 Title. Except as set forth in the SEC Documents, the Company has good and
marketable title to its properties and material assets owned by it, free and clear of any pledge,
lien, security interest, encumbrance, claim or equitable interest other than such as are not
material to the business of the Company. Any real property and facilities held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and enforceable leases





 









 







with such exceptions as are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its subsidiaries.



Section 4.12 Insurance. The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in such amounts as
management of the Company believes to be prudent and customary for similarly situated companies in
the businesses in which the Company and its subsidiaries are engaged. The Company has not been
refused any insurance coverage sought or applied for and the Company does not have any reason to
believe that it will not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect.



Section 4.13 Regulatory Permits. Except as set forth in the SEC Documents, the Company and
its subsidiaries possess all material certificates, authorizations and permits issued by the
appropriate federal, state or foreign regulatory authorities necessary to conduct their respective
businesses, and neither the Company nor any such subsidiary has received any notice of proceedings
relating to the revocation or modification of any such certificate, authorization or permit.



Section 4.14 Internal Accounting Controls. The Company and each of its subsidiaries
maintain a system of internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management’s general or specific
authorization and (iv) the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any differences.



Section 4.15 No Material Adverse Breaches, etc. Except as set forth in the SEC Documents,
the Company is not subject to any charter, corporate or other legal restriction, or any judgment,
decree, order, rule or regulation which in the judgment of the Company’s officers has or is
reasonably expected in the future to have a Material Adverse Effect.



Section 4.16 Absence of Litigation. Except as set forth in the SEC Documents, there is no
action, suit, proceeding, inquiry or investigation before or by any court, public board, government
agency, self-regulatory organization or body pending against or affecting the Company, the Common
Stock or any of the Company’s subsidiaries, wherein an unfavorable decision, ruling or finding
would have a Material Adverse Effect.



Section 4.17 Subsidiaries. Except as disclosed in the SEC Documents, the Company does not
presently own or control, directly or indirectly, any material interest in any other corporation,
partnership, association or other business entity.



Section 4.18 Tax Status. Except as disclosed in the SEC Documents, the Company and each of
its subsidiaries has made or filed all federal and state income and all other material tax returns,
reports and declarations required by any jurisdiction to which it is subject and (unless and only
to





 









 







the extent that the Company and each of its subsidiaries has set aside on its books provisions
reasonably adequate for the payment of all unpaid and unreported taxes) has paid all taxes and
other governmental assessments and charges that are material in amount, shown or determined to be
due on such returns, reports and declarations, except those being contested in good faith and has
set aside on its books provision reasonably adequate for the payment of all taxes for periods
subsequent to the periods to which such returns, reports or declarations apply. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction
except those being contested in good faith, and the officers of the Company know of no basis for
any such claim.



Section 4.19 Certain Transactions. Except as set forth in the SEC Documents, as set forth
in Schedule 4.19 and to the extent not required to be disclosed pursuant to Item 404 of Regulation
S-K, none of the officers or directors of the Company is presently a party to any material
transaction with the Company (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the furnishing of services to
or by, providing for rental of real or personal property to or from, or otherwise requiring
payments to or from any officer or director or, to the knowledge of the Company, any corporation,
partnership, trust or other entity in which any officer or director has a substantial interest or
is an officer, director, trustee or partner.



Section 4.20 Fees and Rights of First Refusal. The Company is not obligated to offer the
securities offered hereunder on a right of first refusal basis or otherwise to any third parties
including, but not limited to, current or former shareholders of the Company, underwriters,
brokers, agents or other third parties.



Section 4.21 Use of Proceeds. The Company shall use the net proceeds from this offering
for general corporate purposes and for such other purposes as set forth in the Registration
Statement.



Section 4.22 Dilution. The Company is aware and acknowledges that issuance of shares of
the Common Stock could cause dilution to existing shareholders and could significantly increase the
outstanding number of shares of Common Stock.



Section 4.23 Acknowledgment Regarding Investor’s Purchase of Shares. The Company
acknowledges and agrees that the Investor is acting solely in the capacity of an arm’s length
investor with respect to this Agreement and the transactions contemplated hereunder. The Company
further acknowledges that the Investor is not acting as a financial advisor or fiduciary of the
Company (or in any similar capacity) with respect to this Agreement and the transactions
contemplated hereunder and any advice given by the Investor or any of its representatives or agents
in connection with this Agreement and the transactions contemplated hereunder is merely incidental
to the Investor’s purchase of the Shares hereunder. The Company is aware and acknowledges that it
may not be able to request Advances under this Agreement if there is not an effective Registration
Statement or if any issuances of Common Stock pursuant to any Advances would violate any rules of
the Principal Market. The Company further is aware and acknowledges that any fees paid or shares
issued pursuant to Section 12.04 hereunder shall be earned on the date hereof and are not
refundable or returnable under any circumstances.







