dk-ex101xstockpurchaseco






EXECUTION VERSION  STOCK PURCHASE AND COOPERATION AGREEMENT  This STOCK PURCHASE AND COOPERATION AGREEMENT (this “Agreement”) is made  and entered into as of March 7, 2022 by and among Delek US Holdings, Inc., a Delaware  corporation (the “Company”), on the one hand, and  IEP Energy Holding LLC, a Delaware  limited liability company, American Entertainment Properties Corp., a Delaware corporation,  Icahn Enterprises Holdings L.P., a Delaware limited partnership,  Icahn Enterprises G.P. Inc., a  Delaware corporation,  Beckton Corp., a Delaware corporation, and Carl C. Icahn, (collectively,  the “Icahn Group”), on the other hand.   WHEREAS, as of the date hereof, the members of the Icahn Group directly or indirectly  beneficially own in the aggregate 6,981,800 shares of common stock of the Company, par value  $0.01 per share (“Company Common Stock”), as set forth next to such member’s name on  Schedule A hereto;  WHEREAS, the Company and the Icahn Group have determined that it is in their mutual  best interest to enter into this Agreement, to, among other things,  (i) cause the members of the  Icahn Group listed on Schedule A hereto (each a “Seller” and, collectively, the “Sellers”)  to  sell, and the Company to purchase, free and clear of any and all Liens (as defined herein), an  aggregate of 3,497,268 shares of Company Common Stock from the Sellers for an aggregate  purchase price of $64 million in accordance with the terms and conditions of this Agreement (the  “Repurchase Transaction”) and (ii) set forth other agreements of the parties as to certain other  matters as set forth in this Agreement;  WHEREAS, after due consideration, the Board of Directors of the Company has  approved the Repurchase Transaction and related matters that may be required in connection  with the Repurchase Transaction; and  NOW, THEREFORE, in consideration of the foregoing premises and the covenants,  agreements and representations and warranties contained herein, the receipt and sufficiency of  which are hereby acknowledged, the parties hereto agree as follows:  ARTICLE I.  PURCHASE AND SALE  Section 1.1. Purchase and Sale. The Sellers hereby agree to sell, convey, assign, transfer  and deliver to the Company (subject to receipt of the payment provided herein), and the  Company hereby agrees to purchase from the Sellers, an aggregate number of shares of  Company Common Stock (the “Purchased Shares”), free and clear of any and all mortgages,  pledges, encumbrances, liens, security interests, options, charges, claims, deeds of trust, deeds to  secure debt, title retention agreements, rights of first refusal or offer, limitations on voting rights,  proxies, voting agreements, limitations on transfer or other agreements or claims of any kind or  nature whatsoever (collectively, “Liens”), in such amounts set forth on Schedule A hereto in  respect of each Seller; provided that the acquisition of the Purchased Shares in accordance with  the terms of this Agreement shall cause the Icahn Group to own, in the aggregate, approximately  Exhibit 10.1 





 






2    4.9% of the Company Common Stock, and in any event, no more than 5.0% of the outstanding  Company Common Stock.  Section 1.2. Closing.  The closing of the Repurchase Transaction (the “Closing”) will  take place by electronic delivery of documents and release of signatures (by PDF (portable  document format) and/or electronic mail), all of which will be deemed to be originals, at a time  to be agreed by the parties, and no later than March 11, 2022 (the “Closing Date”).  At the  Closing, (a) the Sellers shall deliver or cause to be delivered to the Company all of the Sellers’  right, title and interest in and to the Purchased Shares in accordance with the provisions hereof,  together, in each case, with all documentation reasonably necessary to transfer to the Company  right, title and interest in and to the Purchased Shares and (b) the Company shall pay to the  Sellers the Purchase Price (as defined below) in accordance with the provisions hereof.   Section 1.3. Purchase Price. In consideration of the aforesaid sale, conveyance,  assignment, transfer and delivery to the Company of the Purchased Shares, the Company hereby  agrees to pay to the Sellers at the Closing a price per Purchased Share of $18.30, based on the  closing price of the Company Common Stock on the New York Stock Exchange on March 4,  2022 for an aggregate purchase price of $64 million (the “Purchase Price”), in cash, in such  amounts set forth on Schedule A hereto in respect of each Seller.  Section 1.4. Expenses. All fees and expenses incurred by each party hereto in connection  with the matters contemplated by this Agreement shall be borne by the party incurring such fee  or expense, including without limitation the fees and expenses of any investment banks,  attorneys, accountants or other experts or advisors retained by such party.   Section 1.5. Delivery.  (a) Each Seller hereby agrees to cause its broker(s) to deliver the applicable  Purchased Shares to American Stock Transfer and Trust Company (“AST”) at the Closing  through the facilities of the Depository Trust Company’s DWAC system.   (b) The Company hereby agrees to deliver on the Closing Date a letter to  AST, in a form reasonably acceptable to AST, which letter includes the broker name, telephone  number and number of Purchased Shares to be so transferred, instructing AST to accept the  DWAC.  (c) The Company hereby agrees to deliver or cause to be delivered to Sellers  on the Closing Date the cash amounts set forth opposite each Seller’s name on Schedule A  hereto, by wire transfer of immediately available funds to such accounts as Sellers have specified  in writing. The Seller’s acknowledges that, the cash amounts set forth on Schedule A shall be  paid in full, and without deduction for or withholding of any applicable taxes. The Sellers shall  provide to the Company any necessary certification of status necessary to avoid withholding  taxes.  (d) Each party hereto further agrees to execute and deliver such other  instruments as shall be reasonably requested by a party hereto to consummate the transactions  contemplated by this Agreement.   





