Cvr Energy Inc 8-K, filed Nov 3, 2026
Cvr Energy Inc (CVI)
About this 8-K
Cvr Energy Inc filed this 8-K on November 3, 2026, reporting on events of November 2, 2026.
CVR Energy, Inc. agreed to acquire St. Paul Park Refinery, Mandan Refinery and related assets for an aggregate base cash purchase price of $4,200 million. Trafigura US Holdings, Inc. and American Entertainment Properties Corp. committed $800,000,000 and up to $500,000,000 of equity investments. AI summary
Items reported
- Item 1.01: Entered into a material agreement
- Item 3.02: Unregistered sale of equity
- Item 7.01: Regulation FD disclosure
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
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Item 1.01. Entry into a Material Definitive Agreement.
Equity and Asset Purchase Agreement
On November 2, 2026, CVR Energy, Inc., a Delaware corporation (the “Company”), entered into an Equity and Asset Purchase Agreement (the “Purchase Agreement”) with Marathon Petroleum Company LP, Tesoro Refining & Marketing Company LLC, Tesoro Logistics Operations LLC, Western Refining Southwest LLC, Western Refining Terminals, LLC and Marathon Petroleum Supply and Trading LLC (collectively, the “Sellers”), each a subsidiary or affiliate of Marathon Petroleum Corporation.
Pursuant to the Purchase Agreement, the Company has agreed to acquire (i) 100% of the outstanding membership interests of St. Paul Park Refining Co. LLC, which owns the St. Paul Park Refinery, (ii) 17% of the outstanding common interests of Minnesota Pipe Line Company, LLC, (iii) 17% of the outstanding common stock of MPL Investments, Inc. and (iv) certain other assets of the Sellers, including the Mandan Refinery, the related marketing business and terminal, pipeline, rack, tankage and other logistics assets (collectively, the “Target Assets”) and to assume certain liabilities related to the Target Assets, other than specified liabilities to be retained by the Sellers. The acquisition of the Target Assets is referred to herein as the “Acquisition.”
Summary of the Terms of the Purchase Agreement
Consideration. The Company has agreed to purchase the Target Assets for an aggregate base cash purchase price of $4,200 million, subject to certain customary closing adjustments, including net working capital adjustments, in each case as of the closing of the Acquisition (the “Acquisition Closing”), and subject to other specified adjustments. The Company will also assume certain liabilities relating to the Target Assets, including environmental liabilities, whether arising before, on or after the Acquisition Closing, other than certain liabilities retained by the Sellers.
Representations, Warranties, Covenants and Indemnification. The Purchase Agreement contains customary representations, warranties and covenants of the Company and the Sellers. The representations, warranties and pre-closing covenants of the Sellers generally do not survive the Acquisition Closing, and the Company will not have post-closing indemnification rights in respect of breaches thereof, subject to specified exceptions, including for Fraud (as defined in the Purchase Agreement). Concurrent with and effective upon execution of the Purchase Agreement, the Company has arranged a representation and warranty insurance policy intended to provide coverage in the event of any breaches of certain representations and warranties, subject to applicable policy limits, exclusions, deductibles and other terms and conditions. Following the Acquisition Closing, the Sellers and the Company have agreed to indemnify each other for certain liabilities and certain breaches of the Purchase Agreement, subject to certain limitations as more particularly set forth in the Purchase Agreement. The Purchase Agreement’s covenants include obligations of the Sellers concerning the operation of the Target Assets in the ordinary course during the period between the date of the Purchase Agreement and the Acquisition Closing, subject to specified exceptions, and obligations of the parties to use reasonable best efforts to obtain required antitrust approvals. The Company is not required to accept a specified Burdensome Condition (as defined in the Purchase Agreement), including a requirement to divest either acquired refinery or the Company’s Coffeyville or Wynnewood refinery. The Company is also required to use reasonable best efforts to arrange and obtain the financing for the Acquisition (including alternative financing in specified circumstances), and the Sellers are required to use reasonable best efforts to provide customary cooperation in connection with such financing, subject to specified limitations. The Company has also represented that it has, and at all times through the Acquisition Closing will have, at least $500 million of unrestricted cash and cash equivalents, which amount will increase, upon notice to the Sellers, by up to an additional $500 million upon the deposit of the proceeds of an equity offering completed by the Company after the date of the Purchase Agreement.
Closing Conditions. Completion of the Acquisition is subject to the satisfaction or waiver of certain conditions, including expiration or termination of applicable waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and other applicable antitrust laws; the absence of legal prohibitions and specified proceedings challenging the Acquisition or seeking substantial damages in connection with it; and the accuracy of the parties’ representations and warranties and material compliance with their covenants, subject to applicable qualifications. The Company’s obligation to close is also subject to the absence of a Material Adverse Effect (as defined in the Purchase Agreement) that has occurred since the date of the Purchase Agreement and is
continuing at the Acquisition Closing, and receipt of written approval of, or other written non-objection to or authorization for, the transfer of the Mandan refinery’s hazardous waste permit by the North Dakota Department of Environmental Quality. The Acquisition is not subject to a financing condition.
Casualty and Condemnation. In the event of specified casualty or condemnation losses affecting the Target Assets prior to the Acquisition Closing, the Purchase Agreement provides, in specified circumstances and at the Sellers’ election, for the repair or restoration of the affected assets (which may delay the Acquisition Closing), a purchase price reduction or the assignment to the Company of related insurance or condemnation proceeds, but does not provide either party a right to terminate the Purchase Agreement.
Termination. The Purchase Agreement contains termination rights for the Company and the Sellers, including if the Acquisition Closing has not occurred within 270 days after execution of the Purchase Agreement, subject to extension to as late as 360 days after execution in specified circumstances relating to antitrust approvals or casualty restoration. Upon termination in specified circumstances, the Company may be required to pay a reverse termination fee equal to (i) 2% of the aggregate base purchase price, or $84 million, for failure of the antitrust closing conditions by the applicable outside date, including following the Company’s permitted rejection of a Burdensome Condition; (ii) 6%, or $252 million, for the Company’s Willful Breach (as defined in the Purchase Agreement) or a qualifying failure to close because required financing is not obtained or funded; or (iii) 4%, or $168 million, for other specified failures to close. The reverse termination fees are not cumulative. The MPC Sellers (as defined in the Purchase Agreement) may be required to pay the Company a termination fee equal to 5% of the aggregate base purchase price for the Sellers’ Willful Breach or 4% for other specified failures to close. The Purchase Agreement also provides for specific performance in certain circumstances, subject to the conditions and limitations set forth therein.
The foregoing description of the Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Purchase Agreement, which is filed as Exhibit 2.1 to this Current Report on Form 8-K (this “Current Report”) and incorporated herein by reference.
The Purchase Agreement has been included in this report to provide investors with information regarding its terms and conditions. It is not intended to provide any other factual information about the Company, the Sellers or any of their respective subsidiaries. The representations, warranties and covenants contained in the Purchase Agreement were made only for purposes of such agreement and as of specific dates, were made solely for the benefit of the parties to the Purchase Agreement, may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purpose of allocating contractual risk between the parties to the Purchase Agreement instead of establishing these matters as facts, and are subject to materiality qualifications contained in the Purchase Agreement which may differ from what may be viewed as material by stockholders of, or other investors in, the Company. Such stockholders and investors are not third-party beneficiaries under the Purchase Agreement and should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the Company, the Sellers or any of their respective subsidiaries or affiliates. Information related to the representations and warranties may change after the date of the Purchase Agreement, and any changes to such information may not be reflected in the Company’s public filings.
Commercial Investor Equity Investment
On November 2, 2026, in connection with the execution of the Purchase Agreement, the Company entered into a subscription agreement (the “Subscription Agreement”) with Trafigura US Holdings, Inc. (the “Commercial Investor”), pursuant to which the Commercial Investor agreed to purchase approximately 14,989,695 shares of the Company’s Series A-1 non-voting preferred stock (the “Commercial Preferred Stock” and, together with any additional shares of preferred or common stock issued as delay compensation, the “Commercial Investor Shares”) at a base price of $53.37 per share (the “Investment Price”), for an aggregate purchase price of $800,000,000 (the “Commercial Investor Equity Investment”). The Commercial Preferred Stock will be convertible at the holder’s election into shares of the Company’s common stock, $0.01 par value per share (the “Common Stock”), initially on a one-for-one basis upon expiration or termination of the applicable waiting period under the HSR Act. The Commercial Investor may not convert the Commercial Preferred Stock if such conversion would result in the Commercial Investor’s beneficial ownership of Common Stock exceeding 9.50% of the total outstanding Common Stock, which limitation may be waived at the
election of the Commercial Investor upon no less than sixty-one (61) days’ notice. The Commercial Preferred Stock ranks pari passu with the Common Stock, has no right to receive dividends or distributions not payable to holders of Common Stock (other than for certain specified delays), and is otherwise substantially equivalent to the Common Stock, but does not have general voting rights. The Subscription Agreement also provides for certain pricing adjustments, including for certain lower priced equity financings between the date of the Subscription Agreement and the earlier of the Acquisition Closing and termination of the Purchase Agreement in accordance with its terms, and the issuance of additional shares of Commercial Preferred Stock (or, at closing, Common Stock at the Commercial Investor’s election) as compensation for specified delays in consummation of the Acquisition or receipt of HSR Act approval for conversion of the Commercial Preferred Stock, subject to applicable conditions. Such credits will begin to accrue six months after signing, each at 1% per annum, and may accrue concurrently. The Company intends to use the proceeds of the Commercial Investor Equity Investment to partially finance the aggregate consideration for the Acquisition. In connection with the Acquisition and the Commercial Investor Equity Investment, the Company and certain of its subsidiaries entered into commercial agreements and related arrangements with affiliates of the Commercial Investor, as described below under “Commercial Agreements.”
The Commercial Investor’s obligation to consummate the Commercial Investor Equity Investment is subject to the concurrent satisfaction or waiver of the conditions to the closing of the Acquisition under the Purchase Agreement (other than conditions to be satisfied at closing, subject to their satisfaction or waiver at closing), the substantially concurrent consummation of the Acquisition, material compliance with the agreed capital plan, receipt of the specified financing and certain other customary closing conditions. The Subscription Agreement will terminate in specified circumstances, including upon termination of the Purchase Agreement in accordance with its terms. The Commercial Investor Shares will be issued in a private placement exempt from registration under Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”).
In connection with the Commercial Investor Equity Investment, concurrently with execution of the Subscription Agreement, the Company has entered into an Investor Rights Agreement (the “Investor Rights Agreement”) with the Commercial Investor, pursuant to which the Commercial Investor is entitled upon closing to certain demand, piggyback and shelf registration rights with respect to the Common Stock. Pursuant to the Investor Rights Agreement, the Commercial Investor is entitled to designate a board observer to the board of directors of the Company, which the Commercial Investor may convert at its election into the right to designate one nominee for election to the board of directors of the Company, for so long as the Commercial Investor retains at least 50% of its equity position acquired upon consummation of the Acquisition. Pursuant to the Investor Rights Agreement, the Commercial Investor is also entitled to certain information and preemptive rights upon consummation of the Acquisition, subject to certain conditions. The preemptive right applies from signing to qualifying issuances at or below the Commercial Investor’s subscription price.
The foregoing description does not purport to be complete and is qualified in its entirety by reference to the full text of the Subscription Agreement, including the Investor Rights Agreement attached thereto, which is filed as Exhibit 10.1 to this Current Report and incorporated herein by reference.
Commercial Agreements
On November 2, 2026, in connection with the execution of the Purchase Agreement and the Commercial Investor Equity Investment, a subsidiary of the Company entered into a crude oil supply agreement (the “Supply Agreement”) with Trafigura Trading LLC (the “Commercial Counterparty”) with respect to the Target Assets. The Company’s subsidiaries and the Commercial Counterparty also entered into other commercial agreements relating to the Target Assets (collectively with the Supply Agreement, the “Commercial Agreements”). The Commercial Agreements will become effective upon the later of the Acquisition Closing and the satisfaction or waiver of applicable conditions, including funding of the Commercial Investor Equity Investment, and will expire on the tenth anniversary of that effective date, subject to an extension option exercisable by the Commercial Counterparty.
Under the Commercial Agreements, the Commercial Counterparty will purchase the initial crude oil and feedstock inventories at the Mandan and St. Paul Park refineries and, under the Supply Agreement, will serve as their exclusive crude oil supply and intermediation counterparty, subject to specified exceptions. Under the Supply Agreement, the Company’s subsidiaries will determine the crude slate and nominate monthly volumes, the Commercial Counterparty will source crude oil from third parties consistent with those nominations, and title will pass to the Company’s subsidiaries as crude oil is withdrawn from designated refinery storage tanks. The Company’s subsidiaries will continue to operate the refineries
and retain exposure to refining margins. The Company’s subsidiaries will also provide related storage, logistics and transportation services and temporarily assign specified transportation and storage rights to the Commercial Investor.
The foregoing descriptions of the Commercial Agreements do not purport to be complete. The description of the Supply Agreement is qualified in its entirety by reference to the full text of the Supply Agreement, which is filed as Exhibit 10.2 to this Current Report and incorporated herein by reference.
IEP Subscription Agreement
On November 2, 2026, the Company entered into a subscription agreement (the “IEP Subscription Agreement”) with American Entertainment Properties Corp. (“AEP”), a wholly-owned corporate subsidiary of Icahn Enterprises Holdings L.P., pursuant to which AEP committed, subject to the terms and conditions thereof, to purchase shares of the Company’s Series A-2 non-voting mandatory convertible preferred stock (the “IEP Preferred Stock”) for an aggregate purchase price of up to $500,000,000 at a price per share equal to the Investment Price (the “IEP Commitment”). The IEP Preferred Stock ranks pari passu with the Common Stock, has no right to receive dividends or distributions not payable to holders of Common Stock, and is otherwise substantially equivalent to the Common Stock, but does not have general voting rights. The IEP Preferred Stock will automatically convert into Common Stock on a one-for-one basis, subject to customary adjustments, promptly following expiration of the applicable waiting period under Rule 14c-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The amount of the IEP Commitment will be automatically and permanently reduced, on a dollar-for-dollar basis, by the aggregate gross cash proceeds received by the Company from public offerings of its Common Stock consummated after the date of the IEP Subscription Agreement and before the funding of the IEP Commitment. The proceeds of the IEP Commitment, if needed, will be used solely to fund a portion of the consideration for the Acquisition.
AEP’s obligation to consummate the IEP Commitment is subject to the concurrent satisfaction or waiver of the conditions to the closing of the Acquisition under the Purchase Agreement (other than conditions to be satisfied at closing, subject to their satisfaction or waiver at closing), the substantially concurrent consummation of the Acquisition and certain other customary closing conditions. The IEP Subscription Agreement will terminate in specified circumstances, including upon termination of the Purchase Agreement in accordance with its terms or receipt by the Company of aggregate gross cash proceeds of at least $500,000,000 from such public offerings. The Company has agreed to pay AEP a non-refundable commitment fee equal to 1.00% of the aggregate commitment under the IEP Subscription Agreement, which is payable upon execution of the IEP Subscription Agreement, and to reimburse AEP’s transaction expenses. The terms of the IEP Commitment, the IEP Subscription Agreement and the IEP Stockholders Agreement (as defined below) have been approved by the Company’s Board of Directors upon the recommendation of a special committee of the Company’s Board of Directors comprised entirely of independent and disinterested directors.
IEP Stockholders and Registration Rights Agreement
In connection with the execution of the IEP Subscription Agreement, on November 2, 2026, the Company entered into a Stockholders and Registration Rights Agreement (the “IEP Stockholders Agreement”) with Icahn Enterprises L.P. (“IEP”). Pursuant to the IEP Stockholders Agreement, IEP is entitled to designate six directors to serve on the Board of Directors of the Company (the “Board”) while IEP and its controlled affiliates beneficially own more than 50% of the Company’s outstanding Common Stock and five directors while they own at least 40% but not more than 50% of the Company’s
outstanding Common Stock. Below those thresholds, IEP may designate four, three, two or one directors based on adjusted ownership thresholds of 30%, 20%, 10% and 5%, respectively, with protections against dilution based upon share issuances by the Company and adjustments for changes in board size. Reductions in IEP Board designation rights will be determined based upon IEP’s ownership percentages immediately before the Company mails its proxy statement for the next annual meeting of the Company’s stockholders in any applicable year, and such reduction will take effect at the next annual meeting of the Company’s stockholders following reduction below the applicable threshold. The IEP Stockholders Agreement also provides, at IEP’s request, for at least one qualified IEP designee to serve on each standing committee of the Board, subject to applicable law, exchange independence requirements and specified conflict exceptions, as well as IEP’s consent over the adoption, amendment or maintenance of any stockholder rights plan by the Company.
Pursuant to the IEP Stockholders Agreement, the Company will grant IEP and its affiliates certain demand, piggyback and shelf registration rights with respect to the Common Stock owned by IEP and its affiliates, subject to certain customary thresholds and conditions. In addition, under the IEP Stockholders Agreement, IEP and its affiliates may conduct an underwritten registered secondary offering of the Company’s Common Stock prior to the Acquisition Closing following or concurrently with the Company’s public offering of Shares in connection with the Acquisition, including shares sold pursuant to an underwriters’ option, on terms determined by IEP in its sole discretion. The Company has agreed to take all actions reasonably necessary to facilitate such offering. The Company will not receive any proceeds from the sale of such shares by IEP and its affiliates.
IEP and its affiliates will also be entitled to information and preemptive rights for so long as they collectively retain at least 5% of the outstanding Common Stock of the Company, with certain protections against dilution based upon share issuances by the Company.
The foregoing description does not purport to be complete and is qualified in its entirety by reference to the full text of the IEP Stockholders Agreement, which is filed as Exhibit 10.3 to this Current Report and incorporated herein by reference.
Item 3.02. Unregistered Sales of Equity Securities.
The information set forth under the headings “Commercial Investor Equity Investment” and “IEP Subscription Agreement” in Item 1.01 of this Current Report is incorporated herein by reference.
The Commercial Investor Shares and the IEP Preferred Stock will be offered and sold in reliance upon the exemption from registration provided by Section 4(a)(2) of the Securities Act, in transactions by an issuer not involving a public offering. Each of the Commercial Investor and AEP has represented that it is a “qualified institutional buyer” as defined in Rule 144A under the Securities Act or an “accredited investor” as defined in Rule 501(a) under the Securities Act and that it is not acquiring such shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act, and appropriate legends will be affixed to such securities.
Item 7.01. Regulation FD Disclosure.
On November 3, 2026, the Company announced the execution of the Purchase Agreement to acquire the Target Assets. The press release is furnished as Exhibit 99.1 to this Current Report and is incorporated by reference herein. On November 3, 2026, the Company also posted an investor presentation related to the Acquisition on the Investor Relations page of the Company’s website at www.CVREnergy.com. The presentation provides an overview of the Acquisition and its strategic rationale. The presentation is furnished as Exhibit 99.2 to this Current Report and is incorporated by reference herein.
The information in this Item 7.01, including Exhibits 99.1 and 99.2, is being furnished, not filed, pursuant to Items 7.01 and 9.01 of Form 8-K. Accordingly, the information in Item 7.01 of this Current Report, including Exhibits 99.1 and 99.2, will not be subject to liability under Section 18 of the Exchange Act, and will not be incorporated by reference into any registration statement or other document filed by the Company under the Securities Act or the Exchange Act, unless specifically identified therein as being incorporated by reference. The furnishing of information in this Item 7.01, including Exhibits 99.1 and 99.2, is not intended to, and does not, constitute a determination or admission by the Company that such information, including Exhibits 99.1 and 99.2, is material or complete, or that investors should consider this information before making an investment decision with respect to any security of the Company or any of its affiliates.
Forward-Looking Statements
This Current Report may contain forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. Statements concerning current estimates, expectations and projections about future results, performance, prospects, opportunities, plans, actions and events and other statements, concerns, or matters that are not historical facts are “forward-looking statements,” as that term is defined under the federal securities laws. These forward-looking statements include, but are not limited to, statements regarding future: statements regarding the pending acquisition of the Target Assets including the anticipated benefits, synergies and cost savings of the Acquisition, and the expected financing and closing thereof; margin uplift; potential acquisitions; margin improvement; accretion in earnings per share of over 105% or at all; synergies; continued safe and reliable operations; and other matters. You can generally identify forward-looking statements by our use of forward-looking terminology such as “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “explore,” “evaluate,” “intend,” “may,” “might,” “plan,” “potential,” “predict,” “seek,” “should,” or “will,” or the negative thereof or other variations thereon or comparable terminology. These forward-looking statements are only predictions and involve known and unknown risks and uncertainties, many of which are beyond our control. Investors are cautioned that various factors may affect these forward-looking statements, including (among others) conditions to the Acquisition Closing, including the expiration or termination of the waiting period under the HSR Act and the receipt of other required regulatory approvals; the Acquisition is not completed within the expected time frame, or anticipated benefits of the Acquisition are not realized; the intended permanent financing for the Acquisition is not consummated on favorable terms; occurrence of any event, change, or circumstance that could terminate the Purchase Agreement; demand for fossil fuels and price volatility of crude oil, other feedstocks and refined products; the ability of the Company to pay or increase cash dividends and of CVR Partners to make cash distributions; potential operating hazards; costs of compliance with existing or new laws and regulations and potential liabilities arising therefrom; our controlling shareholder’s intention regarding ownership of our Common Stock or CVR Partners’ common units; general economic and business conditions; political disturbances, geopolitical instability and tensions; existing and future laws, rulings, policies and regulations, including the reinterpretation or amplification thereof by regulators, and including but not limited to those relating to the environment, climate change, and/or the production, transportation, or storage of hazardous chemicals, materials, or substances, like ammonia; political uncertainty and impacts to the oil and gas industry and the United States economy generally as a result of actions taken by the administration, including the imposition of tariffs or changes in climate or other energy laws, rules, regulations, or policies; impacts of plant outages; potential operating hazards from accidents, fires, severe weather, tornadoes, floods, wildfires, or other natural disasters; the health and economic effects of any pandemic, and other risks. For additional discussion of risk factors which may affect our results, please see the risk factors and other disclosures included in our most recent Annual Report on Form 10-K, any subsequently filed Quarterly Reports on Form 10-Q and our other Securities and Exchange Commission (“SEC”) filings. These and other risks may cause our actual results, performance or achievements to differ materially from any future results, performance or achievements expressed or implied by these forward-looking statements. Given these risks and uncertainties, you are cautioned not to place undue reliance on such forward-looking statements. The forward-looking statements included in this Current Report are made only as of the date hereof. The Company disclaims any intention or obligation to update publicly or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except to the extent required by law.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
| * | Filed herewith. |
| † | Furnished herewith. |
| + | Schedules to and portions of this exhibit have been omitted pursuant to Items 601(a)(5) and 601(b)(2)(ii) of Regulation S-K. The Company agrees to furnish supplementally a copy of any omitted schedules and portions of this exhibit to the Securities and Exchange Commission upon request. |
| ^ | Certain portions of this exhibit have been redacted pursuant to Item 601(b)(10)(iv) of Regulation S-K. The Company agrees to furnish supplementally an unredacted copy of this exhibit to the SEC upon request. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: November 3, 2026
| CVR Energy, Inc. | ||
| By: | /s/ Richard J. Roberts, Jr. | |
| Richard J. Roberts, Jr. | ||
| Interim Chief Financial Officer, Vice President - Financial Planning & Analysis and Investor Relations | ||
Exhibit 2.1
EQUITY AND ASSET PURCHASE AGREEMENT
dated as of November 2, 2026,
by and among
Marathon Petroleum Company LP,
Tesoro Refining & Marketing Company LLC,
Tesoro Logistics Operations LLC,
Western Refining Southwest LLC,
Western Refining Terminals, LLC,
and
Marathon Petroleum Supply and Trading LLC, as Sellers
and
CVR Energy, Inc., as Purchaser
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE 1 DEFINITIONS AND INTERPRETATION | 2 | |||||
| 1.1 |
Definitions | 2 | ||||
| 1.2 |
Certain Interpretations | 31 | ||||
| ARTICLE 2 PURCHASE AND SALE | 33 | |||||
| 2.1 |
Purchase and Sale | 33 | ||||
| 2.2 |
Excluded Assets | 35 | ||||
| 2.3 |
Assumed Liabilities | 36 | ||||
| 2.4 |
Excluded Liabilities | 37 | ||||
| 2.5 |
Sale of Purchased Assets | 37 | ||||
| 2.6 |
Designation of Purchaser Affiliates | 37 | ||||
| 2.7 |
Disclaimer | 38 | ||||
| ARTICLE 3 PURCHASE PRICE | 39 | |||||
| 3.1 |
Purchase Price | 39 | ||||
| 3.2 |
Settlement Statements | 40 | ||||
| 3.3 |
Purchase Price Adjustment | 42 | ||||
| 3.4 |
Dispute Resolution | 43 | ||||
| 3.5 |
Allocation of Purchase Price | 44 | ||||
| 3.6 |
Withholding | 45 | ||||
| ARTICLE 4 CLOSING | 45 | |||||
| 4.1 |
Closing | 45 | ||||
| 4.2 |
Sellers’ Closing Deliverables | 46 | ||||
| 4.3 |
Purchaser’s Closing Deliverables | 47 | ||||
| 4.4 |
Reconciliation of Accounts | 48 | ||||
| 4.5 |
Delivery of Books and Records | 48 | ||||
| ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF SELLERS | 49 | |||||
| 5.1 |
Organization, Existence, and Qualification | 49 | ||||
| 5.2 |
Authority, Approval, and Enforceability | 49 | ||||
| 5.3 |
No Conflicts | 50 | ||||
| 5.4 |
Bankruptcy | 50 | ||||
| 5.5 |
Employment Matters | 50 | ||||
| 5.6 |
Purchased Interests | 53 | ||||
| 5.7 |
Tax | 54 | ||||
| 5.8 |
Government Consents and Approvals | 57 | ||||
| 5.9 |
Litigation | 58 | ||||
| 5.10 |
Ownership of Purchased Assets | 58 | ||||
| 5.11 |
Real Property Matters | 58 | ||||
| 5.12 |
Brokers’ Fees | 60 | ||||
| 5.13 |
Permits | 61 | ||||
| 5.14 |
Regulatory | 61 | ||||
| 5.15 |
Compliance with Laws; No Violations | 62 | ||||
| 5.16 |
Material Contracts | 62 | ||||
| 5.17 |
Financial Assurances | 63 | ||||
| 5.18 |
Anti-Corruption Laws | 63 | ||||
| 5.19 |
Financial Information | 63 | ||||
| 5.20 |
Indebtedness | 66 | ||||
i
TABLE OF CONTENTS
(continued)
| Page | ||||||
| 5.21 |
Absence of Certain Changes | 66 | ||||
| 5.22 |
IT Infrastructure and Privacy | 66 | ||||
| 5.23 |
Bank Accounts | 67 | ||||
| 5.24 |
Environmental | 67 | ||||
| 5.25 |
Operation of the Refineries and Other Assets; Condition of Assets; Continuity of Pipeline Systems. | 68 | ||||
| 5.26 |
Material Customers | 69 | ||||
| 5.27 |
Infringement | 69 | ||||
| 5.28 |
MPLC and MPLI Liabilities | 69 | ||||
| 5.29 |
No Other Representations; Non-Operated Assets | 69 | ||||
| ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER | 70 | |||||
| 6.1 |
Organization, Existence, and Qualification | 70 | ||||
| 6.2 |
Authority, Approval, and Enforceability | 70 | ||||
| 6.3 |
No Conflicts | 70 | ||||
| 6.4 |
Bankruptcy | 71 | ||||
| 6.5 |
Government Consents and Approvals | 71 | ||||
| 6.6 |
Compliance with Laws | 71 | ||||
| 6.7 |
Independent Evaluation | 71 | ||||
| 6.8 |
Financing | 72 | ||||
| 6.9 |
Brokers’ Fees | 73 | ||||
| 6.10 |
Accredited Investor | 73 | ||||
| 6.11 |
Certifications | 74 | ||||
| 6.12 |
Solvency | 74 | ||||
| ARTICLE 7 CONDUCT OF OPERATIONS | 74 | |||||
| 7.1 |
Conduct of Operations Pending Closing | 74 | ||||
| 7.2 |
Notice | 80 | ||||
| 7.3 |
Termination of Intercompany Arrangements | 81 | ||||
| 7.4 |
Control of Assets and Businesses | 81 | ||||
| ARTICLE 8 COVENANTS | 81 | |||||
| 8.1 |
Access | 81 | ||||
| 8.2 |
Confidentiality | 83 | ||||
| 8.3 |
Non-Solicitation; Non-Competition | 86 | ||||
| 8.4 |
Public Announcements | 87 | ||||
| 8.5 |
Books and Records | 87 | ||||
| 8.6 |
Excluded Trademarks; Company Names | 88 | ||||
| 8.7 |
Antitrust Regulatory Approvals | 88 | ||||
| 8.8 |
Financing; Cooperation | 91 | ||||
| 8.9 |
Permits; Corrective Action Orders; Consents | 96 | ||||
| 8.10 |
Benzene Waste Operations NESHAP and Risk Management Program Matters | 99 | ||||
| 8.11 |
Wrong Pockets | 100 | ||||
| 8.12 |
Amendment of Schedules | 100 | ||||
| 8.13 |
Replacement Bonds | 100 | ||||
| 8.14 |
Benzene and Sulfur Reporting, RINs Compliance and SRE | 101 | ||||
| 8.15 |
One Call; Utilities | 102 | ||||
| 8.16 |
R&W Insurance Policy | 103 | ||||
| 8.17 |
Casualties; Takings | 104 | ||||
ii
TABLE OF CONTENTS
(continued)
| Page | ||||||
| 8.18 |
License | 107 | ||||
| 8.19 |
Affiliate Closing Deliverables | 107 | ||||
| 8.20 |
NDDEQ Waste Permit | 107 | ||||
| ARTICLE 9 CONDITIONS TO CLOSING | 107 | |||||
| 9.1 |
Conditions Precedent to Obligations of the Purchaser | 107 | ||||
| 9.2 |
Conditions Precedent to Obligations of the Sellers | 109 | ||||
| 9.3 |
Sellers’ Conditions Not Fulfilled | 109 | ||||
| 9.4 |
Purchaser Conditions Not Fulfilled | 110 | ||||
| 9.5 |
Termination | 110 | ||||
| 9.6 |
Effect of Termination; Remedies | 112 | ||||
| ARTICLE 10 SURVIVAL; REMEDIES | 115 | |||||
| 10.1 |
Survival | 115 | ||||
| 10.2 |
Sellers’ Indemnity | 116 | ||||
| 10.3 |
Purchaser’s Indemnity | 116 | ||||
| 10.4 |
Waiver and Release | 117 | ||||
| 10.5 |
Indemnification Procedures | 117 | ||||
| 10.6 |
Non-Third Party Claims | 119 | ||||
| 10.7 |
Limitation on Liability | 119 | ||||
| 10.8 |
Exclusive Remedies | 119 | ||||
| ARTICLE 11 EMPLOYEES AND EMPLOYEE BENEFITS | 120 | |||||
| 11.1 |
Employees | 120 | ||||
| 11.2 |
Employee Benefits | 122 | ||||
| 11.3 |
Transfer of OSHA Records | 125 | ||||
| 11.4 |
Collective Bargaining Agreements | 125 | ||||
| ARTICLE 12 INSURANCE | 126 | |||||
| 12.1 |
Marathon Policies | 126 | ||||
| 12.2 |
Claims under Marathon Policies | 126 | ||||
| 12.3 |
The Purchaser Indemnity | 127 | ||||
| 12.4 |
Payment of Retrospective Premiums | 127 | ||||
| ARTICLE 13 INTELLECTUAL PROPERTY | 127 | |||||
| 13.1 |
Limited Transfer of Intellectual Property Rights | 127 | ||||
| ARTICLE 14 TAX MATTERS | 127 | |||||
| 14.1 |
Transfer Taxes | 127 | ||||
| 14.2 |
Asset Tax Allocation | 128 | ||||
| 14.3 |
Certain Tax Returns | 129 | ||||
| 14.4 |
Tax Refunds | 129 | ||||
| 14.5 |
Purchaser Tax Covenants | 130 | ||||
| 14.6 |
Nature of Payments | 130 | ||||
| 14.7 |
Certain Tax Elections | 130 | ||||
| 14.8 |
Cooperation | 130 | ||||
| ARTICLE 15 ENVIRONMENTAL MATTERS | 131 | |||||
| 15 .1 |
Environmental Liabilities | 131 | ||||
| 15.2 |
Acceptance | 131 | ||||
| 15.3 |
Environmental Indemnity | 131 | ||||
| 15.4 |
Insurance Requirements | 132 | ||||
| 15.5 |
Third Party Environmental Claims | 132 | ||||
iii
TABLE OF CONTENTS
(continued)
| Page | ||||||
| ARTICLE 16 GENERAL |
132 | |||||
| 16.1 |
Expenses | 132 | ||||
| 16.2 |
Notices | 133 | ||||
| 16.3 |
Governing Law | 134 | ||||
| 16.4 |
Jurisdiction | 134 | ||||
| 16.5 |
Waiver of Jury Trial | 134 | ||||
| 16.6 |
Specific Performance | 135 | ||||
| 16.7 |
Time of Essence | 136 | ||||
| 16.8 |
Further Assurances | 136 | ||||
| 16.9 |
Entire Agreement | 136 | ||||
| 16.10 |
Amendment and Waivers | 136 | ||||
| 16.11 |
Severability | 137 | ||||
| 16.12 |
Successors and Assigns; Assignment | 137 | ||||
| 16.13 |
Third Party Beneficiaries | 137 | ||||
| 16.14 |
Financing Sources | 138 | ||||
| 16.15 |
Nonrecourse | 139 | ||||
| 16.16 |
Counterparts | 139 | ||||
iv
| Exhibits | ||||
| Exhibit A |
- | Form of Assignment and Bill of Sale | ||
| Exhibit B-1 |
- | Minnesota Form of Deed | ||
| Exhibit B-2 |
- | North Dakota Form of Deed | ||
| Exhibit C |
- | Form of Easement Assignment | ||
| Exhibit D |
- | Form of Lease Assignment | ||
| Exhibit E |
- | Form of Stock Power | ||
| Exhibit F-1 |
- | Form of Assignment of Membership Interests (SPPR) | ||
| Exhibit F-2 |
- | Form of Assignment of Membership Interests (MPLC) | ||
| Exhibit G |
- | Form of Trademark License Agreement | ||
| Exhibit H |
- | Form of Rack Supply Agreement | ||
| Exhibit I |
- | Form of TSA | ||
| Exhibit J |
- | Form of Asphalt Supply Agreement | ||
| Exhibit K |
- | Form of Crude Supply Agreement | ||
| Exhibit L |
- | Form of Mutual Aid Agreement | ||
v
EQUITY AND ASSET PURCHASE AGREEMENT
THIS EQUITY AND ASSET PURCHASE AGREEMENT (this “Agreement”) is entered into as of November 2, 2026, by and among Marathon Petroleum Company LP, a limited partnership organized under the laws of the State of Delaware (“MPC”), Western Refining Southwest LLC, a limited liability company organized under the laws of the State of Delaware (“WRSW”), Tesoro Refining & Marketing Company LLC, a limited liability company organized under the laws of the State of Delaware (“TRMC”), Tesoro Logistics Operations LLC, a limited liability company organized under the laws of the State of Delaware (“TLO”), Western Refining Terminals, LLC, a limited liability company organized under the laws of the State of Delaware (“WRT”), Marathon Petroleum Supply and Trading LLC, a Delaware limited liability company (“MPST,” and collectively with MPC, WRSW, TRMC, TLO and WRT, the “Sellers,” and each individually, a “Seller”), and CVR Energy Inc., a Delaware corporation (the “Purchaser”). The Sellers and the Purchaser shall each be referred to in this Agreement as a “Party,” and collectively as the “Parties.” Capitalized terms that are used in this Agreement and not otherwise defined herein shall have the respective meanings ascribed to such terms in Article 1.
W I T N E S S E T H
WHEREAS, MPC, TRMC, TLO, WRT and MPST (each, an “Asset Seller” and, together, the “Asset Sellers”) currently directly or indirectly own the Purchased Assets, and the Asset Sellers desire to sell and assign to the Purchaser, and the Purchaser desires to purchase from the Asset Sellers, all rights and obligations of the Sellers to the Purchased Assets and the Assumed Liabilities in accordance with, and subject to the terms and conditions of, this Agreement;
WHEREAS, (a) WRSW is the owner of one hundred percent (100%) of the issued and outstanding membership interests (the “SPPR Interests”) of St. Paul Park Refining Co. LLC, a limited liability company organized under the laws of the State of Delaware (“SPPR”), and (b) TLO is the owner of (i) 1,700 common units, representing seventeen percent (17%) of the issued and outstanding common interests (the “MPLC Interests”) of Minnesota Pipe Line Company, LLC, a limited liability company organized under the laws of the State of Delaware (“MPLC”), and (ii) 1,700 shares of common stock, par value $0.01 per share, representing seventeen percent (17%) of the issued and outstanding shares (the “MPLI Interests” and together with the MPLC Interests, the “JV Interests”) of MPL Investments, Inc., a corporation organized under the laws of the State of Delaware (“MPLI”); and
WHEREAS, WRSW and TLO (collectively, the “Equity Sellers”) desire to sell and assign, to the Purchaser, and the Purchaser desires to purchase and assume from the Equity Sellers, the SPPR Interests and the JV Interests, as applicable (collectively, the “Purchased Interests”) in accordance with, and subject to the terms of, this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants, and agreements hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties agree as follows:
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ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 Definitions. In this Agreement, unless the context otherwise requires, the following terms shall have the meanings set forth below.
“Acquired Entities” means SPPR, MPLC, and MPLI.
“Adjuster” has the meaning set forth in Section 8.17(c).
“Adjustment Amount” means the MPC Adjustment Amount or the MPLX Adjustment Amount, as applicable.
“Affiliate” means, with respect to a Person, any other Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Person, and the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct, or cause the direction of, the management and policies of such Person, whether through ownership of voting securities, by contract, or otherwise. For purposes of this Agreement, (a) SPPR shall be an Affiliate of (i) WRSW prior to the Effective Time and (ii) the Purchaser from and after the Effective Time, (b) neither MPLI nor MPLC shall be an Affiliate of the Sellers, (c) none of Carl C. Icahn, any of his family members, Icahn Enterprises G.P. Inc., Icahn Enterprises L.P., Icahn Enterprises Holdings L.P., American Entertainment Properties Corp., or any of their respective Affiliates, or any portfolio company, investment fund or other entity directly or indirectly controlled by, or under common control with, any of the foregoing Persons (other than Purchaser and its Subsidiaries) shall be an Affiliate of Purchaser (d) neither MPLX nor any of its Subsidiaries (including the MPLX Sellers) shall be Affiliates of Marathon or any of its Subsidiaries (including the MPC Sellers); and (e) neither Marathon nor any of its Subsidiaries (including the MPC Sellers) shall be Affiliates of MPLX or any of its Subsidiaries (including the MPLX Sellers).
“Agreement” has the meaning set forth in the preamble hereto and shall include all Schedules and Exhibits referred to herein.
“Antitrust Law” means the HSR Act and all other Applicable Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition.
“Antitrust Regulatory Approvals” means all approvals, consents, authorizations, clearances and other confirmations from any Governmental Authority under any Antitrust Law necessary to consummate the Transactions, including any filings or consents required under Antitrust Law.
“Applicable Anti-Corruption Laws” has the meaning set forth in Section 5.18(a).
“Applicable Law” means any and all laws, statutes, rules, regulations, ordinances, acts, codes, treaties, principles of common law or equity, official directives, or orders of any Governmental Authority (whether administrative, legislative, executive, or otherwise), including judgments, orders, decisions, or decrees of courts, commissions, or bodies exercising similar functions and any and all standards, policies, or decisions of any Governmental Authority having the force of law.
2
“Applications” means the codifications owned or controlled by the Sellers or their Affiliates, which were constructed by or for the Sellers or their Affiliates using software from Third Parties.
“Aranco Pipeline” means the products pipeline which extends from the Cottage Grove Terminal to the Pine Bend Refinery as more particularly described on Schedule 1.1A.
“Asphalt Supply Agreement” means the long-term supply agreement to be entered into as of the Closing Date, substantially in the form of Exhibit J, pursuant to which MPC or its Affiliates will purchase asphalt produced at the Sites from the Purchaser or its Affiliates from and after the Closing in accordance with the terms thereof.
“Asphalt Terminal” means the asphalt terminal located at 201 St. Paul Park Road St. Paul Park, MN 55071, as more particularly described on Schedule 1.1B.
“Asset Seller” has the meaning set forth in the recitals to this Agreement.
“Asset Taxes” means (a) ad valorem, property, excise, fuel, sales, use, or similar Taxes based upon the ownership or operation of the Purchased Assets or the receipt of proceeds therefrom, and (b) any other Taxes related to the ownership or operation of the Purchased Assets or the receipt of proceeds therefrom, the non-payment of which could result in the imposition of any Encumbrance on the SPPR Interests or the Purchased Assets or any Liability on SPPR or the Purchaser, but excluding (i) Income Taxes and (ii) Transfer Taxes.
“Assigned Permits” has the meaning set forth in Section 2.1(a)(xiii).
“Assignment and Bill of Sale” means one or more assignments and bills of sale, substantially in the form of Exhibit A, pursuant to which (a) each applicable Seller grants and conveys its right, title and interest in and to the Purchased Assets (other than those Purchased Assets covered by any Deed, Lease Assignment or Easement Assignment) to the Purchaser, and the Purchaser assumes the Assumed Liabilities from the applicable Seller or (b) each applicable Acquired Entity grants and conveys any Excluded Assets or Excluded Liability from the applicable Acquired Entity.
“Assignment of Membership Interests” means an assignment of membership interests to be entered into as of the Closing, substantially in the form attached hereto as Exhibit F-1 or Exhibit F-2, as applicable, pursuant to which the applicable Equity Seller will assign and transfer to the Purchaser, and the Purchaser will acquire and assume from the Equity Seller, the applicable Purchased Interests.
“Assumed Contracts” has the meaning set forth in Section 2.1(a)(xii).
“Assumed Liabilities” has the meaning set forth in Section 2.3.
“Audited Financial Statements” has the meaning set forth in Section 5.19(a)(i).
3
“Balance Sheet Date” has the meaning set forth in Section 5.19(a)(ii).
“Base Purchase Price” means the sum of the MPC Base Purchase Price and the MPLX Base Purchase Price.
“Benefit Plan” means each (a) “employee benefit plan,” as defined in Section 3(3) of ERISA (whether or not subject to ERISA), and (b) bonus, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, equity or equity-based incentive, retention, severance or change-in-control plan, employment, disability benefit, supplemental unemployment benefit, vacation or other paid time off benefit, health or welfare, perquisite and other compensation or benefit plan, policy, contract or arrangement entered into, maintained or contributed to by SPPR or by the Sellers or any of their ERISA Affiliates for the benefit of any of the In-Scope Employees or with respect to which SPPR has Liability, excluding any Multiemployer Plan and plans, policies, or arrangements to which contributions by an employer are mandated by a Governmental Authority or by Applicable Law.
“Benzene Waste Operations NESHAP Matter” means the U.S. EPA Finding of Violation issued on January 9, 2024, to the Refineries related to alleged violations of the New Source Performance Standards (“NSPS”) for volatile organic compounds emissions from petroleum refinery wastewater systems (40 C.F.R. Part 60, Subpart QQQ), the National Emission Standards for Hazardous Air Pollutants (“NESHAP”) for Benzene Waste Operations (40 C.F.R. Part 61, Subpart FF), the NSPS and NESHAP general provisions (40 C.F.R. Part 60, Subpart A and 40 C.F.R. Part 61, Subpart A), and related provisions in its CAA Title V permits.
“Bonus Schedule” has the meaning set forth in Section 11.2(g).
“Books and Records” means the notices, correspondence, files, instruments, orders, inquiries, drawings, plans, third party equipment operating manuals, books of account, training records (solely to the extent necessary for regulatory certification or demonstrating training compliance), email inboxes of all Transferring Employees, general corporate books and records, share drives and other documents and records (including electronically stored information, to the extent reasonably practicable, but excluding software) Primarily Related to the Purchased Assets or the assets or businesses of SPPR, MPLC, or MPLI, as applicable. Notwithstanding the foregoing, “Books and Records” do not include (a) any of the foregoing which are Excluded Assets, relate exclusively to Excluded Liabilities, or are books of account and records comprising a Seller’s permanent accounting or Tax records, except for such records dated no more than four (4) years prior to the date hereof which are Exclusively Related to the Purchased Assets or the assets or businesses of SPPR, MPLC, or MPLI (“Seller Permanent Records”), (b) general corporate books and records for entities to the extent they do not relate to the Purchased Interests, Purchased Assets or Assumed Liabilities, (c) personnel, medical, and employment records for individuals, (d) books, records and files that cannot be disclosed due to confidentiality arrangements or contractual obligations imposed on the Sellers or their Affiliates, other than those that are Exclusively Related to the Purchased Assets or the business of SPPR; (e) information entitled to legal privilege, including attorney work product and attorney-client communications and is not owned by the Acquired Entities, (f) records to the extent relating to the actual or proposed acquisition or disposition of the Purchased Assets and Purchased Interests, including proposals received from or made to, and records of negotiations with, persons which are not a part of the
4
Sellers or their Affiliates and economic analyses associated therewith, (g) any handbooks, operating manuals, or similar documents or procedures that are not Exclusively Related to the Purchased Assets or the business of SPPR, and (h) any electronic and physical files, records, documentation or data to the extent backed-up or archived pursuant to the Sellers’ or their Affiliates’ usual archiving policy; provided, however, that the exclusion in clause (c) shall not apply to copies of pending grievance files excluding legally privileged documents as described in clause (e).
“Burdensome Condition” means any term, condition, obligation, requirement, limitation, prohibition, remedy, sanction or other action imposed by a Governmental Authority as a condition to granting any Antitrust Regulatory Approval that would, individually or in the aggregate, reasonably be expected to (a) result in a material adverse effect on the business, financial condition or results of operations of the Purchaser and its Subsidiaries, taken as a whole, after giving effect to the Transactions, collectively, or (b) require the transfer, disposition, divestiture or sale of either Refinery or any of the Purchaser’s or its Subsidiaries’ refineries located in Coffeyville, Kansas or Wynnewood, Oklahoma; provided that no term, condition, obligation, requirement, limitation, prohibition, remedy, sanction or other action shall constitute a Burdensome Condition solely because it requires Purchaser or any of its Subsidiaries to make any payment, incur any cost or expense, provide any undertaking, accept any behavioral remedy or restriction, or agree to any condition, limitation or obligation that would not reasonably be expected to result in the effects described in clauses (a) or (b) above.
“Business Day” means any day, other than a Saturday or a Sunday, on which commercial banks are not required or authorized to close in Findlay, Ohio.
“Casualty” means the damage or destruction of all or any portion of the Purchased Assets or the assets of SPPR by a Casualty Event for which the associated repair or replacement costs would reasonably be expected to exceed one percent (1%) of the Base Purchase Price.
“Casualty Event” means, with respect to any Purchased Asset or any material operating asset of SPPR, any sudden physical loss of, physical damage to or physical destruction of such Purchased Asset or material operating asset of SPPR resulting from an act of God, fire, explosion, collision, earthquake, windstorm, flood, cybersecurity incident, terrorist attack or similar casualty event; provided that a cybersecurity incident shall constitute a Casualty Event only to the extent it causes physical loss, damage or destruction. “Casualty Event” shall not include any loss, damage, destruction, diminution in value, business interruption, loss of revenue, operational disruption, outage, wear and tear, deterioration, depreciation, obsolescence, scheduled or unscheduled maintenance, turnaround activities or other event, circumstance or condition, in the case of each of the foregoing, to the extent arising in Ordinary Business Operations.
“Casualty Insurance Policy” means the specialized property damage and business interruption divestment insurance coverage established under Sellers’ property insurance program for the SPP Refinery, the Mandan Refinery and related assets pursuant to the applicable divestiture endorsement, providing a per-occurrence limit of One Billion Five Hundred Million U.S. Dollars ($1,500,000,000.00), subject to a per-occurrence retention of Ten Million U.S. Dollars ($10,000,000.00) and, with respect to business interruption losses, a sixty (60)-day waiting period. The Casualty Insurance Policy includes all rights to insurance proceeds attributable to covered losses, damage or occurrences arising during the Interim Period, regardless of whether such losses are adjusted, or paid during the Interim Period or after Closing. Purchaser shall be designated as additional named insured and loss payee under the Casualty Insurance Policy.
5
“Claim Notice” has the meaning set forth in Section 10.5(b).
“Clean Team Agreement” means that certain Clean Team Agreement dated as of June 24, 2026, by and among Marathon, MPLX and the Purchaser.
“Clearbrook Tankage” means two crude oil storage tanks located at the refinery logistics terminal located at 46729 179th Ave Clearbrook, MN 56634, as more particularly described on Schedule 1.1C.
“Closing” means the closing of the Transactions and completion of the sale and purchase of (a) the Purchased Assets and assumption of the Assumed Liabilities, and (b) the Purchased Interests, in each case, in accordance with the provisions of this Agreement.
“Closing Date” means the date on which the Closing occurs under this Agreement.
“Closing Settlement Statement” has the meaning set forth in Section 3.2(a).
“Code” means the Internal Revenue Code of 1986, as amended.
“Collective Bargaining Agreements” means any collective bargaining agreements, collective agreements, works council agreements, or other Contracts with a labor union, trade union, works council, association of employees, or other representative of employees.
“Competitive Activities” means, with respect to any Seller or their respective Affiliates, the posting of a rack price for Restricted Products at the Restricted Terminals.
“Compliant” means, with respect to the Required Financial Information, that (a) such Required Financial Information is complete and accurate in all material respects, (b) such Required Financial Information does not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained in such Required Financial Information not misleading in any material respect, (c) the independent accountants of the Sellers have not withdrawn any audit report with respect to the Audited Financial Statements or the Sellers or their respective boards of directors (or comparable bodies) have not determined to restate (and the independent accountants of the Sellers have not informed the Sellers that it is necessary to restate any of the Financial Statements) and (d) the Financial Statements included in the Required Financial Information would not be deemed stale under Regulation S-X promulgated under the Securities Act and the Securities Exchange Act of 1934 (“Regulation S-X”) or under customary practices for offerings and private placements of high-yield debt securities under Rule 144A promulgated under the Securities Act and are sufficient to permit the independent accountants of the Sellers to issue a customary comfort letter to the Financing Sources, in order to consummate any offering of high-yield debt securities, to the extent required as part of or in lieu of any portion of the Financing.