 









 








Article V. Indemnification




     The Investor and the Company represent to the other the following with respect to itself:


Section 5.01 In consideration of the Investor’s execution and delivery of this Agreement, and in
addition to all of the Company’s other obligations under this Agreement, the Company shall defend,
protect, indemnify and hold harmless the Investor, and all of its officers, directors, partners,
employees and agents (including, without limitation, those retained in connection with the
transactions contemplated by this Agreement) (collectively, the “Investor Indemnitees”)
from and against any and all actions, causes of action, suits, claims, losses, costs, penalties,
fees, liabilities and damages, and reasonable expenses in connection therewith (irrespective of
whether any such Investor Indemnitee is a party to the action for which indemnification hereunder
is sought), and including reasonable attorneys’ fees and disbursements (the “Indemnified
Liabilities”), incurred by the Investor Indemnitees or any of them as a result of, or arising
out of, or relating to (a) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration of the Shares as originally filed or
in any amendment thereof, or in any related prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the Company by or on behalf
of the Investor specifically for inclusion therein; (b) any misrepresentation or breach of any
representation or warranty made by the Company in this Agreement or any other certificate,
instrument or document contemplated hereby or thereby; (c) any breach of any covenant, agreement or
obligation of the Company contained in this Agreement or any other certificate, instrument or
document contemplated hereby or thereby; and (d) any cause of action, suit or claim brought or made
against such Investor Indemnitee not arising out of any action or inaction of an Investor
Indemnitee, and arising out of or resulting from the execution, delivery, performance or
enforcement of this Agreement or any other instrument, document or agreement executed pursuant
hereto by any of the Investor Indemnitees. To the extent that the foregoing undertaking by the
Company may be unenforceable for any reason, the Company shall make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities, which is permissible under
applicable law.



Section 5.02 In consideration of the Company’s execution and delivery of this Agreement, and in
addition to all of the Investor’s other obligations under this Agreement, the Investor shall
defend, protect, indemnify and hold harmless the Company and all of its officers, directors,
shareholders, employees and agents (including, without limitation, those retained in connection
with the transactions contemplated by this Agreement) (collectively, the “Company
Indemnitees”) from and against any and all Indemnified Liabilities incurred by the Company
Indemnitees or any of them as a result of, or arising out of, or relating to (a) any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement
for the registration of the Shares as originally filed or in any amendment thereof, or in any
related prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required to be stated
therein or





 









 







necessary to make the statements therein not misleading; provided, however, that
the Investor will not be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Investor by or on behalf of the Company specifically for inclusion
therein; (b) any misrepresentation or breach of any representation or warranty made by the Investor
in this Agreement or any instrument or document contemplated hereby or thereby executed by the
Investor; (c) any breach of any covenant, agreement or obligation of the Investor(s) contained in
this Agreement or any other certificate, instrument or document contemplated hereby or thereby
executed by the Investor; or (d) any cause of action, suit or claim brought or made against such
Company Indemnitee not arising out of any action or inaction of a Company Indemnitee and arising
out of or resulting from the execution, delivery, performance or enforcement of this Agreement or
any other instrument, document or agreement executed pursuant hereto by any of the Company
Indemnitees. To the extent that the foregoing undertaking by the Investor may be unenforceable for
any reason, the Investor shall make the maximum contribution to the payment and satisfaction of
each of the Indemnified Liabilities, which is permissible under applicable law.