 






3    ARTICLE II.    ADDITIONAL AGREEMENTS  Section 2.1. Withdrawal of Nomination Notice. IEP Energy Holdings LLC, on behalf of  the Icahn Group, hereby withdraws, and shall be deemed to have withdrawn, the notice of  nomination of directors at the 2022 Annual Meeting (as defined below) delivered to the Company  on February 1, 2022, as supplemented and amended effective as of the Closing.    Section 2.2. [Reserved].   Section 2.3. Standstill.  (a) From and after the date hereof, until the conclusion of the 2023 Annual  Meeting (the “Standstill Period”), so long as the Company has not breached any material  provision of this Agreement and failed to cure such breach within five (5) business days  following the receipt of written notice from the Icahn Group specifying any such breach, no  member of the Icahn Group shall, directly or indirectly, and each member of the Icahn Group  shall cause each of their respective Affiliates and Associates not to, directly or indirectly:  (i) acquire, offer or propose to acquire any voting securities (or  beneficial ownership thereof), or rights or options to acquire any voting securities  (or beneficial ownership thereof) of the Company;  (ii) except solely among the signatories to the Icahn Group’s Schedule  13D (Amendment No. 11) filed with the SEC on February 1, 2022 (the “Icahn  Schedule 13D”), form or join in a partnership, limited partnership, syndicate or a  “group” as defined under Section 13(d) of the Exchange Act, with respect to the  securities of the Company;  (iii) present (or request to present) at any annual meeting or any special  meeting of the Company’s stockholders, any proposal for consideration for action  by stockholders or engage in any solicitation of proxies or become a “participant”  in a “solicitation” (as such terms are defined in Regulation 14A under the  Exchange Act) of proxies or  otherwise propose (or publicly request to propose)  any nominee for election to the Board or seek representation on the Board or the  removal of any member of the Board;  (iv) grant any proxy, consent or other authority to vote with respect to  any matters (other than to the named proxies included in the Company’s proxy  card for any annual meeting or special meeting of stockholders) or deposit any  securities of the Company into a voting trust or subject them to a voting  agreement or other arrangement of similar effect (excluding customary brokerage  accounts, margin accounts, prime brokerage accounts and the like), in each case,  except as provided in Sections 2.2;  





 