6
“Confidential Information” means, subject to Section 8.2(b), the facts, circumstances, and details of the Parties’ negotiations leading to this Agreement, the existence of this Agreement, the terms, conditions, and provisions of this Agreement, and all non-public information and documents, which have been disclosed to any Party or its Representatives by another Party or its Representatives in connection with this Agreement or the Transactions.
“Confidentiality Agreement” means that certain Amended & Restated Confidentiality Agreement, dated as of June 2, 2026, by and between the Purchaser, Marathon and MPLX.
“Consent” has the meaning set forth in Section 8.9(c).
“Consolidated Group” means any affiliated, combined, consolidated, unitary or similar group with respect to any Taxes (including any affiliated group within the meaning of Section 1504 of the Code) electing to file consolidated federal income Tax Returns and any similar group under non-U.S., state or local law.
“Contracts” means all contracts and agreements (whether written or oral), including franchises, warranties, understandings, arrangements, commitments, undertakings, obligations, bills of sale, licenses, registrations, authorizations, mortgages, security agreements, bonds, notes, evidence of indebtedness, indentures, letters of credit and other instruments, including, for all of the foregoing, any renewals, extensions, or modifications thereof and additions thereto, but excluding (a) all Easement Agreements, Real Property Leases, licenses, and similar instruments related to real property or immovable property, (b) all Permits and variances issued by any Governmental Authority, (c) all master services agreements (and any service orders, purchase orders, or statements of work thereunder) and other similar agreements or licenses held between a Seller or one or more Affiliates, on the one hand, and a Third Party, on the other hand, that are not (i) Exclusively Related to the Purchased Assets or the Acquired Entities or (ii) assignable and included on Schedule 2.1(a)(xii), and (d) all intercompany agreements with Affiliates of the Sellers that are not included on Schedule 2.1(a)(xii).
“Corrective Action Orders” means any order, decree, directive, settlement agreement, consent decree, consent order, administrative order, compliance order, corrective action order or other similar requirement, demand, agreement or arrangement issued by, entered into with, approved by or otherwise involving any Governmental Authority pursuant to, or in connection with, any Environmental Law, including any such requirement, demand, agreement or arrangement relating to investigation, remediation, corrective action, monitoring, reporting, compliance, emissions reductions, operational requirements, capital improvements, closure, post-closure, decommissioning or other response action.
“Cottage Grove Pipeline System” means the crude oil pipeline system, which extends from the Cottage Grove Terminal to the SPP Refinery, as more particularly described on Schedule 1.1D.
“Cottage Grove Terminal” means the refinery logistics terminal located in Cottage Grove, MN 55016, as more particularly described on Schedule 1.1E.
“COVID-19” means SARS-CoV-2 or COVID-19, and any evolutions thereof or any other related or associated epidemics, pandemics or disease outbreaks.
7
“Crude Supply Agreement” means the crude oil supply agreement to be entered into as of the Closing Date, substantially in the form of Exhibit K, pursuant to which the applicable Seller(s) or an Affiliate thereof will sell to the Purchaser or its Affiliates crude oil following the Closing.
“Data Room” means the online virtual data room that is accessed through https://services.intralinks.com/web/#workspace/20164255/documents and is maintained by or on behalf of the Sellers.
“Deeds” means with respect to each Seller Owned Real Property, one or more deeds substantially in the form attached hereto as Exhibit B-1 or Exhibit B-2, as applicable, for the jurisdiction in which the Seller Owned Real Property is located, pursuant to which the applicable Seller grants and conveys fee simple title in the applicable Seller Owned Real Property to the Purchaser or its designated Affiliate.
“Easement” means an easement, right-of-way agreement, contractual land-use or crossing license agreement or other similar agreement.
“Easement Agreement” means an easement agreement, right-of-way agreement, contractual land-use or crossing agreement, license agreement or similar agreement pursuant to which a Seller has rights in and to a Seller Easement.
“Easement Assignments” means one or more assignments, substantially in the form of Exhibit C, pursuant to which each applicable Seller grants and conveys its right, title and interest in and under Easement Agreements to the Purchaser, and the Purchaser will assume the Assumed Liabilities under the Easement Agreement from the applicable Seller.
“Effective Time” has the meaning set forth in Section 4.1.
“Employment Liabilities” means all salary and benefits payments, judgments, settlements, awards (including back pay awards granted retroactively for accrued but uncollected salary), severance, redundancy, or termination payments, wages, or fringe benefits, reinstatement, damages (including damages for unfair dismissal and termination), losses, compensation, charges, Liabilities, fines, penalties, interest claims (including Taxes and all related interest and penalties incurred directly with respect thereto) and all other amounts, however described or denominated, and all related reasonable costs, expenses, and other charges, including all attorneys’ fees and reasonable costs of litigation, hearings, proceedings, internal, and external investigations, document and data productions and discovery, settlements, judgments, awards, awards of attorneys’ fees, interest, and penalties, however described or denominated, in each case, arising out of or in any way connected to employment.
“Employment Offer” has the meaning set forth in Section 11.1(a).
“Encumbrance” means any lien, encroachment, servitude, burden, preferential right, mortgage, deed of trust, security interest, pledge, charge, restriction on transfer (including rights of first refusal or first offer or other options to purchase) or other similar encumbrance.
8
“Environment” means (a) natural resources and living organisms (including humans and the ecological systems of which they form a part), (b) (i) air (including air within buildings and air within other natural or man-made structures, whether above or below ground), (ii) water (including water on, under, or within land, or in drains or sewers, and coastal and inland waters), and (iii) land (including land under water, the soil, the sub-soil, and sediments), in each case, alone or in combination, and (c) the environment as defined in any applicable Environmental Law.
“Environmental Law” means all Applicable Law concerning Environmental Matters.
“Environmental Liability” means any losses, penalties, sanctions, expenditures, costs, expenses (including any environmental compliance credit obligations), actions, proceedings, claims, demands, damages, and any Liability, responsibility, or obligation, in each case, arising under, or in connection with, any Environmental Law or in relation to Environmental Matters in respect of the Purchased Interests, whether known or unknown, and any other Liability under Environmental Law or in relation to Environmental Matters (whether unknown, actual, or contingent) to investigate, make good, repair, reinstate, treat, clean up, or otherwise remediate any of the Purchased Assets or Hazardous Substances elsewhere, which have emanated from, onto, or arising from the operations of any of the Purchased Assets.
“Environmental Matters” means the prevention of pollution or protection of the Environment, including noise, emissions, deposits, discharges, spills, or Releases of Hazardous Substances into air, water, sewage systems, and land, the manufacture, processing, distribution, use, treatment, storage, disposal, transport, transmission, handling of, or exposure of any Person to, any Hazardous Substances, or matters otherwise relating to damage to the Environment, as well as matters relating to fuel quality, renewable fuels, greenhouse gas emissions, pipeline safety, public health and worker safety.
“Environmental Permit” means any Permit issued or required pursuant to any Environmental Law.
“Equity Rights” has the meaning set forth in Section 5.6(a).
“Equity Sellers” has the meaning set forth in the recitals to this Agreement.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
“ERISA Affiliate” means with respect to SPPR or any of the Sellers, any trade or business (whether or not incorporated) (a) under common control with SPPR or any of the Sellers within the meaning of Section 4001(b)(1) of ERISA with such entity or (b) which together with SPPR or any of the Sellers, is treated as a single employer under Section 414(t) of the Code.
“Estimated Purchase Price Allocation” has the meaning set forth in Section 3.5.
“Excluded Assets” has the meaning set forth in Section 2.2.
“Excluded Employment Liabilities” has the meaning set forth in Section 2.4(b).
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“Excluded Environmental Liabilities” means civil or criminal penalties arising out of the Benzene Waste Operations NESHAP Matter or the Risk Management Program Matter, in each case, to the extent arising from the MPC Sellers’ or SPPR’s ownership and operation of the SPP Refinery or the Mandan Refinery, as applicable, prior to the Closing, together with Liabilities arising solely from the actual offsite disposal of Hazardous Substances at third-party disposal facilities prior to the Closing (a) by the Acquired Entities or (b) in connection with the ownership or operation of the Purchased Assets, and shall not include any other Environmental Liabilities.
“Excluded Liabilities” has the meaning set forth in Section 2.4.
“Excluded Trademarks” means any and all Trademarks that may be owned or controlled by any Seller or any of their Affiliates from time to time, including any Trademarks which include “ARCO,” “Marathon,” “MPLX,” “Tesoro,” or “Western Refining,” and the “Marathon” and “MPLX” logos, together with all variations, abbreviations, transliterations, derivations, translations and acronyms thereof.
“Exclusively Related” means exclusively related to or exclusively used in or held for use in the businesses of the Acquired Entities or the Purchased Assets; provided that any de minimis usage of an asset for purposes unrelated to the businesses of the Acquired Entities or the Purchased Asset shall not result in an asset (or any related Liability) being deemed not Exclusively Related to the businesses of the Acquired Entities or the Purchased Assets, as applicable.
“FERC” has the meaning set forth in Section 5.14(a).
“Final Purchase Price Allocation” has the meaning set forth in Section 3.5.
“Final Settlement Statement” has the meaning set forth in Section 3.2(b)(i).
“Financial Assurances” has the meaning set forth in Section 5.17.
“Financial Statements” has the meaning set forth in Section 5.19(a)(ii).
“Financing” means the loans (or other forms of credit extensions), debt or equity offerings and any other financings the Purchaser may complete or enter into in accordance with this Agreement, in amounts to be provided for the purpose of satisfying the Purchaser’s obligation to purchase the Purchased Assets and the Acquired Entities and to consummate the Transactions on the Closing Date.
“Financing Commitments” means the debt and equity commitment letters (whether one or more), fee letters (whether one or more) contemplated in such commitment letters, equity purchase agreements and/or subscription agreements, loan documents (or other credit documents) or other agreements or understandings to which the Purchaser is a party (including any commercial agreements entered into in connection with any debt or equity commitment letters or other agreements or understandings), pursuant to which the financial institutions, entities, equity investors, lenders or other Persons party thereto have agreed, subject only to the conditions set forth therein, to provide or cause to be provided the Financing.
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“Financing Sources” means the Persons that have an actual or bona fide potential commitment to provide or arrange or have otherwise entered into agreements in connection with the Financing, including the parties to the Financing Commitments as providers of debt or purchasers of equity securities and any joinder agreements, indentures, credit agreements, purchase agreements or subscription agreements (or similar agreements) relating thereto and any other entity that has committed to provide, underwrite or arrange or act as an administrative, facility or placement agent in respect of all or any part of the Financing (or any credit facilities or debt or equity securities being issued as part of or in lieu of any portion of the Financing), together with their Affiliates, officers, directors, employees, limited partners, stockholders, managers, members, attorneys, advisors, agents and representatives involved in the Financing and their successors and assigns.
“Fraud” with respect to any Party means any breach or inaccuracy by such Party of any representation or warranty expressly set forth in this Agreement (as qualified by the Schedules to this Agreement and taking into account all notices or disclosures made pursuant to Section 7.2 as of the Closing Date or termination of this Agreement), which breach or inaccuracy is based on each of the following elements: (a) actual Knowledge that such representation or warranty is false (as opposed to imputed knowledge, constructive knowledge, negligent or reckless misrepresentation or a similar theory); (b) a specific intention to deceive and induce the Party to whom such false representation or warranty was made to act or refrain from acting in reliance upon it; and (c) such Party to whom such false representation or warranty is made takes or refrains from taking action in reasonable reliance upon such false representation or warranty and suffers Losses as a result thereof.
“GAAP” means the generally accepted accounting principles from time to time approved by the United States Financial Accounting Standards Board, or any successor entity thereto, applied consistently with the practices, including reasonable accounting judgments, of the Sellers.
“GAAS” means the Generally Accepted Auditing Standards established by the American Institute of Certified Public Accountants, or any successor entity thereto, applied consistently with the practices, including reasonable accounting judgments, of the Sellers.
“Governmental Authority” means: (a) any domestic or foreign government, whether national, federal, provincial, state, territorial, municipal, or local (whether administrative, legislative, executive, or otherwise) or any other instrumentality or political subdivision thereof; (b) any agency, authority, ministry, department, regulatory body, court, central bank, bureau, board, or other instrumentality having legislative, judicial, taxing, regulatory, prosecutorial, or administrative powers or functions of, or pertaining to, government; (c) any court, tribunal, commission, individual, administrator, officer, official, arbitrator, arbitration panel, or other body having adjudicative, regulatory, judicial, quasi-judicial, administrative, or similar functions; and (d) any other body or entity created under the authority of, or otherwise subject to the jurisdiction of, any of the foregoing, including any stock or other securities exchange.
“Hazardous Substances” means all pollutants, contaminants, and flammable, toxic, radioactive, corrosive, caustic, hazardous substances or materials, and waste, whether solid, liquid, gaseous, or vapor, and heat, sound, and vibration, whether alone or in combination with any substances and whether or not such pollutant, contaminant, substances, materials, or waste is
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referred to specifically in, or regulated under, any Environmental Law, including but not limited to, petroleum, petroleum products and derivatives thereof, per and polyfluoroalkyl substances, polychlorinated biphenyls, asbestos, and radioactive materials and for greater certainty, includes all substances referred to specifically in, regulated under, or for which standards of conduct or liability is imposed pursuant to, any Environmental Law.
“HSR Act” means the Hart Scott Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder.
“Hydrocarbon Inventory” means all hydrocarbon and hydrocarbon-derived inventories owned by the Sellers located at, associated with, or to be delivered to the Refineries, any of the Terminals, or the Pipeline Systems (including, in each case, in the tanks, tank bottoms, in-transit movements, line fill, propellant and unit fill), sourced or purchased to be processed at or in transit to or from the Refineries, any of the Terminals, or the Pipeline Systems, in railcars, in offsite storage or terminal facilities, or otherwise wherever located, including raw materials (including crude oil and gas), blendstocks, feedstocks, intermediate stocks, unfinished refined products, finished refined products, and by-products, in each case, used in, processed by, consumed in, or produced in connection with the Purchased Assets or the business of the Acquired Entities, including any such inventory designated as line fill owned by the Sellers in any pipelines (including the Pipeline Systems) on which the Sellers ship such inventory to or from the Refineries, any of the Terminals, or the Pipeline Systems.
“IEP” means Icahn Enterprises L.P.
“IEP Commitment Letter” means that certain equity commitment letter, dated as of the date hereof, by and between the Purchaser and IEP, pursuant to which IEP has committed to contribute up to Five Hundred Million U.S. Dollars ($500,000,000) of equity financing to the Purchaser at the Closing, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms. Notwithstanding anything to the contrary contained herein, the IEP Commitment Letter may, at the option of the Purchaser, be cancelled and/or terminated upon the increase of the “Purchaser Cash Amount” from Five Hundred Million U.S. Dollars ($500,000,000) to One Billion U.S. Dollars ($1,000,000,000) as contemplated by the definition of such term.
“IEP Cash Amount” means an amount equal to Five Hundred Million U.S. Dollars ($500,000,000), to be funded from IEP’s Unrestricted Cash.
“Income Taxes” means (a) all Taxes based upon, measured by, or calculated with respect to gross or net income, net or gross receipts (other than those in the nature of a sales, use or similar tax), or profits (including any franchise Taxes and any capital gains, alternative minimum, and net worth Taxes, but excluding ad valorem, property, excise, sales, use, real or personal property transfer or other similar Taxes), (b) Taxes based upon, measured by, or calculated with respect to multiple bases (including corporate franchise, doing business or occupation Taxes) if one or more of the bases upon which such Tax may be based, measured by or calculated with respect to is included in clause (a) above, or (c) withholding Taxes measured with reference to or as a substitute for any Tax included in clause (a) or (b) above.
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“Indebtedness” means, of any Person, without duplication, (a) all liabilities with respect to indebtedness for borrowed money or indebtedness issued or incurred in substitution or exchange for indebtedness for borrowed money, (b) indebtedness evidenced by any note, bond, debenture, mortgage or other debt instrument or debt security, (c) obligations under any performance bond, letter of credit, banker’s acceptance or similar facility, but only to the extent drawn or called prior to the Closing, (d) obligations under any lease arrangements that are classified as a capitalized lease agreement in the Required Financial Information or would be capitalized under GAAP (without giving effect to ASC 842), (e) obligations for purchase price adjustments, the deferred purchase price of property, assets, services or equity interests, including “earn-outs”, “seller notes” and other similar payments (but excluding any trade payables to the extent included as current liabilities in Working Capital), assuming maximum amounts earned (whether contingent or otherwise), (f) obligations under any non-operating derivative financial instruments, including commodity swaps, interest rate swaps, collars, caps, hedging, currency exchange and other derivative and similar arrangements (in each case, including any breakage cost or termination fee, assuming termination thereof on the Closing Date), (g) guarantees with respect to any indebtedness of any other Person of a type described in clauses (a) through (f) above, and (h) for clauses (a) through (g) above, all accrued interest thereon, if any, and any termination fees, prepayment penalties, “breakage” costs or similar payments or expenses which would be payable if such indebtedness were paid in full as of the Closing Date.
“Indemnified Party” has the meaning set forth in Section 10.5(a).
“Indemnifying Party” has the meaning set forth in Section 10.5(a).
“In-Scope Employee” means an employee who is designated by the Sellers, in accordance with Section 5.5, as an In-Scope Employee and included on Schedule 5.5(a)(i).
“Intellectual Property” means any and all intellectual property and proprietary rights of any kind, including the following: (a) patents, patent applications, patent disclosures, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions, and extensions thereof (excluding any unfiled inventions); (b) Trademarks; (c) copyrights, copyrightable works, and rights in databases, and all registrations, applications, moral rights, and renewals in connection therewith; (d) trade secrets, know-how, inventions (whether patentable or unpatentable and whether or not reduced to practice (but only to the extent not covered by clause (a))), processes, techniques, protocols, methods, formulae, algorithms, models, methodologies, confidential or proprietary information; (e) internet domain names and social media accounts; (f) rights of publicity and privacy; and (g) all registrations, licenses, sublicenses, agreements, and permissions related to any of the foregoing (excluding applications covered by clause (a)), and all rights to sue or recover for past, present, or future infringement, misappropriation, dilution, or other violation of any of the foregoing.
“Interim Financial Statements” has the meaning set forth in Section 5.19(a).
“Interim Period” means the period from the date hereof up to the Effective Time or termination of this Agreement, as applicable.
“IRS” means the United States Internal Revenue Service.
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“IT Infrastructure” means the IT-related hardware and computer programs held by any Seller or SPPR (excluding the Applications) that are used in or held for use in the businesses of the Acquired Entities or the Purchased Assets, including, as applicable, enterprise infrastructure, corporate networks, computing systems and internet systems, enterprise identity and access management (IAM), cybersecurity tools and hardware (e.g., firewalls), cloud tenants, email platforms, collaboration platforms (e.g., SharePoint), Enterprise Resource Planning environments (e.g., SAP and Workday), shared data repositories, and corporate backup and disaster recovery platforms.
“JV Interests” has the meaning set forth in the recitals to this Agreement.
“Knowledge” or “knowledge” means (a) with respect to the Sellers, the actual knowledge of the applicable Persons listed on Schedule 1.1F after reasonable inquiry of the executive of Sellers, and only such executive, who has primary responsibility for the matter at issue, and (b) with respect to the Purchaser, the actual knowledge of the applicable Persons listed on Schedule 1.1G after reasonable inquiry of the executive of Purchaser, and only such executive, who has primary responsibility for the matter at issue.
“Lease Assignments” means one or more assignments, substantially in the form of Exhibit D pursuant to which each applicable Seller grants and conveys its tenant interest in and under each Real Property Lease to the Purchaser, and the Purchaser will assume the Assumed Liabilities under the Real Property Leases from the applicable Seller.
“Liability” means, with respect to any Person, any debt, liability, obligation, or responsibility of such Person of any kind, character, or description, whether known or unknown, asserted or unasserted, absolute or contingent, fixed or unfixed, accrued or not accrued, disputed or undisputed, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, executory, determined, determinable, or otherwise, whenever or however arising (including whether arising out of any contract or tort based on negligence or strict liability), including any fines, penalties, losses, costs, interest, charges, expenses, damages, assessments, deficiencies, judgments, awards or settlements, and regardless of whether such item would be required by GAAP to be reflected in the financial statements of such Person or disclosed in the notes thereto (including attorneys’ fees and other costs incurred in defending a claim).
“Licensed IP” means the Intellectual Property owned by Sellers or their Affiliates and Exclusively Related to the Purchased Assets or the businesses of the Acquired Entities, where such Intellectual Property is not a Purchased IP; provided, however, that “Licensed IP” shall not include any Intellectual Property to the extent embodied in any handbooks, operating manuals, standards, procedures or similar documents or materials that are not Exclusively Related to the Purchased Assets or the businesses of the Acquired Entities.
“Logistics Racks” means the Mandan Refinery Logistics LPG Truck Rack, the Mandan Refinery Logistics Rail Rack and Trackage, and the SPPR Refinery Logistics Heavy Products Loading Rack.
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“Losses” means all losses, damages, costs, expenses, Liabilities, obligations (including corrective and remedial obligations), responsibilities, bonding and appellate costs, and claims of any kind (including any claims arising in any Proceedings and including attorneys’ fees and expenses and fees and expenses of accountants, engineers, consultants and investigators, in each case as may be incurred in the investigation or defense of any of the same or in asserting any rights hereunder).
“Mandan Refinery” means the high-conversion, complex Mandan refinery, located at 900 Old Red Trail NE Mandan, ND 58554, as more particularly described on Schedule 1.1H.
“Mandan Refinery Clean Products Terminal” means the clean products terminal located at 900 Old Red Trail NE Mandan, North Dakota 58554, as more particularly described on Schedule 1.1I.
“Mandan Refinery Logistics LPG Truck Rack” means the refinery logistics LPG truck rack located at the Mandan Refinery as more particularly described on Schedule 1.1J.
“Mandan Refinery Logistics Rail Rack and Trackage” means the refinery logistics rail rack and trackage located at the Mandan Refinery as more particularly described on Schedule 1.1K.
“Mandan Refinery Logistics Tanks” means the certain refinery logistics tanks located at the Mandan Refinery, as more particularly described on Schedule 1.1L.
“Marathon” means Marathon Petroleum Corporation, a corporation organized under the laws of the State of Delaware.
“Marathon Equity Plan” has the meaning set forth in Section 11.2(h).
“Marathon Policies” has the meaning set forth in Section 12.1.
“Marketing Period” means the period of fifteen (15) consecutive Business Days, beginning no earlier than November 4, 2026, throughout and at the end of which Purchaser shall have the Required Financial Information and such Required Financial Information is Compliant (it being understood and agreed that if the Required Financial Information is not Compliant at any time during such fifteen (15) consecutive Business Day period, the Marketing Period shall terminate and restart when such Required Financial Information is Compliant); provided that (i) none of Veteran’s Day, the Wednesday immediately before Thanksgiving Day, Thanksgiving Day, the Friday immediately following Thanksgiving, Martin Luther King Jr. Day, President’s Day, Good Friday, Memorial Day, Observed Juneteenth (June 18, 2027) or Observed Independence Day (July 5, 2027) shall be included in any Marketing Period and (ii) if such period has not ended on or prior to December 18, 2026, then such fifteen (15) Consecutive Business Day period will not commence until January 4, 2027; and provided further that, so long as the Interim Financial Statements are delivered on or before the date of this Agreement and remain Compliant throughout such period, the Marketing Period shall terminate on December 15, 2026.
“Material Adverse Effect” means any event, change, effect, result, occurrence, condition or circumstance that, individually or in the aggregate, has had or would reasonably be expected to have a material adverse effect on (a) the ownership, operation or maintenance of the Purchased Assets, the ownership of the Purchased Interests, or the assets, liabilities, condition (financial or
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otherwise) or business of SPPR, in each case taken as a whole, or (b) the ability of Sellers to consummate the Transactions; provided, however, that, solely for purposes of clause (a), the term “Material Adverse Effect” shall not include any adverse effect resulting from (i) entering into this Agreement, the announcement, pendency or consummation of the Transactions or the identity of Purchaser, including any loss of employees, customers, suppliers, counterparties or other business relationships resulting from any of the foregoing, (ii) changes in general market, economic, financial, regulatory or political conditions generally, including any change in commodity prices, feedstock pricing, fuel supply, transportation markets, interest rates or currency exchange rates, in the area in which the Purchased Assets are located, the United States or worldwide, (iii) conditions or changes in conditions generally affecting the petroleum refining, transportation, marketing, terminaling or pipeline industries, whether generally, regionally or in any area in which the Purchased Assets are located, (iv) acts of God, storms, meteorological events, earthquakes, floods, fires or other casualty events, except to the extent resulting in a Casualty and such Casualty otherwise satisfies the requirements to be taken into account in determining whether a Material Adverse Effect has occurred for purposes of this definition, (v) strikes, slowdowns, lockouts, work stoppages or other labor disruptions, whether pending or threatened, (vi) general orders, actions or failures to act of Governmental Authorities, other than any such order or action that is specifically directed at the Purchased Assets, the Purchased Interests or SPPR and results from a breach or violation by Sellers or SPPR of Applicable Law or any Order, (vii) civil unrest or similar disorder, the outbreak, cessation or resumption of hostilities, terrorist acts, cyberattacks or war except to the extent resulting in a Casualty and such Casualty otherwise satisfies the requirements to be taken into account in determining whether a Material Adverse Effect has occurred for purposes of this definition, (viii) any action taken or omitted to be taken by or at the written request, or with the prior written consent, of Purchaser, or as expressly required by this Agreement, (ix) any matter that is cured or no longer exists by the earlier of the Closing and the termination of this Agreement, (x) any change in Applicable Law or GAAP from and after the date hereof or (xi) any epidemic, pandemic or disease outbreak, including COVID-19; provided, further, that the foregoing clauses (ii), (iii), (iv), (v), (vi), (vii), (x) and (xi) shall be taken into account in determining whether a Material Adverse Effect has occurred solely to the extent such matter has a materially disproportionate adverse impact on the Purchased Assets, the Purchased Interests or SPPR, taken as a whole, relative to similarly situated petroleum refining businesses operating in the United States, and then only the incremental disproportionate adverse impact may be taken into account.
“Material Contracts” means any Assumed Contract or Contract to which SPPR is a party or by which SPPR is bound, in each case, that (a) can reasonably be expected to result in aggregate payments by a Seller, SPPR or any of their respective Affiliates in excess of Seven Million U.S. Dollars ($7,000,000) in any calendar year; (b) which requires the payment of a penalty, liquidated damages or other amount in excess of Seven Million U.S. Dollars ($7,000,000) upon termination, excluding payment obligations solely arising from a breach thereof; (c) constitutes an indenture, mortgage, loan, credit, sale-leaseback, or similar Contract with an outstanding obligation in excess of Seven Million U.S. Dollars ($7,000,000) that will be binding on the Purchaser, the Purchased Assets, SPPR or the MPLC Interests or MPLI Interests after the Closing, or relates to the incurrence, assumption or guarantee of indebtedness for borrowed money or imposes a security interest on any of the Purchased Assets, any assets of SPPR or any of the Purchased Interests; (d) grants “most favored nations” or similar pricing to a customer or counterparty, or contains minimum volume, total requirements, or “take or pay” commitments that obligate any Seller, with respect to the Purchased Assets, or SPPR to purchase, take or pay for any minimum or specified
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volume of products, services or other goods; (e) constitutes an agreement for which the primary purpose is the allocation, indemnity, or sharing of any Tax Liabilities; (f) pursuant to which any Person has licensed Intellectual Property to SPPR or to any Seller and such Intellectual Property is used in the businesses of the Purchased Assets or the Acquired Entities, or pursuant to which SPPR has licensed Intellectual Property to a Third Party or any Seller has licensed to a Third Party any Intellectual Property that is used in the businesses of the Purchased Assets or the Acquired Entities, excluding in each case generally commercially available, off-the-shelf software programs or whereby a Seller or SPPR receives or grants a non-exclusive license to Intellectual Property that is merely incidental to goods or services received or provided under the Contract; (g) can reasonably be expected to result in aggregate payments to a Seller, SPPR or any of their respective Affiliates in excess of Seven Million U.S. Dollars ($7,000,000) in any calendar year or are otherwise with a Material Customer; (h) constitutes a Contract (i) to which SPPR is a party, on the one hand, and any Seller or any Person described in the following clause (ii) is a party, on the other hand, or (ii) with any Affiliate of a Seller or any officer, director or manager of any Seller or Affiliate of any Seller (other than any Transaction Document); (i) constitutes a non-competition or similar agreement or any agreement that purports to restrict, limit, or prohibit any Seller (with respect to the Purchased Assets, Assumed Liabilities or Purchased Interests) or SPPR from engaging in any line of business or the manner in which, or the locations at which, such Person conducts business; (j) constitutes a material pipeline or material facility operating agreement; (k) constitutes a collective bargaining agreement or other Contract with a labor union, works council, labor organization, or other employee representative; (l) constitutes a joint venture or partnership, strategic alliance or similar arrangement (however named) involving the sharing of profits, losses, costs, or liabilities; (m) constitutes a swap, option, future, collar, put, call, floor, cap, hedge, or similar instrument, contract, or agreement or other commodity or interest rate trading instrument; (n) constitutes a settlement, conciliation, or consent agreement or other Contract with a Governmental Authority pursuant to which any of the Sellers or SPPR have any material outstanding obligation after the date of this Agreement; (o) grants to any Third Party any right of first refusal, right of first offer, right of first negotiation, or other put, call or preferential purchase right with respect to any Purchased Asset, any assets of SPPR, the SPPR Interests or, to the Knowledge of Sellers, the MPLC Interests or MPLI Interests (excluding the organizational documents of such entity); or (p) any commitment, understanding, or arrangement to enter into any of the foregoing.
“Material Customer” has the meaning set forth in Section 5.26.
“Minnesota Pipe Line” means the crude oil pipeline transportation system operated by or on behalf of Flint Hills Resources, LLC or its affiliates, including the applicable lines, appurtenances, origin points and related transportation rights used to transport crude oil to the SPP Refinery.
“MPC” has the meaning set forth in the preamble to this Agreement.
“MPC Accrued Property Tax Liabilities” means the estimated amount of Property Taxes accrued and unpaid with respect to SPPR and its assets or operations for any Pre-Closing Tax Period, in each case, as determined in accordance with GAAP, but excluding Transfer Taxes.
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“MPC Adjustment Amount” means the sum of (a) the difference between the MPC Final Hydrocarbon Inventory Amount and the MPC Estimated Hydrocarbon Inventory Amount, (b) the difference between the MPC Final Non-Hydrocarbon Inventory Amount and the MPC Estimated Non-Hydrocarbon Inventory Amount, (c) the difference between the MPC Final Working Capital Amount and the MPC Estimated Working Capital Amount, (d) the difference between the MPC Final 2026 Pro-Rated Bonus Amount and the MPC Estimated 2026 Pro-Rated Bonus Amount, (e) the difference between the MPC Asset Tax Upward Adjustment set forth in the MPC Final Settlement Statement and MPC Closing Settlement Statement, and (f) the difference between the MPC Asset Tax Downward Adjustment set forth in the MPC Final Settlement Statement and MPC Closing Settlement Statement.
“MPC Asset Tax Downward Adjustment” has the meaning set forth in Section 3.1(b)(vii).
“MPC Asset Tax Upward Adjustment” has the meaning set forth in Section 3.1(b)(vi).
“MPC Base Purchase Price” means Three Billion Four Hundred Fifty Million U.S. Dollars ($3,450,000,000).
“MPC Closing Settlement Statement” has the meaning set forth in Section 3.2(a)(i).
“MPC Estimated 2026 Pro-Rated Bonus Amount” means the MPC Sellers’ good faith estimate of the MPC Final 2026 Pro-Rated Bonus Amount.
“MPC Estimated Hydrocarbon Inventory Amount” means the MPC Sellers’ good faith estimate of the aggregate amount of the Hydrocarbon Inventory attributable to the MPC Sellers as of the Effective Time, determined in accordance with Schedule 3.2(b)(iii), and set forth in the MPC Closing Settlement Statement.
“MPC Estimated Non-Hydrocarbon Inventory Amount” means the MPC Sellers’ good faith estimate of the aggregate amount of the Non-Hydrocarbon Inventory attributable to the MPC Sellers as of the Effective Time, determined in accordance with Schedule 3.2(b)(iii), and set forth in the MPC Closing Settlement Statement.
“MPC Estimated Working Capital Amount” means the MPC Sellers’ good faith estimate of the aggregate amount of the Working Capital attributable to the MPC Sellers as of the Effective Time, as computed in accordance with Schedule 1.1M and set forth in the MPC Closing Settlement Statement.
“MPC Final 2026 Pro-Rated Bonus Amount” means the aggregate amount of the target annual bonus opportunities for all Transferring Employees set forth on the Bonus Schedule that are employed for the benefit of the MPC Purchased Assets, by any MPC Seller or their respective Subsidiaries or otherwise plus the employer portion of any applicable FICA, state, local or foreign payroll, social security, unemployment or similar Taxes due with respect to such pro-rated annual bonuses; provided, that the employer portion of any applicable Taxes shall be included only to the extent that such Taxes are not expected to otherwise be paid in accordance with Ordinary Business Operations in connection with the payment of such Transferring Employee’s compensation (other than such pro-rated annual bonus) throughout the calendar year in which such pro-rated annual bonus is paid; provided further, that any amounts included in the “MPC Final 2026 Pro-Rated Bonus Amount” will not be in duplication of any amounts included in the “MPLX Final 2026 Pro-Rated Bonus Amount.”
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“MPC Final Hydrocarbon Inventory Amount” means the aggregate amount of the Hydrocarbon Inventory attributable to the MPC Sellers as of the Effective Time, determined in accordance with Schedule 3.2(b)(iii), as set forth in the MPC Final Settlement Statement.
“MPC Final Non-Hydrocarbon Inventory Amount” means the aggregate amount of the Non-Hydrocarbon Inventory attributable to the MPC Sellers as of the Effective Time, determined in accordance with Schedule 3.2(b)(iii), as set forth in the MPC Final Settlement Statement.
“MPC Final Repair Cost Amount” has the meaning set forth in Section 3.1(b)(viii).
“MPC Final Settlement Statement” has the meaning set forth in Section 3.2(b)(i).
“MPC Final Working Capital Amount” means the Working Capital attributable to the MPC Sellers as of the Effective Time, as computed in accordance with Schedule 1.1M and set forth in the MPC Final Settlement Statement.
“MPC Non-Inventory Adjustment” means the aggregate amount set forth on Schedule 3.1(b)(x).
“MPC Purchase Price” has the meaning set forth in Section 3.1(b).
“MPC Purchased Assets” means the Purchased Assets sold, conveyed, assigned, transferred and delivered by the MPC Sellers pursuant to this Agreement and excluding, for the avoidance of doubt, any MPLX Purchased Assets.
“MPC Sellers” means, collectively, MPC, WRSW, TRMC, and MPST.
“MPCA” means the Minnesota Pollution Control Agency.
“MPLC” has the meaning set forth in the recitals to this Agreement.
“MPLC Assets” means all of the assets held by MPLC.
“MPLC Interests” has the meaning set forth in the recitals to this Agreement.
“MPLI” has the meaning set forth in the recitals to this Agreement.
“MPLI Assets” means all of the assets held by MPLI.
“MPLI Interests” has the meaning set forth in the recitals to this Agreement.
“MPLX” means MPLX LP, a limited partnership organized under the laws of the State of Delaware.
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“MPLX Adjustment Amount” means the sum of (a) the difference between the MPLX Final Working Capital Amount and the MPLX Estimated Working Capital Amount, (b) the difference between the MPLX Final 2026 Pro-Rated Bonus Amount and the MPLX Estimated 2026 Pro-Rated Bonus Amount, (c) the difference between the MPLX Asset Tax Upward Adjustment set forth in the MPLX Final Settlement Statement and MPLX Closing Settlement Statement, and (d) the difference between the MPLX Asset Tax Downward Adjustment set forth in the MPLX Final Settlement Statement and MPLX Closing Settlement Statement.
“MPLX Asset Tax Downward Adjustment” has the meaning set forth in Section 3.1(c)(iv).
“MPLX Asset Tax Upward Adjustment” has the meaning set forth in Section 3.1(c)(iii).
“MPLX Base Purchase Price” means Seven Hundred Fifty Million U.S. Dollars ($750,000,000).
“MPLX Closing Settlement Statement” has the meaning set forth in Section 3.2(a)(ii).
“MPLX Estimated 2026 Pro-Rated Bonus Amount” means the MPLX Sellers’ good faith estimate of the MPLX Final 2026 Pro-Rated Bonus Amount.
“MPLX Estimated Working Capital Amount” means the MPLX Sellers’ good faith estimate of the aggregate amount of the Working Capital attributable to the MPLX Sellers as of the Effective Time, as computed in accordance with Schedule 1.1N and set forth in the MPLX Closing Settlement Statement.
“MPLX Final 2026 Pro-Rated Bonus Amount” means the aggregate amount of the target annual bonus opportunities for all Transferring Employees set forth on the Bonus Schedule that are employed for the benefit of the MPLX Purchased Assets, by any MPLX Seller or their respective Subsidiaries or otherwise, in each case solely to the extent any such annual bonus amounts are allocable to the MPLX Sellers or any of their Affiliates pursuant to that certain Omnibus Agreement, dated as of October 31, 2012, among Marathon, MPC, MPLX and the other parties thereto (or, if no such allocation is specified therein, to the extent such Transferring Employees’ services are primarily dedicated to the MPLX Purchased Assets), plus the employer portion of any applicable FICA, state, local or foreign payroll, social security, unemployment or similar Taxes due with respect to such pro-rated annual bonuses; provided, that the employer portion of any applicable Taxes shall be included only to the extent that such Taxes are not expected to otherwise be paid in accordance with Ordinary Business Operations in connection with the payment of such Transferring Employee’s compensation (other than such pro-rated annual bonus) throughout the calendar year in which such pro-rated annual bonus is paid; provided further, that any amounts included in the “MPLX Final 2026 Pro-Rated Bonus Amount” will not be in duplication of any amounts included in the “MPC Final 2026 Pro-Rated Bonus Amount.”
“MPLX Final Repair Cost Amount” has the meaning set forth in Section 3.1(c)(v).
“MPLX Final Settlement Statement” has the meaning set forth in Section 3.2(b)(i).
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“MPLX Final Working Capital Amount” means the Working Capital attributable to the MPLX Sellers as of the Effective Time, as computed in accordance with Schedule 1.1N and set forth in the MPLX Final Settlement Statement.
“MPLX Purchase Price” has the meaning set forth in Section 3.1(c).
“MPLX Purchased Assets” means the Purchased Assets sold, conveyed, assigned, transferred and delivered by the MPLX Sellers pursuant to this Agreement and excluding, for the avoidance of doubt, any MPC Purchased Assets.
“MPLX Sellers” means, collectively, TLO and WRT.
“MPST” has the meaning set forth in the preamble.
“Multiemployer Plan” means any “multiemployer plan” as defined in Section 3(37) of ERISA or 414(f) of the Code.
“Mutual Aid Agreement” means the Mutual Aid Agreement to be entered into as of the Closing Date, substantially in the form of Exhibit L.
“Neutral Auditor” has the meaning set forth in Section 3.4(a).
“NDDEQ” means the North Dakota Department of Environmental Quality .
“NDDEQ Waste Permit” means the Hazardous Waste Permit No. HW-002 issued by the NDDEQ.
“Non-Hydrocarbon Inventory” means all catalyst and precious metals inventories owned by the Sellers and used or held for use in connection with the operation of the Refineries or any of the Terminals, whether located at the Refineries, any Terminal, in railcars, in offsite storage or terminal facilities, in transit to the Refineries or any Terminal, or otherwise.
“Non-Recourse Party” has the meaning set forth in Section 16.15.
“Objection Notice” has the meaning set out in Section 3.2(b)(ii).
“ONEOK-Magellan Pipeline System” means the petroleum products pipeline transportation system associated with Magellan Pipeline Company, L.P.’s F.E.R.C. No. 157.39.0 tariff used to transport petroleum products from Central Origins to the points named therein.
“Order” means any order, injunction, judgment, decree, verdict, consent, ruling, regulation, settlement, stipulation, writ, decision, determination, directive or award of a Governmental Authority.
“Ordinary Business Operations” means, with respect to the identified Person, the ordinary course of business of such Person in all material respects consistent with such Person’s custom, practice and operating policies, including ordinary course deviations therefrom made in all material respects in accordance with such Person’s prior policies, procedures and practices;
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provided that for purposes of this Agreement, “Ordinary Business Operations” also includes any actions taken from and after the date hereof that are necessary to consummate the Transactions and ensure the orderly transition of the ownership and operation of the Purchased Assets or Purchased Interests to the Purchaser; and provided, further, that “Ordinary Business Operations” shall not include for purposes of Section 7.1 any acts, omissions or conduct restricted or prohibited under Section 7.1(b) of this Agreement during the Interim Period.
“Outside Date” means the date that is two hundred seventy (270) days after the date hereof.
“Outstanding Equity Awards” has the meaning set forth in Section 11.2(h).
“Party” and “Parties” have the meanings set forth in the preamble to this Agreement.
“Permit” means all permits, licenses, variances, authorizations, registrations, consents, filings, notices or approvals granted or issued by or obtained from any Governmental Authority that are used in connection with or necessary for the ownership, operation or maintenance of the Purchased Assets or any of the assets or businesses of SPPR, together with any renewals, extensions or modifications thereof and additions thereto or applications therefor.
“Permitted Encumbrances” means any of the following: (a) those Encumbrances set forth on Schedule 1.1O; (b) liens for Taxes not yet delinquent or, if delinquent, that are being contested in good faith by appropriate proceedings, in each case, for which adequate reserves have been established on the appropriate balance sheet in accordance with GAAP; (c) construction, mechanics’, materialmen’s, carriers’, workers’, repairers’, landlords’, and other similar liens arising or incurred in Ordinary Business Operations, or pledges, deposits, or other liens for which sufficient reserves have been established securing the performance of bids, trade Contracts, leases, or statutory obligations (including workers’ compensation, unemployment insurance, or other social security legislation), in each case, not yet delinquent or the validity or amount of which is being contested in good faith, if then appropriate, by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP, which would not, individually or in the aggregate, materially impair the use or occupancy of any Purchased Asset and SPPR or the operation of the business of the Purchased Interests or the Acquired Entities; (d) zoning, entitlement, building and other land use and environmental regulations, restrictions, activity and use limitations, and other similar requirements imposed by Governmental Authorities, which do not, individually or in the aggregate, materially interfere with the current use of the Real Property to which they relate; (e) all Encumbrances arising under approvals, Permits, licenses, orders or other authorizations issued by any Governmental Authority which do not, individually or in the aggregate, materially interfere with the current use of the Real Property to which they relate; (f) with respect to Real Property, any encroachments, protrusions, overlaps, boundary line disputes, shortages in area, gaps, gores, strips, defects, irregularities or other similar matters, individually or in the aggregate, that would not reasonably be expected to materially interfere with the current use or occupancy of any Real Property subject thereto; (g) with respect to Seller Leased Real Property or leased personal property: (i) Encumbrances existing under or as a result of any Real Property Leases or personal property leases, in each case not yet delinquent, (ii) the interests and rights of the respective lessors with respect thereto and all Encumbrances to which such lessors’ interests and rights in such Seller Leased Real Property or leased personal property are subject or (iii) Encumbrances created or evidenced by or resulting from precautionary financing
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statements or other recordings filed by lessors; (h) Encumbrances created by or through the Purchaser as of the Closing; (i) covenants, conditions, restrictions, servitudes, Easements, rights of way, declarations, reservations, defects, or irregularities of record, including gaps, in the chain of title and encroachments and other such Encumbrances affecting title to any Real Property that are of public record, in each case, that, individually or in the aggregate, would not reasonably be expected to materially interfere with the current use or occupancy of any Real Property subject thereto; (j) matters which would be disclosed by a current, accurate survey or inspection of any land, buildings, improvements, and fixtures erected thereon and all appurtenances related thereto, which would not, individually or in the aggregate, be expected to have a Material Adverse Effect on the current use or occupancy of any Real Property subject thereto; (k) non-exclusive licenses to Intellectual Property granted in the Ordinary Business Operations; (l) statutory or contractual Encumbrances of lessors or liens on the lessor’s or prior lessor’s interest; (m) consents to assignment, notices of assignment, and other similar restrictions and any required notices to, or filings with, Governmental Authorities in connection with the consummation of the Transactions; (n) all defects or irregularities resulting from the failure to record any instrument relating to the Real Property covering federal, tribal, or state lands in the records of any county, which do not individually or in the aggregate, materially interfere with the current use of the Real Property to which they relate; (o) any Encumbrance that is discharged by the Sellers at or prior to Closing; (p) all matters disclosed in any title report, survey or other real property diligence materials made available to the Purchaser; (q) the terms and conditions of any Material Contracts or of any order, Permit, license or other authorization; (r) any Encumbrances expressly referred to in the Financial Statements; (s) with respect to any equity securities, (i) Encumbrances under the organizational documents of the applicable entity and (ii) Encumbrances arising under applicable securities laws (these clauses (i) and (ii), collectively, the “Permitted Equity Encumbrances”); (t) all reservations of record of minerals, oil, gas or other hydrocarbons in and under or that may be produced from any lands constituting part of the Real Property or on which any of the Purchased Assets are located, other than any such reservations that would materially impair the current use or operation of the applicable Real Property; (u) reservations of water rights or rights to extract water, or any lack of water rights, in each case, that would not result in a Material Adverse Effect on the current use or operation of the applicable Real Property; (v) limitations on use of any Real Property, including limitations on residential, agricultural, day care or similar uses, whether set forth in deeds, environmental covenants, institutional controls, land use restrictions or other instruments affecting such Real Property, which do not, individually or in the aggregate, materially interfere with the current use or occupancy of the Real Property to which they relate; and (w) contractual Encumbrances on the Hydrocarbon Inventory or Non-Hydrocarbon Inventory pursuant to transportation, netting, set-off, terminal and storage agreements or other similar agreements constituting Assumed Contracts or Material Contracts of SPPR as of the Closing entered into in Ordinary Business Operations and not arising as a consequence of the breach thereof.
“Permitted Equity Encumbrances” has the meaning set forth in the definition of “Permitted Encumbrances.”
“Person” means any natural person, corporation, partnership, limited liability company, proprietorship, firm, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Authority, or other business organization, trust, union, association or entity.
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“Personal Information” means any information relating to an identified or identifiable natural person, device or household, including “personal data”, “personally identifiable information”, “personal information” or equivalent terms as defined in other Applicable Law.
“PHMSA” means the federal Pipeline and Hazardous Materials Safety Administration.
“Pipeline Systems” means the Aranco Pipeline and the Cottage Grove Pipeline System.
“Plan Year” has the meaning set forth in Section 11.2(e).
“Pre-Closing Tax Period” means any Tax period ending on or prior to the day immediately prior to the Closing Date and the portion of any Straddle Period ending on and including the day immediately prior to the Closing Date.
“Primarily Related” means primarily related to or primarily used in or held for use in the businesses of the Acquired Entities or the Purchased Assets; provided that any de minimis usage of an asset for purposes unrelated to the businesses of the Acquired Entities or the Purchased Asset shall not result in an asset (or any related Liability) being deemed Primarily Related to the businesses of the Acquired Entities or the Purchased Assets, as applicable.
“Proceeding” means any action, suit, complaint, citation, charge, labor grievance, audit, claim, counterclaim, examination, litigation, inquiry, investigation, citation, summons, subpoena, order, review, or other judicial or administrative proceeding (whether civil, commercial, administrative or criminal), at law or in equity, commenced, brought, conducted or heard by or before (or that would be before), or otherwise involving, any Governmental Authority or arbitrator, or any arbitration or other dispute resolution proceeding.
“Process Licenses” means, collectively, any inbound licenses identified on Schedule 1.1Z.
“Property Taxes” means real property, personal property, ad valorem and other similar Taxes. “Property Taxes” shall not include any Asset Taxes.
“Proposed Purchase Price Allocation” has the meaning set forth in Section 3.5.
“Purchase Price” has the meaning set forth in Section 3.1(a).
“Purchased Assets” has the meaning set forth in Section 2.1(a).
“Purchased Interests” has the meaning set forth in the recitals to this Agreement.
“Purchased IP” means (a) Intellectual Property to the extent it is Exclusively Related to the Purchased Assets or business of the Acquired Entities, applications and registrations thereof (if any), and any and all rights to sue or recover for past, present, or future infringement, misappropriation, dilution, or other violation thereof, (b) the Sellers’ rights and licenses to any Intellectual Property licensed to any Seller pursuant to an Assumed Contract, including Process Licenses, to the extent such rights and licenses are assignable or otherwise transferable to Purchaser, and (c) any items included in Schedule 2.1(a)(xviii).
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“Purchaser” has the meaning set forth in the preamble to this Agreement.
“Purchaser Bonus Payment” has the meaning set forth in Section 11.2(g).
“Purchaser Cash Amount” means an amount equal to Five Hundred Million U.S. Dollars ($500,000,000), to be funded from the Purchaser’s Unrestricted Cash. Upon notice to the Sellers, the Purchaser Cash Amount shall be automatically and without further action increased by up to Five Hundred Million U.S. Dollars ($500,000,000) from the deposit of Unrestricted Cash that constitutes the proceeds of any equity offerings consummated by the Purchaser after the date hereof.
“Purchaser Fundamental Representations” means the representations and warranties of the Purchaser set forth in Section 6.1 (Organization, Existence, and Qualification), Section 6.2 (Authority, Approval, and Enforceability), Section 6.3(a) (No Conflicts), and Section 6.9 (Brokers’ Fees).
“Purchaser Group Health Plan” has the meaning set forth in Section 11.2(a).
“Purchaser Indemnified Parties” means the Purchaser and its Affiliates and their respective Representatives.
“Purchaser’s DCFSA Plan” has the meaning set forth in Section 11.2(e).
“Purchaser’s Savings Plans” has the meaning set forth in Section 11.2(d).
“R&W Insurance Policy” has the meaning set forth in Section 8.16.
“Rack Supply Agreement” means the long term, supply agreement to be entered into as of the Closing Date, substantially in the form of Exhibit H, pursuant to which MPC or its Affiliates will purchase unbranded fuel produced at the Sites from the Purchaser or its Affiliates from and after the Closing in accordance with the terms thereof.
“Real Property” means the Seller Owned Real Property, the Seller Leased Real Property, the Seller Easements and the SPPR Easements.
“Real Property Leases” means the lease and sublease agreements, licenses and similar possessory real property use agreements, including amendments thereto and guaranties thereof, under which a Seller or SPPR, as tenant, lessee or sublessee, leases any Seller Leased Real Property.
“Refineries” means the SPP Refinery and the Mandan Refinery.
“Release” means any release, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, or migrating into or through the Environment.
“Released Claims and Liabilities” has the meaning set forth in Section 10.4.
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“Released Parties” has the meaning set forth in Section 10.4.