Section 5.03 Promptly after receipt by an Investor Indemnitee or Company Indemnitee under this
Article V of notice of the commencement of any action or proceeding (including any governmental
action or proceeding) involving an Indemnified Liability, such Investor Indemnitee or Company
Indemnitee shall, if an Indemnified Liability in respect thereof is to be made against any
indemnifying party under this Article V deliver to the indemnifying party a written notice of the
commencement thereof; but the failure to so notify the indemnifying party will not relieve it of
liability under this Article V unless and to the extent the indemnifying party did not otherwise
learn of such action and such failure result in the forfeiture by the indemnifying party of
substantial rights and defenses and will not, in any event, relieve the indemnifying party from any
obligations provided in this Article V. The indemnifying party shall have the right to participate
in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume control of the defense thereof with counsel mutually satisfactory to
the indemnifying party and the Investor Indemnitee or Company Indemnitee, as the case may be;
provided, however, that an Investor Indemnitee or Company Indemnitee shall have the right to retain
its own counsel with the reasonable fees and expenses of not more than one counsel for such
Investor Indemnitee or Company Indemnitee to be paid by the indemnifying party, if, in the
reasonable opinion of counsel retained by the indemnifying party, the representation by such
counsel of the Investor Indemnitee or Company Indemnitee and the indemnifying party would be
inappropriate due to actual or potential differing interests between such Investor Indemnitee or
Company Indemnitee and any other party represented by such counsel in such proceeding. The Investor
Indemnitee or Company Indemnitee shall cooperate fully with the indemnifying party in connection
with any negotiation or defense of any such action or claim by the indemnifying party and shall
furnish to the indemnifying party all information reasonably available to the Investor Indemnitee
or Company Indemnitee which relates to such action or claim. The indemnifying party shall keep the
Investor Indemnitee or Company Indemnitee fully apprised at all times as to the status of the
defense or any settlement negotiations with respect thereto. No indemnifying party shall be liable
for any settlement of any action, claim or proceeding effected without its prior written consent,
provided, however, that the indemnifying party shall not unreasonably withhold, delay or condition
its consent. No indemnifying party shall, without the prior written consent of the Investor





 









 







Indemnitee or Company Indemnitee, consent to entry of any judgment or enter into any settlement or
other compromise which does not include as an unconditional term thereof the giving by the claimant
or plaintiff to such Investor Indemnitee or Company Indemnitee of a release from all liability in
respect to such claim or litigation. Following indemnification as provided for hereunder, the
indemnifying party shall be subrogated to all rights of the Investor Indemnitee or Company
Indemnitee with respect to all third parties, firms or corporations relating to the matter for
which indemnification has been made.



Section 5.04 The indemnification required by this Article V shall be made by periodic payments of
the amount thereof during the course of the investigation or defense, as and when bills are
received.



Section 5.05 The indemnity agreements contained herein shall be in addition to (i) any cause of
action or similar right of the Investor Indemnitee or Company Indemnitee against the indemnifying
party or others, and (ii) any liabilities the indemnifying party may be subject to pursuant to the
law.



Section 5.06 The obligations of the parties to indemnify or make contribution under this Article V
shall survive termination.




Article VI.

Covenants of the Company



Section 6.01 Registration Statement and Prospectus.





	 	(a)	 	The Company meets the requirements for use of Form S-3 under the Securities Act for the
offering of the Shares, including but not limited to the transaction requirements for an
offering made by the issuer set forth in Instruction I.B.6 to Form S-3.
	 
	 	(b)	 	The Registration Statement, including the Base Prospectus contained therein, was
prepared by the Company in conformity with the requirements of the Securities Act and all
applicable U.S. federal securities laws rules and regulations. Any amendment or supplement
to the Registration Statement or Prospectus required by this Agreement will be so prepared
and filed by the Company and, as applicable, the Company will use its commercially
reasonable efforts to cause it to become effective as soon as reasonably practicable. No
stop order suspending the effectiveness of the Registration Statement has been issued, and
no proceeding for that purpose has been instituted or, to the knowledge of the Company,
threatened by the SEC. Any reference herein to the Registration Statement, the Prospectus,
or any amendment or supplement thereto shall be deemed to refer to and include the
documents incorporated (or deemed to be incorporated) by reference therein pursuant to Item
12 of Form S-3 under the Securities Act, and any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement or Prospectus shall
be deemed to refer to and include the filing after the execution hereof of any document
with the SEC deemed to be incorporated by reference therein.




 









 












	 	(c)	 	The Company has not distributed and, prior to the completion of the distribution of the
Shares, shall not distribute any offering material in connection with the offering and sale
of the Shares other than the Registration Statement, the Base Prospectus as supplemented by
any Prospectus Supplement or such other materials, if any, permitted by the Securities Act.
	 
	 	(d)	 	During the Commitment Period, the Company shall notify the Investor promptly if (i) the
Registration Statement shall cease to be effective under the Securities Act, (ii) the
Common Stock ceases to be registered under Section 12(g) of the Exchange Act or (iii) the
Company fails to file in a timely manner all reports and other documents required of it as
a reporting company under the Exchange Act.
	 