4    (v) institute, solicit, assist or join, as a party, any litigation, arbitration  or other proceeding against or involving the Company or any of its officers,  directors or representatives;  (vi) separately or in conjunction with any other person in which it is or  proposes to be either an Affiliate of, or a principal, partner or financing source or  is acting or proposes to act as broker or agent for compensation, seek, submit a  proposal for or offer of (with or without conditions), any Extraordinary  Transaction (as defined below); provided that the Icahn Group shall be permitted  to sell or tender their Common Shares, and otherwise receive consideration,  pursuant to any Extraordinary Transaction  that has been approved by the Board.  “Extraordinary Transaction” means, collectively, any of the following  involving the Company or any of its subsidiaries or its or their securities or all or  substantially all of the assets or businesses of the Company and its subsidiaries:  any tender offer or exchange offer, merger, acquisition, business combination,  reorganization, restructuring, recapitalization, sale or acquisition of material  assets, liquidation or dissolution, any dividend, share repurchase or similar  transaction;  (vii) seek, or encourage any person, to submit nominations in  furtherance of the election or removal of directors with respect to the Company  or, seek, encourage or take any other action with respect to the election or  removal of any directors;  (viii) make any public communication in opposition to (A) any merger,  acquisition, amalgamation, recapitalization, restructuring, disposition,  distribution, spin-off, asset sale, joint venture or other business combination  or  (B) any financing transaction, in each case, involving the Company;  (ix) make any public proposal or request with respect to: (i)  controlling, changing or influencing the Board or management of the Company,  including any plans or proposals relating to any change in the number or term of  directors or the filling of any vacancies on the Board, (ii) any material change in  the capitalization, stock repurchase programs and practices, capital allocation  programs and practices or dividend policy of the Company, (iii) any other  material change in the Company’s management, business, corporate or  governance structure, (iv) any waiver, amendment or modification to the  Company’s certificate of incorporation or by-laws, operations, business, corporate  strategy, corporate structure, capital structure or allocation, share repurchase or  dividend policies or other policy;  (x) make any request for stockholder list materials or other books and  records of the Company under Section 220 of the Delaware General Corporation  Law or other statutory or regulatory provisions providing for stockholder access  to books and records;  





 






5    (xi) make any public disclosure, communication, announcement or  statement regarding any intent, purpose, plan or proposal with respect to the  Board, the Company, its management, policies or affairs, any of its securities or  assets or this Agreement that is inconsistent with the provisions of this  Agreement;  (xii) seek to advise, encourage, support or influence any person with  respect to the voting or disposition of any securities of the Company at any annual  general meeting or special meeting of stockholders, except in accordance with  Section 2.2;  (xiii) publicly disclose any intention, plan or arrangement inconsistent  with any provision of this Section 2.3; or  (xiv) publicly advise, assist, encourage or otherwise support any other  person to take any of the actions described in this Section 2.3 that the Icahn Group  is restricted from doing.  (b) [Reserved].   Section 2.4. Public Announcement; Public Filings; Non-Disparagement.  (a) No later than 9:15 a.m. ET on March 7, 2022, the Company shall issue a  press release in the form of Exhibit A hereto. No party hereto nor any of its respective Affiliates  shall issue any press release or make any public statement relating to the transactions  contemplated hereby (including, without limitation, any statement to any governmental or  regulatory agency or accrediting body) that is inconsistent with, or are otherwise contrary to, the  statements in the press release.  (b) No later than 9:15 a.m. ET on March 7, 2022: (i) the Icahn Group shall  cause to be filed with the U.S. Securities and Exchange Commission (the “SEC”) an amendment  to their most recent Schedule 13D, as amended, and, prior to the filing thereof, the Icahn Group  shall provide the Company and its counsel a reasonable opportunity to review such Schedule  13D; and (ii) no later than 9:15 a.m. ET on March 7, 2022, the Company shall cause to be filed  with the SEC a Current Report on Form 8-K disclosing the execution of this Agreement and,  prior to the filing thereof, the Company shall provide the Icahn Group and its counsel a  reasonable opportunity to review such Form 8-K.  (c) From the date of this Agreement until the end of the Standstill Period, (i)  so long as the Company has not breached any material provision of this Agreement and failed to  cure such breach within five (5) business days following the receipt of written notice from the  Icahn Group specifying any such breach, neither a member of the Icahn Group nor any of the  their respective Affiliates or Associates (including such persons’ officers, directors and persons  holding substantially similar positions however titled) shall make, or cause to be made, by press  release or similar public statement, including to the press or media (including social media), or in  an SEC or other public filing, any statement or announcement that constitutes an ad hominem  attack on, or that otherwise disparages, defames, slanders, impugns or is reasonably likely to  damage the reputation of the Company or the Company’s respective current or former officers or  





 