“Releasor” has the meaning set forth in Section 10.4.
“Repair Costs” has the meaning set forth in Section 8.17(b)(iii).
“Representative” means, in respect of a Party, each director, officer, employee, agent, consultant, adviser, attorney, or other authorized representative of such Party or its Affiliates, who is involved in the Transactions.
“Required Financial Information” means (a) the Financial Statements, (b) if the Closing Date is to occur more than sixty (60) days after December 31, 2026, and the Marketing Period has not terminated by such date, the audited combined balance sheets and the related audited combined statements of income, equity, and cash flows of the Purchased Assets and the Acquired Entities for the year ended December 31, 2026, (c) unaudited combined balance sheets and the related unaudited combined statements of income, equity, and cash flows of the Purchased Assets and Acquired Entities as of the end (in the case of such balance sheet) and for the period commencing after the end of the fiscal year covered by the most recent audited financial statements which have been provided pursuant to clause (a) or (b) above and ending on the last day of the most recent fiscal quarter (other than the fourth fiscal quarter) ended and at least forty (40) days prior to the Closing Date if the Marketing Period has not terminated by such date, (d) all financial information related to the Purchased Assets and Purchased Interests that are reasonably necessary for the Purchaser to prepare pro forma financial statements of the Purchaser, giving effect to the Transactions, as of December 31, 2025, for the fiscal year ended December 31, 2025 (or December 31, 2026 to the extent 2026 year end financials are required under clause (b) above) and as of and for the most recently completed interim period for which financial statements have been provided hereunder (along with the comparative period from the prior fiscal year), and related notes, in each case in accordance with Regulation S-X, provided by Sellers to the Purchaser in the agreed upon form on or prior to the date of this Agreement, and (e) all operating, business and other financial information of the Sellers as of and for the most recent period for which financial statements have been provided (including comparative information from the corresponding period in the prior fiscal year) with respect to the Purchased Assets and the Acquired Entities provided by the Sellers to the Purchaser in the agreed form on or prior to the date of this Agreement.
“Restricted Period” has the meaning set forth in Section 8.3(b).
“Restricted Persons” has the meaning set forth in Section 8.3(a).
“Restricted Products” means (a) any grade or type of finished gasoline or gasohol; (b) E85, being finished gasoline or gasohol blended with 51% - 83% ethanol by volume, generally referred to as ethanol flex fuel, and meeting the specifications in the most current version of ASTM D5798; or (c) any distillate motor fuel, including kerosene, number 1 ultra low sulfur distillate and number 2 ultra low sulfur distillate.
“Restricted Terminals” means the light product terminals set forth on Schedule 8.3(b).
“Reverse Termination Fee” means the termination fee described in Section 9.6(b) and Section 9.6(d), as applicable.
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“RFS” means the United States Renewable Fuel Standard as outlined in 40 C.F.R. Part 80.
“RINs” means renewable identification numbers assigned to each physical gallon of renewable fuel produced or imported in the United States.
“Risk Management Program Matter” means alleged violations of Section 112(r) of the Clean Air Act, Section 313 of the Emergency Planning and Community Right-To-Know Act, the Comprehensive Environmental Response, Compensation, and Liability Act, and the regulations promulgated thereunder related to operations at the Mandan Refinery referred by U.S. EPA to the Department of Justice (DOJ) as set forth in the DOJ letter dated June 23, 2026.
“Securities Act” means the Securities Act of 1933, as amended.
“Seller” or “Sellers” have the meanings set forth in the preamble to this Agreement.
“Seller Easements” means all Easements Exclusively Related to and held for the benefit of any of the Sites or any other Purchased Assets (including all construction work-in-progress in respect of the same), including those listed on Schedule 1.1P.
“Seller Fundamental Representations” means the representations and warranties of the Sellers set forth in Section 5.1 (Organization, Existence, and Qualification), Section 5.2 (Authority, Approval, and Enforceability), Section 5.3(a) (No Conflicts), Section 5.6 (Purchased Interests), Section 5.7(b)(xvi) (Tax Classification of SPPR), and Section 5.12 (Brokers’ Fees).
“Seller Indemnified Parties” means the Sellers and their Affiliates and their respective Representatives.
“Seller Leased Real Property” means the real property leased or subleased as tenant or lessee by a Seller and Exclusively Related to any of the Sites or SPPR, as set forth on Schedule 1.1Q, together with all rights, titles and interests of a Seller or any of its Affiliates in and to any buildings, structures, fixtures and other improvements located thereon (including all construction work-in-progress in respect of the same), and all rights, privileges and appurtenances related thereto.
“Seller Owned Real Property” means the land described on Schedule 1.1R, together with all buildings, structures, facilities, fixtures and other improvements located thereon and all of such Seller’s right, title and interest in all Easements, licenses, rights and appurtenances relating to the foregoing.
“Seller Permanent Records” has the meaning set forth in the definition of “Books and Records.”
“Seller Protected Parties” has the meaning set forth in Section 8.16.
“Seller Related Party” has the meaning set forth in Section 16.14,
“Seller Support Obligations” has the meaning set forth in Section 8.13.
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“Sellers’ Bank Account” means the bank accounts as the Sellers shall designate in writing, from time to time, to the Purchaser for purposes of this Agreement.
“Sellers’ DCFSA Plan” has the meaning set forth in Section 11.2(e).
“Sellers Group Health Plan” has the meaning set forth in Section 11.2(a).
“Sellers’ Warranties” has the meaning set forth in Section 2.7.
“Shipment History” means the history of the applicable Seller’s or its Affiliates’ shipments on the Pipeline Systems and the Third Party Pipeline Systems related to the Purchased Assets, during the relevant “base period” (or equivalent period) specified in the applicable pipeline’s proration policy that is used to determine history immediately preceding the Closing Date.
“Sites” means the Refineries, the Terminals, the Pipeline Systems, the Logistics Racks, and the SPPR Dock.
“SPP Refinery” means the high-conversion, complex St. Paul Park refinery, located at 301 St. Paul Park Road St. Paul Park, MN 55071, as more particularly described on Schedule 1.1S.
“SPPR” has the meaning set forth in the recitals to this Agreement.
“SPPR Dock” means the barge dock located at 4 Broadway Ave. St. Paul Park, MN, as more particularly described on Schedule 1.1T.
“SPPR Easements” means all Easements granted to or in favor of SPPR.
“SPPR Interests” has the meaning set forth in the recitals to this Agreement.
“SPPR Refinery Logistics Heavy Products Loading Rack” means the refinery logistics heavy products loading rack located at SPP Refinery, as more particularly described on Schedule 1.1U.
“SPPR Refinery Logistics Rail Loading Terminal” means the refinery logistics rail loading terminal located at SPP Refinery, as more particularly described on Schedule 1.1V.
“SPPR Refinery Logistics Tanks” means the certain refinery logistics tanks, as more particularly described on Schedule 1.1W.
“SPPR Terminal” means the refinery logistics terminal located at 125 Fourth Ave. Newport, MN 55055, as more particularly described on Schedule 1.1X.
“Stock Power” means a stock power to be entered into as of the Closing, substantially in the form of Exhibit E, pursuant to which the applicable Equity Seller will assign and transfer to the Purchaser, and the Purchaser will acquire and assume from the Equity Seller, the applicable Purchased Interests.
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“Straddle Period” means any Tax period beginning before and ending on or after the Closing Date.
“Subsidiary” means, with respect to any Person, any other Person of which (a) if a corporation, a majority of the outstanding equity securities having ordinary voting power to elect a majority of the board of directors (or other governing body) is, or (b) if a partnership, limited liability company, association, or other business entity, a majority of the equity or ownership interests is, in each case, at the time owned or controlled, directly or indirectly, by such first Person or one or more of its other Subsidiaries; provided, however, that for purposes of this Agreement, none of MPLX or any of its Subsidiaries shall be a Subsidiary of Marathon or any of its Affiliates.
“Sunoco-NuStar Pipeline System” means the MidCon North Pipeline petroleum products pipeline transportation system associated with NuStar Pipeline Operating Partnership, L.P.’s F.E.R.C. No. 16.32.0 tariff used to transport petroleum products between and among the origin and destination points identified therein.
“Taking” means a taking of all or any material portion of the Seller Owned Real Property or the SPP Refinery by condemnation or eminent domain or by agreement in lieu thereof (whether through regulation or otherwise) with any Person or Governmental Authority authorized to exercise such rights for which the associated replacement costs or expected condemnation award would reasonably be expected to exceed one percent (1%) of the Base Purchase Price.
“Tax” means (a) any federal, state, local, or non-U.S. taxes, including all income, sales, use, goods and services, harmonized sales, value added, capital, capital gains, alternative, net worth, transfer, profits, withholding, payroll, employer health, excise, franchise, real property, and personal property taxes, and any other taxes and other assessments or similar charges, each in the nature of a tax, including pension plan contributions, employment insurance, and unemployment insurance payments, and workers’ compensation premiums, together with any installments with respect thereto, and any interest, fines, penalties, similar Liabilities, and obligations, in each case, imposed, levied, collected, withheld, or assumed by any Governmental Authority in respect thereof and whether disputed or not; (b) any Liabilities or obligations for the payment of any amounts of the type described in clause (a) as a result of being a member of a Consolidated Group for any period; and (c) any Liability for the payment of any amounts of the type described in clauses (a) or (b) as a result of the operation of law or any express or implied obligation to indemnify any other Person.
“Tax Liability” means any Liability in respect of Taxes.
“Tax Return” or “Tax Returns” means all returns, information returns, reports, elections, agreements, declarations, claims for refund, statements, or other documents of any nature or kind required to be filed with any Governmental Authority in respect of Taxes, including any schedules and exhibits thereto and amendments to any of the foregoing.
“Terminals” means the Cottage Grove Terminal, the Mandan Refinery Clean Products Terminal, the SPPR Refinery Logistics Rail Loading Terminal, the SPPR Terminal and the Asphalt Terminal.
“Termination Fee” means the termination fee described in Section 9.6(c).
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“Third Party” means any Person, other than (a) a Party or its Affiliates or (b) any Person that after the date hereof becomes a successor entity of a Party or any of its Affiliates.
“Third Party Claim” has the meaning set forth in Section 10.5(b).
“Third Party Pipeline Systems” means the ONEOK-Magellan Pipeline System, the Sunoco-NuStar Pipeline System and the Minnesota Pipe Line.
“TLO” has the meaning set forth in the preamble to this Agreement.
“Trademark License Agreement” means the trademark license agreement to be entered into as of the Closing Date, substantially in the form of Exhibit G, pursuant to which the Purchaser will secure the non-exclusive right to market gasoline and diesel products under the Marathon or ARCO brands from and after the Closing in accordance with the terms thereof.
“Trademarks” means any and all trademarks, service marks, trade names, brand names, logos, emblems, trade dress, certification marks, collective marks, design marks, stylizations, slogans, taglines, domain names, social media identifiers and handles, uniform resource locators, and other indicia of origin or source, whether registered or unregistered, in any jurisdiction throughout the world, together with (a) all applications for registration thereof (including intent-to-use applications), (b) all registrations thereof, (c) all renewals, extensions, and modifications thereof, (d) all goodwill associated with and symbolized by any of the foregoing, and (e) all rights to sue and recover and retain damages, costs, and attorneys’ fees for past, present, and future infringement, dilution, or other violation of any of the foregoing.
“Transaction Documents” means this Agreement, the Assignment and Bill of Sale, the Lease Assignments, the Easement Assignments, the Stock Powers, the Assignment of Membership Interests, the Deeds, the Asphalt Supply Agreement, the Crude Supply Agreement, the Trademark License Agreement, the Rack Supply Agreement, the TSA, and any other documents executed and delivered pursuant to, or in connection with, this Agreement.
“Transactions” means the transactions contemplated by this Agreement and the other Transaction Documents.
“Transfer Taxes” means any sales Tax, excise Tax, use Tax, recording Tax, registration Tax, direct or indirect real property transfer Tax, documentary stamp Tax or similar Taxes and related fees attributable to the sale or transfer of the Purchased Assets and the Purchased Interests.
“Transferring Employee” has the meaning set forth in Section 11.1(a).
“Treasury Regulations” means the final or temporary Treasury Regulations promulgated by the U.S. Department of the Treasury under the Code.
“TRMC” has the meaning set forth in the preamble to this Agreement.
“TSA” means the Transition Services Agreement substantially in the form of Exhibit I.
“Tunney Act” means the Antitrust Procedures and Penalties Act of 1974, as amended.
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“Unrestricted Cash” means cash and cash equivalents that are (a) (i) with respect to Purchaser, held in accounts of the Purchaser (or any Subsidiary thereof) at a bank or other financial institution in the United States, or (ii) with respect to IEP, held in accounts of IEP (or any Subsidiary thereof) at a bank or other financial institution in the United States, (b) free of any Encumbrance (other than bankers’ liens arising by law), (c) not subject to any contractual, legal or regulatory restriction on use, transfer or repatriation, and (d) not committed or reserved for any other purpose, including any cash required to be swept or applied to repay indebtedness under any credit facility.
“U.S. Dollars” means the lawful currency of the United States.
“U.S. EPA” means the United States Environmental Protection Agency.
“WARN Act” has the meaning set forth in Section 5.5(e).
“Willful Breach” means, with respect to any Party, such Party knowingly and intentionally breaches in any material respect (by refusing to perform or by taking a prohibited action) any material covenant or agreement applicable to such Party.
“Working Capital” has the definition set forth on Schedule 1.1Y.
“WRSW” has the meaning set forth in the preamble to this Agreement.
“WRT” has the meaning set forth in the preamble to this Agreement.
1.2 Certain Interpretations.
(a) In this Agreement, a period of days shall be deemed to begin on the first day after the event which began such period and to end at 5:00 p.m. Eastern Time on the last day of such period. If any period of time is to expire hereunder on any day that is not a Business Day, the period shall be deemed to expire at 5:00 p.m. Eastern Time on the next succeeding Business Day. If any payment is required to be made, or other action (including the giving of notice) is required to be taken, pursuant to this Agreement, on a day which is not a Business Day, then such payment or action shall be considered to have been made or taken in compliance with this Agreement, if made or taken on the next succeeding Business Day.
(b) Notwithstanding anything to the contrary contained in any Schedule or Exhibit, in this Agreement or in any Transaction Document, the information and disclosures contained in any Section of any Schedule or Exhibit shall be deemed to be disclosed and incorporated by reference in each other Section of such Schedule or Exhibit as though fully set forth in such other Section to the extent the relevance of such information to such other Section is reasonably apparent on the face of such disclosure notwithstanding the omission of a reference or a cross-reference with respect thereto and notwithstanding any reference to a Section of such Schedule or Exhibit in this Agreement. Certain items and matters are listed in any Schedule or Exhibit for informational purposes only and may not be required to be listed therein by the terms of this Agreement. In no event shall the listing of items or matters in any Schedule corresponding to a Section contained in Article 5 or Article 6 be
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deemed or interpreted to broaden, or otherwise expand the scope of, the representations and warranties or covenants and agreements contained in this Agreement. No reference to, or disclosure of, any item or matter in any Section of this Agreement or any Section of any Schedule corresponding to a Section contained in Article 5 or Article 6 shall be construed as an admission or indication that such item or matter is material or that such item or matter is required to be referred to or disclosed in this Agreement or in such Schedule. Without limiting the foregoing, no reference to, or disclosure of, a possible breach or violation of any contract, Applicable Law or order of any Governmental Authority shall be construed as an admission or indication that a breach or violation exists or has actually occurred.
(c) In this Agreement, unless the context requires otherwise, words in one gender shall include all genders and words in the singular shall include the plural and vice versa.
(d) The division of this Agreement into Articles, Sections, and other subdivisions, the insertion of headings, and the provision of a table of contents are for convenience of reference only, shall not affect or be utilized in construing or interpreting this Agreement, and are not intended to be full or precise descriptions of the text to which they refer.
(e) Unless the context requires otherwise, references in this Agreement to Articles, Sections, Schedules, or Exhibits are to Articles, Sections, Schedules, or Exhibits of this Agreement.
(f) Any capitalized term that is a derivative or the root of a term defined in Section 1.1 shall have the same meaning given to such defined term.
(g) Wherever the words “include”, “includes”, or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation” and shall not be construed to limit any general statement that it follows to the specific items or matters immediately following it.
(h) The word “or” is not exclusive (i.e., the word “or” shall be construed to have the inclusive meaning represented by the phrase “and/or”).
(i) The word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.”
(j) The words “hereof”, “herein”, “hereto”, “hereunder”, “hereby”, and similar expressions shall be construed as referring to this Agreement in its entirety and not to any particular Section or portion of it.
(k) The words “shall” and “will” have equal meaning, force and effect and connote an obligation and an imperative and not a futurity.
(l) All references herein to “$” or “dollars” mean U.S. Dollars.
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(m) Each accounting term not defined herein shall have the meaning given to it under GAAP as interpreted as of the date hereof.
(n) Unless otherwise indicated, all references in this Agreement to any statute include the regulations thereunder, and shall mean such statute or regulations as amended, re-enacted, consolidated, or replaced from time to time.
(o) Whenever this Agreement requires an action (including any consent) or determination to be made by “the Sellers,” such action or determination shall be required to be taken or made by all of the Sellers.
(p) All references herein to any agreement (including this Agreement), document, or instrument mean such agreement, document, or instrument as amended, supplemented, modified, varied, restated, or replaced from time to time in accordance with the terms thereof and, unless otherwise specified therein, include all schedules and exhibits attached thereto.
(q) All references in this Agreement to a Party include the successors or permitted assigns of such Party.
(r) Without limiting Section 8.14, the phrases “provided,” “delivered,” “made available,” or “furnished” when used in this Agreement with respect to the delivery or viewing of information or material means that the information or materials referred to have been posted to the Data Room no later than two (2) days prior to the date hereof.
(s) The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.
ARTICLE 2
PURCHASE AND SALE
2.1 Purchase and Sale. On the terms and subject to the conditions set forth in this Agreement, at the Closing:
(a) The Sellers shall sell, convey, assign, transfer and deliver to the Purchaser, and the Purchaser shall, or shall cause one or more of its designees to, purchase, acquire and accept from the Sellers, all of each such Seller’s right, title and interest in and to the following specific assets and interests, subject to Section 2.2, Section 2.3, and Section 2.4 (the “Purchased Assets”), excepting in each case all of the Excluded Assets, free and clear of all Encumbrances (other than Permitted Encumbrances) as the same shall exist as of the Closing:
(i) the Mandan Refinery;
(ii) the SPPR Dock;
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(iii) the Terminals;
(iv) the Pipeline Systems;
(v) the Logistics Racks;
(vi) the Clearbrook Tankage;
(vii) the Mandan Refinery Logistics Tanks;
(viii) the SPPR Refinery Logistics Tanks;
(ix) the Shipment History on the Pipeline Systems and, to the extent assignable, the Third Party Pipeline Systems described on Schedule 2.1(a)(ix);
(x) the Hydrocarbon Inventory;
(xi) the Non-Hydrocarbon Inventory;
(xii) except for the Contracts included in Section 2.1(a)(xv), all Contracts that are Exclusively Related to the Purchased Assets or the business of the Acquired Entities or Primarily Related to and necessary for the ownership, operation or maintenance of the Purchased Assets or any of the assets or business of SPPR conducted as of the date hereof (other than the right, title and interest of any Acquired Entity in any such Contracts, which will be indirectly acquired by Purchaser by virtue of Purchaser acquiring the Purchased Interests), or are otherwise listed on Schedule 2.1(a)(xii), (the “Assumed Contracts”);
(xiii) all Permits (including Environmental Permits), in each case, to the extent assignable and Exclusively Related to the Purchased Assets or any of the assets or business of SPPR conducted as of the date hereof (other than the right, title and interest of SPPR in any such Permits, which will be indirectly acquired by Purchaser by virtue of Purchaser acquiring the SPPR Interests) (the “Assigned Permits”);
(xiv) the Books and Records held by, or otherwise directly or indirectly within the control of, the Sellers;
(xv) all technology and information Contracts Exclusively Related to the Purchased Assets or the Acquired Entities, including the Process Licenses and those set forth on Schedule 2.1(a)(xv);
(xvi) (A) all deposits and prepayments to the extent related to any of the Purchased Assets or arising under any of the Assumed Contracts and (B) to the extent transferable, all of each Seller’s rights under warranties, indemnities, and all rights, claims, actions, causes of action, choses in action, rights of recovery defenses, rights of set off, counterclaims, or rights of recoupment of any kind or nature against Third Parties to the extent related to any of the Purchased Assets or arising under any of the Assumed Contracts;
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(xvii) the Seller Owned Real Property, the Seller Easements, and the Seller Leased Real Property;
(xviii) the Purchased IP, to the extent assignable;
(xix) the physical IT hardware located at the Refineries and set forth on Schedule 2.1(a)(xix); and
(xx) all other tangible assets Primarily Related to the Purchased Assets or the business of the Acquired Entities.
(b) The Equity Sellers shall sell, convey, assign, transfer and deliver to the Purchaser, and the Purchaser shall purchase, acquire and accept from the Equity Sellers, the Purchased Interests, including all Liabilities in respect thereof, free and clear of all Encumbrances (other than Permitted Equity Encumbrances).
2.2 Excluded Assets. Nothing herein contained shall be deemed to sell, assign, transfer, convey, or deliver to the Purchaser, and the applicable Sellers shall retain all right, title, and interest to each of the following assets (the “Excluded Assets”):
(a) all cash, cash equivalents, cash deposits, bank accounts, certificates of deposit, savings, and other similar cash or cash equivalents of every kind, nature, character, and description;
(b) Intellectual Property (including the Excluded Trademarks, other than Purchased IP);
(c) all Contracts for the supply of any materials or services to either Refinery to which SPPR is not a party or which are not Exclusively Related to the Refineries;
(d) all Contracts by and among the Sellers and any of their Affiliates that are not Assumed Contracts;
(e) all Contracts for crude oil feedstock;
(f) all RINs, except as provided in Section 8.14(c);
(g) Seller Permanent Records;
(h) other than as included in Working Capital or as relates to Taxes, actions, deposits, prepayments, refunds, causes of action, choses in action, rights of recovery defenses, rights of set off, counterclaims, or rights of recoupment of any kind or nature, in each case, (i) relating to any of the Excluded Assets or to the Excluded Liabilities, or (ii) with respect to the Purchased Assets relating to activities occurring prior to the Effective Time to the extent any Seller is responsible hereunder therefor;
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(i) all Marathon Policies;
(j) each Seller’s rights under this Agreement and under any of the other Transaction Documents;
(k) except with respect to the railcar leases specified on Schedule 2.1(a)(xii), all railway cars associated with the Sites;
(l) the emissions credits and allowances described as Excluded Assets on Schedule 2.2(l);
(m) except as otherwise specified on Schedule 2.1(a)(xix), all IT Infrastructure not owned by the Acquired Entities;
(n) all documents and instruments of the Sellers or their Affiliates (other than SPPR) that may be protected by an attorney-client privilege to the extent related to (i) Excluded Assets or any Excluded Liability or (ii) a matter for which any of the Sellers provides an indemnity to Purchaser hereunder;
(o) all accounts receivable, including those generated under any of the Assumed Contracts that relate to time periods prior to the Effective Time; and
(p) all other assets set forth on Schedule 2.2(p).
2.3 Assumed Liabilities. On the terms and subject to the conditions in this Agreement, from and after the Effective Time, and subject to the exclusion of the Liabilities set forth in Section 2.4 and subject to Sellers’ indemnification obligations pursuant to this Agreement, the Purchaser hereby agrees, effective as of the Effective Time, to assume and timely fulfill, perform, pay, and discharge, in accordance with their terms, all Liabilities solely to the extent related to, arising from, or in respect of the Purchased Assets (in each case other than any Excluded Liability) (collectively, the “Assumed Liabilities”), including:
(a) all Liabilities related to, or arising in connection with, the ownership or operation of the Purchased Assets, (to the extent such Purchased Assets are assigned to the Purchaser whether at Closing or thereafter) in each case, whether arising before, on, or after the Effective Time including all such Liabilities of a type shown in the Financial Statements in the amount and to the extent so shown;
(b) all Liabilities under the Real Property Leases with respect to the Seller Leased Real Property or that otherwise are tenant obligations thereunder, the Easement Agreements, and the Assumed Contracts, including all performance obligations, arising or requiring performance before, on, or after the Effective Time;
(c) all Liabilities attributable to or resulting from Asset Taxes;
(d) except as provided in Section 2.4(b), all Employment Liabilities to the extent related to Transferring Employees, whether arising before, on, or after the Effective Time;
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(e) all Environmental Liabilities, other than the Excluded Environmental Liabilities, whether arising before, on, or after the Effective Time, including all obligations arising under the Purchased Assets, the businesses of the Acquired Entities, the Seller Owned Real Property, the Seller Leased Real Property, the Purchased Interests or the ownership, operation, maintenance or use thereof; and
(f) all other Liabilities solely to the extent related to the Purchased Assets set forth on Schedule 2.3(f).
2.4 Excluded Liabilities. The Assumed Liabilities shall not include, and the applicable Sellers shall retain, fulfill, perform, pay, and discharge, the following Liabilities (the “Excluded Liabilities”):
(a) all Liabilities to the extent related to, arising from, or in respect of the Excluded Assets;
(b) (i) all current wages, bonus payments, Liabilities under Benefit Plans or Multiemployer Plans, or pension obligations, in each case, only (A) with respect to Transferring Employees and (B) accrued prior to or at the Effective Time and (ii) all Employment Liabilities arising at any time with respect to employees who do not become Transferring Employees and (iii) all Liabilities set forth on Schedule 2.4(b) (collectively, the “Excluded Employment Liabilities”);
(c) Liabilities for any indebtedness for borrowed money of any Seller or its Affiliates relating to the Purchased Assets or SPPR to the extent incurred prior to the Effective Time;
(d) all Liabilities related to the Excluded Environmental Liabilities; and
(e) all Income Taxes of Sellers or their direct or indirect owners.
2.5 Sale of Purchased Assets. The Purchaser is experienced in the ownership and operation of assets similar to the Purchased Assets and the businesses of the Acquired Entities and is familiar with the risks involved in owning and operating properties like the Purchased Assets and those of the Acquired Entities and, other than as expressly provided pursuant to this Agreement or any Transaction Document, the Purchaser is not relying on the Sellers to furnish the Purchaser with any information as to such risks.
2.6 Designation of Purchaser Affiliates. The Sellers shall cooperate in good faith with Purchaser to facilitate the direct assignment, transfer and conveyance at Closing of any Purchased Assets, and the direct assignment and assumption of any related Assumed Liabilities in accordance with this Article 2, to one or more wholly owned Subsidiaries of Purchaser designated by Purchaser in writing no less than thirty (30) days prior to the Closing; provided, that, Purchaser shall not be permitted to designate more than five (5) such Subsidiaries; provided, further, that any such designation shall be subject to the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed so long as such designation is otherwise consistent with the terms of this Agreement. If the Sellers do not consent to any such designation in accordance with the foregoing, Purchaser shall acquire the applicable Purchased Assets and assume the related
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Assumed Liabilities in accordance with the terms of this Agreement. Notwithstanding anything to the contrary herein, no such designation to any designee under this Section 2.6, or any sale, assignment, transfer, conveyance or assumption pursuant thereto, shall relieve, limit or otherwise affect any of Purchaser’s obligations or Liabilities under this Agreement to any Seller or any Seller Indemnified Party.
2.7 Disclaimer. The Purchaser acknowledges it has made, or will make, its own independent investigation, analysis, evaluation, and verification of the Purchased Assets and the assets and businesses of SPPR, MPLC, and MPLI. THE PARTIES AGREE THAT, TO THE EXTENT REQUIRED BY LAW TO BE OPERATIVE, THE DISCLAIMERS OF WARRANTIES CONTAINED IN THIS SECTION 2.7 ARE “CONSPICUOUS” DISCLAIMERS FOR THE PURPOSES OF ANY LAW OR ORDER. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT AND ANY CERTIFICATE DELIVERED PURSUANT TO THIS AGREEMENT AND FOR THE SPECIFIC WARRANTIES OF TITLE CONTAINED IN THE DEEDS EXECUTED IN CONNECTION HEREWITH OR THEREWITH (COLLECTIVELY, “SELLERS’ WARRANTIES”), THE PURCHASED ASSETS ARE SOLD TO AND ACCEPTED BY THE PURCHASER “AS IS, WHERE IS”, AND “WITH ALL FAULTS”. SELLERS’ WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SELLERS EXPRESSLY DISCLAIM (AND THE PURCHASER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON) ANY AND ALL REPRESENTATIONS AND WARRANTIES OTHER THAN SELLERS’ WARRANTIES. WITHOUT LIMITATION OF THE FOREGOING AND EXCEPT FOR SELLERS’ WARRANTIES, THE PURCHASED ASSETS SHALL BE SOLD TO THE PURCHASER PURSUANT HERETO WITHOUT (A) ANY WARRANTY OR REPRESENTATION, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, RELATING TO (I) TITLE TO THE PURCHASED ASSETS, THE CONDITION, QUANTITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, MERCHANTABILITY OF ANY EQUIPMENT, OR ITS FITNESS FOR ANY PURPOSE, (II) THE QUALITY, ACCURACY, OR COMPLETENESS OF ANY DATA, REPORTS, FILES, RECORDS, OPERATING MANUALS, PROJECTIONS, INFORMATION, OR MATERIALS NOW, HERETOFORE, OR HEREAFTER FURNISHED OR MADE AVAILABLE TO THE PURCHASER IN CONNECTION WITH THIS AGREEMENT, (III) PRICING ASSUMPTIONS OR THE QUALITY OR QUANTITY OF THE HYDROCARBON INVENTORY, (IV) THE ENVIRONMENTAL CONDITION OF THE PURCHASED ASSETS, (V) ANY IMPLIED OR EXPRESS WARRANTY OF NON-INFRINGEMENT, (VI) THE PURCHASER’S INTENDED OR ACTUAL USE OF THE PURCHASED ASSETS AFTER CLOSING, OR (VII) ANY OTHER MATTERS CONTAINED IN ANY MATERIALS MADE AVAILABLE TO THE PURCHASER BY SELLERS OR BY SELLERS’ REPRESENTATIVES, OR (B) ANY OTHER EXPRESS, IMPLIED, STATUTORY, OR OTHER WARRANTY OR REPRESENTATION WHATSOEVER. IN ADDITION, AND NOT BY WAY OF LIMITATION, EXCEPT AS EXPRESSLY PROVIDED IN SELLERS’ WARRANTIES, SELLERS MAKE NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, OR COMPLETENESS OF ANY FILES, BOOKS AND RECORDS, OR OPERATING MANUALS CONVEYED AS PART OF THE BOOKS AND RECORDS RELATED TO THE
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PURCHASED ASSETS, SPPR, MPLC, OR MPLI. EXCEPT AS EXPRESSLY PROVIDED IN ARTICLE 5, THE PURCHASER’S USE OF SUCH FILES, BOOKS AND RECORDS, OR OPERATING MANUALS SHALL BE AT THE PURCHASER’S OWN RISK AND THE PURCHASER RELEASES SELLERS FROM ANY LOSS, LIABILITY OR DAMAGE ARISING FROM, ASSOCIATED WITH, OR RELATED TO THE PURCHASER’S USE OF SUCH FILES, BOOKS AND RECORDS, OR OPERATING MANUALS. NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED IN THIS SECTION 2.7 SHALL OPERATE AS A WAIVER OF CLAIMS OF FRAUD.
ARTICLE 3
PURCHASE PRICE
3.1 Purchase Price.
(a) The aggregate purchase price for the Purchased Assets and the Purchased Interests (the “Purchase Price”) shall be an amount equal to the sum of the MPC Purchase Price and the MPLX Purchase Price. The MPC Purchase Price and the MPLX Purchase Price shall be determined and settled independently, no amounts under the MPC Purchase Price shall be offset against or netted with any amounts under the MPLX Purchase Price, and no amounts under the MPLX Purchase Price shall be offset against or netted with any amounts under the MPC Purchase Price.
(b) The “MPC Purchase Price” shall be an amount equal to:
(i) the MPC Base Purchase Price; plus
(ii) the MPC Final Hydrocarbon Inventory Amount; plus
(iii) the MPC Final Non-Hydrocarbon Inventory Amount; plus
(iv) the MPC Final Working Capital Amount; minus
(v) the MPC Accrued Property Tax Liabilities; plus
(vi) the amount of all Asset Taxes allocated to Purchaser in accordance with Section 14.2 but paid or otherwise economically borne by any MPC Seller (such amount, the “MPC Asset Tax Upward Adjustment”); minus
(vii) the amount of all Asset Taxes allocated to any MPC Seller in accordance with Section 14.2 but paid, payable or otherwise economically borne by Purchaser (such amount, the “MPC Asset Tax Downward Adjustment”); minus
(viii) the amount of Repair Costs with respect to the MPC Purchased Assets, if any, as determined in accordance with Section 8.17 (the “MPC Final Repair Cost Amount”); minus
(ix) the MPC Final 2026 Pro-Rated Bonus Amount; minus
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(x) the MPC Non-Inventory Adjustment.
(c) The “MPLX Purchase Price” shall be an amount equal to:
(i) the MPLX Base Purchase Price; plus
(ii) the MPLX Final Working Capital Amount; plus
(iii) the amount of all Asset Taxes allocated to Purchaser in accordance with Section 14.2 but paid or otherwise economically borne by any MPLX Seller (such amount, the “MPLX Asset Tax Upward Adjustment”); minus
(iv) the amount of all Asset Taxes allocated to any MPLX Seller in accordance with Section 14.2 but paid, payable or otherwise economically borne by Purchaser (such amount, the “MPLX Asset Tax Downward Adjustment”); minus
(v) the amount of Repair Costs with respect to the MPLX Purchased Assets, if any, as determined in accordance with Section 8.17 (the “MPLX Final Repair Cost Amount”); minus
(vi) the MPLX Final 2026 Pro-Rated Bonus Amount.
3.2 Settlement Statements.
(a) Closing Settlement Statements. No later than five (5) Business Days prior to the Closing Date, the Sellers shall deliver to the Purchaser each of the following:
(i) a settlement statement setting forth the amounts to be paid by the Purchaser to the MPC Sellers on the Closing Date, which shall be comprised of: (s) the MPC Base Purchase Price, plus (t) the MPC Estimated Hydrocarbon Inventory Amount, plus (u) the MPC Estimated Non-Hydrocarbon Inventory Amount, plus (v) the MPC Estimated Working Capital Amount, minus (w) the MPC Accrued Property Tax Liabilities, plus (x) the MPC Asset Tax Upward Adjustment, minus (y) the MPC Asset Tax Downward Adjustment, minus (z) the MPC Estimated 2026 Pro-Rated Bonus Amount (the “MPC Closing Settlement Statement”); and
(ii) a settlement statement setting forth the amounts to be paid by the Purchaser to the MPLX Sellers on the Closing Date, which shall be comprised of: (v) the MPLX Base Purchase Price, plus (w) the MPLX Estimated Working Capital Amount, plus (x) the MPLX Asset Tax Upward Adjustment, minus (y) the MPLX Asset Tax Downward Adjustment, minus (z) the MPLX Estimated 2026 Pro-Rated Bonus Amount (the “MPLX Closing Settlement Statement”).
The MPC Closing Settlement Statement and MPLX Closing Settlement Statement are each referred to herein as a “Closing Settlement Statement.” Prior to the Closing, the Purchaser and its Representatives shall have the opportunity to review the Closing Settlement Statements and the Sellers shall, to the extent available, provide supporting documentation reasonably requested by the Purchaser to verify the amounts set forth in the Closing Settlement Statements and reasonably respond to questions and comments from the Purchaser regarding the Closing Settlement Statements.
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(b) Final Settlement Statement.
(i) On the Closing Date, the Sellers shall conduct a physical count of the applicable Hydrocarbon Inventory and, where applicable, the Non-Hydrocarbon Inventory, in each case, in accordance with the provisions of this Agreement, including, where applicable, Schedule 3.2(b)(i) and Schedule 3.2(b)(ii) (as estimated to the Effective Time) and determine the applicable Working Capital (as estimated to the Effective Time). Purchaser shall have the right to observe the physical count. As soon as practicable thereafter, but, in any event, no later than sixty (60) days after the Closing Date, the Sellers shall deliver to the Purchaser (A) a final settlement statement containing the MPC Final Hydrocarbon Inventory Amount and MPC Final Non-Hydrocarbon Inventory Amount based upon such physical count or other determination and in accordance with the provisions of this Agreement, including, where applicable, Schedule 3.2(b)(i) and Schedule 3.2(b)(ii), the MPC Final Working Capital Amount, the final MPC Asset Tax Upward Adjustment and the final MPC Asset Tax Downward Adjustment, and the MPC Final 2026 Pro-Rated Bonus Amount (the “MPC Final Settlement Statement”), (B) a final settlement statement containing the MPLX Final Working Capital Amount, the final MPLX Asset Tax Upward Adjustment and the final MPLX Asset Tax Downward Adjustment, and the MPLX Final 2026 Pro-Rated Bonus Amount (the “MPLX Final Settlement Statement”). The MPC Final Settlement Statement and MPLX Final Settlement Statement are each referred to herein as a “Final Settlement Statement.”
(ii) Each Final Settlement Statement shall be conclusive of the amounts set forth therein, and such amounts shall be final and binding upon the Parties unless, before the forty-fifth (45th) day after the date on which such Final Settlement Statement was delivered to the Purchaser, the Purchaser delivers to the Sellers a notice (an “Objection Notice”) objecting to any matter stated in such Final Settlement Statement. Such Objection Notice shall specify, in reasonable detail and with reasonable supporting documentation, those items or amounts as to which the Purchaser disputes, and the Purchaser shall be deemed to have agreed with all other items and amounts contained in such Final Settlement Statement and the calculations of the MPC Final Hydrocarbon Inventory Amount, MPC Final Non-Hydrocarbon Inventory Amount, MPC Final Working Capital Amount, final MPC Asset Tax Upward Adjustment, final MPC Asset Tax Downward Adjustment, MPC Final 2026 Pro-Rated Bonus Amount, MPLX Final Working Capital Amount, final MPLX Asset Tax Upward Adjustment, final MPLX Asset Tax Downward Adjustment and MPLX Final 2026 Pro-Rated Bonus Amount set forth therein. During the forty-five (45)-day period after the Purchaser’s receipt of the applicable Final Settlement Statement, during normal business hours and with reasonable prior notice, the Sellers shall make Representatives of the Sellers reasonably available to answer questions and provide any reasonably available supporting documentation, in each case, solely with respect to the calculation of the MPC Final Hydrocarbon Inventory
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Amount, MPC Final Non-Hydrocarbon Inventory Amount, MPC Final Working Capital Amount, final MPC Asset Tax Upward Adjustment, final MPC Asset Tax Downward Adjustment, MPC Final 2026 Pro-Rated Bonus Amount, MPLX Final Working Capital Amount, final MPLX Asset Tax Upward Adjustment, final MPLX Asset Tax Downward Adjustment and MPLX Final 2026 Pro-Rated Bonus Amount specified in the applicable Final Settlement Statement.
(iii) If the Purchaser fails to deliver an Objection Notice within such forty-five (45)-day period with respect to either the MPC Final Settlement Statement or the MPLX Final Settlement Statement, the Purchaser shall be deemed to have waived its right to contest such Final Settlement Statement and the MPC Final Hydrocarbon Inventory Amount, MPC Final Non-Hydrocarbon Inventory Amount, MPC Final Working Capital Amount, final MPC Asset Tax Upward Adjustment, final MPC Asset Tax Downward Adjustment, MPC Final 2026 Pro-Rated Bonus Amount, MPLX Final Working Capital Amount, final MPLX Asset Tax Upward Adjustment, final MPLX Asset Tax Downward Adjustment and MPLX Final 2026 Pro-Rated Bonus Amount set forth therein shall be deemed to be final and binding upon the Sellers and the Purchaser and shall be used for the purposes of calculating the applicable Adjustment Amount pursuant to Section 3.4 below.
3.3 Purchase Price Adjustment.
(a) Subject to Section 3.3(b) and Section 3.5, with respect to each of the MPC Adjustment Amount and the MPLX Adjustment Amount, on the fiftieth (50th) day following the delivery of the applicable Final Settlement Statement, the MPC Adjustment Amount and the MPLX Adjustment Amount shall be paid as set forth in this Section 3.3(a). If the applicable Adjustment Amount is positive, then the Purchaser shall pay such Adjustment Amount to the applicable Sellers. If the applicable Adjustment Amount is negative, then the applicable Sellers shall pay the absolute value of such Adjustment Amount to the Purchaser. The MPC Adjustment Amount and the MPLX Adjustment Amount shall be determined and settled independently, no amount payable or receivable under the MPC Adjustment Amount shall be offset against or netted with any amount payable or receivable under the MPLX Adjustment Amount, and no amount payable or receivable under the MPLX Adjustment Amount shall be offset against or netted with any amount payable or receivable under the MPC Adjustment Amount.
(b) In the event that the Purchaser delivers an Objection Notice, then the Purchaser or the MPC Sellers or the MPLX Sellers, as applicable, shall pay the portion of the MPC Adjustment Amount or the MPLX Adjustment Amount, as applicable, for which there is no objection on the date that is ten (10) Business Days following the delivery of such Objection Notice.
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3.4 Dispute Resolution.
(a) The Sellers shall have thirty (30) days to review any Objection Notice. During the thirty (30)-day period after the Sellers’ receipt of the Objection Notice, during normal business hours and with prior notice, the Purchaser shall make Representatives of the Purchaser reasonably available to answer questions as well as provide any supporting documentation reasonably requested by the Sellers, in each case, with respect to the calculation of the MPC Final Hydrocarbon Inventory Amount, MPC Final Non-Hydrocarbon Inventory Amount, the MPC Final Working Capital Amount, the final MPC Asset Tax Upward Adjustment, the final MPC Asset Tax Downward Adjustment, the MPC Final 2026 Pro-Rated Bonus Amount, MPLX Final Working Capital Amount, the final MPLX Asset Tax Upward Adjustment, the final MPLX Asset Tax Downward Adjustment and MPLX Final 2026 Pro-Rated Bonus Amount set forth in the Objection Notice. If, within fifteen (15) Business Days following the Sellers’ thirty (30)-day review period of any Objection Notice, the Sellers and the Purchaser fail, after good faith negotiation, to reach agreement on the calculation of the disputed items set forth in such Objection Notice then with respect to each of the remaining objections in dispute, each Party’s summary of its position with respect to the disputed items, shall be submitted for resolution to the accounting firm of BDO USA, P.C., or, if that accounting firm declines to act as provided in this Section 3.4, another accounting firm mutually acceptable to the Sellers and the Purchaser (the “Neutral Auditor”). If the Parties cannot mutually agree upon the identity of a replacement Neutral Auditor, an alternative Neutral Auditor shall be appointed, upon request of either Party, by the Center for Dispute Resolution of the American Arbitration Association, which alternative shall be considered the “Neutral Auditor” for all purposes under this Agreement.
(b) The Neutral Auditor shall only consider and make a determination on the specific line items in dispute in accordance with the principles set forth in this Section 3.4. The Neutral Auditor shall provide the Sellers and the Purchaser adequate opportunity to make written submissions in respect of the relevant subject matter. The Neutral Auditor may not assign a value to any disputed matter addressed in the applicable Objection Notice that is greater than the greatest value for such matter claimed by either the Sellers or the Purchaser or less than the smallest value for such matter claimed by either the Sellers or the Purchaser. The Neutral Auditor’s determination on each disputed line item shall be final and binding on the Parties and shall be incorporated into the applicable Final Settlement Statement.
(c) The Sellers and the Purchaser shall instruct the Neutral Auditor to deliver its written opinion no later than thirty (30) days after the dispute has been referred to it (or within any other period of time mutually agreed by the Parties). No Party shall engage in ex parte communications with the Neutral Auditor. No discovery shall be permitted, and no hearing shall be held. Each of the Sellers and the Purchaser shall furnish to the Neutral Auditor such workpapers and other documents and information relating to such objections as the Neutral Auditor may request and are reasonably available to that Party (or its independent public accountants) and may submit to the Neutral Auditor any other materials relating to the determination of the matters in dispute. No Party will disclose to the Neutral Auditor, and the Neutral Auditor will not consider for any purpose, any settlement discussions or settlement offer made by any Party. Absent manifest error or fraud, the determination by the Neutral Auditor of the applicable Final Settlement Statement shall be binding and conclusive on the Parties and enforceable by any court of competent jurisdiction. The legal fees and other costs and expenses in connection with any such objection and the Neutral Auditor shall be borne by the Purchaser, on the one hand, and by
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the applicable Sellers, on the other hand, based upon the percentage which the portion of the contested amount unsuccessfully disputed by each Party (as determined by the Neutral Auditor) bears to the total contested amount actually disputed by such Party. For example, if the Purchaser claims that an amount in the applicable Final Settlement Statement is $1,000 more than the amount determined by the Sellers, the Sellers contest only $500 of the amount claimed by the Purchaser, and the Neutral Auditor ultimately resolves the dispute by awarding the Purchaser $300 of the $500 contested, then such fees, costs and expenses will be allocated sixty percent (60%) (i.e., 300 divided by 500) to the Sellers and forty percent (40%) (i.e., 200 divided by 500) to the Purchaser. The Neutral Auditor and procedures set forth herein shall be the sole method for resolving any disputes regarding the applicable Final Settlement Statement.
3.5 Allocation of Purchase Price. For purposes of Section 1060 of the Code and for all other relevant Tax purposes, the Parties agree to: (a) allocate the Purchase Price as between the MPC Sellers, on the one hand, and the MPLX Sellers, on the other hand, in accordance with the Final Settlement Statements; and (b) with respect to the MPC Purchase Price set forth on the MPC Final Settlement Statement, use commercially reasonable efforts to allocate such amount (i) between the SPPR Interests and the portion of the Purchased Assets sold by the MPC Sellers, (ii) with respect to the portion of such amount allocated to the SPPR Interests, further among the assets of SPPR and (iii) with respect to the portion of such amount allocated to the portion of the Purchased Assets sold by the MPC Sellers, further among such portion of the Purchased Assets, in each case as may be agreed by the MPC Sellers; and (c) with respect to the MPLX Purchase Price set forth on the MPLX Final Settlement Statement, use commercially reasonable efforts to allocate such amount (i) among the MPLI Interests, the MPLC Interests and the portion of the Purchased Assets sold by the MPLX Sellers, (ii) with respect to the portion of such amount allocated to the MPLC Interests, further among the assets of MPLC and (iii) with respect to the portion of such amount allocated to the portion of the Purchased Assets sold by the MPLX Sellers, further among such portion of the Purchased Assets, in each case as may be agreed by the MPLX Sellers. The allocations described in clauses (b) and (c) of the preceding sentence shall be effected in accordance with the methodology set forth on Schedule 3.5. No later than thirty (30) days following the Closing Date, the Purchaser shall deliver to the Sellers estimated allocations of the MPC Purchase Price and MPLX Purchase Price, which shall be prepared in reliance upon the respective Closing Settlement Statements and which shall be consistent with the methodology set forth on Schedule 3.5 (the “Estimated Purchase Price Allocations”). The Sellers may provide written comments with respect to the Estimated Purchase Price Allocations to the Purchaser within thirty (30) days after the Sellers’ confirmation of receipt. Following the Purchaser’s provision of the Estimated Purchase Price Allocations, but in no event more than thirty (30) days following the determination of the Final Settlement Statements pursuant to Section 3.3 or Section 3.4, the Purchaser shall deliver to the Sellers its proposed amendments to the Estimated Purchase Price Allocations, which shall be prepared consistent with the methodology set forth on Schedule 3.5 (each, a “Proposed Purchase Price Allocation”). The Sellers may provide written comments with respect to the Proposed Purchase Price Allocations to the Purchaser within forty-five (45) days after the Sellers’ confirmation of receipt, and to the extent the Sellers confirm to the Purchaser, in writing, that they accept the Proposed Purchase Price Allocations, it shall become final for all purposes (such a finalized Purchase Price Allocation each constituting a “Final Purchase Price Allocation”). To the extent the Sellers provide written comments with respect thereto to the Purchaser within such forty-five (45) day period, the Purchaser shall consider such comments in good faith, and the Sellers
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and the Purchaser shall work together in good faith to resolve any differences as to the differing proposed allocations of the MPC Purchase Price or MPLX Purchase Price, respectively. If the Parties come to an agreement as to the final allocations of the MPC Purchase Price and/or the MPLX Purchase Price within forty-five (45) days after receipt by the Purchaser of the Sellers’ written comments, such agreed allocation of the MPC Purchase Price and/or MPLX Purchase Price shall be a Final Purchase Price Allocation. If the Purchaser and the Sellers reach an agreement with respect to a Final Purchase Price Allocation, the Purchaser and the Sellers shall not take any position inconsistent therewith in the filing of any Tax Returns, or in the course of any audit by any Governmental Authority, or any Tax review or Tax proceeding relating to any Tax Returns, except as otherwise required by Applicable Law. Notwithstanding the foregoing provisions of this Section 3.5, if the Parties fail to agree on the Proposed Purchase Price Allocations and are unable to resolve their differences and mutually agree as to any changes to the Proposed Purchase Price Allocations, then (i) each Party shall be entitled to determine its own Tax allocation and file its Tax Returns (including IRS Form 8594) consistent therewith and (ii) neither Party shall be unreasonably impeded in its ability and discretion to negotiate, compromise or settle any Tax audit, claim or similar proceedings in connection with such allocation; provided, that, in accordance with clause (a) of the first sentence of this Section 3.5, the Parties shall allocate the Purchase Price between the MPC Sellers, on the one hand, and the MPLX Sellers, on the other hand, in accordance with the Final Settlement Statements (as finally determined under Sections 3.2 and 3.4) in connection with determining the Parties’ own respective Tax allocations.
3.6 Withholding. In the event the Purchaser (or any Affiliate thereof) or the Sellers reasonably determine that it is required by Applicable Law to withhold or deduct any amount for or on account of any Tax from any consideration payable or otherwise deliverable pursuant to this Agreement, such Party shall be entitled to deduct or withhold such amount; provided that, unless such obligation to deduct or withhold relates to the payment of compensatory amounts or the failure of the Sellers to provide the documentation required by Section 4.2(m), the deducting or withholding Party shall use commercially reasonable efforts to notify the other Party of its determination reasonably in advance of any such deduction or withholding and the Parties shall cooperate in good faith to minimize, to the extent permissible under Applicable Law, the amount of any such deduction or withholding, including by providing any certificates or forms that are reasonably requested to establish an exemption from (or reduction in) any deduction or withholding. To the extent amounts are properly deducted or withheld and remitted to the appropriate Governmental Authority, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid absent such deduction or withholding.