	 	(e)	 	No Misstatement or Omission. Each part of the Registration Statement, when
such part became or becomes effective, and the Prospectus, on the date of filing thereof
with the SEC and at each date during the Pricing Period and as of each Closing conformed or
will conform in all material respects with the requirements of the Securities Act and the
rules and regulations promulgated thereunder; each part of the Registration Statement, when
such part became or becomes effective, did not or will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and the Prospectus, on the date of filing
thereof with the SEC and at each date during the Pricing Period and as of each Closing did
not or will not include an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading; except that the foregoing shall not apply to statements or
omissions in any such document made in reliance on information furnished in writing to the
Company by the Investor that is intended for use in the Registration Statement, the
Prospectus, or any amendment or supplement thereto.




Section 6.02 Listing of Common Stock. The Company shall use its commercially reasonable
efforts to maintain the Common Stock’s authorization for quotation on the Principal Market and
shall notify the Investor promptly if the Common Stock shall cease to be authorized for listing on
the Principal Market.



Section 6.03 Certificate of Counsel. The Company shall cause the Investor to have received
a certificate from counsel to the Company substantially in the form of Exhibit C attached
hereto to the Investor prior to the first Advance Notice.



Section 6.04 Exchange Act Registration. The Company will use its best efforts to cause its
Common Stock to continue to be registered under Section 12(g) of the Exchange Act, will file in a
timely manner all reports and other documents required of it as a reporting company under the
Exchange Act and will not take any action or file any document (whether or not permitted by
Exchange Act or the rules thereunder) to terminate or suspend such registration or to terminate or
suspend its reporting and filing obligations under said Exchange Act.



Section 6.05 Corporate Existence. The Company will take all steps necessary to preserve
and continue the corporate existence of the Company.






 









 







Section 6.06 Notice of Certain Events Affecting Registration; Suspension of Right to Make an
Advance. The Company will immediately notify the Investor, and confirm in writing, upon its
becoming aware of the occurrence of any of the following events: (i) receipt of any request for
additional information by the SEC or any other Federal or state governmental authority for
amendments or supplements to the Registration Statement or the Prospectus; (ii) the issuance by the
SEC or any other Federal or state governmental authority of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings for that purpose;
(iii) receipt of any notification with respect to the suspension of the qualification or exemption
from qualification of any of the Common Stock for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; (iv) the happening of any event that makes any
statement made in the Registration Statement or Prospectus of any document incorporated or deemed
to be incorporated therein by reference untrue in any material respect or that requires the making
of any changes in the Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the statements therein
not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they were made, not
misleading, or of the necessity to amend the Registration Statement or supplement the Prospectus to
comply with the Securities Act or any other law; and (v) the Company’s reasonable determination
that a post-effective amendment to the Registration Statement would be appropriate; and the Company
will promptly make available to the Investor any such supplement or amendment to the related
prospectus. The Company shall not deliver to the Investor any Advance Notice, and the Investor
shall not sell any Shares pursuant to a Registration Statement, during the continuation of any of
the foregoing events.



Section 6.07 Prospectus Supplements. The Company agrees that on such dates as the
Securities Act shall require, the Company will file a Prospectus Supplement or other appropriate
form as determined by counsel with the SEC under the applicable paragraph of Rule 424(b) under the
Securities Act, which Prospectus Supplement will set forth, within the relevant period, the amount
of Shares sold to the Investor, the net proceeds to the Company and the discount paid by the
Investor with respect to such Shares. The Company shall provide the Investor at least 24 hours to
comment on a draft of each such Prospectus Supplement (and shall give due consideration to all such
comments) and shall deliver or make available to the Investor, without charge, an electronic copy
of each form of Prospectus Supplement, together with the Base Prospectus. The Company consents to
the use of the Prospectus (and of any Prospectus Supplement thereto) in accordance with the
provisions of the Securities Act and with the securities or “blue sky” laws of the jurisdictions in
which the Shares may be sold by the Investor, in connection with the offering and sale of the
Shares and for such period of time thereafter as the Prospectus is required by the Securities Act
to be delivered in connection with sales of the Shares. If during such period of time any event
shall occur that in the judgment of the Company and its counsel is required to be set forth in the
Prospectus or should be set forth therein in order to make the statements made therein, in light of
the circumstances under which they were made, not misleading, or if it is necessary to supplement
or amend the Prospectus to comply with the Securities Act or any other applicable law or
regulation, the Company shall forthwith prepare and file with the SEC an appropriate Prospectus
Supplement to the Prospectus and shall expeditiously furnish or make available to the Investor an
electronic copy thereof.