6    directors and (ii) so long as the Icahn Group has not breached any material provision of this  Agreement and failed to cure such breach within five (5) business days following the receipt of  written notice from the Company specifying any such breach, neither the Company nor any of its  subsidiaries nor any of the their respective Affiliates or Associates (including such persons’  officers, directors and persons holding substantially similar positions however titled) shall make,  or cause to be made, by press release or similar public statement, including to the press or media  (including social media), or in an SEC or other public filing, any statement or announcement that  constitutes an ad hominem attack on, or that otherwise disparages, defames, slanders, impugns or  is reasonably likely to damage the reputation of any member of the Icahn Group or  their  respective Affiliates or any of their respective current or former officers or directors. The  foregoing shall not restrict the ability of any party to this Agreement to comply with any  subpoena or other legal process or respond to a request for information from any governmental  authority with jurisdiction over such party from whom information is sought.  ARTICLE III.    REPRESENTATIONS AND WARRANTIES OF THE ICAHN GROUP  Each member of the Icahn Group hereby makes, jointly and severally, the following  representations and warranties to the Company:  Section 3.1. Existence; Authority. Each member of the Icahn Group that is an entity is  duly organized, validly existing and in good standing under the laws of the jurisdiction of its  organization. Each member of the Icahn Group that is an entity has all requisite corporate power,  authority and capacity to execute and deliver this Agreement, to perform its obligations  hereunder and to consummate the transactions contemplated hereby and has taken all necessary  action to authorize the execution, delivery and performance of this Agreement. Each member of  the Icahn Group that is an individual has full legal capacity to execute and deliver this  Agreement, to perform his obligations hereunder and to consummate the transactions  contemplated hereby.  Section 3.2. Enforceability. This Agreement has been duly and validly executed and  delivered by such member of the Icahn Group, and, assuming due and valid authorization,  execution and delivery by the Company, this Agreement will constitute a legal, valid and binding  obligation of such member of the Icahn Group, enforceable against such person in accordance  with its terms, except as such enforceability may be affected by bankruptcy, insolvency,  moratorium and other similar laws relating to or affecting creditors’ rights generally and general  equitable principles.  Section 3.3. Ownership. As of the date hereof, each member of the Icahn Group and their  respective Affiliates, beneficially owns or has economic exposure to, only the number of shares  of Company Common Stock or other security of the Company set forth on Schedule A hereto. If  such member of the Icahn Group is a Seller, such member is and immediately prior to the   Closing will be, the beneficial owner of the Purchased Shares set forth opposite its name on  Schedule A hereto, free and clear of any and all Liens. Such member of the Icahn Group has full  power and authority to transfer full legal and beneficial ownership of its respective Purchased  Shares to the Company, and such member of the Icahn Group is not required to obtain the  





 






7    consent or approval of any person or governmental agency or organization to effect the sale of  the Purchased Shares. The execution and delivery of this Agreement by the Sellers and the  consummation by the Sellers of the transactions contemplated hereby do not and will not  constitute or result in a breach, violation or default under (x) any note, bond, mortgage, deed,  indenture, lien, instrument, contract, agreement, lease or license, to which such Seller is a party  or (y) such Seller’s organizational documents, or (z) any statute, law, ordinance, decree, order,  injunction, rule, directive, judgment or regulation of any court, administrative or regulatory  body, governmental authority or similar body applicable to such Seller, except in each case as  would not materially adversely affect the ability of such Seller to consummate the transactions  contemplated by this Agreement. Immediately following the consummation of the Repurchase  Transaction, the members of the Icahn Group will beneficially own or have economic exposure  to only the number of shares of Company Common Stock or other securities of the Company set  forth opposite its name on Schedule A hereto, and except as set forth on Schedule A hereto, no  Affiliate of any member of the Icahn Group beneficially owns or has economic exposure to any  shares of Company Common Stock.  Section 3.4. Good Title Conveyed. If such member of the Icahn Group is a Seller, all  Purchased Shares sold by such member of the Icahn Group hereunder are free and clear of any  and all Liens and good, valid and marketable title to such Purchased Shares effectively vests in  the Company.  Section 3.5. Absence of Litigation. There is no suit, action, investigation or proceeding  pending or, to the knowledge of such member of the Icahn Group, threatened against such party  that could impair the ability of such member of the Icahn Group to perform its obligations  hereunder or to consummate the transactions contemplated hereby.  Section 3.6. No Brokers or Tax Withholding. No member of the Icahn Group is, as of the  date hereof, and no member of the Icahn Group will become, a party to any agreement,  arrangement or understanding which could result in the Company having any obligation or  liability for any brokerage fees, commissions, underwriting discounts or other similar fees or  expenses relating to the transactions contemplated by this Agreement. No payment made by the  Company to each member of the Icahn Group that is a Seller pursuant to this Agreement is  subject to any tax withholding under the U.S. federal income tax laws.  Section 3.7. Other Acknowledgments.  (a) Each member of the Icahn Group that is a Seller hereby represents and  acknowledges that it is a sophisticated investor and that it has such knowledge and experience in  financial and business matters and in making investment decisions regarding the sale of  Purchased Shares and of making an informed investment decision. Each member of the Icahn  Group that is a Seller represents and acknowledges that the Company may have material non- public information concerning the Company and its condition (financial and otherwise), results  of operations, businesses, properties, plans and prospects and that such information could be  material to the Icahn Group’s decision to sell the Purchased Shares or otherwise materially  adverse to the Icahn Group’s interests. Each member of the Icahn Group acknowledges and  agrees, severally with respect to itself or himself only and not with respect to any other such  party, that the Company shall have no obligation to disclose to it or him any such information  