ARTICLE 4
CLOSING
4.1 Closing. The Closing of the Transactions shall take place remotely via the electronic exchange of documents and executed signature pages effective as of 9:00 a.m. (Eastern Time) on (a) a Business Day mutually agreed by the Parties that is no earlier than the first (1st) Business Day and no later than the third (3rd) Business Day after all of the conditions contained in Section 9.1 and Section 9.2 shall have been satisfied (except for those conditions which by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions) or, when permissible, waived, in accordance with this Agreement so long as all such conditions remain
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satisfied (except for those conditions which by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions) or waived as of such time; provided, however, that the Closing shall not occur earlier than the later of (i) December 15, 2026, and (ii) the earlier of (A) a date during the Marketing Period specified by the Purchaser on no fewer than three (3) Business Days’ notice to the Sellers (unless a shorter period shall be agreed to by the parties) and (B) the third (3rd) Business Day following the final day of the Marketing Period; provided, further, that if the Parties do not mutually agree on the date for the Closing within such one (1) to three (3) Business Day period, the Closing shall occur on the third (3rd) Business Day after the satisfaction or waiver of such conditions; provided, further, that in no event shall the Closing occur on December 24, 2026 or December 25, 2026, and if the Closing would otherwise occur on any such date, the Closing shall occur on the next Business Day thereafter that is not one of such dates, or (b) such other date as the Parties may mutually agree in writing. The effective date and time of the Closing for purposes of transferring ownership of the Purchased Assets and Purchased Interests, assumption of the Assumed Liabilities as well as for allocating other liabilities and benefits (including revenues and expenses) between the Sellers and the Purchaser will be 12:01 a.m. (Eastern Time) on the Closing Date (the “Effective Time”).
4.2 Sellers’ Closing Deliverables. At the Closing, the Sellers shall deliver, or cause to be delivered, to the Purchaser the following:
(a) each Deed duly executed, acknowledged, and delivered by the applicable Seller;
(b) each Assignment and Bill of Sale duly executed and delivered by the applicable Seller(s);
(c) each Lease Assignment duly executed and delivered by the applicable Seller(s);
(d) each Easement Assignment duly executed, acknowledged and delivered by the applicable Seller(s);
(e) the Stock Power duly executed and delivered by the applicable Equity Seller, together with all certificates representing the applicable Purchased Interests (if any);
(f) each Assignment of Membership Interest duly executed and delivered by the applicable Equity Sellers, together with all certificates representing the applicable Purchased Interests (if any);
(g) the Asphalt Supply Agreement duly executed and delivered by the applicable Seller;
(h) the Trademark License Agreement duly executed and delivered by the applicable Seller or an Affiliate of a Seller;
(i) the Crude Supply Agreement duly executed and delivered by the applicable Seller(s) or an Affiliate of a Seller;
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(j) the Rack Supply Agreement duly executed and delivered by the applicable Seller(s) or an Affiliate of a Seller;
(k) the TSA duly executed and delivered by the applicable Seller(s) or an Affiliate of a Seller;
(l) fully executed, written resignations or other evidence of removal reasonably satisfactory to the Purchasers, effective concurrently with the Closing, of (i) each of the officers, managers, and directors, if any, of SPPR, (ii) each manager and director, if any, of MPLC or MPLI that was designated by any Seller or any Affiliate of a Seller and (iii) each officer of MPLC or MPLI that is an employee of any Seller or any Affiliate of a Seller (if any);
(m) a duly completed and executed IRS Form W-9 of each Seller (or, if any such Seller is treated as an entity disregarded as separate from its regarded tax owner for U.S. federal income tax purposes, the Person that is treated as such Seller’s regarded tax owner for such purposes, with such Seller’s name listed on line 2 thereof);
(n) a certificate signed by an authorized representative of each Seller in his or her capacity as such, certifying that the conditions specified in Section 9.1(a) and Section 9.1(b) have been satisfied;
(o) the Mutual Aid Agreement, duly executed and delivered by Dakota Prairie Refining, LLC; and
(p) such other agreements, instruments, certificates and documents required by the terms of this Agreement to be executed or delivered at the Closing by the Sellers.
4.3 Purchaser’s Closing Deliverables.
(a) At the Closing, the Purchaser shall pay, or cause to be paid, to the Sellers, in immediately available funds to Sellers’ Bank Account, the amount set forth in the Closing Settlement Statement delivered pursuant to Section 3.2(a).
(b) At the Closing, the Purchaser shall deliver to the Sellers the following:
(i) each Assignment and Bill of Sale duly executed and delivered by the Purchaser or its Subsidiary properly designated pursuant to Section 2.6;
(ii) each Lease Assignment duly executed and delivered by the Purchaser;
(iii) each Easement Assignment duly executed, acknowledged and delivered by the Purchaser;
(iv) each Assignment of Membership Interest duly executed and delivered by the Purchaser;
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(v) the Asphalt Supply Agreement duly executed and delivered by the Purchaser;
(vi) the Trademark License Agreement duly executed and delivered by the Purchaser;
(vii) the Crude Supply Agreement duly executed and delivered by the Purchaser;
(viii) the Rack Supply Agreement duly executed and delivered by the Purchaser;
(ix) the TSA duly executed and delivered by the Purchaser;
(x) with respect to each parcel of Seller Owned Real Property duly executed and acknowledged real property transfer Tax or related forms, if required by Applicable Law, delivered by the Purchaser;
(xi) evidence of the Financial Assurances in respect of Seller Support Obligations required to be released or replaced prior to the Closing pursuant to Section 8.13;
(xii) IRS Form W-9 duly executed and delivered by the Purchaser;
(xiii) a certificate signed by an authorized representative of Purchaser in his or her capacity as such, certifying that the conditions specified in Section 9.2(a) and Section 9.2(b) have been satisfied;
(xiv) the Mutual Aid Agreement, duly executed and delivered by Purchaser or its designated Affiliate; and
(xv) such other agreements, instruments, certificates and documents required by the terms of this Agreement to be executed or delivered at the Closing by the Purchaser.
4.4 Reconciliation of Accounts. The Parties agree that, conditional upon the Closing, the Purchased Assets and the Purchased Interests and all obligations with respect to the Assumed Liabilities, and all benefits and Liabilities associated therewith (other than the Excluded Liabilities), shall be deemed to have passed to the Purchaser as of the Effective Time.
4.5 Delivery of Books and Records. Subject to Article 2, the Sellers shall deliver, or cause to be made available, to the Purchaser at the Closing true, correct and complete copies of all Books and Records in the Sellers’ or their Affiliates’ possession located at any Site. The Sellers shall deliver, or cause to be made available, to the Purchaser true, correct and complete copies of such other Books and Records in the Sellers’ or their Affiliates’ possession not located at any Site as soon as practicable, but in any event within sixty (60) days after the Closing. The Sellers may deliver such Books and Records in physical or electronic format. In addition to the Sellers retaining the original books of account and records (including the Seller Permanent Records) that comprise the Sellers’ permanent accounting or Tax records Exclusively Related to the Purchased Assets or the Purchased Interests, the Sellers shall be entitled to retain copies of all such Books and Records.
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Seller hereby represents and warrants to the Purchaser as follows: provided that, with respect to the representations and warranties of the Sellers set forth in this Article 5, (a) each of the MPC Sellers is jointly and severally making such representations and warranties with the other MPC Sellers, (b) each of the MPLX Sellers is jointly and severally making such representations and warranties with the other MPLX Sellers, and (c) as between the MPC Sellers, on the one hand, and the MPLX Sellers, on the other hand, such representations are being made severally and not jointly:
5.1 Organization, Existence, and Qualification. Each Seller, SPPR, MPLC, and MPLI is a corporation, limited partnership, or limited liability company, as applicable, duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization. Each Seller and SPPR has the requisite power and authority to own, lease and operate its property and to conduct its business with respect thereto as currently conducted. Each Seller and SPPR is duly licensed or qualified to do business, as applicable, and is in good standing in all jurisdictions in which the ownership, lease or operation of its Purchased Assets or operation of its business or the assets of SPPR makes such licensing or qualification necessary or where such licensing or qualification is otherwise required, except where the failure to be so licensed or qualified would not reasonably be expected to have a Material Adverse Effect. True, correct and complete copies of the organizational documents of SPPR, MPLC and MPLI, together with all amendments and restatements thereto, have been made available to the Purchaser.
5.2 Authority, Approval, and Enforceability. Each Seller has all requisite power and authority to enter into and perform this Agreement and all other Transaction Documents to be delivered at the Closing by such Seller, and to consummate the Transactions. The execution, delivery, and performance by each Seller of this Agreement and the consummation by such Seller of the Transactions have been, and the execution, delivery and performance of the other Transaction Documents to which such Seller is, or is contemplated to be, a party and the consummation by such Seller of the transactions contemplated thereby, will be at the Closing, duly and validly authorized and approved by all necessary corporate or other entity action on the part of such Seller, and no other corporate or other entity proceedings on the part of such Seller are necessary to authorize this Agreement, the other Transaction Documents or the consummation of the Transactions. This Agreement has been duly executed and delivered by each Seller, and this Agreement is, and the other Transaction Documents to which each Seller is, or is contemplated to be, a party when executed and delivered by such Seller will be, the valid and binding obligation of such Seller and enforceable against such Seller in accordance with their respective terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium, and similar Applicable Law, as well as to principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
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5.3 No Conflicts. Except as set forth on Schedule 5.3, and assuming the receipt of Antitrust Regulatory Approvals, all other applicable consents and approvals in connection with the Transactions set forth on Schedule 5.8, and the transfer and modification of any Corrective Action Orders, the execution, delivery, and performance by each Seller of this Agreement, and the other Transaction Documents to be delivered by such Seller at the Closing, and the consummation of the Transactions by such Seller, do not and will not (with or without the passage of time or notice or both) (a) conflict with or violate any provision of the organizational documents of such Seller, SPPR, MPLI, or MPLC, (b) result in any violation, breach or acceleration of, constitute a default under, result in the termination, modification, cancellation or acceleration of any right or obligation under, any Material Contract or result in the creation or imposition of any Encumbrance (except Permitted Encumbrances) upon any of the Purchased Assets or any of the assets of SPPR, MPLC or MPLI, (c) result in the cancellation, modification, revocation or suspension of any Assigned Permit or any material Permit held by SPPR, (d) violate any judgment, order, ruling, or decree applicable to such Seller, SPPR, MPLI, MPLC, or any of the Purchased Assets, or any of the assets of SPPR, MPLI, or MPLC, or (e) violate or conflict with any Applicable Law applicable to such Seller, SPPR, MPLI, MPLC, any of the Purchased Assets, except in the case of subsection (b), (c), (d) or (e), where such violation, breach, conflict, acceleration, termination, cancellation, revocation, suspension or default would not reasonably be expected to, individually or in the aggregate, (x) hinder or impair in any material respect the ability of the Sellers, SPPR, MPLC or MPLI to perform their obligations hereunder or the consummation of the transactions contemplated by this Agreement or any other Transaction Document or (y) otherwise result in a material fine, penalty or other Liability to SPPR, MPLC, or MPLI or in respect of any Purchased Assets or materially limit the ability of SPPR, MPLC or MPLI to conduct their respective operations in the ordinary course of business or materially limit the ability to conduct the operations of the Purchased Assets in the ordinary course of business.
5.4 Bankruptcy. There are no bankruptcy, reorganization or receivership proceedings pending, being contemplated by, or, to the Knowledge of the Sellers, threatened against any Seller.
5.5 Employment Matters.
(a) Schedule 5.5(a)(i) sets forth a true, complete and correct list as of the date of this Agreement (and amended by Sellers as of not less than ten (10) Business Days prior to Closing to be true, complete and correct as of the Closing) of the In-Scope Employees, including the following information for each In-Scope Employee: (i) name; (ii) primary place of employment; (iii) full-time or part-time status; (iv) hire date (and service credit date, if different); (v) base annual salary or hourly rate of wages, as applicable; (vi) eligibility to receive other compensation (e.g., bonuses, commissions, incentives, etc.); (vii) job title; (viii) exempt or non-exempt status under any Applicable Laws related to wages and hours; (ix) leave status (including type of leave and, if known, anticipated date of return as applicable); and (x) details of any visa or other work permit or authorization (including type of authorization and expiration date, as applicable). Schedule 5.5(a)(ii) sets forth a true, complete and correct list as of the date of this Agreement (and amended by Sellers as of not less than ten (10) Business Days prior to Closing to be true, complete and correct as of the Closing) of all individual, natural person independent contractors directly engaged to provide material services with respect to the Purchased Assets or any of the Acquired Entities (including those providing services through a sole proprietorship or an entity wholly owned and operated by the individual), including for each such individual contractor, his or her: (A) name, (B) services provided, (C) primary location of engagement, (D) initial engagement date, (E) compensation terms, and (F) engaging entity. The Sellers have made available to the Purchaser a true, correct, and complete copy of each contract applicable to the individuals listed in the foregoing sentence.
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(b) Except as set forth on Schedule 5.5(b), none of the Sellers are a party to or are bound by, any Collective Bargaining Agreements in effect as of the date hereof with respect to the terms and conditions of employment of any current or former employees whose job duties involve or involved providing services with respect to any of the Purchased Assets or the Acquired Entities (including for the avoidance of doubt any of the In-Scope Employees), and there are no negotiations or discussions currently pending or occurring to enter any Collective Bargaining Agreement involving any employees whose duties involve providing services with respect to the Purchased Assets or the Acquired Entities (including for the avoidance of doubt any of the In-Scope Employees). Except as set forth on Schedule 5.5(b), none of the Acquired Entities (i) are a party to or are bound by any Collective Bargaining Agreements, or (ii) have any duty to bargain with a union. The Collective Bargaining Agreements reflected on Schedule 5.5(b) are collectively the “Company Collective Bargaining Agreements.”
(c) Except as set forth on Schedule 5.5(c), there is no, and in the past three (3) years, there has not been any, pending or, to the Knowledge of the Sellers, threatened, (i) strike, lockout, slowdown, picketing, material work stoppage, unfair labor practice charge, material labor grievance, or other material labor dispute involving or affecting any of the In-Scope Employees, (ii) Proceeding by or involving any labor union, trade union, workers’ council, or other representative of employees before any Governmental Authority that relates to labor relations or employment matters (including mass lay-offs or unfair labor practices) with respect to any of the Purchased Assets or the Acquired Entities (including for the avoidance of doubt any of the In-Scope Employees), or (iii) organizing effort or activity, representation or certification proceeding or petition, or demand for recognition or certification as the exclusive bargaining representative, by or on behalf of a labor union, trade union, workers’ council, or other representative of employees with respect to any of the In-Scope Employees.
(d) Except as set forth on Schedule 5.5(d), each of the Sellers and their respective Affiliates (in each case solely with respect to the In-Scope Employees) and each of the Acquired Entities are, and for the past three (3) years have been, in compliance in all material respects with all Applicable Law relating to employment, labor, and employment practices, including all Applicable Laws regarding the terms and conditions of employment, background checks, employee privacy, child labor, wages and hours, pay transparency, meal and rest periods, overtime, affirmative action, employment discrimination, equal employment opportunities, fair employment practices, harassment, retaliation, whistleblowing, plant closings and mass layoffs, reductions in force, immigration, employment eligibility verification, workers’ compensation, collective bargaining, labor relations, hiring, promotion and termination of employees, working conditions, occupational health and safety, disability rights or benefits, accommodations, leaves of absence, paid sick leave, classification of service providers, and unemployment insurance. Except as set forth on Schedule 5.5(d), as of the most recent pay period that ended prior to the Closing Date, all of the In-Scope Employees will have been paid in full all wages,
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salaries, commissions, bonuses (other than the 2026 bonuses to be paid in connection with this Agreement), fees, incentives, and other compensation and benefits accrued and payable or otherwise required to have been provided to such individual. Except as set forth on Schedule 5.5(d), none of the Sellers, the Acquired Entities, or any of their respective Affiliates is a party to any material judgment, settlement agreement or consent decree with any court or Governmental Authority requiring continuing ongoing compliance or reporting obligations entered into to resolve any labor or employment matter relating to any of the In-Scope Employees. Except as set forth on Schedule 5.5(d), no material Proceeding is, or in the last three (3) years has been, pending or, to the Knowledge of the Sellers, threatened against or involving any of the Sellers, Acquired Entities or their respective Affiliates that alleges a violation of any Applicable Law regarding employment, labor, or employment practices that relates to or affects the Purchased Assets or the Acquired Entities (including for the avoidance of doubt any of the In-Scope Employees).
(e) In the last three (3) years, none of the Sellers, the Acquired Entities, or any of their respective Affiliates have engaged in any plant closing, mass layoff or other action with respect to the Purchased Assets or the Acquired Entities that has resulted or would result in Liability under the Worker Adjustment and Retraining Notification Act of 1988 or any similar state Applicable Law (the “WARN Act”), and have not issued any notice that any such action is to occur in the future.
(f) For the last three (3) years, the Sellers, the Acquired Entities, and their respective Affiliates have been and are in compliance in all material respects with all applicable requirements of the Immigration Reform and Control Act of 1986, as amended, in each case with respect to all of the In-Scope Employees. All of the In-Scope Employees are authorized for employment in accordance with all United States immigration laws (including the Immigration and Naturalization Act, the Immigration Reform and Control Act and the Illegal Immigration Reform and Immigrant Responsibility Act, each as amended) and the regulations promulgated thereunder. As of the Closing, the Sellers, the Acquired Entities and their respective Affiliates, as applicable, have completed and retained in accordance with Immigration and Naturalization Service regulations a Form I-9 for all of the In-Scope Employees, in each case who was hired on or after November 7, 1986, and each such form is true and correct in all material respects.
(g) Except as set forth on Schedule 5.5(g), in the last three (3) years, no material allegations of sexual harassment, discriminatory harassment, discrimination, harassment, retaliation, sexual assault, or sexual misconduct have been made or, to the Knowledge of the Sellers, threatened by or against any of the In-Scope Employees, and none of the Sellers, the Acquired Entities nor any of their respective Affiliates has entered into any settlement or separation agreements related to any such material allegations.
(h) All material Taxes required to have been withheld and paid in connection with amounts paid by Sellers or any of their Affiliates to any In-Scope Employee have been timely withheld and paid to the appropriate Governmental Authority.
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(i) None of the Acquired Entities directly employ any individual. None of the Acquired Entities sponsors, maintains, contributes to or has any obligation to contribute to, or, except as set forth on Schedule 5.5(i), has any Liability (whether actual or contingent) under or with respect to any Benefit Plan, Multiemployer Plan or any other benefit plan that would be a Benefit Plan or Multiemployer Plan with respect to which the Acquired Entities have any Liability.
(j) Schedule 5.5(j) contains a true and complete list of each material Benefit Plan and Multiemployer Plan (to the extent such Multiemployer Plan has been entered into, maintained or contributed to by SPPR or by the Sellers or any of their ERISA Affiliates for the benefit of any of the In-Scope Employees or with respect to which SPPR has Liability).
(k) Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received, from the IRS a favorable determination letter as to its qualification under Section 401(a) of the Code, and nothing has occurred that would be reasonably expected to adversely affect the qualified or exempt status of such Benefit Plan or trust.
(l) Each Benefit Plan (and each consulting arrangement entered into by SPPR or by the Sellers or any of their ERISA Affiliates with any of the In-Scope Employees and each consulting arrangement with a natural person with respect to which SPPR has Liability) is being, and has been, established, operated and administered in accordance with ERISA, the Code and all other Applicable Law and regulations thereunder and in accordance with its terms, except to the extent a failure to so operate or administer a Benefit Plan or such consulting arrangement would not result in material Liability to any Acquired Entity.
(m) Except as set forth on Schedule 5.5(m), none of SPPR nor any of its respective ERISA Affiliates, MPLC and MPLI has an obligation to contribute to a pension plan subject to the funding standards of Section 302 of ERISA or Section 412 of the Code or Title IV of ERISA or a Multiemployer Plan that, in each case, would reasonably be expected to result in SPPR having any Liability after the Closing, or MPLC or MPLI having any Liability after the Closing that would, individually or in the aggregate, reasonably be expected to be material to such entity.
5.6 Purchased Interests.
(a) WRSW has good and valid title to, and owns of record and beneficially, the SPPR Interests, free and clear of any Encumbrances (other than Permitted Equity Encumbrances) and other than this Agreement, there are no contracts or commitments that could require WRSW to sell, transfer, or otherwise dispose of such SPPR Interests, and there are no outstanding options (whether compensatory or non-compensatory), warrants, convertible securities, rights, preemptive rights, subscription rights, rights of first refusal or first offer, change of control or similar rights, anti-dilution protections, phantom stock, profit participation or similar rights, agreements, commitments or other agreements of any character (collectively, the “Equity Rights”) to which SPPR is a party or by which it is otherwise bound to provide for the issuance, delivery, sale, purchase, redemption or acquisition of the equity interests or other securities in SPPR or obligating SPPR to grant, extend or enter into any such Equity Rights, or permit any Person to share or participate in any of the profits, revenues or sales of SPPR. The SPPR Interests are duly authorized, validly issued, fully paid and non-assessable and have been issued in compliance with applicable securities laws and not in violation or breach of any preemptive or similar rights. There are no voting trusts, proxies or other agreements or understandings with respect to the voting of the SPPR Interests.
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(b) Except as set forth on Schedule 5.6(b), TLO has good and valid title to, and owns of record and beneficially, the JV Interests, free and clear of any Encumbrances (other than Permitted Equity Encumbrances) and other than this Agreement and the organizational documents of MPLC and MPLI, as applicable, there are no contracts or commitments that could require TLO to sell, transfer, or otherwise dispose of the JV Interests, and there are no outstanding Equity Rights with respect to the JV Interests to which TLO is a party or by which it is otherwise bound that provide for the issuance, delivery, sale, purchase, redemption or acquisition of equity interests or other securities in MPLC or MPLI or obligating TLO to grant, extend or enter into any such Equity Rights, and there are no contracts or commitments to which TLO is a party that would permit any Person other than TLO and the other current equity holders of MPLC and MPLI, as applicable, to share or participate in any of the profits, revenues or sales of MPLC or MPLI, as applicable. The JV Interests are duly authorized, validly issued, fully paid and non-assessable and have been issued in compliance with applicable securities laws and not in violation or breach of any preemptive or similar rights. Other than the organizational documents of MPLC and MPLI, there are no voting trusts, proxies, or other agreements or understandings with respect to the voting by TLO with respect to the JV Interests.
(c) MPLC is a limited liability company duly organized and validly existing under the laws of the jurisdiction of its organization and MPLI is a corporation duly organized and validly existing under the laws of the jurisdiction of its organization. To the Knowledge of TLO, each of MPLC and MPLI has the requisite power, authority and capacity to own, lease and operate its property and to conduct its business with respect thereto as currently conducted. To the Knowledge of TLO, each of MPLC and MPLI is duly licensed, qualified to do business, as applicable, and is in good standing in all jurisdictions in which the ownership, lease or operation of its assets makes such licensing or qualification necessary or where such licensing or qualification is otherwise required, except where the failure to be so licensed or qualified would not reasonably be expected to have a Material Adverse Effect.
(d) There are no bankruptcy, reorganization or receivership proceedings pending, being contemplated by, or, to the Knowledge of the Sellers, threatened against SPPR, MPLC or MPLI.
5.7 Tax. Except as disclosed on Schedule 5.7:
(a) with respect to the Purchased Assets:
(i) all material Asset Taxes that have become due and payable (taking into account any validly granted extensions), have been timely and properly paid in full;
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(ii) all material Tax Returns with respect to Asset Taxes required to have been filed have been duly and timely filed, and all such Tax Returns are true, correct and complete in all material respects;
(iii) there are no Encumbrances for Taxes on the Purchased Assets, other than Permitted Encumbrances;
(iv) no Seller has received any written notice of any pending claim (which remains outstanding) from any Governmental Authority for assessment of Asset Taxes, and no such claim has been threatened in writing;
(v) no examinations, audits, claims, assessments, deficiencies, or other Proceedings with regard to any Asset Taxes have been commenced or are presently pending;
(vi) there is not currently in effect any extension or waiver of any statute of limitations in any jurisdiction regarding the assessment or collection of any Asset Taxes;
(vii) all material amounts required to be remitted pursuant to any applicable escheat or unclaimed property law with respect to the Purchased Assets have been remitted to the applicable Governmental Authority in accordance with Applicable Law; and
(viii) none of the Purchased Assets is subject to any tax partnership agreement (other than the organizational documents of any Seller or any Seller’s direct or indirect owners) or is otherwise treated, or required to be treated, as held in an arrangement (other than any Seller or any Seller’s direct or indirect owners) requiring a partnership income Tax Return to be filed under Subchapter K of Chapter 1 of Subtitle A of the Code; and
(b) with respect to SPPR since October 1, 2018:
(i) all material Taxes that have become due and payable by SPPR or for which SPPR could otherwise be liable, have been duly and timely paid in full (taking into account any validly granted extensions);
(ii) all material Tax Returns required to have been filed by or with respect to SPPR have been duly and timely filed, and all such Tax Returns are true, correct and complete in all material respects;
(iii) there are no Encumbrances for Taxes on any of the assets of SPPR other than Permitted Encumbrances;
(iv) there are no ongoing or pending federal, state, local, or foreign examinations, audits, investigations, or other administrative or judicial proceedings with respect to Taxes or Tax Returns of or with respect to SPPR, and no such examination, audit, investigation, or other administrative or judicial proceeding has been threatened in writing;
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(v) there is no claim against SPPR for any Taxes, and no assessment, deficiency, or adjustment has been asserted, proposed, or threatened by any Governmental Authority in writing with respect to any Taxes or Tax Returns of or with respect to SPPR;
(vi) no written claim has been made by a Governmental Authority in a jurisdiction where SPPR does not file Tax Returns (or a particular type of Tax Return) that it is or may be subject to taxation in that jurisdiction (or required to file a particular type of Tax Return in that jurisdiction);
(vii) all material Taxes required to have been withheld and paid in connection with amounts paid by SPPR to any employee, independent contractor, creditor, equityholder, member, or other third party have been timely withheld and paid to the appropriate Governmental Authority;
(viii) SPPR has not entered into any agreement or other arrangement or executed any waiver, in each case which remains outstanding, providing for any extension of time within which (A) to file any material Tax Returns (other than automatic extensions validly obtained in the ordinary course); (B) SPPR is required to pay or remit any material Taxes; or (C) any Governmental Authority may assess or collect material Taxes for which SPPR is or may be liable;
(ix) SPPR will not be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date as a result of: (A) an adjustment under Section 481(a) or Section 482 of the Code (or any corresponding provision of state, local, or foreign Tax law) in connection with any change in accounting methods for Tax purposes on or prior to the Closing Date; (B) a “closing agreement” described in Section 7121 of the Code (or any corresponding provision of state, local, or foreign Tax law) executed on or prior to the Closing Date; (C) an installment sale or open transaction disposition made on or prior to the Closing Date; (D) the cash method of accounting or long-term contract method of accounting utilized prior to the Closing Date; or (E) a prepaid amount received on or prior to the Closing Date;
(x) SPPR has not participated in any “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4(b);
(xi) no “closing agreements” described in Section 7121 of the Code (or any similar provision of state, local, or foreign Tax law), private letter rulings, technical advice memoranda, or other agreements have been entered into or issued by any Governmental Authority with or in respect of SPPR, in each case, that would be binding upon SPPR after the Closing Date;
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(xii) no power of attorney that is currently in force has been granted with respect to any matter relating to Taxes that could affect SPPR;
(xiii) SPPR is not a party to or bound by any current Tax allocation, sharing or indemnity agreements or arrangements (excluding any commercial agreements or contracts that are not primarily related to Taxes);
(xiv) SPPR (A) is not and has not been a member of a Consolidated Group or (B) has no liability for the Taxes of any Person under Treasury Regulation Section 1.1502-6 (or any corresponding provisions of state, local or foreign Tax law), or as a transferee or successor, or by contract or otherwise;
(xv) no asset of SPPR is subject to any tax partnership agreement (other than the organizational documents of any Seller or any Seller’s direct or indirect owners) or is otherwise treated, or required to be treated, as held in an arrangement (other than any Seller or any Seller’s direct or indirect owners) requiring a partnership Income Tax return to be filed under Subchapter K of Chapter 1 of Subtitle A of the Code;
(xvi) SPPR is in material compliance with all Applicable Laws relating to escheat or unclaimed or abandoned property; and
(xvii) SPPR is, and at all times since October 1, 2018, has been, classified as a disregarded entity for U.S. federal (and applicable state and local) Income Tax purposes, and no election will be filed to treat SPPR as an association taxable as a corporation for U.S. federal Income Tax purposes.
Notwithstanding any other provision in this Agreement to the contrary, the representations and warranties in this Section 5.7 (together with Section 5.28) shall constitute the sole and exclusive representations and warranties made by the Sellers with respect to Taxes, and no other representation or warranty contained in Article 5 or elsewhere in this Agreement shall be deemed to be made with respect to Taxes.
5.8 Government Consents and Approvals. Except as set forth on Schedule 5.3 or Schedule 5.8, no consent of, approval of, authorization from, declaration or any filing with, or notice to, any Governmental Authority is required by or with respect to any Seller, SPPR, the Purchased Assets or, to the Knowledge of the Sellers, MPLC or MPLI in connection with the execution and delivery of this Agreement and all other Transaction Documents to be delivered at the Closing and the consummation of the transactions contemplated under this Agreement or such Transaction Documents, except (a) for the Antitrust Regulatory Approvals, (b) any consent, approval, or authorization of a Governmental Authority in connection with the transfer of or modification of any Assigned Permits or Corrective Action Orders, (c) filings, if any, required to be made by the Sellers or any of their Affiliates with the U.S. Securities and Exchange Commission with respect to this Agreement or the Transactions, or (d) where the failure to obtain such consent, approval, authorization or action, or to make such filing or notification, would not reasonably be expected to, individually or in the aggregate, (x) hinder or impair in any material respect the ability of the Sellers, SPPR, MPLC, or MPLI to perform their obligations hereunder or the consummation of the
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Transaction or (y) otherwise result in a material fine, penalty or other Liability to SPPR, MPLC, or MPLI or in respect of any Purchased Assets or materially limit the ability of SPPR, MPLC, or MPLI to conduct their respective operations in the ordinary course of business or materially limit the ability to conduct the operations of the Purchased Assets in the ordinary course of business.
5.9 Litigation. Except as set forth on Schedule 5.9, there are no, and since January 1, 2023, there has not been any, Proceedings (w) pending and served on or by any Seller (to the extent arising out of or related to any Purchased Assets, Assumed Liabilities or the ownership, operation, business or assets of SPPR, MPLC or MPLI) or SPPR, (x) to the Knowledge of Sellers, pending without service of process made on or by any Seller (to the extent arising out of or related to any Purchased Assets, Assumed Liabilities or the ownership, operation, business or assets of SPPR, MPLC or MPLI) or SPPR, (y) to the Knowledge of the Sellers, threatened against or by any Seller or SPPR or, in each case, that would, individually or in the aggregate, reasonably be expected to be material to the Purchased Assets, the Assumed Liabilities, or the assets or businesses of SPPR (taken as a whole) or the ownership of the Purchased Interests. Except as set forth on Schedule 5.9, there are no judgments, orders, settlements or decrees that remain unsatisfied that are binding on any Seller (to the extent arising out of or related to any Purchased Assets, Assumed Liabilities or the ownership, operation, business or assets of SPPR) or SPPR or, to the Sellers’ Knowledge, MPLC or MPLI, in each case, that would, individually or in the aggregate, reasonably be expected to be material to the Purchased Assets, the Assumed Liabilities, or the assets or businesses of SPPR, MPLC or MPLI (taken as a whole).
5.10 Ownership of Purchased Assets. Except as set forth on Schedule 5.10, one or more of the Sellers have physical possession of and good, valid and defensible title to, or a valid tenant interest in, or otherwise own the rights to possess, use and obtain the benefits of the Purchased Assets free and clear of any Encumbrances, other than Permitted Encumbrances. To the Knowledge of the Sellers, no Affiliate of any Seller owns any of the Purchased Assets. Except as set forth on Schedule 5.10, SPPR has, and, to the Knowledge of the Sellers, MPLC and MPLI each has, good, valid and defensible title to, or a valid tenant interest in, or otherwise owns the rights to possess, use and obtain the benefits of all assets (including Real Property and other real property interests) that it purports to own or that are otherwise reflected as assets in the Financial Statements free and clear of any Encumbrances, other than Permitted Encumbrances.
5.11 Real Property Matters.
(a) The Real Property and the SPP Refinery (as set forth on Schedule 1.1R, Schedule 1.1S, Schedule 1.1T and Schedule 1.1U) constitute all of the real property interests necessary (other than the Excluded Assets set forth on Schedule 5.11(a)) for the Purchaser to own and operate the Purchased Assets and the business of SPPR following the Closing consistent with the Ordinary Business Operations. Such Schedules, respectively, set forth the Seller party or SPPR, as applicable, with an interest in such Real Property or the SPP Refinery.
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(b) SPPR has good and marketable fee simple title to the SPP Refinery, free and clear of all Encumbrances, except Permitted Encumbrances, and other than the right of Purchaser pursuant to this Agreement, there are no outstanding leases, options, rights of first offer, rights of first refusal or any other rights to lease or purchase the SPP Refinery or any portion thereof or interests therein. SPPR is not a party to any contract, option or similar right to purchase any real property or interest therein. True, correct and complete copies of the most recent title insurance policies and surveys relating to the SPP Refinery, in each case to the extent in the possession or control of the Sellers, have been made available or will be made available to Purchaser prior to the Closing Date. Other than its fee simple interest in the SPP Refinery, the Seller Leased Real Property leased by SPPR, and the SPPR Easements, SPPR does not own, lease, or hold any interest in any real property. There are no condemnation or eminent domain proceedings pending, or, to the Knowledge of the Sellers, threatened against the SPP Refinery by any Governmental Authority.
(c) True, correct and complete copies of the most recent title insurance policies and surveys relating to the Seller Owned Real Property, in each case to the extent in the possession or control of the applicable Seller, have been made available or will be made available to Purchaser prior to the Closing Date. With respect to each material parcel of Seller Owned Real Property: (i) the Seller set forth on Schedule 1.1R has good and marketable fee simple title to such Seller Owned Real Property, free and clear of all Encumbrances, except Permitted Encumbrances, and (ii) other than the right of Purchaser pursuant to this Agreement, there are no outstanding leases, options, rights of first offer, rights of first refusal or any other rights to lease or purchase such Seller Owned Real Property or any portion thereof or interests therein.
(d) A true, correct and complete copy of each Real Property Lease has been made available or will be made available to Purchaser prior to the Closing Date. With respect to the Seller Leased Real Property, (i) each Real Property Lease is legal, valid, binding, and enforceable in all material respects, in accordance with its terms, subject to the effect of any Applicable Law relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (ii) there exist no material defaults (whether with notice or the lapse of time or both) under any Real Property Lease by any Seller or SPPR or, to the Knowledge of the Sellers, by any other Person that is a party to such Real Property Lease, (iii) no written notices of default under any material Real Property Lease have been sent or received by the Sellers, SPPR or any of their Affiliates with respect to any default that remains uncured and (iv) no event has occurred or circumstances exist which, with the delivery of notice, the passage of time or both, would constitute such a breach or default of any Seller or SPPR or, to the Knowledge of Sellers, any other party to such Real Property Lease.
(e) Except as set forth on Schedule 5.11(e), as of the date hereof, there are no condemnation or eminent domain proceedings pending, or, to the Knowledge of the Sellers, threatened against the Seller Owned Real Property or the SPP Refinery by any Governmental Authority and, to the Knowledge of the Sellers, there are no condemnation or eminent domain proceedings pending or threatened against the Seller Leased Real Property.
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(f) Except as set forth on Schedule 5.11(f), one or more of the Sellers or SPPR is party to, or otherwise has a valid legal right to use or hold the Seller Easements and the SPPR Easements necessary to operate the Purchased Assets and the business of SPPR as currently operated, free and clear of Encumbrances other than Permitted Encumbrances, except for any failure to have such rights that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. With respect to each Seller Easement and SPPR Easement: (i) neither the applicable Seller nor SPPR, nor to the Knowledge of Sellers, any other party to such Easement, is in breach or default under such Easement, and (ii) no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a breach or default of any Seller or SPPR or, to the Knowledge of Sellers, any other party to such Easements, except in each case as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(g) Except as set forth on Schedule 5.11(g), (i) none of the Real Property or the SPP Refinery is leased, subleased, licensed or otherwise granted to a third party for use or occupancy, and (ii) no Seller is a party to any contract (including option contract) for the acquisition, sale, lease or transfer of any real property related to the Purchased Assets or the SPP Refinery.
(h) Schedule 5.11(h) sets forth a true and complete list of all material utility accounts of Sellers or their Affiliates with third-party utility providers for electric, gas, water and sewer utility services provided directly to and utilized by the Mandan Refinery.
(i) The Sellers have made available or will make available to the Purchaser prior to the Closing Date true, correct and complete copies of the most recent, final, completed and issued (i) property condition reports, (ii) geotechnical reports, (iii) as-built drawings with respect to the Real Property and the SPP Refinery, in each case, solely to the extent prepared by or on behalf of any Sellers or Affiliate thereof, SPPR or their respective Affiliates since January 1, 2023 and within the possession or control of the Sellers, SPPR or their respective Affiliates.
(j) All of the improvements on the Real Property and the SPP Refinery are, to the Knowledge of the Sellers, materially in compliance with all Applicable Laws and have been maintained, repaired and replaced from time to time in accordance with Ordinary Business Operations, and no material maintenance or repair has been materially deferred.
(k) To the Knowledge of the Sellers, there are no contractual or legal restrictions that preclude or restrict the ability to use any Real Property or the SPP Refinery for the current use thereof. There are no outstanding options or rights of first refusal or rights of first offer to purchase any of the Real Property or the SPP Refinery, any portion thereof or any interest therein or any similar agreement that would have priority over the Purchaser’s right to purchase the Real Property.
5.12 Brokers’ Fees. No Seller, SPPR, or, to the Knowledge of the Sellers, MPLC or MPLI nor any of their Affiliates has retained any broker, finder or investment banker or incurred any Liability or obligation for any brokers’, finders’ or investment banking fees, commissions or similar compensation relating to the Transactions for which the Purchaser or any of its Affiliates, SPPR, MPLC or MPLI will be liable or have any responsibility.
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5.13 Permits. The Sellers, SPPR and, to the Sellers’ Knowledge, MPLC and MPLI possess all material Permits necessary for the ownership, maintenance or operations of the Purchased Assets (with respect to the Sellers) or the assets and businesses of SPPR, MPLC and MPLI, as applicable, including the Ordinary Business Operations of the Sites, in each case except where the failure to have a Permit would not reasonably be expected to result in a material fine, penalty or other Liability to SPPR, MPLC, or MPLI or in respect of any Purchased Assets or materially limit the ability of SPPR, MPLC or MPLI to conduct their respective operations as presently conducted or materially limit the ability to conduct the operations of the Purchased Assets as presently conducted. A true and accurate list of all of such material Permits held by the Sellers or SPPR is set forth on Schedule 5.13. All of such Permits held by the Sellers or by SPPR are in full force and effect and each applicable Person bound thereby is in compliance with such Permits in all material respects. As of the date hereof, none of the Sellers, nor SPPR nor any of their respective Affiliates has received any written notice of any violation or alleged violation of any such Permit held by any Seller or SPPR that remains unresolved in any material respect.
5.14 Regulatory.
(a) Except as set forth on Schedule 5.14, none of the Purchased Assets or the assets of SPPR or, to the Knowledge of the Sellers, the assets of MPLC, or MPLI is owned or operated in a manner that subjects any Seller, SPPR, MPLC, MPLI, the Purchased Assets or the assets of SPPR, MPLC, or MPLI to the jurisdiction of or regulation by (i) the Federal Energy Regulatory Commission (“FERC”) pursuant to the Natural Gas Act of 1938, as amended, or the Natural Gas Policy Act of 1978, as amended, (ii) PHMSA, or (iii) any state regulatory authority or agency as a public utility, gas utility or any similar designation, and neither the rates, nor the terms of service offered on such Purchased Assets or the assets of SPPR, MPLC, or MPLI or by any Seller, SPPR, MPLC, or MPLI are subject to regulation by any state regulatory authority. Except for those facilities listed on Schedule 5.14, none of the Sellers, SPPR, MPLC, or MPLI, the Purchased Assets or the assets of SPPR, MPLC, or MPLI are subject to the jurisdiction of FERC pursuant to the Interstate Commerce Act, Federal Power Act, Public Utility Holding Company Act, or Public Utility Regulatory Policies Act, in each case as amended.
(b) To the Knowledge of the Sellers, with respect to any Seller, SPPR, MPLC, MPLI, the Purchased Assets and the assets of SPPR, MPLC, or MPLI, in each case, subject to regulation by FERC under the Interstate Commerce Act, Federal Power Act, Public Utility Holding Company Act, or Public Utility Regulatory Policies Act:
(i) each such Seller, SPPR, MPLC, MPLI, such Purchased Asset and such asset or business of SPPR, MPLC, or MPLI, is in compliance, except where the failure to be compliant would not reasonably be expected to have a Material Adverse Effect, with all statutes enforced by and all rules, regulations and orders of FERC and all state regulatory agencies applicable to such Seller, SPPR, MPLC, MPLI, such Purchased Asset or such asset or business of SPPR, MPLC, or MPLI;
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(ii) no such Seller, SPPR, MPLC, MPLI, such Purchased Asset or such asset or business of SPPR, MPLC, or MPLI is subject to or liable for, or is involved in any threatened or ongoing material proceeding in which it may be subject to or liable for, any penalties or any refunds or interest on any rate, fee, or other charge collected, including such penalties, refunds, or interest as a result of an order from FERC or any other Governmental Authority with jurisdiction over such Seller, SPPR, MPLC, MPLI, such Purchased Asset or such asset or business of SPPR, MPLC, or MPLI; and
(iii) no such Seller, SPPR, MPLC, MPLI, such Purchased Asset or such asset or business of SPPR, MPLC, or MPLI has been or is the subject of a material complaint, investigation or other proceeding (whether formal or informal, public or non-public) regarding the rates, services, or practices with respect to such Seller, SPPR, MPLC, MPLI, such Purchased Asset or such asset or business of SPPR, MPLC, or MPLI.
5.15 Compliance with Laws; No Violations. Except as set forth on Schedule 5.15, since January 1, 2023, each Seller (with respect to the businesses and operations involving or related to the Purchased Assets and Purchased Interests only) and SPPR and each of their respective current or, to the Knowledge of the Sellers, former, officers, directors, managers, and employees (in their capacity as such), is, and has been, in compliance in all material respects with all Applicable Law and Orders, and is not in default or violation in any material respect of, any Applicable Law or any Order, and, to the Knowledge of the Sellers, no event has occurred and no circumstance or condition exists that (with or without notice or lapse of time or both) would reasonably be expected to constitute or result in a failure by the Sellers or Acquired Entity to comply with the terms of any such Applicable Law or Order. To the Knowledge of the Sellers, no Seller (with respect to the businesses and operations involving or related to the Purchased Assets and the Purchased Interests only) nor SPPR is under investigation with respect to any violation or alleged violation of any Applicable Law or any Order. None of the Sellers nor SPPR has received any written notice that the current ownership, maintenance or operation of the Purchased Assets or the Purchased Interests violates any Applicable Law or any Order in any material respect.
5.16 Material Contracts. A true, correct and complete copy of each Material Contract has been made available to the Purchaser. Each Material Contract is in full force and effect and constitutes the legal, valid and binding agreement of the applicable Seller or SPPR, enforceable against such Seller or SPPR in accordance with its respective terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium, and similar Applicable Law, as well as to principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). None of the Sellers or SPPR (or any Affiliate thereof), has received any written notice of any material default or event that with notice or lapse of time or both would constitute a material default by such party under any Material Contract. None of the Sellers or SPPR (or any Affiliate thereof) is in material breach or material default of any Material Contract, and, to the Knowledge of the Sellers, (a) no other Person is in material breach of any Material Contract or material default of any Material Contract, and (b) no event has occurred which, with the passage of time or the giving of notice or both, would reasonably be expected to result in a material breach or material default by the Sellers, SPPR or, to the Knowledge of the Sellers, any other Person under any Material Contract. None of the Sellers or SPPR (or any Affiliate thereof) have received written notice that any counterparty to any Material Contract has exercised any termination or cancellation rights with respect thereto, and no such party has given written notice of any material dispute with respect to such Material Contract.
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5.17 Financial Assurances. Schedule 5.17 lists all material bonds, letters of credit, guarantees, security deposits and other surety obligations (other than any security based solely on the ability of any Seller to perform the underlying obligation) held by or issued for the benefit of SPPR or any Seller or any of its respective Affiliates that are required to be maintained with respect to the Purchased Assets or the assets of any Acquired Entity (collectively, the “Financial Assurances”).
5.18 Anti-Corruption Laws.
(a) Each of the Sellers, with respect to the Purchased Assets, and SPPR is and, for the last five (5) years, has been in compliance with the United States Foreign Corrupt Practices Act of 1977, as amended and all other Applicable Law prohibiting bribery or corruption (“Applicable Anti-Corruption Laws”). The Sellers or their Affiliates have implemented and maintained policies and procedures reasonably designed to ensure compliance with the Applicable Anti-Corruption Laws with respect to SPPR and the Purchased Assets. No utilization, use of proceeds, or other transaction contemplated by this Agreement will violate the Applicable Anti-Corruption Laws or applicable sanctions.
(b) None of the Sellers, with respect to the Purchased Assets, or SPPR, or their respective directors, officers or employees, or, to the Knowledge of the Sellers, its employees, personnel, representatives, or agents, in the past five (5) years have made, offered, promised, received, accepted, or authorized any payment, gift, promise, entertainment, or other advantage, including cash, checks, wire transfers, tangible and intangible gifts, favors, services, entertainment and travel expenses or other illicit payments, whether directly or through any other Person, to or for the use or benefit of, any public official, political party, political party official, or candidate for office, or any other Person, where such offer, payment, gift, promise, entertainment, or advantage would violate the Applicable Anti-Corruption Laws.
5.19 Financial Information.
(a) The Sellers have provided to the Purchaser true and complete copies of the audited combined balance sheets and the related audited combined statements of income, equity, and cash flows of the Purchased Assets and the Acquired Entities for the years ended December 31, 2024 and 2025 (the “Audited Financial Statements”) and unaudited combined balance sheets and the related unaudited combined statements of income, equity, and cash flows of the Purchased Assets and Acquired Entities for the nine (9) months ended September 30, 2025 and 2026 (September 30, 2026, being the “Balance Sheet Date” and such unaudited combined financial statements, being the “Interim Financial Statements”, and together with the Audited Financial Statements, the “Financial Statements”), as set forth on Schedule 5.19. The Financial Statements (including the related notes and schedules, if any) and each statement of income included in the Financial Statements (including the related notes and schedules, if any) (i) have been prepared in accordance with GAAP, applied on a consistent basis and without modification of the accounting principles used in the preparation thereof throughout the periods covered thereby, (ii) fairly present in all material respects the financial position of the Purchased Assets and the Acquired Entities, as applicable, as of the date thereof and the results of operations and cash flows and changes
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in stockholders’ equity for the periods indicated, and (iii) have been prepared in accordance with the books and records of the Acquired Entities, which books and records, to the Knowledge of the Sellers (solely with respect to MPLC and MPLI), (A) have been maintained in the ordinary course of business and in compliance with Applicable Law and (B) accurately reflect in all material respects the transactions of the Acquired Entities and the Purchased Assets. The Financial Statements are qualified by the fact that the Purchased Assets and the Acquired Entities each have not operated as a separate “standalone” entity, and the Financial Statements are not necessarily indicative of the conditions that would have existed or the results of operations that would have been achieved if the Purchased Assets and the Acquired Entities had been operated as standalone entities. The Audited Financial Statements have been audited in accordance with GAAS.
(b) The Sellers have provided to the Purchaser copies of (i) the audited balance sheets and the related audited statements of income, capital, and cash flows of MPLC for the years ended December 31, 2024 and 2025, (ii) the unaudited balance sheet and the related unaudited statements of income, and cash flows of MPLC for the nine (9) months ended September 30, 2026, (iii) the audited balance sheets and the related audited statements of income, changes in stockholders’ equity, and cash flows of MPLI for the years ended December 31, 2024 and 2025, and (iv) the unaudited balance sheet and the related unaudited statements of income and cash flows of MPLI for the nine (9) months ended September 30, 2026.
(c) Except as set forth on Schedule 5.19(c), all accounts receivable and accounts payable of SPPR and, to the extent reflected in the Financial Statements, accounts receivable and accounts payable related to the Purchased Assets and as of the dates thereof, in each case as reflected on the balance sheets included in the Financial Statements, arose in the Ordinary Business Operations and represent actual and bona fide obligations owed by or to, as applicable, the applicable account debtors or creditors.
(d) Except as set forth on Schedule 5.19(d), there are no Liabilities of SPPR or Liabilities related to the Purchased Assets of a type or kind required by GAAP to be reflected on a balance sheet prepared with respect to the same, other than Liabilities (i) reflected or adequately reserved against in the Financial Statements, including the notes and schedules thereto, in accordance with GAAP and without modification of the accounting principles used in the preparation thereof throughout the period presented, (ii) incurred in the Ordinary Business Operations since the Balance Sheet Date (and not arising from a breach or violation of any Contract, Permit or Applicable Law or any tort), (iii) incurred in connection with the Transactions or as expressly contemplated by this Agreement, (iv) to the extent constituting Excluded Liabilities or otherwise borne by the Sellers pursuant to Section 16.1, or (v) that would not reasonably be expected to be, individually or in the aggregate, material to SPPR and Purchased Assets, taken as a whole.