 









 







Section 6.08 Consolidation; Merger. If an Advance Notice has been delivered to the
Investor and the transaction contemplated in such Advance Notice has not yet been closed in
accordance with its terms, then the Company shall not effect any merger or consolidation of the
Company with or into, or a transfer of all or substantially all the assets of the Company to
another entity (a “Consolidation Event”) unless the resulting successor or acquiring entity
(if not the Company) assumes by written instrument the obligation to deliver to the Investor such
shares of stock and/or securities as the Investor is entitled to receive pursuant to this
Agreement.



Section 6.09 Issuance of the Company’s Common Stock. The sale of the shares of Common
Stock by the Company to the Investor hereunder shall be made in accordance with the provisions and
requirements of the Securities Act and any applicable state securities law.



Section 6.10 Market Activities. The Company will not, directly or indirectly, take any
action designed to cause or result in, or that constitutes or would reasonably be expected to
constitute, the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Common Stock.



Section 6.11 Opinion of Counsel Concerning Resales. Provided that the Investor’s resale of
Common Stock received pursuant to this Agreement may be freely sold by the Investor either pursuant
to an effective Registration Statement, in accordance with Rule 144, or otherwise, the Company
shall obtain for the Investor, at the Company’s expense, any and all opinions of counsel which may
be required by the Company’s transfer agent to issue such shares free of restrictive legends, or to
remove legends from such shares.



Section 6.12 Expenses. The Company, whether or not the transactions contemplated hereunder
are consummated or this Agreement is terminated, will pay all expenses incident to the performance
of its obligations hereunder, including but not limited to (i) the preparation, printing and filing
of the Registration Statement and each amendment and supplement thereto, of each prospectus and of
each amendment and supplement thereto; (ii) the preparation, issuance and delivery of any Shares
issued pursuant to this Agreement, (iii) all fees and disbursements of the Company’s counsel,
accountants and other advisors, (iv) the qualification of the Shares under securities laws in
accordance with the provisions of this Agreement, including filing fees in connection therewith,
(v) the printing and delivery of copies of any prospectus and any amendments or supplements
thereto, (vi) the fees and expenses incurred in connection with the listing or qualification of the
Shares for trading on the Principal Market, or (vii) filing fees of the SEC and the Principal
Market; provided, however that the Investor shall pay all of its expenses, including but not
limited to all fees and disbursements of the Investor’s counsel, accountants and other advisors.



Section 6.13 Initial Disclosure. Promptly after the date hereof (and prior to the Company
delivering an Advance Notice to the Investor hereunder), the Company shall file with the SEC a
Prospectus Supplement pursuant to Rule 424(b) of the Securities Act disclosing all information
required to be disclosed therein (the “Initial Disclosure”) and shall provide the Investor
with 24 hours to review the Initial Disclosure prior to its filing.



Section 6.14 Compliance With Laws. The Company will not, directly or indirectly, take any
action designed to cause or result in, or that constitutes or might reasonably be expected to





 












 




constitute, the stabilization or manipulation of the price of any security of the Company or which
caused or resulted in, or which would in the future reasonably be expected to cause or result in,
stabilization or manipulation of the price of any security of the Company.



Section 6.15 Comfort Letters. At the request of the Investor and within a reasonable
period of time (a) prior to the first Advance contemplated hereby, and (b) after the date of filing
of each Annual Report on Form 10-K which was incorporated by reference in the Registration
Statement for a period in which Advances totaling at least $2 million were received, the Company
will request that its independent accountants furnish to the Investor a letter, in form and
substance reasonably satisfactory to the Investor, containing statements and information of the
type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the
financial statements of the Company.




Article VII.

Conditions for Advance and Conditions to Closing



Section 7.01 Conditions Precedent to the Right of the Company to Deliver an Advance Notice.
The right of the Company to deliver an Advance Notice and the obligations of the Investor
hereunder with respect to an Advance Notice is subject to the satisfaction by the Company, on each
Advance Notice Date (a “Condition Satisfaction Date”), of each of the following conditions:





	 	(a)	 	Accuracy of the Company’s Representations and Warranties. The representations
and warranties of the Company shall be true and correct in all material respects.
	 