 






8    and hereby waives and releases, to the fullest extent permitted by law, any and all claims and  causes of action it has or may have against the Company and their respective Affiliates, officers,  directors, employees, agents and representatives based upon, relating to or otherwise arising out  of nondisclosure of such information or the sale of the Purchased Shares hereunder.  (b) Each member of the Icahn Group that is a Seller further represents that it  has adequate information concerning the business and financial condition of the Company to  make an informed decision regarding the sale of the Purchased Shares and has independently and  without reliance upon the Company, made its or his own analysis and decision to sell the  Purchased Shares. With respect to legal, tax, accounting, financial and other considerations  involved in the transactions contemplated by this Agreement, including the sale of the Purchased  Shares, no such member of the Icahn Group is relying on the Company (or any agent or  representative thereof). Such member of the Icahn Group has carefully considered and, to the  extent it or he believes such discussion necessary, discussed with professional legal, tax,  accounting, financial and other advisors the suitability of the transactions contemplated by this  Agreement, including the sale of the Purchased Shares. Each of member of the Icahn Group  acknowledges that none of the Company or any of their respective directors, officers,  subsidiaries or Affiliates has made or makes any representations or warranties, whether express  or implied, of any kind except as expressly set forth in this Agreement.  (c) Each member of the Icahn Group that is a Seller represents that (i) such  member is an “accredited investor” as defined in Rule 501 promulgated under the Securities Act  of 1933, as amended, and (ii) the sale of the applicable Purchased Shares by such member (x)  was privately negotiated in an independent transaction and (y) does not violate any rules or  regulations applicable to such member.  ARTICLE IV.    REPRESENTATIONS AND WARRANTIES OF THE COMPANY  The Company makes the following representations and warranties to the Icahn Group:  Section 4.1. Existence; Authority. The Company is a Delaware corporation that is duly  incorporated, validly existing and in good standing under the laws of the State of Delaware. The  Company has all requisite corporate power, authority and capacity to execute and deliver this  Agreement, to perform its obligations hereunder and to consummate the transactions  contemplated hereby and has taken all necessary corporate action to authorize the execution,  delivery and performance of this Agreement.  Section 4.2. Enforceability. This Agreement has been duly and validly executed, and,  assuming due and valid authorization, execution and delivery by the Icahn Group, this  Agreement will constitute a legal, valid and binding obligations of the Company, enforceable  against it in accordance with its terms, except as such enforceability may be affected by  bankruptcy, insolvency, moratorium and other similar laws relating to or affecting creditors’  rights generally and general equitable principles. The purchase of the Purchased Shares by the  Company (i) was privately negotiated in an independent transaction and (ii) does not violate any  rules or regulations applicable to the Company.  





 