(e) Sellers or their Affiliates maintain, with respect to the Purchased Assets and SPPR as a part of Sellers’ and their Affiliates’ consolidated financial reporting control environment, and not as a standalone or carve-out control with respect to the Purchased Assets or the Acquired Entities, disclosure controls and procedures that are reasonably designed to ensure that all material information necessary for the preparation of Sellers’ and
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their Affiliates’ consolidated financial statements and the Financial Statements concerning the Purchased Assets or SPPR, is made known on a timely basis to the individuals responsible for the preparation of financial statements of Sellers and their Affiliates on a consolidated basis. Sellers or their Affiliates maintain and comply with, as part of Sellers’ and their Affiliates’ consolidated internal control over financial reporting environment and not on a standalone or carve-out basis with respect to the Purchased Assets or the Acquired Entities, with respect to the Purchased Assets and SPPR a system of internal control over financial reporting that is effective in providing reasonable assurance (i) regarding the reliability of financial reporting and the preparation of Sellers and their Affiliates consolidated financial statements in accordance with GAAP, including the consolidated financial reporting records, books and records, allocations, estimates and assumptions from which the Financial Statements were prepared, (ii) that records are maintained in reasonable detail to accurately and fairly reflect, in all material respects, the transactions and disposition of assets of SPPR, in each case, for purposes of Sellers’ and their Affiliates’ consolidated financial reporting and the preparation of the Financial Statements, and (iii) regarding prevention or timely detection of unauthorized acquisition, use or disposition of any assets of SPPR that could have a material effect on the Financial Statements or the consolidated financial statements of Sellers and their Affiliates, as applicable. The Purchased Assets and the Acquired Entities have not historically been operated, assessed, tested, or audited as separate standalone entities, and the Financial Statements were prepared from Sellers’ and their Affiliates’ consolidated financial reporting records and related books and records. Accordingly, any assessment of materiality, control design, control operation, or control effectiveness with respect to the Purchased Assets or the Acquired Entities was made in the context of Sellers’ and their Affiliates’ consolidated financial statements and integrated audit, and not by reference to the Financial Statements on a standalone or carve-out basis. During the periods covered by the Financial Statements, SPPR’s external auditors were independent of SPPR and their management under applicable professional standards. SPPR has not entered into any transactions involving the use of special purpose entities for any off-balance sheet activity other than as specifically described in the Financial Statements. Since January 1, 2023 SPPR has not identified or been made aware of any “significant deficiencies” or “material weaknesses” in the design or operation of internal control over financial reporting with respect to the Purchased Assets or SPPR, in each case, in the context of Sellers’ and their Affiliates’ consolidated internal control over financial reporting environment that would be material to Sellers’ and their Affiliates’ consolidated financial statements, and not be reference to any standalone or carve-out materiality threshold applicable to the Financial Statements.
(f) Since June 30, 2025, the business of the SPPR and the Purchased Assets, and to the Knowledge of the Sellers, MPLI and MPLC, have (i) managed the working capital in good faith in the ordinary course of business consistent with past practice and customs, (ii) not accelerated the recognition of revenue or collection of accounts, or deferred incurring costs or expenditures outside of the ordinary course of business consistent with past practice and customs, and (iii) maintained billing and collection processes in the ordinary course of business consistent with past practice and customs.
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5.20 Indebtedness. Other than as set forth on Schedule 5.20 or reflected in the Financial Statements or the financial statements of MPLC or MPLI, as applicable, SPPR does not have any Indebtedness, and, to the Knowledge of Sellers, MPLC, and MPLI, do not have any indebtedness for borrowed money. SPPR is not in default in any respect with regards to any Indebtedness, including but not limited to the payment of the principal of or interest or premium on any Indebtedness, and no event has occurred or is continuing under the provisions of any instrument, document or agreement evidencing or relating to any Indebtedness of SPPR and which with the lapse of time or the giving of notice, or both, would constitute an event of default thereunder. To the Knowledge of Sellers, MPLC, and MPLI (i) are not in default in any respect with regards to any indebtedness for borrowed money, including but not limited to the payment of the principal of or interest or premium on any indebtedness for borrowed money, and (ii) no event has occurred or is continuing under the provisions of any instrument, document or agreement evidencing or relating to any indebtedness for borrowed money which with the lapse of time or the giving of notice, or both, would constitute an event of default thereunder.
5.21 Absence of Certain Changes. Except as set forth on Schedule 5.21, from the Balance Sheet Date, (a) the Sellers and their Affiliates (including the Acquired Entities) have operated and maintained the Purchased Assets and ownership of the Purchased Interests in accordance with Ordinary Business Operations (except for entering into this Agreement and the other Transaction Documents and the consummation of the Transactions), (b) there has not been any action, event, occurrence or development that would materially impair or delay consummation by the Sellers of the Transactions contemplated by, or the performance of their respective obligations under, the Transaction Documents and (c) there has not been a Material Adverse Effect. Without limiting the generality of the foregoing, since the Balance Sheet Date, the Sellers and SPPR have not taken any action that, if taken after the date hereof, would be a breach of, or require the prior written consent of, the Purchaser under Section 7.1(b).
5.22 IT Infrastructure and Privacy.
(a) The Sellers or their Affiliates own, lease or license all IT Infrastructure of a sufficient quantity and size to operate the businesses of SPPR or the Purchased Assets or the assets of SPPR as presently conducted. To the Knowledge of Sellers, since January 1, 2023, there has been no material failure or substandard performance of the IT Infrastructure which has (i) caused a material impact to the Sellers’ business with respect to the Purchased Assets, the businesses of the Acquired Entities, or the assets of SPPR, or (ii) resulted in any unauthorized disclosure of or access to any data owned, collected or controlled by the Sellers, to the extent used in or related to the assets of SPPR or the Purchased Assets. To the Knowledge of the Sellers, the IT Infrastructure does not contain any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” or “virus,” that would reasonably be expected to have a material adverse effect. The Sellers have taken commercially reasonable steps to provide for the backup and recovery of data and information, have commercially reasonable disaster recovery plans, procedures and facilities, and, as applicable, have taken commercially reasonable steps to implement such plans and procedures, in each case to the extent such practices are related to the assets of SPPR, the businesses of the Acquired Entities, or the Purchased Assets. The Sellers have taken reasonable technical, administrative, and physical measures to protect the integrity and security of the IT Infrastructure and the data stored thereon from unauthorized use, access, or modification by third parties.
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(b) The Sellers have maintained reasonable cybersecurity and privacy programs for the businesses of the SPPR or the Purchased Assets or the assets of SPPR that, in each case, comply in all material respects with applicable cybersecurity and privacy laws. No claim alleging (i) a violation of any external privacy policies or Contracts related to the collection, storage, processing, or disclosure of Personal Information or the security of the IT Infrastructure or data, (ii) any breach, misappropriation or unauthorized disclosure, access, use or dissemination of any Personal Information, or (iii) a violation of applicable cybersecurity or privacy law, has been asserted or, to the Knowledge of Sellers, threatened against any Seller in relation to the businesses of the Purchased Assets or the assets of SPPR by any Person since January 1, 2023. Since January 1, 2023, no Seller (on behalf of the business of the Purchased Assets or the Acquired Entities) has provided or been legally required to provide any notice to data owners or a Governmental Authority in connection with any unauthorized access, use, or disclosure of Personal Information.
5.23 Bank Accounts. Schedule 5.23 sets forth a true, complete and correct list as of the date of this Agreement of all bank accounts, investment accounts, safety deposit boxes and lock boxes maintained by SPPR at any bank, trust company or other financial institution and the persons authorized to sign checks drawn on or access such accounts. Except as set forth on Schedule 5.23, SPPR has not granted any powers of attorney to any third Person except as would not reasonably be expected to be material to SPPR taken as a whole.
5.24 Environmental. Notwithstanding any provision to the contrary contained herein, the representations and warranties contained in this Section 5.24 are the sole and exclusive representations and warranties of the Sellers pertaining or relating to matters arising under or with respect to applicable Environmental Laws and required Environmental Permits. Except for Section 5.24(d), none of the representations and warranties contained in this Section 5.24 or in any other section in this Article 5 shall apply to any matters addressed by any Corrective Action Orders. Except as set forth on Schedule 5.24:
(a) All material Environmental Permits necessary for the operation of the Purchased Assets and the business of SPPR as each are operated by the Sellers as of the date hereof have been obtained and are in full force and effect and not subject to termination, cancellation, expiration or revocation, and, where applicable, applications for renewal or amendment thereof have been timely filed. No Proceeding is pending or, to the Knowledge of the Sellers, threatened which would reasonably be expected to result in revocation of, or additional restrictions in, any such Environmental Permits.
(b) The Purchased Assets and SPPR are, and for the past three (3) years have been, in compliance in all material respects with applicable Environmental Laws, the Corrective Action Orders, and Environmental Permits, and there are no unbudgeted capital or operating expenditures required to presently maintain such compliance.
(c) None of the Sellers nor SPPR have received any written information request nor, to the Knowledge of Sellers, are or have been subject to any Proceeding from any Governmental Authority or other Person regarding any Environmental Matter, except for any such Proceeding that has been closed or concluded without further Liability or obligations of any Seller or SPPR.
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(d) No further material capital projects (i.e., projects to acquire, install or upgrade fixed, long-term physical assets) are necessary to satisfy any requirements or obligations set forth in the Corrective Action Orders.
(e) There has been no Release at, on, under or from the Refineries, the Pipeline Systems, or the Terminals that has or would reasonably be expected to result in remediation requiring the incurrence of out-of-pocket costs and expenses that exceed two million U.S. Dollars ($2,000,000).
(f) Neither the Sellers (with respect to the Purchased Assets) nor SPPR have assumed contractually or by operation of law any outstanding material Liability of another Person under Environmental Laws.
(g) Sellers have made available to Purchaser true, correct and complete copies of all material and final environmental site assessments, studies, reports, testing, analyses, compliance audits and other material environmental documentation relating to Purchased Assets and SPPR and compliance with or liability under Environmental Laws in Sellers’ possession, other than documents covered under attorney client privilege or attorney work product; provided, however, that applicable reports and records kept and maintained at the operating facilities shall be collected and provided prior to the Closing Date.
5.25 Operation of the Refineries and Other Assets; Condition of Assets; Continuity of Pipeline Systems.
(a) To the Knowledge of the Sellers, during the twelve (12) months preceding the date hereof, the Refineries and the other Purchased Assets and the assets of SPPR have been operated in accordance with Ordinary Business Operations in all material respects; provided that the Sellers shall not be in breach of the foregoing provision in respect of any steps the Sellers or any of their respective Affiliates may take during the Interim Period in accordance with the terms of this Agreement (i) to effect the transfer, prior to the Closing Date, of the Excluded Assets, (ii) to effect the Transactions, and (iii) to effect any scheduled or unscheduled turnarounds or maintenance of the Refineries or such other Purchased Assets or assets of SPPR as set forth on Schedule 5.25(a).
(b) Except as set forth on Schedule 5.25(b), as of the date hereof, all material Purchased Assets and assets of SPPR are in an operable state of repair sufficient to maintain operations in accordance with Ordinary Business Operations (as currently operated), except for ordinary wear and tear, and except where failure to be in such condition would not prevent or materially interfere with operations as currently conducted in accordance with Ordinary Business Operations.
(c) Except as set forth on Schedule 5.25(c), the recorded deeds, rights-of-way, Easements, franchises, leases, subleases, permits, servitudes, licenses and other instruments in favor of any Seller establish a contiguous and continuous right-of-way for the Pipeline Systems owned or operated by such Seller.
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(d) Since January 1, 2023, neither SPPR nor, to the Sellers’ Knowledge, MPLC or MPLI has engaged in any line of business that is substantially different from the business of such Acquired Entity as of the date hereof.
5.26 Material Customers. Schedule 5.26 sets forth a true, complete and correct list of the ten (10) largest (by annual volumes) customers or groups of affiliated customers with respect to each of the Purchased Assets (taken as a whole) and the business of SPPR for the fiscal year ended December 31, 2025 (each, a “Material Customer”). Since December 31, 2025, the aggregate volume (MBD) for the Material Customers has not materially reduced as of July 31, 2026. As of the date hereof, no Seller nor SPPR has received written notice from any Material Customer that such Material Customer intends to terminate its applicable Contract.
5.27 Infringement. To the Knowledge of Sellers, (a) no Person is infringing upon any Intellectual Property which is exclusively licensed to any Acquired Entity and material to any of the Acquired Entities’ businesses as currently conducted, or to any Seller and material to the businesses of the Purchased Assets or the Acquired Entities and (b) the conduct of the businesses of the Acquired Entities and the Purchased Assets has not, in the past six (6) years, infringed, misappropriated or violated and does not infringe, misappropriate, or violate any Intellectual Property of any Person. Sellers have taken commercially reasonable measures to protect the confidentiality of material confidential information used in the businesses of the Acquired Entities and the Purchased Assets.
5.28 MPLC and MPLI Liabilities. Except as provided in the Data Room, to the Knowledge of the Sellers, as of the date hereof, there is no material Tax or financial Liability with respect to either MPLC or MPLI that would have an adverse impact in any material respect on the ownership of the MPLC Interests or the MPLI Interests.
5.29 No Other Representations; Non-Operated Assets. Except for the Sellers’ Warranties, no Seller, or any other Person on behalf of a Seller (including any Representative of any Seller), makes any express or implied representation, warranty, assurance, or other commitment with respect to the Sellers, the Purchased Assets, the Purchased Interests or the businesses of the Acquired Entities, and the Sellers hereby disclaim, to the maximum extent permitted by Applicable Law, any representation, warranty, assurance, or other commitment not contained in this Article 5. Each representation and warranty of the Sellers contained in this Article 5 is to be construed as a separate and independent representation and warranty and is not to be limited or restricted by reference to, or inference from, the provisions of any other representation or warranty or anything else, whether in this Agreement or otherwise. Notwithstanding anything herein to the contrary, to the extent any representation or warranty in this Article 5 relates to any Purchased Asset or Acquired Entities not operated by a Seller, or its respective Affiliates (including any of the MPLC Assets or the MPLI Assets), such representation or warranty is made solely to the Knowledge of the Sellers.
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ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to each Seller as follows:
6.1 Organization, Existence, and Qualification. The Purchaser is a Delaware corporation duly organized and validly existing under the laws of the jurisdiction of its organization. The Purchaser has the requisite power and authority to own, lease and operate its property and to conduct its business with respect thereto as currently conducted. The Purchaser is duly licensed or qualified to do business and is in good standing in all jurisdictions in which the ownership, lease or operation of its business makes such licensing or qualification necessary or where such licensing or qualification is otherwise required, except where the failure to be so licensed or qualified would not reasonably be expected to have a material adverse effect on the Purchaser’s ability to consummate the Transactions and the other Transaction Documents and to perform its obligations hereunder and thereunder.
6.2 Authority, Approval, and Enforceability. The Purchaser has all requisite power and authority to enter into and perform this Agreement and all other Transaction Documents to be delivered at the Closing by the Purchaser, and to consummate the Transactions. The execution, delivery, and performance by the Purchaser of this Agreement and the consummation by the Purchaser of the Transactions have been, and the execution, delivery and performance of the other Transaction Documents to which the Purchaser is a party and the consummation by the Purchaser of the transactions contemplated thereby, will be at the Closing, duly and validly authorized and approved by all necessary corporate action on the part of the Purchaser. This Agreement is, and the other Transaction Documents to which the Purchaser is a party when executed and delivered by the Purchaser will be, the valid and binding obligation of the Purchaser and enforceable against the Purchaser in accordance with their respective terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium, and similar Applicable Law, as well as to principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
6.3 No Conflicts. Assuming the receipt of Antitrust Regulatory Approvals and all applicable consents and the transfer and modification of any Corrective Action Orders, the execution, delivery, and performance by the Purchaser of this Agreement, and the other Transaction Documents to be delivered by the Purchaser at the Closing, and the consummation of the Transactions by the Purchaser, shall not: (a) conflict with or violate any provision of the organizational documents of the Purchaser, (b) result in any violation, breach or acceleration of, constitute a default under (with or without due notice or lapse of time or both), or result in the creation or imposition of any Encumbrance under, any agreement or instrument to which the Purchaser is a party or by which its assets are bound, (c) violate any judgment, order, ruling, or decree applicable to the Purchaser, or (d) violate or conflict with any Applicable Law applicable to the Purchaser, except in the case of subsection (b), (c), or (d), where such violation would not reasonably be expected to have a material adverse effect on the ability of the Purchaser to consummate the transactions contemplated under this Agreement and the other Transaction Documents and to perform their obligations hereunder and thereunder.
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6.4 Bankruptcy. There are no bankruptcy, reorganization or receivership proceedings pending, being contemplated by, or, to the Knowledge of the Purchaser, threatened against the Purchaser.
6.5 Government Consents and Approvals. No consent of, approval of, permit from, authorization from, declaration or any filing with, or notice to, any Governmental Authority is required by or with respect to the Purchaser in connection with the execution and delivery of this Agreement and all other Transaction Documents to be delivered at the Closing by the Purchaser and the consummation of the transactions contemplated under this Agreement or such Transaction Documents, except for those filings required under the HSR Act.
6.6 Compliance with Laws.
(a) In connection with this Agreement and the business resulting therefrom (i) the Purchaser is in compliance with all Applicable Law, except where the failure to so comply would not have a material adverse effect; (ii) the Purchaser has not received any written notification from any applicable Governmental Authority that it is not in compliance with any Applicable Law; and (iii) no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to constitute or result in a failure of the Purchaser to comply with the terms of any Applicable Law.
(b) The Purchaser represents and warrants on behalf of itself and its Affiliates that its and their respective directors, officers, employees, consultants, agents or other representatives have not directly or indirectly, (i) taken any action that would cause the Purchaser to be in violation of the Applicable Anti-Corruption Laws, or (ii) in connection with this Agreement and the business resulting therefrom made, offered, authorized or accepted any payment, gift, promise, or other advantage, to or for the use or benefit of any government official or any other Person where that payment, gift, promise, or other advantage would comprise a facilitation payment or otherwise violate the Applicable Anti-Corruption Laws.
6.7 Independent Evaluation. The Purchaser acknowledges that the Purchaser has made its own independent investigation, analysis, verification and judgment of the commercial potential, condition and usefulness of the Purchased Assets, the Purchased Interests, and the businesses of the Acquired Entities taking into consideration all current Applicable Law and the likelihood that such laws and requirements will change in the future, and is not relying upon any projections from the Sellers regarding prospective operations of the Purchased Assets or the businesses of the Acquired Entities. The Purchaser has such knowledge and experience in business and financial affairs in general as to be capable of evaluating the merits and risks of purchasing the Purchased Assets and the Purchased Interests. In making its decision to enter into this Agreement and to consummate the Transactions, the Purchaser has relied solely on its own independent investigation and evaluation of the Purchased Assets, the Purchased Interests, and the Acquired Entities and the advice of its own legal, Tax, economic, environmental, and engineering advisors and not on any comments, statements, projections, or other material made or given by the Sellers or any of their Representatives. EXCEPT AS EXPRESSLY PROVIDED IN SELLERS’ EXPRESS REPRESENTATIONS AND WARRANTIES IN ARTICLE 5 (INCLUDING THE RELATED
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PORTIONS OF THE SCHEDULES) AND ANY CERTIFICATE DELIVERED BY THE SELLERS PURSUANT TO THIS AGREEMENT, THE PURCHASER ACKNOWLEDGES THAT THE PURCHASED ASSETS, PURCHASED INTERESTS, AND ASSUMED LIABILITIES ARE SOLD TO AND ASSUMED AND ACCEPTED BY THE PURCHASER “AS IS, WHERE IS” AND “WITH ALL FAULTS,” IN THEIR PRESENT CONDITION AND STATE OF REPAIR, WITH NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, OF THEIR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONDITION, DESIGN, OPERATION, CAPACITY, QUALITY, VALUE OR OTHERWISE. Additionally, in no event shall any projection as to the financial condition, financial results, status of assets, projects, availability of feedstock or market projections made by or on behalf of the Sellers or any other Person to the Purchaser be relied upon by the Purchaser, and the Purchaser acknowledges that the Sellers make no representation or warranty and specifically disclaims any representation or warranty with regard to same. The Purchaser further acknowledges that: (a) no Seller nor any other Person on behalf of a Seller has made any representation or warranty, express or implied, as to the Sellers, the Purchased Assets or the Purchased Interests, or the accuracy or completeness of any information regarding the Sellers, the Purchased Assets, the Purchased Interests, or the Acquired Entities furnished or made available to the Purchaser and its Representatives, or any other matter related to the Transactions contemplated herein, other than those representations and warranties expressly set forth in Article 5 (including the related portions of the Schedules) and any certificates delivered by the Sellers pursuant to this Agreement, (b) in determining to enter into this Agreement, the Purchaser has not relied on any representation or warranty from any Seller or any other Person on behalf of any Seller, or upon the accuracy or completeness of any information regarding a Seller, the Purchased Assets, the Purchased Interests, or the Acquired Entities furnished or made available to the Purchaser and its Representatives, other than those representations and warranties expressly set forth in Article 5 (including the related portions of the Schedules) and any certificate delivered by the Sellers pursuant to this Agreement, and (c) no Seller nor any other Person acting on behalf of any Seller shall have any liability to the Purchaser or any other Person with respect to any projections, forecasts, estimates, plans, or budgets of future revenue, expenses, or expenditures, future results of operations, future cash flows, or the future financial condition of the Purchased Assets, the Purchased Interests, or the Acquired Entities or the future business, operations, or affairs of the Purchased Assets, the Purchased Interests, or the Acquired Entities, except as expressly set forth in Article 5 (including the related portions of the Schedules). NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED IN THIS SECTION 6.7 SHALL OPERATE AS A WAIVER OF CLAIMS OF FRAUD.
6.8 Financing. The Purchaser has delivered to the Sellers true, correct, and complete copies of the executed Financing Commitments in connection with the Financing in effect as of the date of this Agreement (it being understood that each fee letter has been redacted to remove the fee amounts, the rates and amounts included in the “market flex” and other economic terms (none of which would adversely affect the conditions, amount or availability of the Financing)). As of the date hereof, none of the Financing Commitments have been directly or indirectly amended, modified, supplemented, or replaced, and, to the Knowledge of the Purchaser, no such amendment, modification, supplement or replacement is contemplated (in each case, other than amendments, modifications, supplements or replacements to add bona fide lenders, lead arrangers, bookrunners, syndication agents and other Financing Sources), and the respective commitments contained in the Financing Commitments have not been terminated, withdrawn, or rescinded. The Financing Commitments are in full force and effect and constitute the legal, valid and binding obligations of
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the Purchaser, and, to the Knowledge of the Purchaser, the Financing Sources that are parties thereto (except to the extent that enforceability may be limited by the applicable bankruptcy, insolvency, moratorium, reorganization or similar Applicable Law affecting the enforcement of creditors’ rights generally or by general principles of equity). There are no conditions precedent related to the funding of the full amount of the Financing other than those set forth in the Financing Commitments. There are no side letters, contracts or other arrangements (written or oral) relating to the Financing other than the Financing Commitments, except for customary fee letters and engagement letters, a complete copy of each of which has been provided to the Sellers, with only the fee amounts and certain other “market flex” and other economic terms redacted (none of which would adversely affect the conditions, amount or availability of the Financing). No event has occurred that (with or without notice or lapse of time, or both) would constitute a breach or default (however denominated) of the Financing Commitments, in each case, on the part of the Purchaser or, to the knowledge of the Purchaser, any other party to the Financing Commitments, or that would otherwise give rise to the right of the Financing Sources to terminate the Financing Commitments. The consummation of the Financing will not result in any violation, breach or acceleration of, constitute a default under (with or without due notice or lapse of time or both), or result in the creation or imposition of any Encumbrance under, any agreement or instrument to which the Purchaser is a party or by which its or its Affiliates’ assets are bound. None of the representations or warranties made by the Purchaser in any of the Financing Commitments is inaccurate, incomplete, or misleading in any material respect. The Purchaser has no reason to believe any term or condition to the Financing Commitments will not be satisfied on or prior to the Closing or that the Financing will otherwise not be available to the Purchaser at the Closing. The Purchaser has fully paid all commitment fees or other fees required by the terms of the Financing Commitments to be paid on or before the date hereof and has the ability to pay all such commitment fees or other fees required by the terms of the Financing Commitments that are required to be paid at or prior to Closing. Subject to the conditions set forth in the Financing Commitments and subject to the satisfaction of the conditions contained in Article 9, the aggregate proceeds contemplated by the Financing Commitments, together with the IEP Cash Amount and the Purchaser Cash Amount, will be sufficient for the Purchaser to consummate the Transactions and to pay all related fees and expenses. The Purchaser has, and at all times through the Closing will have, Unrestricted Cash of not less than the Purchaser Cash Amount, and the Purchaser has delivered to the Sellers a copy of the IEP Commitment Letter. Notwithstanding anything to the contrary contained herein, the IEP Commitment Letter may, at the option of the Purchaser, be cancelled and/or terminated upon the increase of the “Purchaser Cash Amount” from Five Hundred Million U.S. Dollars ($500,000,000) to One Billion U.S. Dollars ($1,000,000,000) as contemplated by the definition of such term.
6.9 Brokers’ Fees. Neither the Purchaser nor any of its Affiliates has incurred any Liability or obligation for brokers’ or finders’ fees relating to the Transactions for which the Sellers or any of their Affiliates will be liable or have any responsibility.
6.10 Accredited Investor. The Purchaser is an “accredited investor,” as such term is defined in Regulation D of the Securities Act, and the Purchaser shall acquire such Purchased Assets, and the Purchaser shall acquire the Purchased Interests, in each case, for its own account, and not with a view to a sale or distribution thereof in violation of the Securities Act, and the rules and regulations thereunder, any applicable state blue sky laws, or any other applicable securities laws.
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6.11 Certifications. The Purchaser represents and warrants that it (or its applicable designee) has properly registered with the IRS as a taxable fuel registrant.
6.12 Solvency. As of the date of this Agreement, the Closing and immediately after giving effect to the Transactions, the Purchaser and each of its Subsidiaries (taken as a whole) will not (a) be insolvent (either because their financial condition is such that the sum of their debts and Liabilities is greater than the fair value of their assets or because the present fair salable value of their assets will be less than the amount required to pay their debts as they become absolute and matured); (b) have unreasonably small capital with which to engage in their businesses; or (c) have incurred, or plan to incur, debts beyond their ability to repay such debts as they become absolute and matured. No transfer of property is being made, and no obligation is being incurred in connection with the Transactions with the intent to hinder, delay or defraud either present or future creditors of the Purchaser or its Subsidiaries.
ARTICLE 7
CONDUCT OF OPERATIONS
7.1 Conduct of Operations Pending Closing.
(a) During the Interim Period, the applicable Sellers shall (i) operate the Purchased Assets in accordance with Ordinary Business Operations, (ii) cause SPPR to operate and maintain its business and the SPP Refinery in accordance with Ordinary Business Operations, and (iii) maintain the Purchased Assets and the assets of SPPR (including the SPP Refinery) in accordance with Ordinary Business Operations (including undertaking, preparing for, commencing, and completing any scheduled or unscheduled turnarounds or maintenance, whether or not previously disclosed to the Purchaser; provided that the applicable Sellers shall provide Purchaser with reasonably prompt notice of any such turnarounds or maintenance activities); provided that, in each case, the Sellers shall not be in breach of the foregoing obligations (A) in respect of any commercially reasonable steps the Sellers or SPPR may take during the Interim Period to (x) reduce any inter-Affiliate payables or inter-Affiliate receivables (including payables and receivables between MPC Sellers and their Affiliates and MPLX Sellers and their Affiliates) or (y) remove the Excluded Assets or (B) by reason of undertaking, preparing for, commencing, or completing any scheduled or unscheduled turnaround or maintenance on the Purchased Assets or any assets of the Acquired Entities (including at the SPP Refinery) in accordance with Ordinary Business Operations during the Interim Period.
(b) Without limiting the generality of the foregoing Section 7.1(a), except as set forth on Schedule 7.1(b), and subject to Section 7.1(d), Section 7.1(e), Section 7.1(f), and Section 7.1(g), during the Interim Period, or as otherwise agreed by the Parties in writing, the Sellers shall not (and shall cause SPPR not to):
(i) sell, dispose of, lease, sublease, assign, sublicense, transfer or enter into an agreement to dispose of or lease, grant an option over, or grant any interest in, any Purchased Asset, the SPP Refinery or any other asset of SPPR, in each case, except in accordance with Ordinary Business Operations and in amounts which, individually and in the aggregate, are not material to the financial condition or operation of the Purchased Assets or such assets, taken as a whole;
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(ii) sell, dispose of, lease, sublease, assign, sublicense, transfer or enter into an agreement to dispose of, grant an option over, or grant any interest in, any of the Purchased Interests;
(iii) create, grant or incur any Encumbrance (other than a Permitted Encumbrance) against any Purchased Asset, any asset of SPPR (including the SPP Refinery), any MPLI Asset, any MPLC Asset, the Hydrocarbon Inventory, or the Purchased Interests unless any such Encumbrance shall be released at or before Closing;
(iv) enter into any commitment for capital expenditures, or authorize any capital expenditure, in each case, of more than Five Million U.S. Dollars ($5,000,000) individually or Ten Million U.S. Dollars ($10,000,000) in the aggregate for any calendar year, with respect to the Purchased Assets or any asset of SPPR, or make any commitment of more than Five Million U.S. Dollars ($5,000,000) individually or Ten Million U.S. Dollars ($10,000,000) in the aggregate for any calendar year for the purchase, construction, maintenance, repair or improvement of any of the Purchased Assets or any assets of SPPR, except, in each case, where such commitment or authorization would be materially complete prior to the Closing Date; provided, however, that the foregoing restriction shall not apply to expenditures contemplated by a capital expenditure budget provided by the Sellers to the Purchaser prior to the date of this Agreement; provided, further, that the Sellers shall be permitted to make capital expenditures with respect to the Purchased Assets or assets of SPPR (including the SPP Refinery) within 110% of the capital expenditure budget set forth on Schedule 7.1(b)(iv);
(v) (A) issue, encumber (other than a Permitted Encumbrance), or otherwise dispose of, or split, combine, or reclassify, any of the Purchased Interests, (B) issue any option, warrant, right, convertible security or other agreements or commitments of any character (including management incentive equity and phantom equity) relating to any of the Purchased Interests, (C) grant any stock appreciation or similar rights with respect to SPPR, or authorize the grant of any stock appreciation or similar rights with respect to MPLI or MPLC, or (D) otherwise amend the terms of any Purchased Interests;
(vi) (A) declare, set aside, make or pay any non-cash dividend or other non-cash distribution, in each case, with respect to the SPPR Interests, or (B) redeem, purchase or otherwise acquire or cancel the SPPR Interests;
(vii) except (A) as may be required by Applicable Law, (B) as may be required by any Company Collective Bargaining Agreement, (C) as required by the terms of any Benefit Plan in effect on the date hereof, (D) for increases in base annual salary or hourly rate of wage in accordance with Ordinary Business Operations, (E) for annual cash bonuses made in accordance with Ordinary Business
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Operations, (F) for long-term incentive awards granted in accordance with Ordinary Business Operations, or (G) for changes to rates or charges under contractor, vendor, staffing or similar agreements or arrangements, including refining-wide rate sheets or similar arrangements applicable to multiple sites, in each case made in accordance with Ordinary Business Operations, (I) materially increase the amount of compensation or benefits to be paid or provided to any In-Scope Employee, or to any independent contractor who is a natural person providing primarily all of such person’s services to the Purchased Assets or the Acquired Entities, (II) grant any equity or equity-based incentive, retention, termination, change in control, transaction, stay or success bonuses, severance or similar compensation or benefits to any In-Scope Employees or to any independent contractor who is a natural person providing primarily all of such person’s services to the Purchased Assets or the Acquired Entities, (III) enter into, agree to be bound by, modify, amend, or extend any Collective Bargaining Agreement, or recognize any labor union, trade union, works council, or other representative of employees as the exclusive bargaining representative of any employees who provide services with respect to the Purchased Assets or the Acquired Entities, (IV) take any action that would, or would reasonably be expected to, result in notice obligations or liability under the WARN Act, or (V) hire new In-Scope Employees (other than to fill any vacancy in an existing position, provided that any offer for employment to fill a vacant position shall be on terms no less favorable in the aggregate than the terms of employment applicable to the former employee whose position is being filled, and shall not contain any terms providing for additional compensation or benefits regarding relocation or signing bonuses that may become due or payable after the Closing by any of the Acquired Entities or their Affiliates), terminate the employment of any In-Scope Employee (other than termination for cause), or transfer any In-Scope Employees, in each case, except as required by Applicable Law or any collective bargaining agreements or similar agreements;
(viii) adopt, enter into, materially amend or terminate any Benefit Plan, or Multiemployer Plan or any other arrangement for the benefit of any In-Scope Employee, or agree to contribute to any Multiemployer Plan for the benefit of any In-Scope Employee, or take any action to accelerate any compensation, rights or benefits under any Benefit Plan or Multiemployer Plan for an In-Scope Employee;
(ix) rescind, terminate (other than expiration pursuant to the existing terms and without any action by the Sellers or their Affiliates), waive any material right under, or materially amend, or consent to the termination (other than expiration pursuant to the existing terms and without any action by the Sellers or their Affiliates), waiver or material amendment of, any Material Contract or material Permit, in each case, except in accordance with Ordinary Business Operations; provided, however, that nothing in this Section 7.1(b)(ix) shall restrict the Sellers from entering into new Contracts or amending existing Contracts that are reasonably necessary to undertake, prepare for, or complete a turnaround or maintenance of the Purchased Assets or the assets of SPPR (including the SPP Refinery) during the Interim Period and any such new or amended Contract shall not constitute an Assumed Contract, and neither Purchaser nor the Acquired Entities shall have any obligation with respect to such Contract, unless the Purchaser expressly agrees in writing to assume such contract;
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(x) carry out mergers, spin-offs, acquisitions, joint ventures of or with respect to the Purchased Assets or SPPR or their respective businesses, allow SPPR to acquire, or agree to acquire, any business or equity interests from any other Person, or authorize any such mergers, spin-offs, acquisitions, joint ventures, or acquisitions with respect to MPLI or MPLC;
(xi) (A) amend or modify the organizational documents of SPPR, (B) split, combine or reclassify the Purchased Interests, (C) adopt a plan of complete or partial liquidation or dissolution of the Sellers or SPPR or their respective businesses, (D) authorize the amendment or modification of the organizational documents of MPLI or MPLC or (E) authorize a plan of complete or partial liquidation or dissolution of MPLI or MPLC or their respective businesses;
(xii) issue any note, bond, or other debt security, or make any loan, advance, or capital contribution by SPPR to any Person, or permit SPPR to incur any material indebtedness for borrowed money or give or increase any guarantees or other similar assurances (including any Financial Assurances) except in accordance with Ordinary Business Operations or cause or permit SPPR to acquire any material real property or enter into any material Real Property Lease;
(xiii) except as may be required to meet the requirements of any Applicable Law or GAAP, change in any material respect any accounting method or practice with respect to the Purchased Assets or the assets of SPPR in a manner that is inconsistent with past practice (it being understood that no such change shall impact the calculation of Working Capital under this Agreement);
(xiv) discontinue, cease to own or operate, or make any material change to the Purchased Assets or the assets of SPPR or authorize the discontinuance or other material change of the MPLI Assets or the MPLC Assets; provided that the Sellers, SPPR may remove the Excluded Assets during the Interim Period;
(xv) violate, terminate or permit the lapse of, or otherwise fail to maintain or renew, any Assigned Permit;
(xvi) initiate any Proceeding relating to the Purchased Assets or SPPR, or settle, release, waive, assign, transfer or compromise any Proceeding or any claims or rights relating thereto brought against SPPR or the Sellers with respect to the Purchased Assets, other than Proceedings, settlements, releases or compromises (A) involving solely payment of money damages not in excess of Five Million U.S. Dollars ($5,000,000) individually or Fifteen Million U.S. Dollars ($15,000,000) in the aggregate, that do not contain any admission of fault or liability on the part of SPPR or any obligation that would be binding on the Purchaser or SPPR after the Closing, (B) that are for any non-monetary remedies or relief entered in accordance with Ordinary Business Operations that are not material and that do not impose a restriction on the operation of the Purchased Assets or SPPR that would have a Material Adverse Effect or (C) where the costs and obligations are borne solely by the Sellers;
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(xvii) settle the Benzene Waste Operations NESHAP Matter or the Risk Management Program Matter on terms that impose any material operating restrictions on the Purchased Assets or SPPR or that otherwise require any material capital or operating expenditures with respect to the same without first obtaining the consent of Purchaser (such consent not to be unreasonably withheld, conditioned, or delayed);
(xviii) with respect to the Purchased Assets and SPPR: (A) make any settlement of or compromise any Tax Liability; (B) make any material Tax election or adopt any Tax method of accounting in a manner that is inconsistent with past practice, or change or revoke any Tax election or any Tax method of accounting; (C) amend any Tax Return; or (D) surrender any right to claim any refund of material Taxes, (provided, that, for the avoidance of doubt, the restrictions set forth in clauses (A), (C), and (D) shall not apply to actions taken by Sellers with respect to Sellers’ Income Taxes);
(xix) fail to maintain in full force and effect insurance coverage relating to the Purchased Assets, SPPR, or any Acquired Entity that is substantially comparable in all material respects to the insurance coverage maintained by the Sellers or their Affiliates as of the date hereof; or
(xx) enter into any contract, agreement, commitment or arrangement with respect to, or agree to, any of the foregoing.
(c) Without limiting the generality of Section 7.1(a), during the Interim Period, the applicable Sellers shall, and shall cause SPPR to, operate the Purchased Assets and the business of SPPR in Ordinary Business Operations (including with respect to activities under the Corrective Action Orders, maintenance and turnarounds of the Purchased Assets and the assets of SPPR, the purchase of refinery inputs and feedstocks and management of non-hydrocarbon inventories) and will progress any capital projects described in Schedule 7.1(b)(iv) substantially at the pace and in the manner that similar capital projects have been conducted by the Sellers in Ordinary Business Operations, except for any reasonably unavoidable delays due to unforeseen circumstances, including (i) preserving the present business operations of the Purchased Assets and the business of SPPR, (ii) preserving the present business organization and (iii) preserving the present business relationships with Persons having business dealings with the Sellers or SPPR in connection with the Purchased Assets and the business of SPPR.
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(d) Notwithstanding anything herein to the contrary, nothing in Section 7.1 shall operate so as to restrict or prevent any act, omission, or matter:
(i) required to be done pursuant to, contemplated by, or permitted by this Agreement or the other Transaction Documents, or required to be done pursuant to the governing documents of MPLI or MPLC;
(ii) necessary to comply with Applicable Law;
(iii) undertaken at the written request of the Purchaser or otherwise with the prior written consent of the Purchaser in accordance with the terms of Section 7.1(g);
(iv) undertaken in response, consistent with the Sellers’ past practices and existing policies, to (A) an emergency or (B) where otherwise necessary (in the reasonable opinion of the Sellers), to safeguard any life, the Purchased Assets, the assets of SPPR, the MPLI Assets, the MPLC Assets or the Environment, and the Sellers shall as promptly as reasonably practicable inform the Purchaser in writing of any such response in accordance with Applicable Law;
(v) undertaken pursuant to any work program or budget approved prior to the date hereof and disclosed to the Purchaser;
(vi) undertaken to commence or complete any scheduled turnarounds or maintenance or unscheduled maintenance or turnarounds necessary to ensure safe and reliable operations on the Purchased Assets or any assets of the Acquired Entities (including at the SPP Refinery), whether or not previously disclosed to the Purchaser; provided that Sellers shall provide Purchaser with reasonably prompt notice of any such turnarounds or maintenance activities; or
(vii) the completion or performance of which is a legally binding obligation undertaken pursuant to any Contract or arrangement entered into prior to the date hereof.
(e) The Purchaser acknowledges that TLO is not the sole owner of MPLI or MPLC and does not control all votes, approvals, actions or omissions of MPLI or MPLC. Accordingly, and notwithstanding anything in this Agreement to the contrary, neither TLO nor any other Seller shall be deemed to be in breach of this Section 7.1 as a result of any vote, approval, action or omission by any co-owner of MPLI or MPLC that is not an Affiliate of Marathon or MPLX, or any action taken by or on behalf of MPLI or MPLC pursuant to the organizational documents of MPLI or MPLC, regardless of whether such vote, approval, action or omission would otherwise be inconsistent with this Section 7.1; provided that, the Sellers shall and shall cause their Affiliates to vote or approve (to the extent they have the right to vote or approve) matters for MPLI and MPLC in a manner consistent with this Agreement. If TLO or any other Seller has no right to vote or approve an action to be taken by the co-owners of MPLI or MPLC and actions for MPLI or MPLC are taken by such co-owners and such actions would be in violation of this Section 7.1, the Sellers shall not, directly or indirectly, be in breach of this Section 7.1. If TLO or any other Seller (without the written consent by the Purchaser (which consent shall not be unreasonably delayed, withheld or conditioned)) affirmatively votes in favor of such action or omission, that would be inconsistent with this Section 7.1, such Persons shall be deemed to be in breach of this Section 7.1.
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(f) Notwithstanding anything herein to the contrary, nothing in this Section 7.1 or otherwise shall restrict SPPR, MPLI, or MPLC from making any cash dividends or distributions in respect of the Purchased Interests, in each case, that are payable prior to the Closing in accordance with the Ordinary Business Operations; provided that such dividends or distributions do not impair the ability of SPPR to pay its liabilities as they come due or to operate and maintain the Purchased Assets and SPPR’s assets in accordance with the Ordinary Business Operations prior to the Closing.
(g) The Sellers may seek the Purchaser’s consent to perform any action that would otherwise be restricted by this Section 7.1 (which consent shall not be unreasonably withheld, delayed, or conditioned); except that the Purchaser’s consent may be withheld in its sole discretion with respect to any act, omission or matter restricted by Section 7.1(b)(i), Section 7.1(b)(ii), Section 7.1(b)(iv), Section 7.1(b)(v), Section 7.1(b)(vi), Section 7.1(b)(vii) and Section 7.1(b)(xi). The Purchaser acknowledges and agrees that it would be unreasonable to withhold consent if, by withholding such consent, the Sellers or SPPR cannot take actions and the failure to take such actions would have a material adverse impact on the continuing operations of the Purchased Assets or the business of the Acquired Entities.
7.2 Notice. During the Interim Period, subject to Applicable Law, (a) the Sellers may promptly notify the Purchaser, and the Purchaser shall promptly notify the Sellers, in writing, after gaining Knowledge (i) of any event, transaction, or circumstance that causes, or would reasonably be expected to cause, any covenant or agreement of the notifying Party to be breached, or that renders, or would reasonably be expected to render, untrue any representation or warranty of the notifying Party contained in this Agreement, and any material damage to the Purchased Assets, the assets of SPPR, or, to the Knowledge of the Sellers, the MPLI Assets or the MPLC Assets, (ii) any written notice (and the Sellers shall provide the Purchaser a copy thereof) received by a Seller or SPPR, MPLI, or MPLC of any material claim asserting any tort or violation of Applicable Law or any material investigation, suit, action or litigation by or before a Governmental Authority, that (in each case) relates to the Purchased Assets, the assets of SPPR, the MPLI Assets or the MPLC Assets; provided that, the Sellers shall not have any obligation to provide any such notice or information, the provision of which would, in the reasonable opinion of the Sellers, based on the advice of outside counsel, result in the waiver of any attorney-client privilege, the work-product doctrine or similar protection to the Sellers or their Affiliates, cause the Sellers or their respective Affiliates (or any of their respective officers or employees) to breach a confidentiality obligation, or result in a violation of Applicable Law; provided, further, that the Sellers shall use commercially reasonable efforts to provide such notice in a manner that does not result in such waiver, breach, or violation, and (iii) any material unplanned outage or shut down of, or with respect to, the Purchased Assets, the assets of SPPR, the MPLI Assets, or the MPLC Assets and (b) the Sellers shall promptly notify the Purchaser, and the Purchaser shall promptly notify the Sellers, in writing, after gaining Knowledge of the occurrence, or failure to occur, of any event, transaction, or circumstances that causes, or would reasonably be expected to cause, the failure of Sellers to satisfy or be able to satisfy any of the conditions specified in Section 9.2, and in each case, such written notice will specify the condition which has failed or will fail to be satisfied. No notice or disclosure made or
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delivered pursuant to this Section 7.2 shall limit either Party’s right to assert that any condition to Closing has not been satisfied or that such Party has a termination right under this Agreement or cure any inaccuracy in or breach of any representation of warranty, except for the purposes of determining whether Fraud has occurred. In addition, during the Interim Period, Sellers shall provide regular and timely updates to Purchaser with respect to all material communications with and demands or settlement offers from any Governmental Authority with respect to the Benzene Waste Operations NESHAP Matter or Risk Management Program Matter, and shall provide Purchaser with the opportunity to review and reasonably comment upon any settlement offers prepared by Sellers; provided, that Purchaser shall have no obligation to review, comment upon, or participate in any settlement discussions to the extent such settlement relates solely to Excluded Environmental Liabilities retained by the Sellers, including any penalties arising therefrom.
7.3 Termination of Intercompany Arrangements. Effective as of the Closing, the Sellers shall, and shall cause SPPR to, (a) terminate all intercompany Contracts (including any Contract that would be a Contract but for clause (d) of the definition thereof) in respect of SPPR, without any party to such Contracts having any continuing Liabilities to the other from and after the Closing, and (b) settle, pay, forgive, or otherwise release all amounts due under any intercompany Contracts (including any Contract that would be a Contract but for clause (d) of the definition thereof) in respect of SPPR; any receivables under such intercompany Contracts shall be paid prior to the Closing, even if the due date is not until after the Closing. The Sellers shall procure that any net amount owed by the Sellers or their Affiliates to SPPR under any intercompany loan Contracts, cash pooling arrangements, cost allocations or similar arrangements, or due to the Sellers or their Affiliates from SPPR thereunder, shall be settled prior to the Closing, without any further Liability to, or obligation of, SPPR from and after the Closing. Any cash balance of SPPR resulting from the termination of the intercompany Contracts or settlement of intercompany balances shall be distributed as a dividend prior to Closing and all such dividend amounts shall remain with the Sellers or Sellers’ Affiliates and shall not be included in the calculation of Working Capital.
7.4 Control of Assets and Businesses. Notwithstanding anything in this Agreement to the contrary, the Purchaser acknowledges, on behalf of itself and its Affiliates and its and their respective directors, officers, employees, Representatives, successors, and assigns, that the ordinary course of business and Ordinary Business Operations in respect of the operation and maintenance of the Purchased Assets and the businesses of the Acquired Entities remain in the dominion and control of the Sellers and the Acquired Entities, as applicable, until the Closing.
ARTICLE 8
COVENANTS
8.1 Access.
(a) Subject to the terms and conditions of this Agreement, the Confidentiality Agreement and the Clean Team Agreement, during the Interim Period, the applicable Sellers will provide, and shall cause SPPR to provide, the Purchaser and its Representatives with reasonable access, subject to the Sellers’ prior written consent in each instance which will not be unreasonably withheld, delayed, or conditioned, upon reasonable prior notice and during normal business hours, to (i) the Purchased Assets, the assets of SPPR (including the SPP Refinery), and, solely to the extent that MPLI and MPLC management agrees to such
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access and subject to the conditions required thereof, the MPLI Assets and MPLC Assets, but only to the extent that such access does not unreasonably interfere with the business and operations of such assets, (ii) the books, records, information and data that are Primarily Related to such assets, to the extent such books, records, information and data has been historically provided to the Sellers in respect of the MPLI Assets and MPLC Assets and can be separated from the Sellers’ and their Affiliates’ data in a timely fashion that does not impose undue burden on the Sellers and their Affiliates, and (iii) the appropriate officers and employees of the Sellers and their Affiliates who have significant responsibility for such assets; provided that the Purchaser and its Representatives shall not enter upon any property of the Sellers, SPPR, MPLI or MPLC without the Sellers’ prior written consent in each instance (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that (A) the Purchaser and its Representatives shall conduct any such activities at their sole risk and expense, under the supervision of the Sellers’ or their Affiliates’ personnel (except as provided below) and in a manner that does not unreasonably interfere with the normal business operations of the Purchased Assets and the Acquired Entities; (B) no Seller nor any of its Affiliates shall be required to take any action that would, based on the advice of counsel (which may be internal counsel), reasonably be expected to jeopardize the protection of, or constitute a waiver of, the attorney-client privilege, attorney work product privilege or other applicable legal privilege; and (C) no Seller shall be required to furnish any information that such Seller is prohibited under Applicable Law from furnishing or to the extent that furnishing such information would constitute a violation of any Contract (including any confidentiality obligations or similar restrictions set forth therein); provided, further, that the Purchaser’s access to any of the Purchased Assets or properties of SPPR, MPLI or MPLC may be limited to the extent (x) a Seller, SPPR, MPLI or MPLC, based on the advice of counsel (which may be internal counsel), reasonably determines such access would violate any Contracts related to or governing such assets or properties or to which such properties are subject or bound, or (y) a Seller, SPPR, MPLI or MPLC reasonably determines it would jeopardize the health and safety of any of the employees or Representatives of such Person or its Affiliates. Purchaser shall maintain reasonable insurance coverage, with limits and insurers consistent with historical past practice, in connection with any access to the Purchased Assets and assets and properties of Sellers and the Acquired Entities.
(b) Notwithstanding anything in this Agreement to the contrary, any investigation of Environmental Matters by or on behalf of the Purchaser will be limited to visual inspections, limited compliance reviews, and site visits commonly included in the scope of “Phase I” level environmental inspections, and the Purchaser shall not, and shall cause its Representatives not to, perform or conduct any invasive sampling of any soil or groundwater at, in, on, under or about any of the Sites or the properties of SPPR, MPLI or MPLC without the prior written consent of the Sellers, which consent may be withheld, conditioned, or delayed in each Seller’s sole discretion. The Purchaser shall abide by all applicable safety rules, regulations and policies of Sellers provided in advance to Purchaser and Purchaser’s Representatives, including the execution and delivery of any documentation or paperwork, including liability releases, with respect to the Purchaser’s access to any of the Purchased Assets or the properties of SPPR, MPLI, or MPLC. The Sellers shall have the right to have a Representative present at all times during any such inspections, interviews and examinations.
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(c) Except as otherwise expressly provided in this Agreement, the Purchaser shall not, and shall cause its Representatives not to, contact or communicate with any current or former employees, customers, potential customers, suppliers, distributors, contractors, lenders, agents or licensors of any of the Sellers, SPPR, MPLC, or MPLI, Representatives of any of the foregoing, any other Persons reasonably known by the Purchaser to have a business relationship with any of the Sellers, SPPR, MPLC, or MPLI, or any Governmental Authority or Representatives thereof, in each case in connection with the Transactions, whether in person or by telephone, mail, email or other means of communication, without the prior written consent of the Sellers.
(d) THE PURCHASER, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE REPRESENTATIVES, AS APPLICABLE, WAIVE AND RELEASE ALL CLAIMS, DAMAGES AND LOSSES AGAINST THE SELLER INDEMNIFIED PARTIES ARISING OUT OF OR RELATING TO THE ACTIVITIES OF THE PURCHASER, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE REPRESENTATIVES UNDER THIS SECTION 8.1, AND THE PURCHASER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE SELLER INDEMNIFIED PARTIES FROM AND AGAINST ALL CLAIMS AND LOSSES RESULTING FROM OR RELATING TO THE ACTIVITIES OF THE PURCHASER, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE REPRESENTATIVES UNDER THIS SECTION 8.1, EVEN IF SUCH CLAIMS OR LOSSES ARISE OUT OF OR RESULT FROM THE SOLE, ACTIVE, PASSIVE, CONCURRENT OR COMPARATIVE NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OR VIOLATION OF LAW BY ANY SELLER INDEMNIFIED PARTY, BUT EXCLUDING CLAIMS OR LOSSES TO THE EXTENT ARISING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY SELLER INDEMNIFIED PARTY OR THE MERE DISCOVERY OF ANY PRE-EXISTING ENVIRONMENTAL LIABILITIES. The foregoing waiver, release and indemnification obligations shall survive the Closing or termination of this Agreement. Each Seller Indemnified Party is intended to be an express third-party beneficiary of this Section 8.1(d) and may specifically enforce its terms.