	 	(b)	 	Registration of the Common Stock with the SEC. The Registration Statement is
effective and the Company is not aware of any of the events set forth in Section 6.06
hereof. The Initial Disclosure shall have been filed with the SEC, all other Prospectus
Supplements shall have been filed with the SEC, as required pursuant to Section 6.07 hereof
and an electronic copy of such Prospectus Supplement together with the Base Prospectus
shall have been delivered or made available to the Investor. The Company shall have filed
with the SEC in a timely manner all reports, notices and other documents required of a
“reporting company” under the Exchange Act and applicable SEC regulations that are
necessary to maintain the effectiveness of the Registration Statement.
	 
	 	(c)	 	Authority. The Company shall have obtained all permits and qualifications
required by any applicable state securities laws for the offer and sale of the shares of
Common Stock, or shall have the availability of exemptions therefrom. The sale and
issuance of the shares of Common Stock shall be legally permitted by all applicable
securities laws and regulations to which the Company is subject.
	 
	 	(d)	 	No Material Notices. None of the following events shall have occurred and be
continuing: (i) receipt by the Company of any request for additional information from the
SEC or any other federal or state governmental, administrative or self regulatory authority
during the period of effectiveness of the Registration Statement, the response to which
would require any amendments or supplements to the Registration Statement or Prospectus;
(ii) the issuance by the SEC or any other federal or state governmental














 






	 	 	 	authority of any stop order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose; (iii) receipt by the Company of any
notification with respect to the suspension of the qualification or exemption from
qualification of any of the Shares for sale in any applicable jurisdiction or the initiation
or threatening of any proceeding for such purpose; (iv) the occurrence of any event that
makes any statement made in the Registration Statement or the Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in any material
respect or that requires the making of any changes in the Registration Statement, Prospectus
or documents so that, in the case of the Registration Statement, it will not contain any
untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under and as of the date which they were made, not
misleading; and (v) the Company’s reasonable determination that a post-effective amendment
to the Registration Statement would be required.
	 
	 	(e)	 	Performance by the Company. The Company shall have performed, satisfied and
complied in all material respects with all covenants, agreements and conditions required by
this Agreement to be performed, satisfied or complied with by the Company at or prior to
each Condition Satisfaction Date.
	 
	 	(f)	 	No Injunction. No statute, rule, regulation, executive order, decree, ruling
or injunction shall have been enacted, entered or promulgated by any court or governmental
authority of competent jurisdiction that prohibits or directly and materially adversely
affects any of the transactions contemplated by this Agreement, and no proceeding shall
have been commenced that is reasonably likely to have a Material Adverse Effect.
	 
	 	(g)	 	No Suspension of Trading in or Delisting of Common Stock. The Common Stock is
trading on a Principal Market and all of the shares issuable pursuant to such Advance
Notice will be listed or quoted for trading on such Principal Market and the Company
believes, in good faith, that trading of the Common Stock on a Principal Market will
continue uninterrupted for the foreseeable future. The issuance of shares of Common Stock
with respect to the applicable Advance Notice will not violate the shareholder approval
requirements of the Principal Market. The Company shall not have received any notice
threatening the continued listing of the Common Stock on the Principal Market.
	 
	 	(h)	 	Maximum Advance Amount. The amount of an Advance requested by the Company
shall not exceed the Maximum Advance Amount.
	 
	 	(i)	 	Authorized. There shall be a sufficient number of authorized but unissued and
otherwise unreserved shares of Common Stock for the issuance of all of the shares issuable
pursuant to such Advance Notice.














 






	 	(j)	 	Executed Advance Notice. The Investor shall have received the Advance Notice
executed by an officer of the Company and the representations contained in such Advance
Notice shall be true and correct as of each Condition Satisfaction Date.
	 
	 	(k)	 	Consecutive Advance Notices. Except with respect to the first Advance Notice,
the Company shall have delivered all Shares relating to all prior Advances.





Article VIII.

Non-Disclosure; Non-Public Information; Public Announcement




     Nothing herein shall require the Company to disclose any material non-public information to
the Investor without also disseminating such information to the public.



     Neither party shall make any press release or public announcement concerning the transactions
contemplated by this Agreement without the prior written approval of the other party, unless a
press release or public announcement is required by law. If any such announcement or other
disclosure is required by law, the disclosing party shall give the non disclosing Party prior
notice of, and an opportunity to comment on, the proposed disclosure. The parties acknowledge that
the Company will file the Initial Disclosure in accordance with Section 6.13.



Article IX.

Choice of Law/Jurisdiction




     This Agreement shall be governed by and interpreted in accordance with the laws of the State
of New York without regard to the principles of conflict of laws.



Article X. Assignment; Termination



Section 10.01 Assignment. Neither this Agreement nor any rights of the parties hereto may
be assigned to any other Person.