9    Section 4.3. Absence of Litigation. There is no suit, action, investigation or proceeding  pending or, to the knowledge of the Company, threatened against the Company that could impair  its ability to perform its obligations hereunder or to consummate the transactions contemplated  hereby.  Section 4.4. No Brokers. The Company is not, as of the date hereof, and will not  become, a party to any agreement, arrangement or understanding which could result in the any  member of the Icahn Group having any obligation or liability for any brokerage fees,  commissions, underwriting discounts or other similar fees or expenses relating to the transactions  contemplated by this Agreement.  ARTICLE V.    CONDITIONS PRECEDENT  Section 5.1.  Conditions of the Sellers’ Obligations at Closing.  The obligation of the  Sellers to sell the Purchased Shares is subject to the fulfillment, on or before the Closing, of each  of the following conditions, unless otherwise waived:  (a) The representations and warranties contained in Article IV shall be true  and correct in all respects as of Closing.  (b) The Company shall have performed and complied with all covenants,  agreements, obligations and conditions contained in this Agreement that are required to be  performed or complied with by the Company on or before the Closing.  (c) No government, court, tribunal, arbitrator, administrative agency,  commission or other governmental official, authority or instrumentality shall have enacted,  issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree,  injunction or other legal restraint (whether temporary, preliminary or permanent) which is in  effect and which has the effect of making the sale of the Purchased Shares by the Sellers illegal  or otherwise prohibiting or preventing consummation of the sale of the Purchased Shares by the  Sellers.  Section 5.2. Conditions of the Company’s Obligations at Closing. The obligation of the  Company to purchase the Purchased Shares is subject to the fulfillment, on or before the Closing,  of each of the following conditions, unless otherwise waived:  (a) The representations and warranties contained in Article III shall be true  and correct in all respects as of the Closing.  (b) The Sellers shall have performed and complied with all covenants,  agreements, obligations and conditions contained in this Agreement that are required to be  performed or complied with by the Sellers on or before the Closing.   (c) No government, court, tribunal, arbitrator, administrative agency,  commission or other governmental official, authority or instrumentality shall have enacted,  issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree,  





 






10    injunction, or other legal restraint (whether temporary, preliminary or permanent) which is in  effect and which has the effect of making the purchase of the Purchased Shares by the Company  illegal or otherwise prohibiting or preventing consummation of the purchase of the Purchased  Shares by the Company.  ARTICLE VI.    MISCELLANEOUS  Section 6.1. Survival. Each of the representations, warranties, covenants, and agreements  in this Agreement shall survive the consummation of the transactions contemplated hereby.  Notwithstanding any knowledge of facts determined or determinable by any party by  investigation, each party shall have the right to fully rely on the representations, warranties,  covenants and agreements of the other parties expressly contained in this Agreement or in any  other documents or papers required to be delivered by this Agreement. Each representation,  warranty, covenant and agreement of the parties contained in this Agreement is independent of  each other representation, warranty, covenant and agreement. Except as expressly set forth in this  Agreement, no party has made any representation warranty, covenant or agreement.  Section 6.2. Notices. All notices, requests, claims, demands and other communications  hereunder shall be in writing and shall be given (and shall be deemed to have been duly given if  so given) by hand delivery, cable, telecopy, mail (registered or certified, postage prepaid, return  receipt requested) or electronic mail to the respective parties hereto addressed as follows:  If to the Company:  Delek US Holdings, Inc.   7102 Commerce Way   Brentwood, TN 37027  Attention: Denise C. McWatters, General Counsel   Email: denise.mcwatters@delekus.com     with copy to:    Skadden, Arps, Slate, Meagher & Flom LLP   One Manhattan West   New York, New York 10001   Attention: Stephen F. Arcano  Marc S. Gerber  Email: stephen.arcano@skadden.com   marc.gerber@skadden.com  If to any member of the Icahn Group:  Icahn Capital LP  16690 Collins Avenue, PH-1  Sunny Isles Beach, FL 33160  Attention: Jesse Lynn  





 