8.2 Confidentiality.
(a) From and after the date of this Agreement until the second (2nd) anniversary of the date of this Agreement, each Party shall, and shall cause each of its Representatives entitled by these terms to receive Confidential Information to, (i) keep Confidential Information strictly confidential and not sell, trade, publish, or otherwise disclose any Confidential Information or use any Confidential Information other than (A) for the purpose of consummating the Transactions, (B) as expressly contemplated or permitted by this Section 8.2 or otherwise by this Agreement, or (C) with the prior written consent of the other Parties, and (ii) protect all Confidential Information to the same extent such Party protects its own like confidential information (but in no case using less than commercially reasonable efforts). If a Party or its Representatives lose, make an unauthorized disclosure of, or wrongfully use any Confidential Information, such Party shall notify the other Parties promptly and use commercially reasonable efforts, and reasonably cooperate with the other Parties in their efforts, to retrieve the lost or wrongfully disclosed Confidential Information.
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(b) The following shall not constitute Confidential Information:
(i) information that a Party can prove was in its or its Affiliates’ possession without any obligation of secrecy at the time of its disclosure to such Party or its Affiliate;
(ii) information that is already in the possession of the public or becomes available to the public, other than due to a breach by a Party of a confidentiality obligation to the other Party or to Affiliates;
(iii) information that is acquired independently by a Party from a Third Party that is not under any obligation of confidentiality to the other Party or its Affiliates in relation thereto; or
(iv) information that is developed by a Party or its Representatives independently of Confidential Information received from the other Parties.
(c) A Party may disclose Confidential Information only to those of its Representatives who (i) need to know such Confidential Information for the purpose of implementing the Transactions, (ii) are bound by confidentiality obligations and use restrictions no less restrictive than those set forth herein (or, in the case of financing sources, the Confidentiality Agreement) and (iii) are made aware of the confidentiality and use obligations set forth in this Section 8.2.
(d) Notwithstanding anything in this Section 8.2 to the contrary, a Party may disclose Confidential Information in order to (i) comply with Applicable Law, (ii) comply with any order of a court of competent jurisdiction or any order, decree, regulation, or rule of any Governmental Authority, (iii) comply with the requirements of any recognized stock exchange on which the securities of such Party or its Affiliates are listed, (iv) obtain any necessary consents or approvals of any Third Party or Governmental Authority to the Transactions, (v) comply with reasonable and appropriate requests by relevant Governmental Authorities (including any disclosure made pursuant to the IRS compliance assurance process), (vi) evaluate, negotiate and consummate any Financing with the Financing Sources (in each case, subject to confidentiality arrangement reasonably acceptable to Sellers), or (vii) with respect to the terms, conditions, and provisions of this Agreement and the Transaction Documents only, in accordance with Section 8.4; provided that, except in the case of clause (v), a copy of the relevant disclosure is furnished to the other Party or Parties for comments prior to publication or release, or, if not practicable, a copy of such disclosure is furnished contemporaneously with such publication or release; provided, further, that any Party making a disclosure pursuant to this Section 8.2(d) shall disclose only that portion of the Confidential Information that is legally required to be disclosed and shall use reasonable efforts to obtain confidential treatment of such disclosed information. Any disclosures under this Section 8.2(d) by a Party do not relieve such Party of its other confidentiality obligations and use restrictions under this Agreement.
(e) Each Party shall be responsible to the other Parties for the compliance of such Party’s respective Affiliates and Representatives or other Persons to whom such Confidential Information is disclosed by such Party with the confidentiality terms of this Agreement as though such Persons were a party to this Agreement.
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(f) The Confidentiality Agreement shall terminate effective as of, and contingent upon, the Closing; provided, however, that Purchaser and Purchaser Affiliates’ obligations under the Confidentiality Agreement with respect to any information relating to any assets, businesses or operations of Sellers or their Affiliates other than the Purchased Assets and the Acquired Entities shall survive the Closing for a period of two (2) years following the Closing Date in accordance with the terms of the Confidentiality Agreement. This Section 8.2(f) shall not release any Party for any breaches of the Confidentiality Agreement that occurred prior to the date of this Agreement.
(g) From and after the date of this Agreement until the second (2nd) anniversary of the date of this Agreement, each Seller shall, shall cause its Affiliates to, and shall cause its and their respective Representatives to keep strictly confidential and not sell, trade, publish, or otherwise disclose to anyone in any manner whatsoever, any Confidential Information Exclusively Related to the Purchased Assets, the Acquired Entities, the assets and businesses of the Acquired Entities, the Purchased Interests and the Assumed Liabilities; provided that (i) the Sellers and their Affiliates may disclose and discuss such information as reasonably necessary within and among the Sellers and their Affiliates, (ii) the Sellers and their Affiliates may release such information in the Ordinary Business Operations consistent with past practices in connection with such Person’s processes whereby they release such information to the public for technical presentations and similar circumstances and (iii) nothing contained in this Section 8.2 shall be construed as prohibiting the Sellers and their Affiliates from disclosing such information under a confidentiality agreement entered into in the Ordinary Business Operations by the Sellers or their Affiliates.
(h) Following the Closing, each Party shall not, and shall cause their Representatives not to, use or disclose information about identifiable individuals, as defined in any Applicable Law relating to privacy, other than for the purpose of owning, operating or maintaining the Purchased Assets or the assets of SPPR, or for purposes other than those for which such information was collected by the other Party, except with the consent of the individuals to whom such information relates, or as otherwise permitted by Applicable Law. If the Sellers or the Purchaser terminate this Agreement in accordance with its terms, the Purchaser shall either (i) promptly deliver to the applicable Seller all information about identifiable individuals, as defined in any Applicable Law relating to privacy, in its possession or in the possession of any of their Representatives, including all copies, reproductions, summaries, or extracts thereof, or (ii) destroy all information referenced in the preceding clause (i) and deliver a certificate executed by one of their duly authorized officers indicating the requirements of this Section 8.2(h) have been satisfied in full. Notwithstanding anything to the contrary in this Agreement, the Purchaser may retain such information stored in standard archival or computer back-up systems or to the extent required by Applicable Law.
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8.3 Non-Solicitation; Non-Competition.
(a) During the twelve (12)-month period immediately following the Closing, the Sellers shall not, and shall cause their Affiliates not to, directly or indirectly, solicit or induce to terminate his or her employment or engagement with the Purchaser or its Affiliates any Transferring Employees or any other employee or contractor of the Purchaser or its Affiliates with whom Sellers or their Affiliates had contact, or about whom Sellers or their Affiliates learned confidential information, during the period of negotiation of this Agreement (collectively, the “Restricted Persons”); provided that, (i) a general solicitation not directed at any Restricted Persons shall not be deemed a breach of this Section 8.3, and (ii) nothing herein shall prohibit Sellers or its Affiliates from soliciting, hiring or engaging any Restricted Person whose employment with the Purchaser or their Affiliates, as applicable, ended more than three (3) months prior to Sellers or its Affiliates taking such action.
(b) During the period commencing on the Closing Date and ending on the second (2nd) anniversary of the Closing Date (the “Restricted Period”), the Sellers shall not, individually or on behalf of any Person, company, enterprise, or entity, or as a sole proprietor, partner, equityholder, director, officer, principal, agent, employee or executive, or in any other capacity or relationship, and shall cause their Affiliates not to, directly or indirectly, (i) engage in any Competitive Activities, or (ii) invest in, have any ownership interest in or operate any Person that engages in any Competitive Activity; provided, however, that nothing in this Section 8.3 shall prevent the Sellers or any of their Affiliates from (A) being a passive owner of any Person, so long as no Seller nor any of its Affiliates has any active control of the business thereof, (B) acquiring and continuing to hold or own any Person or business that engages in any Competitive Activity if such Competitive Activity resulted in revenue from rack sales that account for less than twenty-five percent (25%) of such Person’s or business’s consolidated annual revenues during the most recently completed fiscal year prior to such acquisition being made or, if earlier, the entry into the definitive agreement providing for such acquisition, (C) selling Restricted Products or their components to a Person who posts a price at a Restricted Terminal, (D) providing transportation or logistics services or support to a Person who posts a price for Restricted Products at a Restricted Terminal, or (E) engaging in any activity set forth on Schedule 8.3(b).
(c) Sellers acknowledge and agree that the restrictions contained in this Section 8.3 are reasonable and necessary to protect the legitimate interests of the Purchaser and constitute a material inducement to the Purchaser to enter into this Agreement. The Parties agree that, if any court of competent jurisdiction finally determines that a specified time period, limitation or any other relevant feature of this Section 8.3 is unreasonable, arbitrary, against public policy or otherwise unenforceable under the circumstances, then any such provision shall, for purposes of such jurisdiction and circumstances only, be revised by such court to a lesser period of time, limitation or other relevant feature, as the case may be, which is determined by such court to be as close to the original provision as possible and enforceable against Sellers and their Affiliates under the circumstances, and such provision shall be enforced accordingly.
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8.4 Public Announcements. Sellers and Purchaser agree to communicate with each other and cooperate with each other prior to any public announcement of the transactions contemplated by this Agreement and shall coordinate the timing of any such public announcement. Except as otherwise permitted in this Section 8.4, no Party nor its respective Affiliates shall issue any press release, announcement or other disclosure to the general investing public regarding the terms, conditions or provisions of this Agreement and/or the Transactions without the prior written consent of the other Party (such consent not to be unreasonably withheld, conditioned or delayed), except to the extent the press release, announcement or disclosure is required to comply with Applicable Law or the requirements of any stock exchange; provided that, the Party intending to make such press release, announcement or other disclosure provides the other Party reasonable advance notice of such press release, announcement or other disclosure and the content thereof and considers in good faith the other Party’s comments thereto; and provided further that, such press release, announcement or other disclosure does not contain any Confidential Information other than the terms, conditions and other provisions of this Agreement and/or the Transaction Documents. Notwithstanding anything to the contrary in the foregoing, each Party or their Affiliates may make any press release, announcement or other disclosure regarding the terms, conditions and provisions of this Agreement and/or the Transaction Documents that is consistent with any prior press release, announcement, or other disclosures made in accordance with this Section 8.4, without prior notice to, consultation with, or consent of, the other Party.
8.5 Books and Records. The Parties hereby acknowledge that the Parties and their respective accountants and auditors shall, until the end of the calendar year following the calendar year in which the Closing Date occurs, require access to the Books and Records related to the Purchased Assets and the Acquired Entities or their respective assets for the period up to the Effective Time in order to enable them to prepare their management, Tax, and statutory accounts for the period up to the Effective Time. The Parties shall keep and properly archive such Books and Records, and, to the extent not prohibited by Applicable Law, shall provide the Parties and their Representatives, during normal business hours at a mutually agreeable time, with reasonable access to such Books and Records upon reasonable prior request, as may be reasonably required for this purpose. The foregoing obligations shall apply mutatis mutandis to the Sellers with respect to any books, records, and information retained by the Sellers or their Affiliates that relate to the Purchased Assets, the Purchased Interests, the Acquired Entities, or any of the Assumed Liabilities. Without limiting the foregoing, from and after the Closing, Purchaser shall, and shall cause its Affiliates to, preserve all books and records, documents, information and other evidence in its or their possession or control that are reasonably necessary to investigate, defend, prosecute, settle, compromise, discharge or otherwise address the Excluded Liability set forth in Item 1 of Schedule 2.4(b), in each case in accordance with the litigation hold and document preservation rules and practices applicable to pending or reasonably anticipated litigation. Purchaser shall, and shall cause its Affiliates to, provide Sellers and their Representatives with reasonable access, during normal business hours and upon reasonable prior notice, to such books and records, documents, information and other evidence and to employees of Purchaser or its Affiliates with relevant knowledge of such matter, in each case, as Sellers may reasonably request in connection with such Excluded Liability; provided that such access shall not unreasonably interfere with the business or operations of Purchaser or its Affiliates.
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8.6 Excluded Trademarks; Company Names.
(a) The Purchaser acknowledges and agrees that, as between the Purchaser, on the one hand, and the Sellers and their Affiliates, on the other hand, all right, title, and interest in and to the Excluded Trademarks are, and, following the Closing will continue to be, owned exclusively by the Sellers and their Affiliates. Except as set forth in the Trademark License Agreement and except as otherwise provided in Section 8.6(b), (i) the Purchaser and its Affiliates shall not have any rights in or to any Excluded Trademarks immediately following the Closing, and (ii) the Purchaser and its Affiliates shall not use any Excluded Trademarks.
(b) Except as otherwise permitted under the Trademark License Agreement, as soon as reasonably practicable after the Closing, but in no event later than one hundred eighty (180) days after the Closing, the Purchaser shall (i) ensure that all the Excluded Trademarks are removed from the Purchased Assets, including the Sites and all property associated therewith, including the removal of Excluded Trademarks from all relevant product names, inventory, stationery, marketing documentation, all other external written communications, signage, buildings, plants, tanks, equipment, machinery, vehicles, products, and packaging, (ii) cease and discontinue all use of any email addresses, website URLs and social media accounts which include any Excluded Trademark, and (iii) make the requisite filings with, and provide the requisite notices to, the appropriate Governmental Authorities to accomplish the foregoing.
(c) Except as expressly permitted by the Trademark License Agreement or other Contracts entered into from time to time, from and after the Closing, the Purchaser shall not, and shall cause its Affiliates not to, directly or indirectly (i) hold itself out as having any affiliation, connection, or association with any Seller or its Affiliate, (ii) represent or imply that any products or services of the Purchaser or its Affiliates are sponsored, endorsed, approved, or authorized by the Sellers or their Affiliates (except as expressly permitted by the Trademark License Agreement), or (iii) use any Excluded Trademark or any mark confusingly similar thereto in any manner that would reasonably be expected to cause confusion as to the source, sponsorship, or affiliation of the Purchaser’s or its Affiliates’ products or services.
8.7 Antitrust Regulatory Approvals.
(a) Subject to the terms and conditions of this Agreement (including Section 8.7(d)), each of the Sellers and Purchaser shall cooperate with the other and use its reasonable best efforts to (i) take, or cause to be taken, all actions, and do, or cause to be done, all things, necessary, proper or advisable to: (A) cause the conditions to the Closing to be satisfied as promptly as practicable (and in any event no later than the Outside Date) and (B) consummate and make effective, in the most expeditious manner practicable, the Transactions, including preparing and filing promptly and fully all documentation to effect all necessary filings, notifications, notices, petitions, statements, registrations, submissions of information, applications and other documents (including any required filings under any Antitrust Law); (ii) obtain promptly (and in any event no later than the Outside Date) and maintain all approvals, consents, clearances, expirations or terminations of waiting periods, registrations, Antitrust Regulatory Approvals and other confirmations from any Governmental Authority or Third Party necessary, proper or advisable to consummate the Transactions; and (iii) defend any proceedings challenging this Agreement or the consummation of the Transactions or seek to have lifted or rescinded any injunction or
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restraining order or other order adversely affecting the ability of the Parties to consummate the Transactions. Notwithstanding the foregoing, the obligations of the Parties with respect to this Agreement and consummation of the Transactions shall not extend beyond the Outside Date. Nothing in this Section 8.7(a) shall require the Sellers or any of their respective Affiliates to make any payments to any Third Party in connection with obtaining any consent, approval or waiver relating to fulfilling their obligations under this Section 8.7(a).
(b) Each Party (including its Affiliates) agrees to make, or cause to be made, an appropriate filing (if required) of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as practicable and in any event within fifteen (15) Business Days after the date hereof. Each Party shall supply, or cause to be supplied, as promptly as reasonably practicable any additional information and documentary material that may be requested by any Governmental Authority that is related to the Transactions pursuant to any Antitrust Law. Each Party shall use its reasonable best efforts to take, or cause to be taken, all other actions consistent with this Section 8.7 reasonably necessary to cause the expiration or termination of any applicable waiting periods under any Antitrust Law as soon as practicable (and in any event no later than the Outside Date). If available, the Parties, upon mutual written agreement, may request early termination of the applicable waiting periods under any Antitrust Law. Neither Party will commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under any Antitrust Law, without the prior written consent of the other Party. The Purchaser shall pay for any filing fees due under any Antitrust Law with respect to all antitrust filings.
(c) Each of the Parties shall use (and shall cause its respective Affiliates to use) its reasonable efforts to (i) cooperate in all respects with each other in connection with any filing or submission with a Governmental Authority or any proceeding, investigation or inquiry in connection with or relating to the Transactions, including by providing the other Parties a reasonable opportunity to review and comment in advance (except with respect to the Party’s HSR Act filings); (ii) promptly inform the other Parties of (and supply to the other Parties) any communication received by such Party from, or given by such Party to, the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, or any other Governmental Authority and any material communication received or given in connection with any Proceeding by a private Person, in each case regarding any of the Transactions; (iii) permit the other Parties to review and discuss in advance, and consider in good faith the incorporation of the other Parties’ views and comments in, any filing, presentation, submission, proposal or communication to be submitted to any Governmental Authority with respect to obtaining any clearances or waiting period expirations or terminations required under any Antitrust Law in connection with the Transactions; (iv) coordinate with the other Parties in preparing and exchanging such information and promptly provide the other Parties (and their counsel) with copies of all filings (except for HSR Act filings), presentations, submissions, proposals and other communications (and a summary of any oral presentations or communications) made by such Party with or to any Governmental Authority relating to this Agreement or the Transactions; and (v) consult with the other Parties prior to taking any material position with respect to the filings or in any submissions to or discussions or filings with any Governmental Authority. Subject to Section 8.2, the Parties shall take reasonable efforts to
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share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section 8.7 in a manner so as to preserve the applicable privilege. Any Party may reasonably designate any competitively sensitive material provided to the other Parties under this Section 8.7 as “outside counsel only.” Notwithstanding anything to the contrary, materials provided pursuant to this Section 8.7 may be redacted (x) to remove references concerning the valuation of the business of the Acquired Entities, (y) as necessary to comply with contractual agreements, and (z) as necessary to address reasonable privilege, antitrust, or confidentiality concerns.
(d) Unless prohibited by Applicable Law or by the applicable Governmental Authority, each Party shall (i) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any conversation, with any Governmental Authority in respect of the Transactions, without giving the other Parties the opportunity to attend and participate; (ii) give the other Parties reasonable prior notice of any such meeting or conversation to the extent reasonably practicable; and (iii) keep any non-participating Parties apprised with respect to such meeting if one such Party is prohibited by Applicable Law or by the applicable Governmental Authority from participating or attending any such meeting or engaging in any such conversation.
(e) Without limiting the generality of the Purchaser’s covenants otherwise set out in this Section 8.7, and notwithstanding anything to the contrary in this Agreement, the Purchaser shall take all actions reasonably necessary or advisable to obtain all Antitrust Regulatory Approvals and to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to permit the Closing to occur as promptly as practicable and in any event prior to the Outside Date; provided, that nothing in this Section 8.7 or otherwise in this Agreement shall require Purchaser or any of its Subsidiaries to offer, propose, negotiate, commit to, take or effect any action that would constitute a Burdensome Condition.
(f) The Purchaser shall not, and shall cause its Affiliates not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any Person, business or any corporation, partnership, association or other business organization or division of any business or any corporation, partnership, association or other business organization, or otherwise acquire or agree to acquire any assets or equity interests of any Person, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation would reasonably be expected to: (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consents of any Governmental Authority necessary to consummate the Transactions or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Authority seeking or entering an order prohibiting the consummation of the Transactions; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the Transactions.
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(g) Each Party shall use its reasonable efforts to: (i) take all action necessary to ensure that no state takeover statute or similar Applicable Law is or becomes applicable to any of the Transactions; and (ii) if any state takeover statute or similar Applicable Law becomes applicable to any of the Transactions, take all action necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise minimize the effect of such Applicable Law on the Transactions.
8.8 Financing; Cooperation.
(a) Financing.
(i) The Purchaser shall use reasonable best efforts to arrange the Financing on the terms and conditions described in the Financing Commitments (including, if necessary, the exercise of any “flex” provisions in any fee letter), including using reasonable best efforts to (A) negotiate, execute and deliver definitive documentation for and consummate the Financing contemplated by the Financing Commitments at or prior to the Closing, (B) satisfy on a timely basis or obtain the waiver of all conditions precedent in the Financing Commitments at or prior to the Closing, (C) maintain in full force and effect the Financing Commitments (provided that the Purchaser may replace or amend the Financing Commitments as set forth below), (D) in the event the conditions precedent in the Financing Commitments have been satisfied or waived, cause the Financing Sources to fund the Financing in an amount, in the aggregate with other available sources of funds for the Purchaser, sufficient to consummate the Transactions, and (E) enforce its rights under the Financing Commitments in the event of a breach by the Financing Sources of their obligations thereunder. In the event any portion of the Financing becomes unavailable on the terms and conditions described in the Financing Commitments (including any “flex” provisions in any fee letter) such that the Purchaser shall not have the amount necessary to consummate the Transactions (after taking into account funds otherwise available to the Purchaser), the Purchaser shall use reasonable best efforts to obtain, as promptly as practicable, alternative Financing from alternative sources in the aggregate in an amount sufficient to consummate the Transactions; provided, that any such alternative Financing shall not be reasonably expected to materially prevent, impede or delay the consummation of the Transactions; provided, further, that the Purchaser shall not be required to pay fees or interest materially in excess of those contemplated in the Financing Commitments (including any “flex” provisions). The Purchaser shall keep the Sellers informed on a reasonably current basis and in reasonable detail with respect to all material activity and developments concerning the status of the Purchaser’s efforts to arrange the Financing. In addition, the Purchaser shall promptly provide the Sellers with copies of all executed definitive agreements with respect to the Financing to be satisfied or otherwise give rise to an event of default or right of the Financing Sources to terminate the Financing Commitments. The Purchaser shall refrain from taking, directly or indirectly, any action that would result in a failure of any of the conditions contained in the Financing Commitments or in any definitive agreement related to the Financing. The Purchaser shall have the right from time to
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time to amend, supplement or otherwise modify, or waive any of its rights under, the Financing Commitments; provided, that any such amendment, supplement or other modification to or waiver of any provision of the Financing Commitments that amends the Financing shall not, and shall not be reasonably expected to, materially prevent, impede or delay the consummation of the Transactions or, directly or indirectly, impose new or additional conditions that are materially more onerous than those conditions contained in the Financing Commitments; provided, further, that, notwithstanding the foregoing, the Purchaser may amend, replace or supplement the Financing Commitments to add bona fide lenders, lead arrangers, bookrunners, syndication agents or other similar entities, and may replace the Financing Commitments, in whole or in part, with alternative Financing, in each case that complies with this Section 8.8 and that contains conditions to closing of such Financing Commitments no less favorable to the Sellers in respect of certainty of Closing.
(ii) Without limiting the generality of the foregoing, Purchaser shall notify the Sellers promptly after the Purchaser becomes aware thereof, (A) of any termination or expiration of the Financing Commitments or any definitive agreement related to the Financing, (B) of any actual breach or default (however denominated) by any Financing Source or party to any Financing Commitments or definitive agreements related to the Financing, (C) of the receipt by the Purchaser of any written notice or other communication (other than negotiations of the definitive agreements with respect to the Financing) from any Financing Source with respect to any breach, default, termination or repudiation by any party to any Financing Commitment or any definitive agreement related to the Financing or that would otherwise reasonably be expected to adversely impact the ability of Purchaser to obtain the Financing in an amount sufficient to consummate the Transactions, or (D) if any event or default occurs that would reasonably be expected to adversely impact the ability of Purchaser to obtain the Financing in an amount sufficient to consummate the Transactions. For purposes of this Agreement, references to “Financing” shall include any alternative financing required to be obtained in the circumstances provided in this Section 8.8 (subject to the terms and conditions herein, including the absence of new or additional conditions or adverse expansion thereof of the conditions precedent to the original Financing), and references to “Financing Commitments” shall include such documents as related to such alternative Financing.
(iii) Neither the Purchaser nor any of its Affiliates shall take any action that would reasonably be expected to have a material adverse effect on the ability of the Purchaser to timely consummate the transactions contemplated under this Agreement and the other Transaction Documents and to perform their obligations hereunder and thereunder.
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(iv) In connection with any Financing, (A) no Seller shall be required to become subject to any obligations with respect to such agreements or documents, and (B) nothing shall obligate any Seller to provide a solvency certificate or any similar certificate or to provide any information that would violate any applicable obligations of confidentiality or result in a violation of Applicable Law or loss of any attorney-client communication, attorney work product privilege or any other legal privilege. The Purchaser acknowledges and agrees that no Seller nor any of its respective Affiliates or Representatives shall have any responsibility for, or incur any obligation to any Person under or in connection with, the arrangement of any Financing that the Purchaser may raise in connection with the Transactions. The Purchaser shall indemnify, defend, save and hold harmless the Seller Indemnified Parties from and against all claims and Losses to the extent caused by, arising from or incurred in connection with or related to any Financing or Financing Commitments, except to the extent such Losses result from the Fraud, gross negligence or willful misconduct of the Seller Indemnified Parties (as finally determined by a court of competent jurisdiction). WITHOUT LIMITATION, THE FOREGOING INDEMNITY APPLIES TO LOSSES CAUSED BY THE NEGLIGENCE OF ANY SELLER INDEMNIFIED PARTY. The foregoing indemnity shall survive the Closing or termination of this Agreement.
(b) Financing Cooperation.
(i) In connection with the Financing, prior to the Closing, at the Purchaser’s sole cost and expense, the Sellers shall use reasonable best efforts to provide (and shall use reasonable best efforts to cause its Representatives to provide) to the Purchaser (at the Purchaser’s sole expense) such customary and timely cooperation for sellers in transactions of this type as may be reasonably requested by the Purchaser to assist in arranging and obtaining the Financing (all as consistent with the conditions precedent to the Financing Commitments), including:
(A) (x) making available to the Purchaser, their Representatives and the Financing Sources and their respective agents and advisors, customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders and other financing sources (without limiting the confidentiality restrictions noted below) and containing customary representations regarding the accuracy of the information provided by, or with respect to, the Sellers and (y) reasonably cooperating with and providing reasonable assistance to Purchaser in connection with Purchaser’s preparation of customary materials for rating agency presentations, road show presentations, bank information memoranda and offering prospectuses or memoranda, private placement memoranda, syndication memoranda, lender presentations and other customary offering and marketing materials reasonably required in connection with the Financing or any high-yield debt securities being issued as part of or in lieu of all or a portion of the Financing, including furnishing records, data or other information kept and produced by Sellers in accordance with Ordinary Business Operations in respect of the Purchased Assets and the Purchased Interests and reasonably necessary to support any statistical information relating to the Purchased Assets and the Purchased Interests customarily appearing in such materials;
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(B) (x) using reasonable best efforts to ensure that Required Financial Information remains Compliant and (y) solely using financial information and data derived from the Sellers’ historical books and records and maintained in their Ordinary Business Operations, using reasonable best efforts to provide the information related to the Purchased Assets and Purchased Interests that are reasonably required by Purchaser in the preparation of its pro forma financial information and pro forma financial statements and other pro forma financial data to be included in any offering prospectuses or memoranda, including as required to comply with the rules and regulations of the SEC, including the requirements of Regulation S-X and customary “flash” financial information with respect to the performance of the Purchase Assets and the Acquired Entities for a completed fiscal period for which financial statements are not yet available of a type included in offering documents to Rule “144A-for-life” debt financings to the extent that such information is reasonably available;
(C) cooperating and providing information reasonably required by or for the benefit of the Financing Sources in the context of due diligence and verification, in compliance with applicable requirements or customary practice;
(D) as soon as reasonably practicable (but no later than ten (10) Business Days) following request providing the Purchaser and any of the Financing Sources with all documentation and other information required under applicable anti-money laundering laws, rules and regulations and know-your-client processes, including without limitation, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, and with respect to beneficial ownership, in each case, to the extent reasonably available to the Sellers;
(E) upon the reasonable request of Purchaser, providing information and reasonable assistance to Purchaser, at Purchaser’s sole cost and expense, to facilitate the giving of guarantees and the pledging by Purchaser of collateral in respect of the Purchased Assets and the Purchased Interests in connection with, and effective and operative only after or concurrently with, the occurrence of the Closing;
(F) cooperating with Purchaser to obtain from the Sellers’ registered public accounting firm that has audited the Financial Statements, customary comfort letters and consents required in connection with any Financing with respect to the Financial Statements and the other Required Financial Information, if applicable, that is included in any offering document for which such comfort is customarily required, including customary confirmations (in customary form and scope and delivered at such customary times) of such accountants that they are prepared to issue any such comfort letter or consent subject to the completion of its customary procedures relating thereto and request that such accountants attend accounting due diligence sessions and drafting sessions.
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provided, that (A) with respect to the provision of any historical financial information, if any, such assistance shall be limited solely with respect to information and data derived from the Sellers’ historical books and records and be in a form and format that is reasonably available to management of the Sellers in Ordinary Business Operations, (B) with respect to attending meetings, presentations, road shows, diligence sessions or drafting sessions, only one such meeting, presentation, road show, due diligence session or drafting session shall be in person and all shall be at such times and in such formats as mutually agreed and (C) with respect to assistance pertaining to pro forma financial information, neither the Sellers nor their Representatives shall be required to provide any such assistance with respect to financial information or statements relating to (1) the determination of the proposed aggregate amount of the Financing, the interest rates thereunder or the fees and expenses relating thereto or (2) the determination of any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Financing; provided, further, that, (x) such assistance shall be limited solely with respect to information and data derived from the Sellers’ historical books and records reasonably available to the Sellers and (y) neither the Sellers nor their Representatives shall be required to certify or attest to any such pro forma financial statements or other forecasted information.
(ii) Nothing in this Section 8.8 will require any of the Sellers to (A) pay any fee or incur any other liability or obligation in connection with the Financing that is not indemnified or reimbursed by Purchaser; (B) waive or amend any terms of this Agreement or agree to pay or reimburse any expenses for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of the Purchaser; (C) approve, execute or deliver any definitive agreement; (D) give any indemnities in connection with the Financing; (E) take any action that, except for the delivery of information requested by the Purchaser for purposes of the Financing, would unreasonably interfere with the conduct of the business or operations of such Seller and its Affiliates or create an unreasonable risk of damage or destruction to any property or assets of any of the Sellers or any of its or their Affiliates; (F) adopt resolutions approving the agreements, documents and instruments pursuant to which the Financing is obtained; (G) provide any assistance or cooperation that would (1) cause any representation or warranty in this Agreement to be breached, or (2) cause any conditions to Closing set forth in Article 9 to fail to be satisfied by the Outside Date or otherwise result in a breach of this Agreement that would provide Purchaser with the right to terminate this Agreement; (H) provide any financial information (or other information) that (1) is not produced in accordance with Ordinary Business Operations (other than with respect to information required to produce the necessary pro forma financial statements) or (2) is not required to be provided pursuant to the terms of the Financing or other documentation governing the indebtedness of such Seller; (I) take any action other than at the Purchaser’s request and with reasonable prior notice; (J) take any action that would conflict with, violate or result in a breach of or default under its organizational documents or any material contract or law to which it or its property is bound (provided that such material contract is not entered into solely for the purpose of circumventing the cooperation contemplated herein);
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(K) provide access to or disclose information that any Seller determines in good faith would jeopardize any attorney client privilege (or similar privilege) of, or conflict with any confidentiality requirements applicable to, such Seller or any of its Affiliates (provided that Sellers shall notify the Purchaser if any documentation and information is being so withheld and provide a general description of such withheld documentation or information); (L) deliver or cause the delivery of any legal opinions; or (M) seek or otherwise facilitate or cause any of its Affiliates to seek or otherwise facilitate the consent or authorization of any Governmental Authority with respect to the Financing. In addition, any bank information memoranda and offering prospectuses or memoranda required in relation to the Financing will contain disclosure reflecting the Purchaser or one or more Affiliates of the Purchaser as the obligor. Nothing in this Section 8.8 will require any Representative of any Seller or any of its Affiliates to deliver any document, or take any action, that would reasonably be expected to result in any actual or potential personal liability to such Representative.
(iii) The Purchaser shall promptly, upon request by any Seller, reimburse any Seller for all reasonable and documented out-of-pocket costs and expenses incurred by such Seller or any of its Affiliates (including reasonable and documented out-of-pocket attorneys’ fees and accountants’ fees) in connection with its cooperation contemplated by this Section 8.8. The Purchaser shall indemnify and hold harmless each Seller and its Affiliates and their respective directors, officers, and employees from and against any and all losses suffered or incurred by them in connection with the arrangement and completion of any Financing or related or alternative transactions by the Purchaser in connection with financing the Transactions, except to the extent such losses result from the Fraud, gross negligence or willful misconduct of any Seller or its Affiliates (as finally determined by a court of competent jurisdiction). This Section 8.8(b)(iii) shall survive the consummation of the Closing and any termination of this Agreement, and is intended to benefit, and may be enforced by, the officers and directors of each Seller and their Affiliates and Representatives who are each third party beneficiaries of this Section 8.8(b)(iii).
(iv) Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 9.3, as it applies to Sellers’ obligations under this Section 8.8(b), will be deemed satisfied unless the Sellers have committed a material breach of their obligations under this Section 8.8(b), with the knowledge or intention that such breach would reasonably be expected to be, and such breach is, the primary cause of the Financing not being obtained on or prior to the Closing.
8.9 Permits; Corrective Action Orders; Consents.
(a) The Purchaser acknowledges that all or a part of the Purchased Assets are, and operation of the Sites is being conducted, subject to the provisions of the Corrective Action Orders set forth on Schedule 8.9(a). Prior to the Closing, Sellers and Purchaser shall use commercially reasonable efforts to obtain the modification and transfer of any Corrective Action Orders. Subject to the terms and conditions set forth in this Agreement: (i) to the extent related to the business of SPPR and Purchased Assets, the Purchaser agrees
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to assume the obligations of the Corrective Action Orders and to seek to transfer the applicable provision of the Corrective Action Orders to itself and (ii) the Parties agree that prior to the Closing Date and thereafter, as necessary, the Parties shall cooperate and work in good faith to secure all requisite and necessary modifications to and the transfer of the Corrective Action Orders from the Sellers to the Purchaser to the extent related to the business of SPPR or the Purchased Assets and to cooperate and work in good faith in assisting the Sellers and its Affiliates to be fully released from any Liabilities arising from the Purchaser’s failure to comply with the terms and conditions. The Sellers agree to comply with Corrective Action Orders prior to the Closing Date. The Purchaser agrees to and shall, from and after the Closing Date, be responsible for and perform, all Liabilities under the Corrective Action Orders to the extent related to the business of SPPR or the Purchased Assets, in each case, to the extent such Liabilities do not constitute Excluded Environmental Liabilities. The Purchaser agrees to use commercially reasonable efforts to cause the provisions of this Section 8.9 to be binding upon (x) any successors or assigns of the Purchaser and (y) any transferee of all or any portion of the Sites. To the extent the transfer of any Corrective Action Orders shall require the consent of any other Person, this Agreement shall not constitute a contract to transfer the same, if an attempted transfer would constitute a material breach thereof or give rise to any right of acceleration or termination thereunder, until such time as the consent is acquired. The Sellers shall, if necessary, notify any Governmental Authority of the transfers of ownership of the Purchased Assets and the Purchased Interests on or after the Closing or as otherwise required by Corrective Action Orders.
(b) Prior to the Closing, Sellers and the Purchaser shall use commercially reasonable efforts to obtain any necessary consents for the transfer of all Assigned Permits. If consent for the transfer of an Assigned Permit (other than the NDDEQ Waste Permit) is not obtained prior to Closing, for a period of up to twelve (12) months after the Closing, (i) the applicable Assigned Permit will be deemed not to have been transferred to the Purchaser as of the Effective Time and the Sellers and the Purchaser shall continue to use commercially reasonable efforts to obtain such consent such that such Assigned Permit can be transferred to the Purchaser upon receipt of such consent, (ii) the Purchaser and the Sellers shall reasonably cooperate in connection with the foregoing, including by participating in discussions and negotiations with all persons or entities with the authority to grant or withhold such consent; provided, however, that such assistance will not be deemed to require any payment of money on the part of any Seller, (iii) to the extent permitted by Applicable Law, the applicable Governmental Authority and the terms of such Assigned Permit, Sellers shall use commercially reasonable efforts to allow Purchaser to operate under such Assigned Permit until the earliest of (x) the transfer of such Assigned Permit to Purchaser, (y) Purchaser obtaining a replacement Permit, and (z) the date that is twelve (12) months after the Closing, (iv) there shall be no reduction in the Purchase Price on account of the failure to deliver such Assigned Permit at the Closing; (v) the Purchaser shall have no claim against the Sellers for, and shall release, defend, indemnify and hold harmless the Seller Indemnified Parties from and against, any and all Losses arising out of, attributable to, based upon or related to, the failure to transfer such Assigned Permit and the use of such Assigned Permit by Purchaser during such period, and (vi) the Purchaser shall be responsible for all Liabilities related to such Assigned Permit with respect to such twelve (12) month period and thereafter. Without limiting the foregoing, if consent to transfer any
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Assigned Permit is not obtained prior to Closing, Purchaser shall, at its sole cost and expense, use commercially reasonable efforts to obtain a replacement Permit as expeditiously as reasonably practicable following the Closing, and Sellers shall have no obligation to maintain, renew or support Purchaser’s use of such Assigned Permit beyond the twelve (12)-month period following the Closing.
(c) Except for the Assigned Permits and matters covered by the Corrective Action Orders, prior to the Closing, the Sellers shall send to each holder of a right to consent to assignment or partial assignment, as applicable, which relates to any of the Purchased Assets (including any Easements and any Assumed Contracts) or any Purchased Interests, in each case (including any right to consent that is set forth on Schedule 5.3 and, with respect to any right to consent that is not set forth on Schedule 5.3, but is discovered by any Party after the date hereof and before the Closing Date to be required by the terms of such Purchased Asset or Purchased Interest (any such consent, a “Consent”)), a notice seeking the consent of such holder with respect to the Transactions, and the Sellers shall use commercially reasonable efforts to obtain such Consents. In no event shall the Sellers be required to incur any Liability or pay any money in order to obtain any such Consents. The Purchaser shall reasonably cooperate with the Sellers in seeking to obtain such consents.
(d) If the Sellers fail to obtain any Consent set forth on Schedule 8.9(d) prior to the Closing, for a period of up to twelve (12) months after the Closing, (i) the applicable Purchased Asset and related Assumed Liabilities will be deemed not to have been transferred to the Purchaser as of the Effective Time and the Sellers and the Purchaser shall continue to use commercially reasonable efforts to obtain such Consent such that such Purchased Asset and related Assumed Liabilities can be transferred to the Purchaser upon receipt of such Consent, (ii) the Purchaser and the Sellers shall reasonably cooperate in connection with the foregoing, including by participating in discussions and negotiations with all persons or entities with the authority to grant or withhold such consent; provided, however, that such assistance will not be deemed to require any payment of money on the part of any Seller, (iii) such Purchased Asset shall, to the extent permitted by applicable Law and the terms of the applicable Contract, be held by the applicable Seller for the benefit of the Purchaser and such Seller shall enter into any reasonable arrangement designed to provide Purchaser the benefits intended to be assigned to Purchaser with respect to such Purchased Asset, (iv) there shall be no reduction in the Purchase Price on account of the failure to deliver such Consent at the Closing, (v) the applicable Sellers shall use their commercially reasonable efforts to take all such other reasonable actions and do, or cause to be done, all such other reasonable things at the reasonable request of the Purchaser as shall reasonably be necessary and proper in order that the value of such Purchased Asset shall be preserved and shall inure to the benefit of the Purchaser, (vi) to the extent permitted by applicable Law and the terms of the applicable Contract, the Purchaser shall have the sole right to operate, manage, and otherwise make all decisions with respect to, such Purchased Asset, (vii) the Purchaser shall have no claim against the Sellers for, and shall release, defend, indemnify and hold harmless the Seller Indemnified Parties from and against, any and all Losses arising out of, attributable to, based upon or related to, the failure to obtain such Consents and the use of such Purchased Asset by Purchaser with respect to such twelve (12) month period, and (viii) the Purchaser shall be responsible for all Liabilities related to such Purchased Asset with respect to such twelve (12) month period. With respect
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to any Purchased Asset for which a Consent for the assignment to the Purchaser is obtained following the Closing, the applicable Seller shall transfer such Purchased Asset to the Purchaser by execution and delivery of an instrument of conveyance in the form of the Assignment and Bill of Sale, the applicable Deed, the applicable Easement Assignment, or the applicable Lease Assignment, as applicable, and the Purchaser shall assume all Liabilities relating to such Purchased Asset as if the transfer occurred as of the Closing Date.
(e) If the Sellers fail to obtain a Consent set forth on Schedule 8.9(e) prior to the Closing, then (i) such Purchased Asset(s) subject to such Consent shall be acquired by the Purchaser at the Closing as part of the Purchased Assets, and the Sellers shall use commercially reasonable efforts to cooperate with the Purchaser after Closing for a period of up to six (6) months to obtain such Consent; and (ii) the Purchaser shall be solely responsible (and shall have no claim against the Sellers) from and after the Closing for any and all Losses or obligations arising out of, attributable to, based upon or related to the failure to obtain such Consent.
(f) Sellers shall provide true and complete copies of all material documents that, to Sellers’ Knowledge, are in Sellers’ possession relating to each Corrective Action Order.
8.10 Benzene Waste Operations NESHAP and Risk Management Program Matters. Promptly following the execution of this Agreement, and prior to any public announcement that may be negotiated between the Parties, Sellers shall notify the U.S. Department of Justice, U.S. EPA, MPCA, and NDDEQ that the Parties have entered into this Agreement and intend to consummate the Transactions in accordance with the terms hereof, including the sale and purchase of the Purchased Interests and Purchased Assets and the assignment and assumption of the Assumed Liabilities. The Parties will use commercially reasonable efforts to meet promptly and jointly with the U.S. Department of Justice, U.S. EPA, MPCA, and NDDEQ to discuss the Benzene Waste Operations NESHAP Matter and the Risk Management Program Matter. Prior to the Closing and subject to Section 7.1(b)(xvii), Sellers shall lead and maintain control of any and all discussions with the U.S. Department of Justice, U.S. EPA, MPCA, and NDDEQ and retain sole decision-making authority relating to the Benzene Waste Operations NESHAP Matter and the Risk Management Program Matter, including the authority to fully resolve and settle either matter with the U.S. Department of Justice, U.S. EPA, MPCA, and NDDEQ. Following the Closing, Purchaser shall assume the lead role and maintain control over all discussions with the U.S. Department of Justice, U.S. EPA, MPCA, and NDDEQ related to the Benzene Waste Operations NESHAP Matter and the Risk Management Program Matter, other than discussions relating to the Excluded Environmental Liabilities, and Sellers shall continue to lead and maintain control over all discussions relating to the Excluded Environmental Liabilities, including final decision-making authority to settle any civil penalties or other Liabilities that constitute Excluded Environmental Liabilities; provided that Purchaser shall not settle or otherwise agree to any terms relating to the Excluded Environmental Liabilities without Sellers’ prior written consent. The Parties shall reasonably cooperate and keep each other reasonably informed with respect to any discussions with the U.S. Department of Justice, U.S. EPA, MPCA, and NDDEQ relating to the Benzene Waste Operations NESHAP Matter or the Risk Management Program Matter.
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8.11 Wrong Pockets. From and after the Closing and for a one (1)-year period thereafter, if any Party or any of its Affiliates receives any payment, revenue, refund, rebate, credit, reimbursement, recovery or other amount that, pursuant to this Agreement, has been expressly allocated to another Party or its Affiliates, then the receiving Party shall use commercially reasonable efforts to promptly remit, or cause to be remitted, such amount to the Party entitled thereto, net of any reasonable out-of-pocket costs and expenses incurred by the receiving Party or its Affiliates in connection with the receipt, holding or remittance of such amount and any Taxes imposed thereon. If any such amount is not remitted within five (5) Business Days after the receiving Party has knowledge that such amount belongs to another Party or any of its Affiliates, such amount shall bear interest at the prime rate of interest as published in The Wall Street Journal (or any successor publication thereto) from time to time, calculated from the date on which such amount was received by the applicable Party or its Affiliates through and including the date of payment to the other Party or its Affiliates. Payment shall be made by wire transfer of immediately available funds in U.S. Dollars to such bank account as the Party entitled to such payment may designate in writing. If, following the Closing, any Party or any of its Affiliates holds any Purchased Asset (or any asset that would have constituted a Purchased Asset if owned by a Seller) or Assumed Liability (or any Liability that would have constituted an Assumed Liability if held by a Seller) or any Excluded Asset or Excluded Liability that, pursuant to this Agreement, has been allocated to another Party or its Affiliates, the holding Party shall promptly notify the other Party and the Parties shall cooperate to transfer (or, with respect to Intellectual Property, license) such asset to the applicable Party as soon as reasonably practicable, without further consideration. No Party shall have any obligation to pursue, collect, or recover any amount or asset on behalf of any other Party except as expressly provided in this Agreement. Nothing in this Section 8.11 shall limit or modify the Parties’ respective rights and obligations with respect to the Purchased Assets, the Purchased Interests, the Excluded Assets, or the Excluded Liabilities. Without limiting the generality of Section 8.4, each Party shall provide the other Party and its Representatives with reasonable access during normal business hours, upon reasonable prior notice, to such Books and Records, Contracts and other documents in its possession or control as may be reasonably necessary to identify and effectuate the payment or transfer of any amounts or assets actually received or held, or reasonably believed to have been received or held, under this Section 8.11; provided that no Party shall be required to provide access to any information to the extent such access would reasonably be expected to waive attorney-client privilege or other legal privilege, violate Applicable Law or breach any confidentiality obligation owed to a third party.
8.12 Amendment of Schedules. After the date hereof, but not less than five (5) Business Days prior to the Closing, Sellers may supplement or update Schedule 2.1(a)(xii), Schedule 2.1(a)(xv), Schedule 2.1(a)(xix), Schedule 2.2(l) and Schedule 2.2(p) from time to time with respect to any asset or Liability first discovered by Sellers after the date hereof or first arising after the date hereof and each such supplement or update shall be deemed to amend and supplement the applicable Schedule for all purposes of this Agreement. No such supplement or update shall constitute or give rise to a breach of any representation, warranty, covenant or agreement under this Agreement or the failure of any condition to Closing.
8.13 Replacement Bonds. The Purchaser acknowledges that none of the Financial Assurances posted by any Seller or any of its Affiliates with a Governmental Authority, co-owner, or a Third Party that relate to the Purchased Assets or the assets of any Acquired Entity (collectively, “Seller Support Obligations”), including as set forth on Schedule 5.17, will be transferred to the Purchaser. At or prior to the Closing, the Purchaser, at the Purchaser’s sole cost and expense, shall use commercially reasonable efforts to deliver to the Sellers evidence of the posting of replacements
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for all such Seller Support Obligations to the extent such replacements are necessary to permit the cancellation of the Seller Support Obligations posted by any Seller or its Affiliates and the Sellers shall reasonably cooperate with the Purchaser’s efforts in this respect; provided that, for any individual and material Seller Support Obligations that have not, notwithstanding the Purchaser’s efforts, been released by the Closing Date, the Sellers shall continue to maintain or cause the Person providing such Seller Support Obligation to continue to maintain such Seller Support Obligation until the earlier of (a) the provision by the Purchaser of replacements that permit the cancellation of such Seller Support Obligation and (b) one hundred twenty (120) days after the Closing Date. Notwithstanding the foregoing, the Purchaser shall defend, indemnify, and hold harmless Seller Indemnified Parties from and against any and all Losses arising out of, attributable to, based upon, or related to any Seller Support Obligations that remain outstanding after the Effective Time.
8.14 Benzene and Sulfur Reporting, RINs Compliance and SRE.
(a) Any sulfur credits or benzene credits generated pursuant to 40 C.F.R. Parts 80 or 1090 in respect of the Purchased Assets for the calendar year ending December 31, 2025 or earlier shall constitute Excluded Assets and any reporting and compliance obligations pursuant to Applicable Law associated with sulfur and benzene credits for the calendar year 2025 shall be completed by the Sellers. Sellers shall also complete any reporting and compliance obligations pursuant to Applicable Law associated with sulfur and benzene credits for calendar year 2026 if the Closing does not occur in 2026, and any benzene and sulfur credits generated by the Sellers for calendar year 2026 shall constitute Excluded Assets. Following the Closing, the Purchaser shall (i) assume responsibility for compliance obligations, monitoring, and reporting associated with U.S. EPA fuels regulations, including without limitation sulfur and benzene credits in respect of the Purchased Assets, (ii) notify each applicable Governmental Authority of the change in ownership of the Purchased Assets and provide such appropriate documentation as required by Applicable Law to establish such ownership transfer and (iii) be responsible for obtaining any required approvals of any Governmental Authority related to the production of fuel under 40 C.F.R. Parts 79, 80 and 1090, including sulfur and benzene credits and shall take any and all steps necessary to gain such approvals. The Sellers shall reasonably cooperate in any effort by the Purchaser in connection with such notifications and approvals. Subject to the foregoing, each Party shall be responsible for reporting for their respective pro rata portion of the entire calendar year in which Closing occurs. The Parties shall cooperate and work in good faith to ensure the Sellers receive, in a timely manner, all information in the Purchaser’s possession required for the Sellers’ reporting.
(b) [Intentionally Omitted.]