Section 10.02 Termination.





	 	(a)	 	Unless earlier terminated as provided hereunder, this Agreement shall terminate
automatically on the earliest of (i) the first day of the month next following the 24-month
anniversary of the Effective Date, or (ii) the date on which the Investor shall have made
payment of Advances pursuant to this Agreement in the aggregate amount of the Commitment
Amount.
	 
	 	(b)	 	The Company may terminate this Agreement effective upon fifteen Trading Days’ prior
written notice to the Investor; provided that (i) there are no Advances outstanding, and
(ii) the Company has paid all amounts owed to the Investor pursuant to this Agreement.
This Agreement may be terminated at any time by the mutual written consent of the parties,
effective as of the date of such mutual written consent unless otherwise provided














 






	 	 	 	in such written consent. In the event of any termination of this Agreement by the Company
hereunder, so long as the Investor owns any shares of Common Stock issued hereunder, unless
all of such shares of Common Stock may be resold by the Investor without registration and
without any time, volume or manner limitations pursuant to Rule 144, the Company shall not
suspend or withdraw the Registration Statement or otherwise cause the Registration Statement
to become ineffective, or voluntarily delist the Common Stock from the Principal Markets.
	 
	 	(c)	 	The obligation of the Investor to make an Advance to the Company pursuant to this
Agreement shall terminate permanently (including with respect to an Advance Date that has
not yet occurred) in the event that (i) there shall occur any stop order or suspension of
the effectiveness of the Registration Statement for an aggregate of 50 Trading Days, other
than due to the acts of the Investor, during the Commitment Period, or (ii) the Company
shall at any time fail materially to comply with the requirements of Article VI and such
failure is not cured within 30 days after receipt of written notice from the Investor,
provided, however, that this termination provision shall not apply to any
period commencing upon the filing of a post-effective amendment to such Registration
Statement and ending upon the date on which such post effective amendment is declared
effective by the SEC.
	 
	 	(d)	 	Nothing in this Section 10.02 shall be deemed to release the Company or the Investor
from any liability for any breach under this Agreement or to impair the rights of the
Company and the Investor to compel specific performance by the other party of its
obligations under this Agreement. The indemnification provisions contained in Article V
shall survive termination hereunder.





Article XI. Notices




     Any notices, consents, waivers, or other communications required or permitted to be given
under the terms of this Agreement must be in writing and will be deemed to have been delivered (i)
upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile, provided a copy
is mailed by U.S. certified mail, return receipt requested; (iii) 3 days after being sent by U.S.
certified mail, return receipt requested, or (iv) 1 day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party to receive the same. The
addresses and facsimile numbers for such communications, except for Advance Notices which shall be
delivered in accordance with hereof, shall be:



	 	 	 

	If to the Company, to:

	 	Alon USA Energy, Inc.
	 

	 	7616 LBJ Freeway, Suite 300
	 

	 	Dallas, TX 75251
	 

	 	Attention:   Shai Even, CFO
	 

	 	Telephone: 972 367 3669
	 

	 	Facsimile:   972 367 3726
















 






	 	 	 

	With a copy to:

	 	Alon USA Energy, Inc.
	 

	 	7616 LBJ Freeway, Suite 300
	 

	 	Dallas, TX 75251
	 

	 	Attention: Michael Oster
	 

	 	Telephone: 972 367 3707
	 

	 	Facsimile: 972 367 3724
	 
	 	 
	If to the Investor(s):

	 	YA Global Master SPV Ltd.
	 

	 	101 Hudson Street —Suite 3700
	 

	 	Jersey City, NJ 07302
	 

	 	Attention:  Mark Angelo
	 

	 	          
          Portfolio Manager
	 

	 	Telephone: (201) 985-8300
	 

	 	Facsimile: (201) 985-8266
	 
	 	 
	With a Copy to:

	 	David Gonzalez, Esq.
	 

	 	101 Hudson Street — Suite 3700
	 

	 	Jersey City, NJ 07302
	 

	 	Telephone: (201) 985-8300
	 

	 	Facsimile: (201) 985-8266





Each party shall provide 5 days’ prior written notice to the other party of any change in address
or facsimile number.




Article XII. Miscellaneous



Section 12.01 Counterparts. This Agreement may be executed in two or more identical
counterparts, all of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the other party. In
the event any signature page is delivered by facsimile transmission, the party using such means of
delivery shall cause 4 additional original executed signature pages to be physically delivered to
the other party within 5 days of the execution and delivery hereof, though failure to deliver such
copies shall not affect the validity of this Agreement.