11    Email: jlynn@sfire.com  Section 6.3. Certain Definitions. As used in this Agreement, (a) the term “Affiliate” shall  have the meaning set forth in Rule 12b-2 under the Securities Exchange Act of 1934, as  amended, and shall include persons who become Affiliates of any person subsequent to the date  hereof; (b) the term “Associate” shall mean (i)  any trust or other estate in which such person has  a substantial beneficial interest or as to which such person serves as trustee or in a similar  fiduciary capacity, and (ii) any relative or spouse of such person, or any relative of such spouse,  who has the same home as such person or who is a director or officer of such person or of any of  its parents or subsidiaries. and (c) the Company and each member of the Icahn Group are  referred to herein individually as a “party” and collectively as “parties.”  Section 6.4. Remedies. The Company and the Icahn Group acknowledge and agree that  the other would be irreparably injured by a breach of this Agreement and that money damages  are an inadequate remedy for an actual or threatened breach of this Agreement. Accordingly, the  parties agree to the granting of specific performance of this Agreement and injunctive or other  equitable relief as a remedy for any such breach or threatened breach, without proof of actual  damages, and further agree to waive any requirement for the securing or posting of any bond in  connection with any such remedy. Such remedy shall not be deemed to be the exclusive remedy  for a breach of this Agreement, but shall be in addition to all other remedies available at law or in  equity.  Section 6.5. No Waiver. Any waiver by any party hereto of a breach of any provision of  this Agreement shall not operate as or be construed to be a waiver of any other breach of such  provision or of any breach of any other provision of this Agreement. The failure of a party hereto  to insist upon strict adherence to any term of this Agreement on one or more occasions shall not  be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence  to that term or any other term of this Agreement.  Section 6.6. No Broker. Except as previously disclosed in writing to each other party, no  party has engaged any third party as broker or finder or incurred or become obligated to pay any  broker’s commission or finder’s fee in connection with the transactions contemplated by this  Agreement.  Section 6.7. Severability. If any term, provision, covenant or restriction of this  Agreement is held by a court of competent jurisdiction or other authority to be invalid or  unenforceable, the remainder of the terms, provisions, covenants and restrictions of this  Agreement shall remain in full force and effect and shall in no way be affected, impaired or  invalidated by such holding. The parties agree that the court making any such determination of  invalidity or unenforceability shall have the power to reduce the scope, duration or area of, delete  specific words or phrases in, or replace any such invalid or unenforceable provision with one that  is valid and enforceable and that comes closest to expressing the intention of such invalid or  unenforceable provision, and this Agreement shall be enforceable as so modified after the  expiration of the time within which the judgment may be appealed.  Section 6.8. Successors and Assigns. This Agreement shall be binding upon and inure to  the benefit of the parties hereto and their respective successors and assigns; provided that this  





 






12    Agreement (and any of the rights, interests or obligations of any party hereunder) may not be  assigned by any party without the prior written consent of the other parties hereto (such consent  not to be unreasonably withheld). Any purported assignment of a party’s rights under this  Agreement in violation of the preceding sentence shall be null and void.  Section 6.9. Entire Agreement; Amendments. This Agreement (including any Schedules  and Exhibits hereto) constitutes the entire agreement between the parties with respect to the  subject matter hereof and supersedes all other prior agreements and understandings, both written  and oral, among the parties with respect to the subject matter hereof and, except as expressly set  forth herein, is not intended to confer upon any person other than the parties hereto any rights or  remedies hereunder. This Agreement may be amended only by a written instrument duly  executed by the parties hereto or their respective permitted successors or assigns.  Section 6.10. Headings. The section headings contained in this Agreement are for  reference purposes only and shall not affect in any way the meaning or interpretation of this  Agreement.  Section 6.11. Governing Law. This Agreement shall be governed by and construed and  enforced in accordance with the laws of the State of Delaware, without giving effect to choice of  law principles thereof that would cause the application of the laws of any other jurisdiction.  Section 6.12. Submission to Jurisdiction. Each of the parties hereto (a) consents to  submit itself to the personal jurisdiction of the Court of Chancery or other federal or state courts  of the State of Delaware in the event any dispute arises out of this Agreement or the transactions  contemplated by this Agreement, (b) agrees that it shall not attempt to deny or defeat such  personal jurisdiction by motion or other request for leave from any such court, (c) agrees that it  shall not bring any action relating to this Agreement or the transactions contemplated by this  Agreement in any court other than the Court of Chancery or other federal or state courts of the  State of Delaware, and each of the parties irrevocably waives the right to trial by jury, (d) agrees  to waive any bonding requirement under any applicable law, in the case any other party seeks to  enforce the terms by way of equitable relief, and (e) irrevocably consents to service of process by  a reputable overnight delivery service, signature requested, to the address of such party’s  principal place of business or as otherwise provided by applicable law. THIS AGREEMENT  SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITHOUT LIMITATION  VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF  DELAWARE APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED  WHOLLY WITHIN SUCH STATE WITHOUT GIVING EFFECT TO THE CHOICE OF LAW  PRINCIPLES OF SUCH STATE.  Section 6.13. Release. Except in respect of any claim of a breach of this Agreement,  effective as of the closing of the sale of Purchased Shares (i) each of the members of the Icahn  Group that are Sellers hereby releases the Company, its stockholders, its affiliates and  successors, and all of the Company’s directors, officers, managers, employees and agents, and  agrees to hold them, and each of them, harmless from any and all claims or causes of action that  any of the Sellers may now have or know about, or hereafter may learn about, in each case,  arising from or relating to matters occurring prior to the Closing, and each of the Sellers agrees  that the Sellers will not file any claim, charge, or lawsuit for the purpose of obtaining any  