(c) The Sellers and the Purchaser acknowledge that neither SPPR nor any of the Purchased Assets generate RINs for purposes of RFS compliance. The Purchaser shall be responsible for the RFS compliance and reporting obligations incurred in respect of the Purchased Assets starting at Closing and including the Closing Date. The MPC Sellers shall be responsible for RFS compliance and reporting obligations incurred pre-Closing and associated with pre-Closing compliance years, including those that have post-Closing compliance deadlines (i.e., the 2025 compliance year with a current compliance deadline of September 1, 2026 or the 2026 compliance year with a compliance deadline of March 31,
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2027). The Parties shall cooperate and work in good faith to ensure the MPC Sellers receive, in a timely manner, all information in the Purchaser’s possession required for the MPC Sellers’ reporting. Subject to Applicable Law and any orders or direction from applicable Governmental Authorities, in the event that the MPC Sellers, on the one hand, and the Purchaser, on the other hand, cannot each report and comply with their RFS compliance obligations completely independently for their respective portions of the year in which the Closing occurs, the MPC Sellers shall provide the Purchaser with (i) as soon as practicable, a final statement of RFS compliance obligations for the compliance year in which the Closing occurs incurred in respect of the Purchased Assets prior to the Closing, and (ii) prior to the applicable RFS compliance deadline for the compliance year in which the Closing occurs and at no cost to Purchaser, all RINs required to meet the applicable RFS compliance and reporting obligations in respect of the Purchased Assets for the period of the MPC Sellers’ ownership in respect of such compliance year. If the Closing occurs in calendar year 2027, the foregoing obligations shall apply to the 2027 compliance year. Within a reasonable time period following Closing, the Purchaser shall apply for a small refinery exemption under the RFS for the compliance year in which Closing occurs for the Mandan Refinery, and in the event that the Purchaser receives such exemption, then the Purchaser shall transfer a pro rata number of valid RINs to the MPC Sellers reflecting the percentage of the compliance year for which the MPC Sellers owned the exempted Refinery. If any such exemption is subsequently overturned or invalidated or the renewable volume obligation is changed post-Closing, the MPC Sellers shall be responsible post-Closing for the RFS compliance and reporting obligations and other Liabilities under the RFS incurred in respect of the pre-Closing operation of the Mandan Refinery as a result of the invalidation of such exemption or change in renewable volume obligation, and the Purchasers shall only be responsible for the RFS compliance and reporting obligations and other Liabilities under the RFS incurred with respect to the post-Closing operation of the Mandan Refinery inclusive of the Closing Date. For the avoidance of doubt, no MPLX Seller shall have any obligation or liability under this Section 8.14(c).
8.15 One Call; Utilities.
(a) Promptly after Closing, but in no event later than thirty (30) days thereafter, the Purchaser will contact every appropriate one-call agency in the vicinity of any of the Purchased Assets and the assets of SPPR and have the contact information for one-calls changed from the applicable Seller’s name to the Purchaser’s (or its designee’s) name. The Purchaser shall also provide revised maps to the one-call agencies where appropriate or required. The Purchaser shall promptly notify the Sellers that all such notices and revised maps have been provided.
(b) Sellers shall not, and shall not permit their respective Affiliates to, discontinue any utility services (including electricity, heat, sewer, water, and services for ongoing telephone and internet service) with respect to any of the Purchased Assets or the assets of any Acquired Entity until either (a) the Purchaser has transferred all such services to its own accounts or (b) following ninety (90) days after the Closing Date. The Purchaser shall be responsible for, and shall promptly reimburse the Sellers for, all utility charges incurred under any such utility account or service in respect of the period from and after the Effective Time during which the Sellers maintain such account or service.
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8.16 R&W Insurance Policy. On or prior to the Closing Date, the Purchaser may obtain and bind buyer-side representations and warranties insurance with respect to the representations and warranties contained in this Agreement (collectively, such primary and excess insurance policies, the “R&W Insurance Policy”). If the Purchaser intends to obtain the R&W Insurance Policy then, upon Sellers’ written request, the Purchaser will provide a copy(ies) of the binder agreement(s) for the R&W Insurance Policy for the Sellers’ review and comments. All premiums, underwriting fees, brokers’ commissions and other fees, costs and expenses related to and required to be paid in connection with such R&W Insurance Policy shall be borne one hundred percent (100%) by the Purchaser (or its Affiliates). The Purchaser acknowledges and agrees that any such R&W Insurance Policy will expressly state that: (a) the insurer(s) thereunder will not receive, irrevocably and unconditionally waives, and agrees not to, and will not, exercise, directly or indirectly, any and all rights and claims of subrogation, contribution, indemnification, recourse or any other rights and claims of recovery in connection with this Agreement or the R&W Insurance Policy against any of the Sellers, any Affiliate of any Seller and, as to each of the foregoing, their respective former or current direct and indirect Affiliates, officers, directors, employees, partners, members, managers, agents, successors or permitted assigns (the “Seller Protected Parties”), except that the R&W Insurance Policy shall only permit subrogation against a Seller Protected Party in the event (and to the extent) of any payment of any Losses under the R&W Insurance Policy for such Seller Protected Party’s Fraud (as defined under this Agreement), and then only against such Seller Protected Party that committed such Fraud, with the insurer(s) thereunder having the burden of proving such Seller Protected Party’s Fraud and the actions, intentions or Fraud of any persons shall not be imputed to any other person; (b) notwithstanding the fact that the Persons identified in the preceding clause (a) are not insureds or signatories to the R&W Insurance Policy, such Persons will be identified as express intended third-party beneficiaries of such R&W Insurance Policy provisions and will be entitled to the benefits of and to enforce the waivers and agreements contained therein directly against the insurer(s) thereunder; and (c) the parties to the R&W Insurance Policy will not permit any amendment, modification, variation or waiver (and the Purchaser shall not, and shall cause its Affiliates not to, amend, modify, vary or waive the foregoing subrogation waiver provision of the R&W Insurance Policy) in any manner that is inconsistent with the preceding clause (a) and clause (b) without the written approval of MPC. The Parties acknowledge and agree that the failure by the Purchaser to obtain or maintain the R&W Insurance Policy shall not in any manner increase any liability of any of the Sellers or their Affiliates, including if (x) the R&W Insurance Policy is disputed, invalidated or deemed ineffective, in whole or in part, (y) the coverage provided under the R&W Insurance Policy is denied, disputed, exhausted or otherwise made unavailable to the Purchaser or any of its Affiliates or any other insured thereunder, in whole or in part, or (z) there is otherwise an absence of coverage under the R&W Insurance Policy for any reason, including as a result of exclusions or other limitations. Upon any Seller’s reasonable written request, if the R&W Insurance Policy is bound, the Purchaser will provide a copy(ies) of the final issued R&W Insurance Policy to the Sellers after the R&W Insurance Policy is issued. None of the Seller Protected Parties shall be entitled to any proceeds of the R&W Insurance Policy without the prior written consent of the Purchaser (which can be withheld in the Purchaser’s sole and absolute discretion). During the period between the date hereof and the Closing, the Sellers shall (and shall cause their respective Affiliates to) use reasonable efforts to cooperate with the Purchaser and its representatives, at Purchaser’s sole cost and expense, with respect to the Purchaser’s procurement of the R&W Insurance Policy. Within ten (10) Business Days after the Closing Date, the Sellers shall deliver, or cause to be delivered, to the Purchaser (or its designee) a true and correct copy of the contents of the Data Room on a USB drive or other means acceptable to the Purchaser.
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8.17 Casualties; Takings.
(a) In the event that there is an occurrence of a Casualty or a Taking during the Interim Period, the Sellers shall notify the Purchaser thereof as soon as reasonably practicable.
(b) In the event of a Casualty the applicable Sellers may elect, at their option, by written notice to Purchaser, any one of the remedies set forth in this Section 8.17(b):
(i) if the Purchased Assets or assets of SPPR that are impacted by such Casualty would reasonably be expected to be repaired or restored within one hundred eighty (180) days after Sellers’ notice to Purchaser, as reasonably determined by Sellers in good faith, the applicable Sellers may, at their sole cost, repair or restore the affected Purchased Assets or assets of SPPR to substantially the same condition as existed immediately prior to the Casualty; provided that if such one hundred eighty (180)-day period extends beyond the Closing Date, the Parties shall nevertheless proceed to Closing in accordance with this Agreement, and the applicable Sellers shall continue to use commercially reasonable efforts to complete or cause to be completed such repair or restoration within such one hundred eighty (180)-day period and continue to be responsible for all costs of such repair or restoration; or
(ii) if the Purchased Assets or assets of SPPR that are impacted by such Casualty would not reasonably be expected to be repaired or restored within one hundred eighty (180) days after Sellers’ notice to Purchaser, as reasonably determined by Sellers in good faith, the applicable Sellers may elect to commence such repair or restoration and delay the Closing until the earlier of (A) the date on which such repair or restoration has been completed and (B) the date on which the applicable Sellers reasonably determine in good faith that the remaining repair or restoration work would reasonably be expected to be completed within one hundred eighty (180) days after the Closing. The Outside Date shall be automatically extended as necessary to permit such delay of the Closing; provided that the Outside Date shall not be extended pursuant to this Section 8.17(b)(ii) beyond the date that is three hundred sixty (360) days after the date of this Agreement. If the Closing occurs before such repair or restoration is completed, the applicable Sellers shall continue to use commercially reasonable efforts to complete or cause to be completed such repair or restoration within such one hundred eighty (180)-day period following the Closing and shall remain responsible for all costs of such repair or restoration; or
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(iii) if the Purchased Assets or assets of SPPR that are impacted by such Casualty are not capable of being repaired or restored pursuant to Section 8.17(b)(i) or Section 8.17(b)(ii), or if the applicable Sellers do not elect to repair or restore the affected Purchased Assets or assets of SPPR pursuant to Section 8.17(b)(i) or Section 8.17(b)(ii), then the Sellers may elect to proceed to Closing in accordance with this Agreement and either (A) reduce the MPC Purchase Price and/or the MPLX Purchase Price, as applicable, by an amount equal to the Repair Costs (or applicable portion(s) thereof), as reasonably determined by the applicable Sellers in good faith, or (B) assign to Purchaser the applicable Sellers’ rights to any insurance claims, insurance proceeds and third-party recoveries under the Casualty Insurance Policy arising out of such Casualty and remit to Purchaser any such proceeds or recoveries actually received by such Sellers, in each case net of any reasonable out-of-pocket costs and expenses incurred by Sellers or their Affiliates in connection with the recovery thereof; provided, however, that if the applicable Sellers reasonably determine in good faith that any portion of the Repair Costs, including any applicable deductible, is not covered by the Casualty Insurance Policy, the applicable Sellers shall reduce the MPC Purchase Price and/or the MPLX Purchase Price, as applicable, by an amount equal to such uninsured Repair Costs (or the applicable portion thereof). “Repair Costs” means the reasonable cost to repair or restore the affected Purchased Assets or assets of SPPR to substantially the same condition as existed immediately prior to the Casualty.
(c) If Purchaser in good faith disputes the applicable Sellers’ determination of the Repair Costs or the applicable Sellers’ completion of any material repair or restoration pursuant to this Section 8.17, the Parties shall nonetheless proceed to Closing in accordance with this Agreement, and no such dispute shall delay the Closing, extend the Outside Date or constitute a failure of any condition to Closing. Purchaser may, within the later of (i) thirty (30) days after the repair or restoration is completed and (ii) thirty (30) days after the applicable Sellers deliver notice that they have completed any repair or restoration elected pursuant to this Section 8.17, deliver to the applicable Sellers a statement setting forth Purchaser’s good faith calculation of the Repair Costs or the basis for Purchaser’s dispute regarding the applicable Sellers’ completion of such repair or restoration, as applicable. To the extent Purchaser’s calculation of the Repair Costs is in dispute with the applicable Sellers’ determination of the Repair Costs at Closing, or Purchaser disputes whether any repair or restoration that is the responsibility of any Seller has been completed in accordance with this Section 8.17, the Parties shall submit such dispute to an experienced and licensed insurance adjuster or engineer located in the state where the affected Purchased Assets or assets of SPPR are located and selected by the applicable Sellers, acting reasonably (the “Adjuster”). The Adjuster shall determine only the disputed Repair Costs or whether the applicable Sellers have completed the applicable material repair or restoration in accordance with this Section 8.17 and shall not have authority to determine any other dispute or award any other damages or remedies. The Adjuster’s determination shall be final and binding upon the Parties absent manifest error. If the Adjuster determines that the Repair Costs exceed the amount determined by the applicable Sellers, such Sellers shall pay Purchaser the amount of such excess (or the applicable portion thereof based on the affected Purchased Assets) within ten (10) Business Days after such determination. If the Adjuster determines that the Repair Costs are less than the amount determined by the applicable Sellers, Purchaser shall pay the applicable Sellers the amount of such difference (or the applicable portion thereof based on the affected Purchased Assets) within ten (10) Business Days after such determination. Any dispute regarding any Sellers’ determination of Repair Costs or any Sellers’ completion of any repair or restoration pursuant to this
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Section 8.17 not submitted to the Adjuster within the foregoing time period shall be deemed waived.
(d) In the event of a Taking, the Parties will proceed to Closing, with no right on the part of any Party to terminate this Agreement, and the applicable Sellers shall assign to Purchaser all condemnation proceeds and awards received by such Sellers as a result of the Taking and assign the rights thereto with respect to any such proceeds and awards not yet received, together with the applicable Sellers’ rights under any pending eminent domain proceeding.
(e) Notwithstanding anything to the contrary in this Agreement, the Parties acknowledge and agree that this Section 8.17 sets forth Purchaser’s sole and exclusive rights and remedies with respect to any Casualty or Taking, and no Casualty or Taking shall, in and of itself, constitute or give rise to a breach of any representation, warranty, covenant or agreement under this Agreement or the failure of any condition to Closing; provided, however, that nothing in this Section 8.17 shall limit or otherwise affect the determination of whether a Material Adverse Effect has occurred for purposes of Section 9.1(g).
(f) Purchaser shall reimburse the applicable Sellers for all premiums and policy placement fees paid or payable by Sellers or their Affiliates to obtain and maintain the Casualty Insurance Policy; provided, however, that Purchaser shall not be responsible for, and the applicable Sellers shall remain responsible for, any deductible, payable in connection with any Casualty or any claim under the Casualty Insurance Policy arising prior to the Closing. Any such premiums and policy placement fees paid by Sellers or their Affiliates prior to the Closing shall be reimbursed by Purchaser at the Closing, and any such amounts that become payable after the Closing shall be reimbursed by Purchaser within ten (10) Business Days after the applicable Sellers’ delivery of reasonable supporting documentation therefor. In the event of any Casualty, (i) the applicable Sellers shall be entitled to make claims and recover insurance proceeds under the Casualty Insurance Policy for Repair Costs incurred by Sellers and (ii) the applicable Sellers shall take such actions as are reasonably requested by Purchaser and are necessary or advisable to fully preserve any claims or right to recovery that Purchaser may have from and after the Closing. In the event of any reduction in the MPC Purchase Price or MPLX Purchase Price pursuant to Section 8.17(b)(iii)(A), Purchaser shall assign to applicable Sellers all of Purchaser’s rights to any insurance claims, insurance proceeds and third-party recoveries under the Casualty Insurance Policy arising out of such Casualty and remit to the applicable Sellers any such proceeds or recoveries actually received by Purchaser up to the amount of the applicable Purchase Price reduction, in each case net of any reasonable out-of-pocket costs and expenses incurred by Purchaser or its Affiliates in connection with the recovery thereof; provided that if such insurance proceeds received by Purchaser exceed the amount of such Purchase Price reduction, Purchaser shall retain such excess. If any applicable Sellers elect to proceed pursuant to Section 8.17(b)(iii)(B), such Sellers shall use commercially reasonable efforts to (y) prosecute or cause to be prosecuted as promptly as reasonably practicable all claims under the Casualty Insurance Policy with respect to such Casualty that remain within the control of such Sellers, and (z) keep Purchaser reasonably informed of the status of such claims and repair or restoration efforts.
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8.18 License. Sellers hereby grant to Purchaser and each of the Acquired Entities a limited non-exclusive, worldwide, irrevocable (except for breach by Purchaser), perpetual, royalty-free, fully paid-up, transferable, and sublicensable (to vendors, contractors, suppliers, and similar third parties) license to use the Licensed IP solely in connection with the operation of the businesses of the Acquired Entities and the Purchased Assets as conducted during the three (3) months prior to Closing and as of the Closing. If the Purchaser or any of its Affiliates uses any Licensed IP outside the scope of the license granted in this Section 8.18, the Sellers may, upon written notice to the Purchaser, terminate this license with respect to such Licensed IP, without prejudice to any other remedies available to the Sellers. The Purchaser acknowledges that any breach of the scope limitations in this Section 8.18 would cause irreparable harm to the Sellers for which monetary damages would be inadequate, and the Sellers shall be entitled to seek injunctive relief, specific performance, or other equitable remedies in connection with any such breach, without the necessity of proving actual damages or posting any bond or other security.
8.19 Affiliate Closing Deliverables. Each Seller shall cause each of its Affiliates that is party to any Transaction Document (including any Affiliate that is required to execute, deliver or perform any closing deliverable contemplated by Section 4.2 or Section 4.3) to execute, deliver and perform such Transaction Document or closing deliverable in accordance with its terms and the terms of this Agreement. Without limiting the foregoing, each Seller covenants and agrees that it will use its commercially reasonable efforts to cause each such Affiliate to comply with all applicable terms, conditions and obligations under the Transaction Documents to which such Affiliate is or will be a party.
8.20 NDDEQ Waste Permit. Promptly following the date hereof, if not previously submitted, the MPC Sellers shall submit to the NDDEQ a notice and application for transfer of the NDDEQ Waste Permit to Purchaser effective as of the Closing. Purchaser and the MPC Sellers shall use reasonable best efforts to satisfy as promptly as practicable the condition to Closing set forth in Section 9.1(f) and to cause the Closing to occur as promptly as practicable. Without limiting the foregoing, from the date hereof until the Closing, the Parties shall (a) use reasonable best efforts to make all filings with, and obtain all authorizations, consents, orders and approvals of, the NDDEQ that may be necessary or advisable in connection with the transfer of the NDDEQ Waste Permit, (b) cooperate fully with each other in seeking to obtain such authorizations, consents, orders and approvals, including by executing and delivering any applications, notices, forms or other materials reasonably required in connection therewith, and (c) provide as promptly as practicable such information to the NDDEQ as the NDDEQ may request in connection therewith.
ARTICLE 9
CONDITIONS TO CLOSING
9.1 Conditions Precedent to Obligations of the Purchaser. The obligation of the Purchaser to consummate the Transactions is subject to the satisfaction by the Sellers or the waiver by the Purchaser, on or prior to the Closing, of the following conditions:
(a) (i) each of the Seller Fundamental Representations shall be true and correct in all respects, except for de minimis inaccuracies, on and as of the Closing Date, with the same force and effect as though such representations and warranties had been made or given on and as of the Closing Date (other than those representations and warranties that refer to
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a specified date, which need only be true and correct on and as of such specified date) and (ii) each of the representations and warranties of the Sellers set forth in Article 5 (other than the Seller Fundamental Representations) shall be true and correct on the date hereof and on and as of the Closing Date, with the same force and effect, as though such representations and warranties had been made or given on and as of the Closing Date (other than representations and warranties that refer to a specified date, which need only be true and correct on and as of such specified date), except, in the case of this clause (ii), for those breaches, if any, of such representations and warranties that, in the aggregate, would not have a Material Adverse Effect;
(b) the Sellers shall have performed and complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by the Sellers on or prior to the Closing Date;
(c) no Applicable Law shall temporarily, preliminarily, or permanently prohibit, prevent, enjoin, or make illegal the consummation of the Transactions;
(d) no suit, action or other proceeding by any Third Party shall be pending by or before any Governmental Authority seeking to restrain, prohibit, enjoin or declare illegal, or seeking substantial damages in connection with, the Transactions;
(e) if applicable, (i) all waiting periods (and extensions thereof but not including an indication or notification from a Governmental Authority that an investigation remains open or ongoing after expiration of the waiting period) under any Antitrust Law applicable to the consummation of the Transactions shall have expired, (ii) notice of early termination of the waiting period under any Antitrust Law applicable to the consummation of the Transactions shall have been received or (iii) a consent order shall have been issued for public comment or pursuant to the Tunney Act by or from the applicable Governmental Authorities and clauses (i) or (ii) of this paragraph shall have been satisfied; provided that the foregoing shall not limit the Purchaser’s right under Section 8.7(e) to reject any Burdensome Condition (without limiting the Sellers’ right to receive the Reverse Termination Fee under Section 9.6(d));
(f) the NDDEQ having provided written approval of, or other written non-objection to or authorization for, the transfer of the NDDEQ Waste Permit in connection with the Transactions;
(g) since the date of this Agreement, no Material Adverse Effect shall have occurred and be continuing as of the Closing Date; and
(h) the Sellers shall have delivered (or be ready, willing, and able to deliver at the Closing) to the Purchaser the documents required to be delivered by the Sellers at the Closing.
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9.2 Conditions Precedent to Obligations of the Sellers. The obligation of the Sellers to consummate the Transactions is subject to the satisfaction by the Purchaser or the waiver by the Sellers, on or prior to the Closing, of the following conditions:
(a) (i) each of the Purchaser Fundamental Representations shall be true and correct in all material respects on the date hereof and on and as of the Closing Date, with the same force and effect as though such representations and warranties had been made or given on and as of the Closing Date (other than those representations and warranties that refer to a specified date, which need only be true and correct on and as of such specified date) and (ii) each of the representations and warranties of the Purchaser set forth in Article 6 (other than the Purchaser Fundamental Representations) shall be true and correct on the date hereof and on and as of the Closing Date, with the same force and effect as though such representations and warranties had been made or given on and as of the Closing Date (other than those representations and warranties that refer to a specified date, which need only be true and correct on and as of such specified date), except, in the case of this clause (ii), for those breaches, if any, of such representations and warranties that would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Purchaser’s ability to consummate the Transactions;
(b) the Purchaser shall have performed and complied in all material respects with all agreements and covenants required by this Agreement to be performed by or complied with by the Purchaser on or prior to the Closing Date;
(c) no Applicable Law shall have been enacted, entered, promulgated, or enforced, and no timing agreement with a Governmental Authority shall be in force or applicable, which temporarily, preliminarily, or permanently prohibits, prevents, enjoins, or makes illegal the consummation of the Transactions;
(d) no suit, action or other proceeding by any Third Party shall be pending by or before any Governmental Authority seeking to restrain, prohibit, enjoin or declare illegal, or seeking substantial damages in connection with, the Transactions;
(e) if applicable, (i) all waiting periods (and extensions thereof but not including an indication or notification from a Governmental Authority that an investigation remains open or ongoing after expiration of the waiting period) under any Antitrust Law applicable to the consummation of the Transactions shall have expired, (ii) notice of early termination of the waiting period under any Antitrust Law applicable to the consummation of the Transactions shall have been received or (iii) a consent order shall have been issued for public comment or pursuant to the Tunney Act (in form and substance satisfactory to the Sellers) by or from the applicable Governmental Authorities and (i) or (ii) of this paragraph shall have been satisfied; and
(f) the Purchaser shall have delivered (or be ready, willing, and able to deliver at the Closing) to the Sellers the documents and other items required to be delivered by the Purchaser at the Closing.
9.3 Sellers’ Conditions Not Fulfilled. If the Sellers shall have breached any representation, warranty, covenant, or agreement herein, such that such breach (i) would give rise to a failure of the Sellers to fulfill the conditions in Section 9.1(a) or Section 9.1(b), and (ii) cannot be cured or, if curable, has not been cured by the earlier of (A) thirty (30) days after written notice thereof is given by the Purchaser (but subject to extension for the period of time in which the Sellers are working, in good faith, to cure any such breach to the extent not cured within such thirty (30) day period), and (B) the Outside Date, then the Purchaser, in their sole discretion, may either:
(a) terminate this Agreement by written notice to the Sellers pursuant to Section 9.5(b); or
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(b) waive compliance with any such condition, without prejudice to its right of termination in the event of non-fulfillment of any other condition.
The Purchaser may not rely on the failure of any condition set forth in this Article 9 to be satisfied if such failure was caused in whole or in part by the Purchaser’s failure to act in good faith or to comply with any provision of this Agreement.
9.4 Purchaser Conditions Not Fulfilled. If the Purchaser shall have breached any representation, warranty, covenant, or agreement, such that it (i) would give rise to a failure of the Purchaser to fulfill the conditions in Section 9.2(a) or Section 9.2(b), and (ii) cannot be cured or, if curable, has not been cured by the earlier of (A) thirty (30) days after written notice thereof is given by the Sellers (but subject to extension for the period of time in which the Purchaser is working, in good faith, to cure any such breach to the extent not cured within such thirty (30) day period), and (B) the Outside Date, then the Sellers, in their sole discretion, may either:
(a) terminate this Agreement by written notice to the Purchaser pursuant to Section 9.5(c); or
(b) waive compliance with any such condition, without prejudice to its right of termination in the event of non-fulfillment of any other condition; and
The Sellers may not rely on the failure of any condition set forth in this Article 9 to be satisfied if such failure was caused in whole or in part by the Sellers’ failure to act in good faith or to comply with any provision of this Agreement.
9.5 Termination. This Agreement and the transactions contemplated herein may be terminated at any time prior to the Closing:
(a) by mutual written agreement of the Parties;
(b) by delivery of written notice from the Purchaser to the Sellers (i) as permitted pursuant to Section 9.3, or (ii) if any of the conditions set forth in Section 9.1 (other than the conditions set forth in Section 9.1(c), Section 9.1(d), or Section 9.1(e)) cannot be satisfied, or if capable of being satisfied, have not been satisfied by the Sellers (or waived by the Purchaser) by the Outside Date;
(c) by delivery of written notice from the Sellers to the Purchaser (i) as permitted pursuant to Section 9.4, or (ii) if any of the conditions set forth in Section 9.2 (other than the conditions set forth in Section 9.2(c), Section 9.2(d), or Section 9.2(e)) cannot be satisfied, or if capable of being satisfied, has not been satisfied by the Purchaser (or waived by the Sellers) by the Outside Date;
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(d) by a Party delivering written notice to the other Parties, if any of the conditions set forth in Section 9.1(c), Section 9.1(d), Section 9.1(e), Section 9.2(c), Section 9.2(d) or Section 9.2(e) cannot be satisfied, or if capable of being satisfied, have not been satisfied or waived by the applicable Party on or before the Outside Date; provided, that if the condition set forth in Section 9.1(e) shall not have been satisfied or waived by the Outside Date, either Party may, by written notice to the other Party prior to the Outside Date, extend the Outside Date to the date that is three hundred sixty (360) days after the date hereof (in which case such later date shall be deemed the “Outside Date” for all purposes of this Agreement); provided, further, that the right to extend the Outside Date pursuant to the preceding proviso shall not be available to a Party if such Party’s breach of, or failure to perform or comply with, any obligation under this Agreement materially contributed to, or resulted in, the failure of the condition in Section 9.1(e) to be satisfied;
(e) by delivery of a written notice from the Sellers to the Purchaser if (i) all of the conditions set forth in Section 9.1 and Section 9.2 have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, provided that such conditions are capable of being satisfied at the Closing), (ii) the Sellers have irrevocably confirmed in writing to Purchaser that Sellers are ready, willing and able to consummate the Closing and that, if the Purchaser consummates the Closing, the Sellers will consummate the Closing, and (iii) Purchaser fails to consummate the Closing within three (3) Business Days after the date on which the Closing was required to occur pursuant to Section 4.1; provided that the Sellers shall not have the right to terminate this Agreement pursuant to this section if the Sellers’ failure to perform a covenant or obligation under this Agreement has been the primary cause of, or has primarily resulted in, the Purchaser’s failure to consummate the Closing;
(f) by delivery of a written notice from the Purchaser to the Sellers if (i) all of the conditions contained in Section 9.1 and Section 9.2 (the conditions that, by their terms, cannot be satisfied until the Closing, provided that such conditions are capable of being satisfied as of the date of the Purchaser’s notice) have been satisfied (or waived by the applicable Party), (ii) the Purchaser confirms to the Sellers in writing that Purchaser is ready, willing and able to perform its obligations under Article 4, and (iii) the Sellers fail to consummate the Closing within three (3) Business Days after the date on which the Closing was required to occur pursuant to Section 4.1, in which case the Purchaser shall be entitled to the remedies set forth in Section 9.6(c);
provided, however, that, no Party shall have the right to terminate this Agreement pursuant to (y) clause (b) or (c) above, if such Party is also in breach of any representation, warranty, covenant or other obligation contained in this Agreement, that would give the other Party the right to terminate pursuant to Section 9.4 (in the case of the Sellers) or Section 9.3 (in the case of the Purchaser), or (z) clause (d), above, if such Party’s failure to perform a covenant or obligation under this Agreement has been the primary cause of, or has primarily resulted in, the failure of the applicable condition to be satisfied.
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9.6 Effect of Termination; Remedies.
(a) If this Agreement is terminated pursuant to any provision of Section 9.5, then, except as provided in this Section 9.6 and except for the provisions of Section 8.1(d), Section 8.2, Section 8.7(c), this Section 9.6, Section 12.1, Section 12.2, Section 16.10(c), Section 16.3, Section 16.4, Section 16.13 and Section 16.14, Article 16,, and any other provision that by its terms or nature is intended to survive the termination of this Agreement, this Agreement shall forthwith become void and of no further force or effect and the Parties shall have no Liability or obligation hereunder; provided that, subject to Section 9.6(b) , the final sentence of this Section 9.6(a) and Section 16.14, nothing in this Section 9.6(a) shall be deemed to release any Party from Liability for Fraud prior to such valid termination or for any Willful Breach by such Party of the terms and provisions of this Agreement prior to such valid termination. Notwithstanding anything in this Agreement to the contrary, in no event will the Purchaser or any of its Affiliates or their respective Representatives, collectively, on the one hand, or Sellers, any of their Affiliates or their respective representatives collectively, on the other hand, have any Liability for monetary damages (including damages for Fraud or Willful Breach) in connection with the termination of this Agreement that in the aggregate exceeds the Reverse Termination Fee or the Termination Fee, as applicable.
(b) If the Sellers have the right to terminate this Agreement pursuant to Section 9.5(c) or Section 9.5(e) because of (i) the Willful Breach by the Purchaser of this Agreement, or (ii) the failure of the Purchaser to close the transactions contemplated by this Agreement in the instance where, as of the Outside Date, (A) all of the conditions contained in Section 9.1 (excluding conditions that, by their terms, cannot be satisfied until the Closing, provided that such conditions are capable of being satisfied as of the date of the Sellers’ notice) have been satisfied (or waived by the Purchaser), (B) the Sellers confirm to the Purchaser in writing that the Sellers are ready, willing, and able to perform their obligations under Section 4.2, and (C) the Purchaser nevertheless elects not to close the transactions contemplated by this Agreement, then, in either such event, the Sellers shall be entitled to (1) terminate this Agreement and receive from Purchaser payment of a Reverse Termination Fee (x) in the case of Purchaser’s Willful Breach or as a result of Purchaser’s failure to secure, receive, or have funded any Financing required in connection with the Transactions, equal to six percent (6%) of the Base Purchase Price or (y) in the case of all other terminations contemplated by the foregoing clause (ii), equal to four percent (4%) of the Base Purchase Price, or (2) seek specific performance by the Purchaser hereunder in accordance with Section 16.6. Payment of any Reverse Termination Fee shall be made to the MPC Sellers and MPLX Sellers in proportion to the ratio that the MPC Base Purchase Price and MPLX Base Purchase Price, respectively, bear to the aggregate Base Purchase Price. For the avoidance of doubt, the Sellers shall not be required to elect among the foregoing remedies at the time of any notice of termination, breach, or default, and nothing herein shall be construed to require the Sellers to pursue specific performance prior to or as a condition to Purchaser’s obligation to pay the applicable Reverse Termination Fee. Notwithstanding the foregoing, in no event shall the Sellers be entitled to receive both (I) a grant of specific performance resulting in the actual consummation of the Transactions and (II) payment of the applicable Reverse Termination Fee. The remedies in this Section 9.6(b) shall be the sole and exclusive remedies of the Sellers with respect to the Purchaser’s failure to close the transactions contemplated by this Agreement as contemplated by this Section 9.6(b).
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(c) If the Purchaser has the right to terminate this Agreement pursuant to Section 9.5(b) or Section 9.5(f) because of (i) the Willful Breach by the Sellers of this Agreement, or (ii) the failure of the Sellers to close the transactions contemplated by this Agreement in the instance where, as of the Outside Date, (A) all of the conditions contained in Section 9.2 (excluding conditions that, by their terms, cannot be satisfied until the Closing; provided that such conditions are capable of being satisfied as of the date of the Purchaser’s notice) have been satisfied (or waived by the Sellers), (B) the Purchaser confirms to the Sellers in writing that the Purchaser is ready, willing, and able to perform their obligations under Section 4.3, and (C) the Sellers nevertheless elect not to close the transactions contemplated by this Agreement, then, in either such event, the Purchaser shall be entitled to (1) terminate this Agreement and receive from the MPC Sellers payment of a termination fee equal (x) in the case of Sellers’ Willful Breach, equal to five percent (5%) of the Base Purchase Price or (y) in the case of all other terminations contemplated by the foregoing clause (ii), equal to four percent (4%) of the Base Purchase Price (the “Termination Fee”) or (2) seek the specific performance by the Sellers hereunder. For the avoidance of doubt, (A) the Purchaser shall not be required to elect among the foregoing remedies at the time of any notice of termination, breach, or default, and nothing herein shall be construed to require the Purchaser to pursue specific performance prior to or as a condition to the MPC Sellers’ obligation to pay the Termination Fee and (B) no MPLX Seller shall have any liability or obligation of any kind with respect to the Termination Fee. Notwithstanding the foregoing, in no event shall the Purchaser be entitled to receive both (I) a grant of specific performance resulting in the actual consummation of the Transactions and (II) payment of the Termination Fee. Except as set forth in Section 9.6(a), the remedies provided in this Section 9.6(c) shall be the sole and exclusive remedies of the Purchaser with respect to the Sellers’ failure to close the transactions contemplated by this Agreement as contemplated by this Section 9.6(c).
(d) If this Agreement is terminated by any Party pursuant to Section 9.5(d) as a result of the failure of the condition in Section 9.1(e) or Section 9.2(e) to be satisfied on or before the Outside Date, whether or not such failure arises as a result of the imposition of a Burdensome Condition or Purchaser’s election to not accept a Burdensome Condition, as may be extended pursuant to the terms of this Agreement, then the Sellers shall be entitled to receive from Purchaser payment of a Reverse Termination Fee equal to two percent (2%) of the Base Purchase Price. The Sellers’ right to payment of the Reverse Termination Fee pursuant to this Section 9.6(d) is in addition to, and without prejudice to, any rights or remedies available to the Sellers under Section 9.6(b) (to the extent applicable) or Section 16.7 in respect of any breach by the Purchaser of its obligations under Section 8.7. The remedies in this Section 9.6(d) shall be the sole and exclusive remedies of the Sellers with respect to a termination of this Agreement pursuant to Section 9.5(d) as contemplated by this Section 9.6(d). Notwithstanding the foregoing, in no event shall the Sellers be entitled to receive payment of the Reverse Termination Fee under both this Section 9.6(d) and Section 9.6(b).
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(e) Other than the Sellers’ rights under the Confidentiality Agreement and any other confidentiality agreement between the Sellers and/or any of their Affiliates, on the one hand, and the Purchaser and/or its Affiliates, on the other hand, if this Agreement is terminated for any reason, other than as set forth in Section 9.6(a), Section 9.6(b), Section 9.6(c), or Section 9.6(d), then none of the Parties shall have any Liability or obligation hereunder as a result of such termination.
(f) Subject to the foregoing, other than the Sellers’ rights under the Confidentiality Agreement and any other confidentiality agreement between the Sellers and/or any of their Affiliates, on the one hand, and the Purchaser and/or its Affiliates, on the other hand, upon the termination of this Agreement, no Party shall have any other Liability or obligation hereunder, and, following any termination of this Agreement, the Sellers shall be free to enjoy all the rights and benefits associated with the ownership of the Purchased Assets and the Purchased Interests, including the right to sell the Purchased Assets and the Purchased Interests at the Sellers’ discretion, without any claim by the Purchaser with respect thereto.
(g) After termination of this Agreement, the Purchaser and its Representatives shall immediately cease using any Confidential Information and promptly return to the Sellers all Confidential Information delivered to the Purchaser or its Representatives by the Sellers or their Representatives, and destroy, or cause the destruction of, all copies and reproductions (both written and electronic) in the Purchaser’s or its Representatives’ possession. Notwithstanding anything to the contrary in this Section 9.6(g), the Purchaser may retain one copy of such information in its secure files for the sole purpose of administering its obligations under this Agreement and the Purchaser shall not be required to purge or cause others to purge electronic archival media automatically generated by backup computer systems if such media will be destroyed pursuant to a systematic records retention process and not otherwise utilized, in each case, subject to the terms of the Confidentiality Agreement and the Clean Team Agreement.
(h) The Parties acknowledge that (A) the agreements contained in this Section 9.6 are an integral part of the transactions contemplated hereby, (B) the Reverse Termination Fee and the Termination Fee are not penalties, but are liquidated damages, in a reasonable amount that will compensate the Sellers or the Purchaser, as applicable, in the circumstances in which such fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precision, (C) that, without these agreements, the Parties would not enter into this Agreement and (D) the Reverse Termination Fee paid pursuant to this Section 9.6 will serve as the Sellers’ sole and exclusive remedy for the valid termination of this Agreement pursuant to Section 9.5(c), Section 9.5(d) or Section 9.5(e), as applicable, and the payment of the Termination Fee by MPC Sellers pursuant to this Section 9.6 will serve as the Purchaser’s sole and exclusive remedy for the valid termination of this Agreement pursuant to Section 9.5(b) or Section 9.5(f), as applicable. In no event shall any Reverse Termination Fee or the payment of the Termination Fee be payable more than once. Purchaser shall pay any Reverse Termination Fee required hereunder by wire transfer of immediately available funds to an account or accounts designated in writing by
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Sellers. If the Purchaser fails promptly to pay the Reverse Termination Fee and the Sellers commence a Proceeding that results in a judgment in their or its favor for such payment, the Purchaser shall pay to the Sellers all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by Sellers in connection with such Proceeding, together with interest on the amount of the Reverse Termination Fee from the date such payment was required to be made until the date of payment. Such interest shall accrue at a rate per annum equal to the prime rate as published by The Wall Street Journal or any successor publication thereto in effect on the date such payment was required to be made, plus two percent (2%). The MPC Sellers shall pay any Termination Fee required hereunder by wire transfer of immediately available funds to an account or accounts designated in writing by Purchaser. If the MPC Sellers fail promptly to pay the Termination Fee and the Purchaser commences a Proceeding that results in a judgment in their or its favor for such payment, the MPC Sellers shall pay to the Purchaser all additional costs and expenses (including reasonable attorneys’ fees and expenses) incurred by Purchaser in connection with such Proceeding, together with interest on the amount of the Termination Fee from the date such payment was required to be made until the date of payment. Such interest shall accrue at a rate per annum equal to the prime rate as published by The Wall Street Journal or any successor publication thereto in effect on the date such payment was required to be made, plus two percent (2%).
ARTICLE 10
SURVIVAL; REMEDIES
10.1 Survival. Each of the representations, warranties, covenants and agreements (to the extent such covenant or agreement contemplates or requires performance by a Party on or prior to the Closing) of the Sellers set forth in this Agreement will terminate as of the Closing, except (a) each covenant and agreement that explicitly contemplates performance at or after the Closing and (b) Section 16.10(c), Section 16.3, Section 16.4, Section 16.13 and Section 16.14 (and any related definitions, including the definition of “Financing Sources”), which shall survive the Closing in accordance with their respective terms. The Purchaser shall not have any claim for any Seller’s breach of any representation, warranty, covenant or agreement (to the extent such covenant or agreement contemplates or requires performance by a Party on or prior to the Closing), detrimental reliance or other right or remedy (whether in contract, in tort or at law or in equity) that may be brought with respect to this Agreement or the applicable Transaction Documents after the Closing, except in the case of Fraud. Each covenant and agreement that explicitly contemplates performance at or after the Closing, will, in each case and to such extent, expressly survive the Closing in accordance with its terms. The Parties acknowledge and agree that nothing in this Section 10.1 (but subject to Section 10.8) shall be deemed to limit any rights or remedies of any Person for breach of any such surviving covenant or agreement until fully performed. The Parties acknowledge and agree that, regardless of whether Purchaser obtains the R&W Insurance Policy, except in the case of Fraud or as contemplated by Section 10.2, in no event will the Purchaser make (or be entitled to make) a claim for indemnification pursuant to this Agreement in respect of any Losses resulting from any breach or misrepresentation of any pre-Closing covenant or any representation and warranty of the Sellers pursuant to this Agreement.
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10.2 Sellers’ Indemnity. Subject to Section 10.1 and the other limitations set forth in this Article 10, from and after the Closing, the MPC Sellers, on the one hand, and the MPLX Sellers, on the other hand, shall indemnify, defend and hold harmless the Purchaser Indemnified Parties from and against any and all Losses arising out of or relating to:
(a) the Excluded Assets or Excluded Liabilities, or
(b) any breach or non-performance of any covenant or agreement of the Sellers to be performed following the Closing as expressly set forth in this Agreement.
Sellers shall have no indemnification obligations under this Agreement except as expressly set forth in this Section 10.2 or as otherwise expressly provided in this Agreement. With respect to such obligations attributable to the MPC Sellers, the MPC Sellers shall be jointly and severally liable among themselves for such obligations. With respect to such obligations attributable to the MPLX Sellers, the MPLX Sellers shall be jointly and severally liable among themselves for such obligations. As between the MPC Sellers, on the one hand, and the MPLX Sellers, on the other hand, such obligations shall be several and not joint. For the avoidance of doubt, the MPLX Sellers shall have no indemnification obligation under this Section 10.2 for any Losses to the extent arising out of or relating to the MPC Purchased Assets, the SPPR Interests, or any Excluded Liabilities (including any Excluded Environmental Liabilities) to the extent attributable to the MPC Sellers, and the MPC Sellers shall have no indemnification obligation under this Section 10.2 for any Losses to the extent arising out of or relating to the MPLX Purchased Assets, the JV Interests, or any Excluded Liabilities (including any Excluded Environmental Liabilities) to the extent attributable to the MPLX Sellers.
10.3 Purchaser’s Indemnity. Effective upon the Closing, the Purchaser shall defend, indemnify, and hold harmless the Seller Indemnified Parties from and against any and all Losses arising out of or related to:
(a) any breach of any representation or warranty made by the Purchaser in Article 6;
(b) any breach or non-performance of any covenant or agreement of the Purchaser contained in this Agreement or any Transaction Document; or
(c) the Purchased Assets, the Purchased Interests, the businesses of the Acquired Entities or any of the Assumed Liabilities, including the ownership, operation, maintenance, use or conduct thereof, whether arising before, on or after the Closing, except to the extent constituting (i) an Excluded Liability or (ii) Income Taxes of Sellers or their direct or indirect owners.
Purchaser shall have no indemnification obligations under this Agreement except as expressly set forth in this Section 10.3 or as otherwise expressly provided in this Agreement (including Section 8.1(d), Section 8.8(a)(iv), Section 8.8(b)(iii), Section 8.9(d), Section 8.13, Section 12.3, Section 15.4).
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10.4 Waiver and Release. Subject to Section 10.1, and Section 10.2, effective as of the Closing, the Purchaser, on behalf of itself and each of its Affiliates and each of their respective Representatives (each, a “Releasor”), unconditionally and irrevocably acquits, remises, waives, discharges and forever releases, to the fullest extent permitted by Applicable Law, the Seller Indemnified Parties, their Affiliates and their respective Representatives (collectively, the “Released Parties”) from any and all Losses and Liabilities, including those arising under Applicable Law or Contract, that in any way arise out of, relate to, result from or are in connection with the Transactions, in each case, arising prior to or at the Closing, except for any Losses or Liabilities arising from Fraud or any rights of the Purchaser Indemnified Parties under Section 10.2 (the “Released Claims and Liabilities”). The Purchaser further covenants and agrees, on behalf of itself and each Releasor, not to bring, threaten to bring or otherwise join in any Proceeding against any of the Released Parties that in any way arises out of, relates to, results from or is in connection with any Released Claims and Liabilities. The Purchaser represents that no Releasor has assigned any such Released Claims to any Person. The Purchaser expressly covenants and agrees, on behalf of itself and each Releasor, that neither it nor any other Releasor shall seek to recover any amounts in connection with any Released Claims and Liabilities from any of the Released Parties.
10.5 Indemnification Procedures. All claims for indemnification under this Agreement shall be asserted and resolved as set forth below.
(a) The term “Indemnifying Party” when used in connection with particular Losses shall mean the Party or Parties having an obligation to indemnify another Party or Parties with respect to such Losses pursuant to this Agreement and the term “Indemnified Party” when used in connection with particular Losses shall mean the Party or Parties having the right to be indemnified with respect to such Losses by another Party or Parties pursuant to this Agreement.
(b) To make a claim for indemnification under this Agreement, an Indemnified Party shall notify the Indemnifying Party of its claim under this Section 10.5, including the specific details of and specific basis under this Agreement for its claim, including the amount or the estimated amount thereof to the extent then-feasible (which estimate shall not be conclusive of the final amount of any such Loss) (the “Claim Notice”). In the event that the claim for indemnification is based upon a claim by a Third Party against the Indemnified Party (a “Third Party Claim”), the Indemnified Party shall provide its Claim Notice as promptly as practicable after the Indemnified Party has actual knowledge of such Third Party Claim and shall enclose a copy of all papers (if any) served with respect to such Third Party Claim; provided that, the failure of any Indemnified Party to give notice of a Third Party Claim as provided in this Section 10.5 shall not relieve the Indemnifying Party of its indemnification obligations under this Agreement, except to the extent (and then only to the extent) such failure materially prejudices the Indemnifying Party’s ability to defend against such Third Party Claim. In the event that the claim for indemnification is based upon an inaccuracy or breach of a representation, warranty, covenant, or agreement, the Claim Notice shall specify the representation, warranty, covenant, or agreement that was inaccurate or breached.
(c) In the case of a claim for indemnification based upon a Third Party Claim, the Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice to notify the Indemnified Party whether it admits in writing or denies its obligation to defend and control, at its sole cost and expense, the Indemnified Party against all elements of such Third Party Claim under this Article 10; provided, that if the Indemnifying Party assumes control of such defense, the Indemnifying Party shall first acknowledge in writing (and
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without qualification) its indemnification obligations with respect to such Third Party Claim, subject to the limitations and other provisions of this Article 10; provided, further that the Indemnifying Party shall not have the right to assume the defense of any Third Party Claim if (i) the Indemnified Party reasonably determines in good faith that the Third Party Claim relates to or arises in connection with any criminal or quasi-criminal matters, (ii) the Third Party Claim seeks, or is reasonably likely to seek, an injunction or other equitable relief as the primary source of recovery against the Indemnified Party, or (iii) the Third Party Claim is one in which an adverse judgment would reasonably be expected to, in the reasonable good faith judgment of the Indemnified Party, materially and adversely affect the Indemnified Party’s business. The Indemnified Party is authorized, prior to and during such thirty (30)-day period, to file any motion, answer, or other pleading that it shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party and that is not prejudicial to the Indemnifying Party, in each case, at the sole cost and expense of the Indemnified Party.
(d) If the Indemnifying Party assumes the defense of any Third Party Claim in accordance with Section 10.5(c), it shall have the right and obligation to diligently defend, at its sole cost and expense, the Third Party Claim. The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof, unless the compromise or settlement includes the payment of any amount by, the performance of any obligation by, or the limitation of any right or benefit of, the Indemnified Party, in which event, such settlement or compromise shall not be effective, without the consent of the Indemnified Party, which shall not be unreasonably conditioned, withheld, or delayed. If requested by the Indemnifying Party, the Indemnified Party agrees to reasonably cooperate in contesting any Third Party Claim, which the Indemnifying Party elects to contest. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.5(d), at the Indemnified Party’s sole cost and expense. An Indemnifying Party shall not, without the written consent of the Indemnified Party, (i) settle any Third Party Claim or consent to the entry of any judgment with respect thereto, which does not include an irrevocable and unconditional written release of the Indemnified Party from all Liability in respect of such Third Party Claim, or (ii) settle any Third Party Claim or consent to the entry of any judgment with respect thereto in any manner that may materially and adversely affect the Indemnified Party (other than as a result of money damages covered by the indemnity).
(e) If the Indemnifying Party (i) elects not to assume the defense of the Third Party Claim in accordance with Section 10.5(c) (or fails to provide timely notice of its election to assume the defense of such Third Party Claim) or (ii) assumes the defense of any Third Party Claim in accordance with Section 10.5(c) but fails to diligently prosecute or settle the Third Party Claim, then the Indemnified Party shall have the right to defend against such Third Party Claim, at the sole cost and expense of the Indemnifying Party, with counsel of the Indemnified Party’s choosing, subject to the right of the Indemnifying Party to admit its Liability and assume the defense of such Third Party Claim at any time prior to settlement or final determination thereof. If the Indemnifying Party elects not to assume the defense of the Third Party Claim in accordance with Section 10.5(c) (or fails to provide timely notice of its election to assume the defense of such Third Party Claim), the Indemnified Party shall
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send written notice to the Indemnifying Party of any proposed settlement and the Indemnifying Party shall have the option, for ten (10) days following receipt of such notice, to (i) admit in writing its Liability for such Third Party Claim, and (ii) if such Liability is so admitted, reject, in its reasonable judgment, the proposed settlement.
10.6 Non-Third Party Claims. In the case of a claim for indemnification not based upon a Third Party Claim, the Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice to (a) cure the Losses complained of, (b) admit its Liability for such Losses, or (c) dispute the claim for all or any portion of such Losses. During such thirty (30) day period, the Indemnified Party shall allow the Indemnifying Party and its professional advisors to investigate the matter or circumstance alleged in the Claim Notice, and whether and to what extent any amount is payable in respect of such claims, and the Indemnified Party shall reasonably assist the Indemnifying Party’s investigation by providing such reasonable information and reasonable assistance as the Indemnifying Party or any of its professional advisors may reasonably request; provided that no Indemnified Party shall be required to disclose any information to the Indemnifying Party or its professional advisors if such disclosure would, in such Indemnified Party’s reasonable discretion (x) jeopardize any attorney-client or similar privilege or (y) contravene any Applicable Law. If the Indemnifying Party does not cure such Losses or notify the Indemnified Party within such thirty (30)-day period, then the Indemnifying Party shall be deemed to be disputing the claim for such Losses.
10.7 Limitation on Liability. The total aggregate Liabilities of the MPC Sellers arising from or relating to the MPC Purchased Assets or the SPPR Interests for any Fraud of the MPC Sellers shall not exceed an amount equal to the MPC Base Purchase Price. The total aggregate Liabilities of the MPLX Sellers arising from or relating to the MPLX Purchased Assets or the JV Interests for any Fraud of the MPLX Sellers shall not exceed an amount equal to the MPLX Base Purchase Price. Any Fraud of the MPC Sellers shall be borne by the MPC Sellers, jointly and severally among themselves, and any Fraud of the MPLX Sellers shall be borne by the MPLX Sellers jointly and severally among themselves, but in no event shall any MPC Seller be jointly liable for any Fraud of any MPLX Seller, or vice versa.