Section 12.02 Entire Agreement; Amendments. This Agreement supersedes all other prior oral
or written agreements between the Investor, the Company, their affiliates and persons acting on
their behalf with respect to the matters discussed herein, and this Agreement, and the instruments
referenced herein contain the entire understanding of the parties with respect to the matters
covered herein and therein and, except as specifically set forth herein or therein, neither the
Company nor the Investor makes any representation, warranty, covenant or undertaking with respect
to such matters. No provision of this Agreement may be waived or amended other than by an
instrument in writing signed by the party to be charged with enforcement.



Section 12.03 Reporting Entity for the Common Stock. The reporting entity relied upon for
the determination of the trading price or trading volume of the Common Stock on any given Trading















 







Day for the purposes of this Agreement shall be Bloomberg, L.P. or any successor thereto. The
written mutual consent of the Investor and the Company shall be required to employ any other
reporting entity.



Section 12.04 Fees. The Company shall compensate the Investor and pay certain fees and
expenses of the Investor, or its designee, as set forth on Schedule 12.04 attached hereto.



Section 12.05 Brokerage. Each of the parties hereto represents that it has had no dealings
in connection with this transaction with any finder or broker who will demand payment of any fee or
commission from the other party. The Company on the one hand, and the Investor, on the other hand,
agree to indemnify the other against and hold the other harmless from any and all liabilities to
any person claiming brokerage commissions or finder’s fees on account of services purported to have
been rendered on behalf of the indemnifying party in connection with this Agreement or the
transactions contemplated hereby.



Section 12.06 Confidentiality. Except as otherwise set forth herein, each of the parties
hereto shall keep confidential any information obtained from any other party (except information
publicly available or in such party’s domain prior to the date hereof, and except as required by
court order) and shall promptly return to the other parties all schedules, documents, instruments,
work papers or other written information without retaining copies thereof, previously furnished by
it as a result of this Agreement or in connection herein.




[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

















 








     IN WITNESS WHEREOF, the parties hereto have caused this Standby Equity Distribution Agreement
to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above.



	 	 	 	 	 
	 	COMPANY:



Alon USA Energy, Inc.

 	 
	 	By:  	/s/ David Wiessman
 	 
	 	 	Name:  	David Wiessman 	 
	 	 	Title:  	Chairman 	 
	 
	 	INVESTOR:



YA Global Master SPV Ltd.

 	 
	 	By:  	Yorkville Advisors, LLC
 	 
	 	 	Its: Investment Manager 	 
	 	 	 
	 	By:  	/s/ Gerald Eicke
 	 
	 	 	Name:  	Gerald Eicke 	 
	 	 	Title:  	Managing Member 	 
	 
















 





Schedule 4.05



The Company’s Annual Report on Form 10-K for the year ended December 31, 2008 (the “2008 Annual
Report”) was not filed with the SEC within the time prescribed by the rules of the SEC. The
Company filed its 2008 Annual report on April 10, 2009.






 









 








Schedule 4.19



None






 









 








Schedule 12.04





	(a)	 	Structuring and Due Diligence Fee. Each of the parties shall pay its own fees
and expenses (including the fees of any attorneys, accountants, appraisers or others
engaged by such party) in connection with this Agreement and the transactions contemplated
hereby, except that the Company has paid a structuring and due diligence fee of $30,000 to
Yorkville Advisors, LLC.






	(b)	 	Commitment Fee; Commitment Shares. The Company shall pay to the Investor a
commitment fee (the “Commitment Fee”) of $500,000, of which (i) $250,000 shall be
paid within 3 days of the Effective Date, and (ii) $250,000 shall be paid on the 3 month
anniversary of the Effective Date. The Company shall pay the Commitment Fee either in
cash, or by issuing to the Investor shares of Common Stock (such shares, the
“Commitment Shares”), or a combination of cash and Commitment Shares. The number
of Commitment Shares to be issued by the Company to the Investor shall be equal to the
amount of the Commitment Fee the Company chooses to pay in Commitment Shares divided by (y)
the average of the VWAPs for the 5 consecutive Trading Days immediately prior to the
Effective Date with respect to the first tranche of the Commitment Fee, and (z) the average
of the VWAPs for the 5 consecutive Trading Days immediately prior to the 3 month
anniversary of the Effective Date with respect to the second tranche of the Commitment Fee.
The issuance of any Commitment Shares shall registered on the Registration Statement.