 






13    monetary awards in connection with such matters, and (ii) the Company does hereby release  each of the Sellers, their general and limited partners, affiliates and successors, and all of each of  the Sellers directors, officers, managers, members, employees and agents, and agrees to hold  them, and each of them, harmless from any and all claims or causes of action that the Company  may now have or know about, or hereafter may learn about, , in each case, arising from or  relating to matters occurring prior to the Closing, and the Company agrees that it will not file any  claim, charge, or lawsuit for the purpose of obtaining any monetary awards in connection with  such matters. The parties acknowledge that the foregoing release includes, but is not limited to,  any claim arising under any federal, state, or local law, whether statutory or judicial, or  ordinance, or any administrative regulation.  Section 6.14. Counterparts; Facsimile. This Agreement may be executed in counterparts,  including by facsimile or PDF electronic transmission, each of which shall be deemed an  original, but all of which together shall constitute one and the same Agreement.  Section 6.15. Further Assurances. Upon the terms and subject to the conditions of this  Agreement, each of the parties hereto agrees to execute such additional documents, to use  commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to  be done, and to assist and cooperate with the other parties in doing, all things necessary, proper  or advisable to consummate or make effective, in the most expeditious manner practicable, the  transactions contemplated by this Agreement.  Section 6.16.Interpretation. The parties acknowledge and agree that this Agreement has  been negotiated at arm’s length and among parties equally sophisticated and knowledgeable in  the matters covered hereby. Accordingly, any rule of law or legal decision that would require  interpretation of any ambiguities in this Agreement against the party that has drafted it is not  applicable and is hereby waived.      [SIGNATURE PAGE FOLLOWS] 





 






[Signature Page to Stock Purchase and Cooperation Agreement]  IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly  executed as of the day and year first written above.  DELEK US HOLDINGS, INC.  By: /s/ Blake Fernandez_________         Blake Fernandez         SVP Investor Relations & Market Intelligence  By: /s/ Denise McWatters_______         Denise McWatters         EVP & General Counsel  





 






[Signature Page to Stock Purchase and Cooperation Agreement between Icahn and Delek]  IEP ENERGY HOLDING LLC  By: American Entertainment Properties Corp., its sole member  By: /s/ Ted Papapostolou________________________________         Name: Ted Papapostolou         Title: Chief Financial Officer  AMERICAN ENTERTAINMENT PROPERTIES CORP.  By: /s/ Ted Papapostolou_________         Name: Ted Papapostolou         Title: Chief Financial Officer  ICAHN ENTERPRISES HOLDINGS L.P.  By: Icahn Enterprises G.P. Inc., its general partner  By: /s/ Ted Papapostolou_________ __________________________         Name: Ted Papapostolou         Title: Chief Financial Officer  ICAHN ENTERPRISES G.P. INC.  By: /s/ Ted Papapostolou_________         Name: Ted Papapostolou         Title: Chief Financial Officer  BECKTON CORP.  By: /s/ Irene March____________________________         Name: Irene March         Title: Vice President  /s/ Carl C. Icahn______________           CARL C. ICAHN  





 






Schedule A  Company Common Stock and Other Company Securities; Purchased Shares; Payments  Cert.  #  Name of  Seller  # of  Company  Common  Stock  beneficially  owned prior  to Closing   Type &  number of  other  securities of  the Company  owned prior  to Closing   # of Purchased  Shares to be  delivered by  Sellers to  Company  Payment to be  made by  Company to  Sellers  # of Company  Common Stock  beneficially owned  following the  Closing   Type & number  of other securities  of the Company  owned following  the Closing  IEP Energy  Holding LLC  6,981,800 0 3,497,268 $64,000,000 3,484,532 0  American  Entertainment  Properties  Corp.  Icahn  Enterprises  Holdings L.P.  Icahn  Enterprises  G.P. Inc  Beckton  Corp.  Carl C. Icahn  TOTAL  





 






      Exhibit A    Press Release