10.8 Exclusive Remedies. Except with respect to (a) the matters covered by Section 3.4, Section 8.1(d), Section 8.8(b)(iv), Section 8.8(b)(iii), Section 8.9(d), Section 8.13, Section 9.6, Section 12.3, Section 15.2(c), Section 15.3 and Section 15.4, (b) breaches of Section 8.2, and (c) any equitable remedies contemplated by Section 16.6, the Parties acknowledge and agree that, following the Closing, the indemnification provisions of Section 10.2 and Section 10.3 shall be the sole and exclusive remedies of any Seller Indemnified Party and any Purchaser Indemnified Party, respectively, for any Losses (including any Losses from claims for breach of contract, warranty, tortious conduct (including negligence) or otherwise and whether predicated on common law, statute, strict liability or otherwise) that it may at any time suffer or incur, or become subject to, as a result of, or in connection with, any breach of or inaccuracy in any representation or warranty in this Agreement by the Purchaser, on the one hand, or the Sellers, on the other hand, respectively, or any failure by any of them, respectively, to perform or comply with any covenant set forth herein. Without limiting the generality of the foregoing, except in the case of Fraud, the Parties hereby irrevocably waive any right of rescission they may otherwise have or to which they may become entitled. The obligations of the Parties set forth in this Section 10.8 shall be conditioned upon the Closing having occurred. Notwithstanding anything in this Agreement to the contrary, the
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Purchaser acknowledges and agrees that following the Closing or the termination of this Agreement it shall have no, and shall not seek any, recourse against any Seller or any of its Affiliates for any actual or alleged breaches of representations or warranties under this Agreement except in the case of Fraud.
ARTICLE 11
EMPLOYEES AND EMPLOYEE BENEFITS
11.1 Employees.
(a) Within ten (10) Business Days prior to the anticipated Closing Date, the Purchaser or an Affiliate of the Purchaser shall make written offers of employment (each an “Employment Offer”) to each of the In-Scope Employees specified on Schedule 5.5(a), as amended pursuant to Section 5.5, with such employment commencing as of the occurrence of the Closing Date and shall be on terms and conditions consistent with the requirements of this Article 11; provided, that, an offer of employment made to an In-Scope Employee who is not actively at work as of the Closing Date due to short term disability, long term disability, circumstances covered by workers’ compensation, military leave, Family and Medical Leave Act leave, or other legally protected leave shall be conditioned upon both his or her ability to return to active employment within one hundred and eighty (180) days following the Closing Date and his or her continuous employment with any Seller or any of their respective Affiliates from the Closing Date through the date that he or she first becomes able to return to active employment. Each Employment Offer shall be subject to, and conditioned upon, the occurrence of the Closing and may be conditioned on the In-Scope Employee timely and successfully passing the Purchaser’s or its Affiliate’s pre-employment criminal background screening in advance of the Closing. Neither the Purchaser nor any Seller shall, or shall permit their Affiliates to, take any act (or omit to take any act) that has the intent or effect of discouraging an In-Scope Employee from accepting an Employment Offer. The In-Scope Employees who accept an Employment Offer and timely commence employment with the Purchaser or the Purchaser’s Affiliate pursuant to such Employment Offer are collectively referred to as the “Transferring Employees.” Sellers shall and shall cause their respective Affiliates to waive any restrictive covenants or other obligations to which Transferring Employees may be subject pursuant to an agreement with Sellers or their respective Affiliates that would interfere with Transferring Employee’s employment with the Purchaser or its Affiliates. The applicable Sellers shall, and shall cause their respective Affiliates to, timely pay to all Transferring Employees all wages and other compensation owed to the Transferring Employees by such Sellers or their Affiliates for their period of employment with Sellers and their respective Affiliates, as applicable (other than the 2026 bonuses to be paid in connection with this Agreement).
(b) Without limiting in any way the obligation of the Purchaser under Applicable Law, for the twelve (12)-month period commencing on the Closing Date (or until the date of termination of employment of the relevant Transferring Employee, if sooner), the Purchaser shall, or shall cause its applicable Affiliates to, provide to each Transferring Employee whose employment terms are not subject to or covered by a Company Collective Bargaining Agreement: (i) a principal place of employment at a location no more than thirty-five (35) miles more in distance from the Transferring Employee’s residence than the
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distance from the Transferring Employee’s residence to the job location to which such Transferring Employee reports, in each case, as of immediately prior to the Closing Date; (ii) a salary or wage rate (as applicable and annualized in each case) annual short-term incentive opportunity, and annual long-term incentive opportunity the sum of which compensation items is no less than the sum of the same compensation items that was in effect for the Transferring Employee immediately preceding the Closing Date; (iii) employee benefits (excluding any severance benefits, change in control, retention, or transaction payments, and defined benefit and retiree medical benefits) that are comparable in the aggregate to the employee benefits provided to similarly situated employees of Purchaser or its Affiliate; and (iv) if the Purchaser or its Affiliate terminates the employment of the Transferring Employee other than for cause, subject to the timely execution and non-revocation of a release of claims in a form acceptable to the Purchaser or its Affiliate, severance in an amount no less than the severance amount determined using the formula for a “termination allowance” under the Marathon Petroleum Termination Allowance Plan, or for union-represented Transferring Employees, the severance provided for in any applicable Company Collective Bargaining Agreement, and including for that determination the Transferring Employee’s employment service with the Sellers or any of their Affiliates and employment service with the Purchaser or any of its Affiliates. The Purchaser shall be solely responsible for all severance costs and Liabilities associated with any such termination of Transferring Employees on or after the Closing Date.
(c) For purposes of eligibility to participate, vesting and determining future paid time off benefit accruals, the Purchaser shall use commercially reasonable efforts to cause all applicable employee benefit plans and employment policies of the Purchaser and its applicable Affiliates in which Transferring Employees participate following the Closing to recognize all service of the Transferring Employees with the Sellers or any of their predecessors and Affiliates prior to the Closing to the same extent as such service was counted for such purposes under similar Benefit Plans of the Sellers or their Affiliates that such Transferring Employee participated in immediately prior to Closing (except that such service will not be counted to the extent that it would result in a duplication of benefits or compensation).
(d) The Sellers and their Affiliates that are the employers of record for the In-Scope Employees shall be exclusively responsible for any liability or obligation under the WARN Act triggered by actions taken or not taken by the Sellers or their Affiliates prior to the Closing Date. The Purchaser shall be exclusively responsible for any liability or obligation under the WARN Act for actions taken or not taken by the Purchaser or any Affiliate of the Purchaser with respect to the In-Scope Employees or the Acquired Companies on or after the Closing Date, including any failure of the Purchaser or any Affiliate of the Purchaser to offer employment to any In-Scope Employee. Notwithstanding the foregoing, if actions taken by the Sellers or their Affiliates prior to the Closing Date with respect to any employee of any Seller or its Affiliate that would not have triggered a WARN Act notice obligation by themselves are combined with actions taken by the Purchaser or any Affiliate of the Purchaser after the Closing Date that would trigger a WARN Act notice obligation when combined with the Sellers’ or its Affiliates’ pre-Closing actions of which the Purchaser has notice, the Purchaser is responsible for any liability or obligation under the WARN Act in this circumstance; provided, any such responsibility shall be expressly
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conditioned upon the Sellers having provided the Purchaser with a true, complete and accurate list on or before the Closing that lists each former employee of any Seller or any of its Affiliate who provided services to the Purchased Assets or the Acquired Entities and experienced an “employment loss” (as defined by the WARN Act) within the ninety (90) day period immediately prior to the Closing, in each case that could reasonably be expected to be combined with the actions of the Purchaser or its Affiliate on or after the Closing, including with respect to each such employee, his or her (i) date of employment loss, and (ii) site of employment.
(e) Within ten (10) Business Days following the Closing Date, the Purchaser or an Affiliate of the Purchaser shall provide to the Sellers (i) a list of In-Scope Employees who do not accept an offer of employment and, for each such In-Scope Employee, (A) the offered total target compensation consisting of salary or wage rate (as applicable and annualized in each case), annual short-term incentive target opportunity, and annual target long-term incentive opportunity (all such elements, reported at an aggregate level for each such separate In-Scope Employee) and (B) the offered principal place of employment and (ii) a list of In-Scope Employees that commenced employment with the Purchaser or an Affiliate of the Purchaser.
11.2 Employee Benefits.
(a) During the plan year in which the Closing occurs, the Purchaser shall, or shall cause its applicable Affiliates to, use commercially reasonable efforts to ensure that any group health benefit plan of the Purchaser or its applicable Affiliates in which Transferring Employees participate on and after the Closing Date (each such plan is a “Purchaser Group Health Plan”) will not apply with respect to any Transferring Employee or his or her covered dependents any waiting periods, restrictions or limitations with respect to pre-existing condition exclusions, or evidence of insurability or actively-at-work requirements (except to the extent such restrictions or limitations were applicable to such Transferring Employee as of the Closing under any similar group health Benefit Plans (each such plan is a “Sellers Group Health Plan”)).
(b) The Purchaser shall take all actions necessary so that, effective as of the first day of the calendar month immediately following the Closing Date (except if the Closing Date occurs prior to December 1, 2026, in such case, the first day of the second calendar month immediately following the Closing Date), the Purchaser Group Health Plans will make available group medical benefits to each Transferring Employee and his or her eligible dependents (as determined under the Purchaser Group Health Plan) who were covered under a corresponding Sellers’ Group Health Plan immediately prior to the Closing Date.
(c) The applicable Sellers shall either (i) take all actions necessary so that the Sellers’ Group Health Plans will make available group medical, prescription drug, and dental benefits (and excluding vision benefits and health care flexible spending accounts) to each Transferring Employee and his or her eligible dependents (as determined under the Sellers’ Group Health Plans) or (ii) reimburse each Transferring Employee for the premiums paid for COBRA continuation coverage under Part 6 of Subtitle B of Title I of ERISA elected by such Transferring Employee and his or her eligible dependents (as determined
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under the Sellers’ Group Health Plans) under the Sellers’ Group Health Plans (including group medical, prescription drug, and dental benefits and excluding vision benefits and health care flexible spending accounts), in each case, through the last day of the calendar month in which the Closing Date occurs (except if the Closing Date occurs prior to December 1, 2026, in such case, through the last day of the calendar month immediately following the calendar month in which the Closing Date occurs).
(d) Effective on the Closing Date, the Purchaser shall, or shall cause one of its Affiliates to, make available one or more tax-qualified defined contribution plans that are intended to qualify under Section 401(a) of the Code (the “Purchaser’s Savings Plans”) to each Transferring Employee. In addition, during the ninety (90)-day period following the Closing Date, the Purchaser shall cause one or more of the Purchaser’s Savings Plans to accept an eligible rollover of any distribution of the account balance, in the form of cash, including any outstanding loan(s) that are in good order, of each Transferring Employee from the Marathon Petroleum Thrift Plan if so elected by the applicable Transferring Employee in accordance with the terms of such plan and Applicable Law and subject to the administrative procedures under the Purchaser’s Savings Plans.
(e) As soon as practicable after the Closing Date, the Purchaser shall establish a (or utilize an existing) customary flexible spending account plan (the “Purchaser’s DCFSA Plan”) providing for dependent care flexible spending account arrangements for the benefit of Transferring Employees, which will recognize the dependent care flexible spending account elections that such Transferring Employees had in effect for purposes of the plan year in which the Closing Date occurs (the “Plan Year”) under the Benefit Plan providing for dependent care flexible spending account arrangements in which such Transferring Employees participate (the “Sellers’ DCFSA Plan”). The Purchaser’s DCFSA Plan shall (i) assume the obligations of the Sellers’ DCFSA Plan with respect to participating Transferring Employees as of the Closing Date and (ii) provide a comparable level of dependent care flexible spending account benefits as those provided under the Sellers’ DCFSA Plan at least through the end of the Plan Year. As soon as practicable after the Closing Date and establishment of the Purchaser’s DCFSA Plan, (x) the applicable Sellers shall transfer to the Purchaser in cash an amount equal to the excess, if any, of (A) the total amount that the Transferring Employees have contributed to the Sellers’ DCFSA Plan through the Closing Date for the Plan Year, over (B) the total amount that has been paid from the Sellers’ DCFSA Plan through the Closing Date for dependent care claims incurred by the Transferring Employees in the Plan Year, and (y) the Purchaser shall transfer to the Sellers in cash an amount equal to the excess, if any, of (A) the total amount that has been paid from the Sellers’ DCFSA Plan through the Closing Date for dependent care claims incurred by the Transferring Employees in the Plan Year, over (B) the total amount that the Transferring Employees have contributed to the Sellers’ DCFSA Plan through the Closing Date for the Plan Year. After the Closing Date, the Purchaser’s DCFSA Plan shall be responsible for reimbursement of all previously unreimbursed reimbursable dependent care claims incurred by the Transferring Employees in the Plan Year.
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(f) The Sellers shall, or shall cause their Affiliates to, pay each Transferring Employee for any unused, accrued vacation, or other paid time off due to each Transferring Employee by such Sellers or their Affiliates through the Closing Date to the extent required under Applicable Law or policy of the Sellers or their Affiliates. From and after the Closing Date, the Purchaser or the Purchaser’s Affiliates will permit each Transferring Employee to participate in the Purchaser’s or the Purchaser’s Affiliate’s paid time off policy that may exist from time to time, taking into account such Transferring Employee’s prior employment service credited pursuant to Section 11.1(c).
(g) With respect to each Transferring Employee, the Sellers shall, upon delivery of the amended Schedule 5.5(a), provide the Purchaser with a schedule setting forth, for each In-Scope Employee (i) if the In-Scope Employee is not subject to a Company Collective Bargaining Agreement, the gross amount of the 2026 annual cash bonus opportunity payable under the Marathon Petroleum Annual Cash Bonus (ACB) Program as in effect for 2026, calculated at target performance levels and using only their 2026 Eligible Earnings (as defined in the Marathon Petroleum Annual Cash Bonus (ACB) Program), pro-rated through the Closing Date and payable by Purchaser pursuant to this Section 11.2(g); and (ii) if the In-Scope Employee is subject to a Company Collective Bargaining Agreement, the gross amount of the 2026 annual bonus opportunity payable under such Company Collective Bargaining Agreement, pro-rated through the Closing and payable by Purchaser pursuant to this Section 11.2(g) (the “Bonus Schedule”). Following the Closing, to the extent Sellers or its Affiliates have not already paid annual bonuses for the 2026 performance year to In-Scope Employees who are expected to become Transferring Employees, the Purchaser shall pay no later than March 15, 2027, and no earlier than January 1, 2027, to each Transferring Employee an amount equal to the amount set forth for such Transferring Employee on the Bonus Schedule (the “Purchaser Bonus Payment”). Such Purchaser Bonus Payment shall be in addition to, and not in lieu of, any bonus or incentive compensation that such Transferring Employee may earn under any Purchaser bonus or incentive program for 2026 or 2027. In connection with such payment, the Purchaser shall communicate to each Transferring Employee that the Purchaser Bonus Payment is being made on behalf of the Transferring Employee’s former employer in recognition of the Transferring Employee’s contribution prior to the Closing Date. Notwithstanding the foregoing, the applicable Sellers or their Affiliates may, in Sellers’ sole discretion, and upon advance written notice to Purchaser, choose to pay the Transferring Employees a 2026 annual cash bonus under the Marathon Petroleum Annual Cash Bonus (ACB) Program or under a Company Collective Bargaining Agreement, as applicable, in accordance with Ordinary Business Operations, and to the extent Sellers choose to make such bonus payment to a Transferring Employee, Purchaser will not be required to pay the Purchaser Bonus Payment to such Transferring Employee. For the avoidance of doubt, if Purchaser is not required to make the Purchaser Bonus Payment to a Transferring Employee in accordance with the foregoing, the Bonus Schedule shall be deemed to reflect a bonus amount of $0 for such Transferring Employee for all purposes under this Agreement, including for purposes of determining the MPC Final 2026 Pro-Rated Bonus Amount and MPLX Final 2026 Pro-Rated Bonus Amount.
(h) The Sellers shall take all actions necessary so that, notwithstanding anything to the contrary in the Marathon Petroleum Corporation 2021 Incentive Compensation Plan (the “Marathon Equity Plan”) or the applicable award agreements, any awards of restricted stock units and performance share units granted pursuant to the Marathon Equity Plan held by any Transferring Employee and unvested as of immediately prior to the Closing
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(“Outstanding Equity Awards”) will (i) treat such Transferring Employee’s employment with Purchaser following the Closing as though it were employment with Marathon and its Subsidiaries for purposes of continuing vesting under the Outstanding Equity Awards and (ii) be settled, to the extent such Outstanding Equity Award becomes vested after the Closing, by Marathon in accordance with the terms of the applicable award agreement. For the avoidance of doubt, all other terms and conditions of the Outstanding Equity Awards, including requirements to continue employment with Purchaser after the Closing and achieve specified performance goals for vesting, shall continue to apply to the Outstanding Equity Awards. Purchaser shall reasonably cooperate with Sellers and Marathon to assist Sellers in performing their obligations under this Section 11.2(h). Such cooperation shall include Purchaser certifying employment status of applicable Transferring Employees and providing other information about a Transferring Employee, at Sellers’ reasonable request, to enable Sellers to determine if a Transferring Employee has vested in the Outstanding Equity Awards and otherwise administer the Outstanding Equity Awards.
(i) Without limiting Section 16.13, Article 11 will not create any third-party beneficiary rights, express or implied, and will not be enforceable by any current or former employee, any spouse, dependent or beneficiary of any current or former employee, or any other Person who is not a party to this Agreement. Article 11 will not be deemed to be an establishment of or amendment to any Benefit Plan or any benefit plan of the Purchaser or its Affiliates. No term of this Agreement will be deemed to create any Contract with any employee or to give any employee the right to be retained in the employment of the Sellers or any of their Affiliates, or, after the Closing, the Purchaser or any of its Affiliates, or to interfere with the rights of the Sellers or any of their Affiliates or, after the Closing, the Purchaser or any of its Affiliates, to terminate the employment of any employee at any time or for any reason.
11.3 Transfer of OSHA Records. Following the Closing, Sellers shall, and shall cause their respective Affiliates, as applicable, to cooperate with the Purchaser, in accordance with Applicable Law, to provide any Occupational Safety and Health Act records related to Transferring Employees that the Purchaser or its Affiliates are obligated to receive as a successor employer.
11.4 Collective Bargaining Agreements.
(a) The Purchaser shall, or shall cause its applicable Affiliates to, recognize each union identified in the Company Collective Bargaining Agreements as the exclusive bargaining representatives of the respective bargaining unit, and the Purchaser shall, or shall cause its applicable Affiliates to, adopt the Company Collective Bargaining Agreements (including, without limitation, all existing memoranda of understanding) and shall assume all liabilities under such Company Collective Bargaining Agreements, (including liabilities arising out of pending grievances or charges regardless of when accrued), in each case other than any Excluded Employment Liabilities, and shall comply with the terms of the successorship clause in the applicable Company Collective Bargaining Agreements. Each such Company Collective Bargaining Agreement shall remain in full force and effect for its duration, except for mutually agreed to changes between the bargaining unit and the Purchaser.
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(b) Notwithstanding anything to the contrary herein, including in Section 11.1 or Section 11.2, the Purchaser agrees that the terms and conditions of employment offers and ongoing employment for In-Scope Employees covered by a Company Collective Bargaining Agreement shall be provided in accordance with the applicable Company Collective Bargaining Agreement and that such employee benefits offered must be reasonably comparable in the aggregate to the Sellers’ employee benefits. To the extent there is any conflict between the terms of this Article 11 and any Company Collective Bargaining Agreement, the Company Collective Bargaining Agreement will control.
ARTICLE 12
INSURANCE
12.1 Marathon Policies. The Purchaser acknowledges that MPC and MPLX maintain a worldwide program of property and liability insurance coverage for each of their Affiliates, including the other Sellers, which consists principally of the following types of policies (collectively, the “Marathon Policies”):
(a) policies issued to MPC and MPLX or either’s predecessors;
(b) policies issued directly to Affiliates of MPC or MPLX by MPC’s and MPLX’s insurer(s);
(c) policies issued to Affiliates of MPC or MPLX by locally admitted insurers, which are self-insured by way of retrospective premiums paid by the relevant Affiliate; and
(d) policies issued in connection with joint ventures, limited liability companies, corporations, production sharing agreements/Contracts, or similar business structures for Affiliates of MPC’s or MPLX’s interest therein.
For purposes of this Agreement, the Casualty Insurance Policy shall not constitute a Marathon Policy.
12.2 Claims under Marathon Policies. The Purchaser acknowledges and agrees that, from and after the Closing:
(a) no insurance coverage shall be provided under the Marathon Policies to the Purchaser or its Affiliates;
(b) any and all policies insured or reinsured by MPC’s or MPLX’s insurer(s), which, but for this provision, would have insured the Purchased Assets or SPPR, shall be deemed terminated, commuted, and cancelled;
(c) no claims regarding any matter whatsoever, whether or not arising from events occurring prior to the Closing Date, shall be made by the Purchaser or its Affiliates against, or with respect to, any of the Marathon Policies, regardless of their date of issuance; and
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(d) the Purchaser shall be solely responsible for establishing and maintaining its own insurance program from and after Closing, including determining the types, limits, deductibles, retentions, exclusions and other terms of such policies, except as otherwise required herein.
12.3 The Purchaser Indemnity. The Purchaser shall defend, indemnify, and hold harmless the Seller Indemnified Parties from and against any and all Losses arising out of, attributable to, based upon, or related to any claim made in respect of events occurring on or after the Closing Date against any of the Marathon Policies relating to the Purchased Assets or the Acquired Entities by (a) the Purchaser, (b) its Affiliates, or (c) any other Person claiming any right to coverage on behalf of the Purchaser or its Affiliates or claiming to be subrogated to the Purchaser’s or its Affiliates’ rights under such Marathon Policies. Such indemnity shall include any claim by an insurer for reinsurance, retrospective premium payments, or prospective premium increases attributable to any such claim.
12.4 Payment of Retrospective Premiums. The Purchaser acknowledges and agrees that the applicable Sellers shall, on or before the Closing Date, pay all outstanding retrospective premiums to insurers in respect of any Marathon Policies related to the Purchased Assets or SPPR.
ARTICLE 13
INTELLECTUAL PROPERTY
13.1 Limited Transfer of Intellectual Property Rights. Except for the Purchased IP and the licenses and rights expressly granted under the Trademark License Agreement and Section 8.18, neither this Agreement nor the consummation of the Transactions shall operate to assign, transfer, or convey any Intellectual Property of the Sellers or be construed to provide to the Purchaser any representation or warranty with respect to any Intellectual Property.
ARTICLE 14
TAX MATTERS
14.1 Transfer Taxes.
(a) Transfer Taxes shall be borne solely by the Purchaser. The Party required by Applicable Law to file any Tax Return with respect to any such Transfer Taxes shall (i) prepare and file (or cause to be prepared and filed) such Tax Return, (ii) to the extent such Tax Return includes only the Transfer Taxes, furnish to the non-preparing Party a copy of such Tax Return at least thirty (30) days prior to the due date of such Tax Return and shall incorporate any reasonable comments received by such other Party with respect to such Tax Returns, and (iii) timely remit payment for any applicable Transfer Taxes to the applicable Governmental Authority. In the event any of the Sellers are required to pay such Transfer Taxes and such Sellers have not previously collected (or offset the amount of) such Transfer Taxes from any amount payable to the Purchaser hereunder, the Purchaser shall reimburse the applicable Sellers for such Transfer Taxes within fourteen (14) days of such Seller’s written demand therefor.
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(b) The Purchaser and the Sellers shall cooperate in good faith to minimize, to the extent permissible under Applicable Law, the amount of any Transfer Taxes. Such cooperation shall include (i) the Purchaser delivering to the Sellers, on or prior to the Closing Date, current and effective Uniform Sales & Use Tax Resale Certificates (Multi-jurisdictional), Federal Form 637 (Notification of Taxable Fuel Registrant), and applicable state motor fuel licenses, and (ii) the applicable Sellers delivering to Purchaser any written statements, forms, or other information reasonably requested by Purchaser in connection with claiming an isolated or occasional sale exemption from Minnesota sales Taxes in respect of the sale of the applicable portion of the Purchased Assets pursuant to this Agreement.
(c) The applicable Sellers shall be entitled to collect from or offset any amounts payable by such Sellers to Purchaser pursuant to this Agreement up to the amount of any Transfer Taxes required to be paid or collected by such Sellers, as they reasonably determine necessary, and any such amounts offset or otherwise collected shall be treated as paid to the Purchaser for purposes of this Agreement; provided, however, that except to the extent such obligation to pay or collect Transfer Taxes is attributable to a failure by Purchaser to provide the documents described in Section 14.1(b)(i) on or prior to the Closing Date, the applicable Sellers shall provide the Purchaser at least ten (10) Business Days’ prior written notice before exercising any such right to collect or offset.
14.2 Asset Tax Allocation.
(a) Solely for purposes of determining the applicable adjustments to the MPC Purchase Price or the MPLX Purchase Price, as applicable, pursuant to Section 3.1, Section 3.3, Section 3.4 and Section 3.5, (i) the Sellers shall be allocated all Asset Taxes attributable to (A) any Tax period ending prior to the Effective Time and (B) the portion of any Straddle Period ending immediately prior to the Effective Time and (ii) the Purchaser shall be allocated all Asset Taxes attributable to (x) any Tax period beginning at or after the Effective Time and (y) the portion of any Straddle Period beginning at the Effective Time. This Section 14.2(a) shall be applied separately with respect to each Seller and such Seller’s right, title and interest in and to the Purchased Assets being conveyed by such Seller to Purchaser pursuant to this Agreement.
(b) Solely for purposes of determining the allocations described in Section 14.2(a), (i) Asset Taxes that are attributable to the severance or production of hydrocarbons (other than, Asset Taxes that are ad valorem, property, or similar Asset Taxes imposed on a periodic basis) shall be allocated to the period in which the severance or production giving rise to such Asset Taxes occurred, (ii) Asset Taxes that are based upon or related to sales or receipts or imposed on a transactional basis (other than such Asset Taxes described in clause (i) above or that are ad valorem, property or similar Asset Taxes imposed on a periodic basis) shall be allocated to the period in which the transaction giving rise to such Asset Taxes occurred, and (iii) Asset Taxes that are ad valorem, property or similar Asset Taxes imposed on a periodic basis pertaining to a Straddle Period shall be allocated between the portion of such Straddle Period ending immediately prior to the Effective Time and the portion of such Straddle Period beginning at the Effective Time by prorating each such Asset Tax based on the number of days in the applicable Straddle Period that occur before the date on which the Effective Time occurs, on the one hand, and the number of days in such Straddle Period that occur on or after the date on which the Effective Time occurs, on the other hand.
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(c) To the extent the actual amount of an Asset Tax is not known at the time an adjustment is to be made with respect to such Asset Tax pursuant to Section 3.1, Section 3.3, Section 3.4 or Section 3.5, as applicable, the Parties shall utilize the most recent information available in estimating the amount of such Asset Tax for purposes of such adjustment.
14.3 Certain Tax Returns. After the Closing Date, subject to the provisions of the TSA and excluding any Tax Returns and Asset Taxes legally required to be filed and/or paid by a Seller or an Affiliate of a Seller, Purchaser shall be responsible for paying any Asset Taxes for any (a) Tax period that ends before the Effective Time or (b) Straddle Period, in each case, that become due and payable after the Closing Date and shall file with the appropriate Governmental Authority any and all Tax Returns required to be filed after the Closing Date with respect to such Asset Taxes. With respect to (i) each such Tax Return that is required to be filed prior to the date on which the Purchase Price is finally determined pursuant to Article 3 and that is the Purchaser’s responsibility to prepare, and (ii) each such Tax Return that is legally required to be filed by a Seller or an Affiliate of a Seller, subject to the provisions of the TSA, and solely to the extent such Tax Return relates exclusively to Asset Taxes and includes Taxes that are to be economically borne by the Purchaser under this Agreement, the preparing Party shall submit each such Tax Return to the other Party for its review and comment reasonably in advance of the due date therefor. Each Party shall timely pay all Taxes due with respect to the Tax Returns prepared and filed by such preparing Party pursuant to this Section 14.3. The Parties acknowledge and agree that this Section 14.3 is intended to solely address the timing and manner in which certain Tax Returns and Asset Taxes shown thereon are paid to the applicable Governmental Authority, and nothing in this Section 14.3 shall be interpreted as altering the manner in which Asset Taxes are allocated pursuant to Section 14.2 in applying Section 3.1, Section 3.2, Section 3.3 and Section 3.4.
14.4 Tax Refunds. From and after the Closing Date, the applicable Sellers shall be entitled to any Tax refund set forth on Schedule 5.7. If, after the Closing Date, Purchaser or any of its Affiliates receives any such refund (whether in cash or as a credit against cash Taxes otherwise due and payable), the Purchaser shall forward (or shall cause its applicable Affiliate to forward) to the applicable Sellers the amount of any such refund within fifteen (15) Business Days after such refund is received, net of any reasonable third-party costs or expenses incurred by the Purchaser or its Affiliates in procuring such refund. To the extent any Tax refund that has been paid to the Sellers pursuant to this Section 14.4 is subsequently disallowed by a Governmental Authority, the applicable Sellers shall promptly return, pay or cause to be paid to the Purchaser the amount previously received by such Sellers from the Purchaser; provided that, for the avoidance of doubt (i) any such repayment obligation of the MPLX Sellers shall be limited to Tax refunds attributable solely to any of the MPLX Sellers, the MPLX Purchased Assets and the JV Interests and shall not include any Tax refunds to the extent attributable to any of the MPC Sellers, the MPC Purchased Assets or the SPPR Interests, and (ii) any such repayment obligation of the MPC Sellers shall be limited to Tax refunds attributable solely to any of the MPC Sellers, the MPC Purchased Assets and the SPPR Interests and shall not include any Tax refunds to the extent attributable to any of the MPLX Sellers, the MPLX Purchased Assets or the JV Interests.
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14.5 Purchaser Tax Covenants. Without the prior written consent of the applicable Sellers, not to be unreasonably withheld, conditioned or delayed, the Purchaser shall not (a) make (outside the ordinary course of business or in a manner inconsistent with past practice) any material Tax election, (b) settle or compromise any Tax audit, or (c) amend any material Tax Return, in each case, with respect to the Purchased Assets or the Purchased Interests for any Pre-Closing Tax Period to the extent such action (x) occurs prior to the date on which the Purchase Price is finally determined pursuant to Article 3 and (y) could be reasonably expected to reduce the Purchase Price.
14.6 Nature of Payments. Any payment under this Article 14 or Article 10 shall constitute an adjustment of the Purchase Price for Tax purposes and shall be treated as such by the Purchaser and the applicable Sellers on their Tax Returns to the extent permitted by Applicable Law.
14.7 Certain Tax Elections.
(a) Upon the request of the Purchaser, TLO shall cooperate in any efforts by the Purchaser to cause MPLC (including by cooperating with the Purchaser to cause or permit any other Person acting as the “partnership representative” or “designated individual” of MPLC) to make an election under Section 6226 of the Code (or any corresponding or similar provision of applicable state or local law) with respect to any Tax period that ends before or includes the Closing Date. TLO shall promptly notify the Purchaser if TLO receives notice of any proposed adjustment with respect to MPLC for any such Tax period and shall consult with the Purchaser in good faith before exercising any available consent or voting rights with respect to any such adjustment.
(b) TLO shall cooperate, as and to the extent reasonably requested by the Purchaser, to the fullest extent it is legally able to do so, to cause a valid election under Section 754 of the Code (and any corresponding elections under applicable state and local Tax law) to be in effect with respect to MPLC for the taxable year that includes the Closing Date.
(c) TLO shall cooperate in any efforts by the Purchaser to cause MPLC to allocate all items of income, gain, loss, deduction, and credit allocable to the MPLC Interests between TLO and the Purchaser as of the Closing Date based on the “interim closing method” under Section 706 of the Code and the Treasury Regulations promulgated thereunder.
(d) Notwithstanding the foregoing, TLO’s cooperation under this Section 14.7 shall be limited to using commercially reasonable efforts to exercise its governance rights as a minority owner of MPLC.
14.8 Cooperation. The Parties shall cooperate fully, in connection with the filing of Tax Returns and any Proceeding with respect to Taxes imposed on or with respect to the Purchased Assets or SPPR, MPLC or MPLI or any of their respective assets or operations, in each case, as and to the extent reasonably requested by the other Party and reasonably practicable in accordance with their rights and obligations pursuant to the governing documents of SPPR, MPLC and MPLI. Such cooperation shall include, to the extent reasonably practicable in accordance with the Parties’
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respective rights and obligations pursuant to the governing documents of SPPR, MPLC and MPLI, the retention and (upon the other Party’s request) the provision of records and information which are reasonably relevant to any such Tax Return or Proceeding with respect to Taxes and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, provided that such employees shall not be required or expected to create new materials or provide Tax advice.
ARTICLE 15
ENVIRONMENTAL MATTERS
15.1 Environmental Liabilities. The provisions of this Article 15 constitute an allocation of responsibility and risk for Environmental Liabilities as between the Sellers and the Purchaser. The rights and remedies in this Article 15, the assumption of the Environmental Liabilities by the Purchaser in Section 15.2(a), and the Purchaser indemnity in Section 15.3 shall, notwithstanding any other provision of this Agreement (but subject to the Sellers’ indemnification obligations under Section 10.2(a) with respect to Excluded Environmental Liabilities), be the exclusive rights and remedies available to the Parties with respect to Environmental Liabilities, and the Parties acknowledge that they expressly waive and relinquish all other rights and remedies in this regard.
15.2 Acceptance. From and after the Effective Time, except with respect to any Excluded Environmental Liabilities, in consideration of the payment of the Purchase Price and the conditions set forth in this Agreement, subject to the covenants and other obligations of the Sellers herein, the Purchaser agrees to:
(a) unconditionally, completely, and forever assume and be liable for any and all Environmental Liabilities, whether occurring before, on, or after the Effective Time relating to or affecting the Purchased Assets, the businesses of the Acquired Entities, the Seller Owned Real Property, the Seller Leased Real Property, the Purchased Interests or the ownership, operation, maintenance or use thereof;
(b) comply with any Corrective Action Orders for which there are outstanding obligations thereunder; and
(c) unconditionally, completely, and forever release and discharge the Sellers from and against, any and all Environmental Liabilities, relating to or affecting the Purchased Assets, the businesses of the Acquired Entities, the Seller Owned Real Property, the Seller Leased Real Property, the Purchased Interests or the ownership, operation, maintenance or use thereof.
15.3 Environmental Indemnity. From and after the Closing Date, and subject to the covenants, and other obligations of the Sellers herein, the Purchaser shall defend, indemnify, and hold harmless the Seller Indemnified Parties from and against any and all Losses arising out of, attributable to, based upon, or related to the Environmental Liabilities assumed by the Purchaser hereunder. For purposes of this Article 15, any indemnification of the Sellers shall include the Sellers and their Affiliates, and each of their respective directors, officers, employees, and Representatives, and all successors and assigns of the foregoing.
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15.4 Insurance Requirements. After the Closing Date and until the five (5) year anniversary of the Closing Date, the Purchaser shall use commercially reasonable efforts to procure and maintain, or cause to be procured and maintained, environmental insurance policies, including pollution legal liability, environmental impairment liability or such other comparable environmental liability insurance reasonably acceptable to the Sellers, with minimum insurance limits at least equal to or greater than those specified on Schedule 15.4 with respect to the Purchaser’s assumed Environmental Liabilities, including Environmental Liabilities arising from or relating to the Purchased Assets, the Purchased Interests, the businesses of the Acquired Entities, the Real Property and the ownership, operation, maintenance or use thereof, whether arising before, on or after the Closing, except to the extent constituting Excluded Liabilities; provided, that such environmental liability insurance policy shall be deemed to be reasonably acceptable to Sellers if such policy (a) meets the minimum insurance limits specified on Schedule 15.4 and (b) contains provisions that are customary for policies of such type offered in the marketplace. The Purchaser shall use its commercially reasonable efforts to cause each of the applicable Sellers and their Affiliates to be named as additional insureds under such policies and cause such policies to include a waiver of subrogation in favor of each of the Sellers and their Affiliates. The Purchaser shall deliver to the Sellers certificates of insurance and complete copies of such policies promptly following placement upon the Sellers’ reasonable request. The Purchaser shall cause each such policy to provide that it may not be cancelled, terminated or materially modified without at least thirty (30) days’ prior written notice. The Purchaser’s obligations under this Section 15.4 are in addition to, and shall not limit or reduce, the Purchaser’s assumption of Environmental Liabilities or indemnification obligations under this Agreement.
15.5 Third Party Environmental Claims. Effective as of the Closing and to the extent assignable, the Sellers shall assign all claims they have against Third Parties for any Environmental Matter and Environmental Liability related to the Purchased Assets to the Purchaser, including, in particular, such claims against previous owners of the Purchased Assets. The Purchaser agrees to accept such assignment. The Sellers make no representation or warranty in respect of such claims being capable of being assigned to the Purchaser, or the existence or the enforceability of such claims. The Purchaser shall have no claim against the Sellers under any legal principle, to the extent that such claims are not capable of being assigned to the Purchaser, do not exist, or are not capable of being enforced by the Purchaser; provided, that the Sellers shall reasonably cooperate with the Purchaser in connection with the Purchaser’s efforts to enforce such claims.
ARTICLE 16
GENERAL
16.1 Expenses. Except as otherwise expressly provided herein, each Party shall be responsible for all costs and expenses (including any Taxes imposed on such expenses) incurred by it in connection with the negotiation, preparation, execution, delivery, and performance of this Agreement, the other Transaction Documents, and the Transactions (including the fees and disbursements of legal counsel, bankers, investment bankers, accountants, brokers, and other advisers). Other than costs and expenses associated with the release of Encumbrances with respect to liens for borrowed money by any Seller or its Affiliates, which shall be borne by the applicable Sellers, the Purchaser shall pay any and all recording and filing fees for recording any Deed or other recordable documents related to the sale of any Real Property or Easements, or any other filing fees or costs for any similar or related form required to be filed with respect to the transfer and update of the ownership of the Purchased Assets.
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16.2 Notices.
(a) Any notice, direction, certificate, consent, determination, or other communication required, or permitted to be given or made, under this Agreement shall be in writing and shall be effectively given and made if (i) delivered personally, (ii) sent by prepaid courier service or registered mail return receipt requested, or (iii) sent by email (provided that, an acknowledgment of receipt of such email is received, excluding automatic responses, with the receiving Person being affirmatively obligated to promptly acknowledge receipt when received), in each case, to the applicable address set forth below.
If to the Sellers, to:
Marathon Petroleum Company LP
539 South Main Street
Findlay, Ohio 45840
Attn: Molly Benson
Email: ***
with copies (which shall not constitute notice) to:
MPLX LP
c/o MPLX GP LLC
200 E. Hardin Street
Findlay, Ohio 45840
Attn: Molly Benson
Email: ***
and
Jones Day
717 Texas Avenue, Suite 3300
Houston, Texas 77002
Attention: Jeff Schlegel
Email: ***
If to the Purchaser, to:
CVR Energy, Inc.
2277 Plaza Drive, Suite 500
Sugar Land, Texas 77479
Attn: Melissa Buhrig
Email: ***; ***
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with a copy to:
Vinson & Elkins L.L.P.
845 Texas Avenue, Suite 4700
Houston, Texas 77002
Attn: Lande Spottswood and Nettie Downs
Email: ***; ***
and
Proskauer Rose LLP
Eleven Times Square
New York, NY 10036
Attention: JD DeSantis; Joshua Apfelroth
Email: ***; ***
(b) Any such communication so given or made shall be deemed to have been given or made, and to have been received, on the day of delivery, if delivered, or, with respect to emails, upon confirmation of receipt by return email, excluding automatic responses; provided that, such day, in either event, is a Business Day and the communication is so delivered or sent before 5:00 p.m. ET on such day. Otherwise, such communication shall be deemed to have been given and made, and to have been received, on the next Business Day. Any such communication sent by mail shall be deemed to have been given and made, and to have been received, on the date delivered. Any such communication given or made in any other manner shall be deemed to have been given or made, and to have been received, only upon actual receipt.
(c) Change of Address. Any Party may, from time to time, change its address under this Section 16.2 by notice to the other Party given in the manner provided by this Section 16.2.
16.3 Governing Law. Except as set forth in Section 16.14, this Agreement, and all matters or disputes arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, shall be governed by, and construed in accordance with, the laws of the State of Texas, without giving effect to any choice of law principles that would require or permit the application of the laws of another jurisdiction.
16.4 Jurisdiction. Except as set forth in Section 16.14, each Party irrevocably agrees that any Proceeding against them arising out of or in connection with this Agreement or the Transactions or disputes relating hereto (whether for breach of contract, tortious conduct or otherwise) shall be brought exclusively in the United States District Court for the Southern District of Texas, or, if such court does not have jurisdiction, the state courts of Texas located in Harris County, and hereby irrevocably accepts and submits to the exclusive jurisdiction and venue of the aforesaid courts in personam with respect to any such Proceeding and waives to the fullest extent permitted by Applicable Law any objection that it may now or hereafter have that any such Proceeding has been brought in an inconvenient forum; provided, however, the Parties may agree to submit to the jurisdiction and venue of the Business Court of the State of Texas. Notwithstanding the foregoing, any final judgment in any suit, action or other Proceeding may be enforced in other jurisdictions by suit on the judgment in any other manner provided by Applicable Law.
16.5 Waiver of Jury Trial. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS OR DISPUTES RELATING HERETO OR THERETO. EACH
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PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 16.5.
16.6 Specific Performance. The Parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the Parties do not perform their obligations under the provisions of this Agreement (including failing to take such actions as are required of them hereunder to consummate the Transactions) in accordance with its specified terms or otherwise breach such provisions. Accordingly, subject to Section 9.6, the Parties acknowledge and agree that (a) the Parties shall be entitled to seek specific performance or other equitable relief to prevent breaches of this Agreement (including Purchaser’s breach of its obligations contained in Section 8.8) and to enforce specifically the terms and provisions hereof in any court of competent jurisdiction; provided, however, the Sellers shall only be entitled to seek specific performance to cause the Purchaser to consummate the Transactions or to cause any equity financing under the Financing Commitments to be funded if (i) the Marketing Period has ended and all of the other Financing has been funded or will be funded at the Closing (provided that the Purchaser shall not be required to consummate the Closing if the Financing is not in fact funded at Closing), and (ii) the Sellers have confirmed to the Purchaser by written notice that the Sellers stand ready, willing and able to consummate the Closing and will take such actions required of it by this Agreement to cause the Closing to occur; provided, further, that in no event shall the Sellers be entitled to receive both (I) (A) a grant of specific performance resulting in the actual consummation of the Transactions and (B) the Reverse Termination Fee and (II) (A) monetary damages for Fraud prior to termination of this Agreement or Willful Breach and (B) the Reverse Termination Fee, and (b) the right of specific enforcement is an integral part of the transactions contemplated by this Agreement and, without that right, neither the Sellers nor Purchaser would have entered into this Agreement. Subject to Section 9.5, the Parties agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to Applicable Law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate remedy or that the parties otherwise have an adequate remedy at law. Each Party further agrees that (I) by seeking the remedies provided for in this Section 16.6, a Party shall not in any respect waive its right to seek any other form of relief that may be available to such Party under this Agreement or in the event that the remedies provided for in this Section 16.6 are not available or otherwise are not granted and, for the avoidance of doubt, the pursuit of specific performance by the Sellers shall not constitute an election of remedies or a waiver of the Sellers’ right to terminate this Agreement and, if it is otherwise entitled thereto, receive the Reverse Termination Fee in accordance with Section 9.6(b) in the event that specific performance is not granted, is denied, or is otherwise unavailable or impracticable, and the pursuit of specific performance by the Purchaser shall not constitute an election of remedies or a waiver of the Purchaser’s right to terminate this Agreement and, if it is otherwise entitled thereto, receive the Termination Fee in accordance with Section 9.6(c) in the event that specific performance is not granted, is denied, or is otherwise unavailable or impracticable, (II) nothing set forth in this Section 16.6 shall require any Party to institute any Proceeding for (or limit any Party’s right to institute any Proceeding for) specific performance under this Section 16.6 prior or as a condition to exercising any termination right under
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Article 9, nor shall the commencement of any action pursuant to this Section 16.6 or anything set forth in this Section 16.6 restrict or limit any such Party’s right to terminate this Agreement in accordance with Article 9, or pursue any other remedies under this Agreement that may be available then or thereafter, and (III) if the Sellers commence a Proceeding for specific performance and such Proceeding is denied, dismissed, or otherwise not granted by a court of competent jurisdiction, or if the Sellers determine in good faith that specific performance is no longer practicable, the Sellers shall thereafter be entitled to terminate this Agreement and, if the Sellers are otherwise entitled thereto, receive the Reverse Termination Fee in accordance with Section 9.6(b), and if the Purchaser commences a Proceeding for specific performance and such Proceeding is denied, dismissed, or otherwise not granted by a court of competent jurisdiction, or if the Purchaser determines in good faith that specific performance is no longer practicable, the Purchaser shall thereafter be entitled to terminate this Agreement and, if it is otherwise entitled thereto, receive the Termination Fee in accordance with Section 9.6(c).
16.7 Time of Essence. With respect to all dates and time periods in this Agreement, time is of the essence.
16.8 Further Assurances. After the Closing, each of the Sellers and the Purchaser shall, from time to time, at the request of and without further cost or expense to the other Parties, execute and deliver such other instruments of conveyance and assumption and take such other actions as may reasonably be requested in order to more effectively consummate the Transactions.
16.9 Entire Agreement. This Agreement (including the Schedules and Exhibits hereto), and any agreements to be entered into hereunder, including the other Transaction Documents, represent the entire understanding and agreement among the Parties with respect to the Transactions and supersede all prior agreements among the Parties with respect hereto and thereto. In the event of any conflict between the terms of this Agreement (including the Schedules and Exhibits hereto) and any Transaction Document, the terms of this Agreement shall govern and control.
16.10 Amendment and Waivers.
(a) The terms and conditions of this Agreement may only be amended, supplemented, or varied by an agreement in writing signed by each of the Parties and specifically referring to this Agreement.
(b) No waiver by any Party of any terms, provisions, or conditions of this Agreement, or failure to require performance of any obligation arising under this Agreement, shall be effective, unless expressed in writing and signed by, or on behalf of, each of the Parties granting such waiver and any such waiver shall only relate to the matter to which it expressly relates and shall not apply to any subsequent or other matter. Any Party’s failure or delay in exercising, or partial exercising, of any of the provisions of this Agreement, or the grant of time or any other indulgence, shall not constitute a waiver by such Party of any breach of this Agreement or raise any defense against any claim of any Party for breach of this Agreement.
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(c) Notwithstanding the foregoing, this Section 16.10 (Amendment and Waivers), Section 16.3 (Governing Law), Section 16.4 (Jurisdiction) and Section 16.14 (Financing Sources) (and any provision of this Agreement and definitions of the defined terms used herein (including the definition of “Financing Sources”) to the extent a modification, waiver or termination of such provision would modify the substance of Section 16.14) may not be modified, waived or terminated in a manner that is materially adverse to any Financing Source without the prior written consent of the Financing Sources.
16.11 Severability. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of Applicable Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect. Upon the determination that any term or provision is invalid, illegal, or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties, as closely as possible in an acceptable manner, to the end that the Transactions are fulfilled to the extent possible.
16.12 Successors and Assigns; Assignment.
(a) This Agreement shall inure to the benefit of, and be binding on, the Parties and their respective successors and permitted assigns.
(b) No Party may assign or transfer (by Contract, stock sale, operation of law, or otherwise) all or any part of its respective rights or obligations under this Agreement, without the prior written consent of the other Parties; provided, however, that the Purchaser may, without the prior written consent of the Sellers, but with at least fifteen (15) Business Days prior written notice, assign all of its rights or obligations under this Agreement to any direct or indirect wholly owned Subsidiary of the Purchaser; provided, further, that such assignee assumes in writing the assigned obligations of Purchaser under this Agreement, no such assignment shall relieve Purchaser of any of its obligations or Liabilities hereunder, Purchaser shall remain jointly and severally liable with such assignee for all such obligations and Liabilities, and no such assignment shall delay, impair or prevent the consummation of the Transactions or the performance by Purchaser of its obligations under this Agreement.
16.13 Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement, including with respect to the Seller Indemnified Parties and the Purchaser Indemnified Parties, and, solely with respect to Section 16.10(c) (Amendment and Waiver) and Section 16.14 (Financing Sources), the Financing Sources, nothing in this Agreement is intended to confer upon any Person, other than the Parties, any rights, remedies, obligations, or liabilities under, or by reason of, this Agreement. Without limiting the foregoing, the Seller Indemnified Parties and the Purchaser Indemnified Parties, and, solely with respect to Section 16.10(c) (Amendment and Waiver) and Section 16.14 (Financing Sources), the Financing Sources, shall be express third-party beneficiaries solely of the provisions of this Agreement that expressly provide rights, remedies or benefits in favor of such Seller Indemnified Parties or Purchaser Indemnified Parties, as applicable; provided that only a Party shall have the right to enforce the provisions of this Agreement on its own behalf or on behalf of any of its related Indemnified Parties, but shall not be obligated to do so.
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16.14 Financing Sources. Notwithstanding anything to the contrary contained in this Agreement, each of the Sellers, the Acquired Entities and their Subsidiaries (on behalf of themselves and any of their respective Representatives, Affiliates, directors, officers, employees, agents, partners, managers, members or equityholders or any successors or assigns of any of the foregoing) (each a “Seller Related Party”): (a) agrees that it will not bring or support, or permit any Seller Related Party to bring or support, any Proceeding of any kind or description, whether at law or in equity, whether in contract or in tort or otherwise, against any of the Financing Sources arising out of or relating in any way to this Agreement, the Financing Commitments or the Financing or the performance thereof or the financings and transactions contemplated hereby or thereby, in any forum other than the Supreme Court of the State of New York, County of New York, or, if, under Applicable Law, exclusive jurisdiction is vested in the Federal courts, the United States District Court for the Southern District of New York sitting in New York County (and appellate courts thereof); (b) agrees that, except as specifically set forth in the Financing Commitments, any such Proceeding (except to the extent relating to the interpretation of any provisions in this Agreement) shall be exclusively governed by the laws of the State of New York, without giving effect to principles or rules of conflicts of laws to the extent such principles or rules would require or permit the application of laws of another jurisdiction; (c) hereby irrevocably and unconditionally waives, to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of such Proceeding in any such court; (d) agrees that service of process upon any Seller Related Party in any such Proceeding shall be effective if notice is given in accordance with Section 16.2; (e) hereby irrevocably, knowingly, intentionally and voluntarily waives, to the fullest extent permitted by Applicable Law, any right such Seller Related Party may have to a trial by jury in respect of any Proceeding (whether at law or in equity, whether in contract or in tort or otherwise) directly or indirectly brought against any Financing Source in any way arising out of or relating to this Agreement, the Financing Commitments, the Financing or the performance thereof or the financings and transactions contemplated hereby or thereby; (f) agrees that no Financing Source shall be subject to any special, consequential, punitive or indirect damages or damages of a tortious nature; (g) agrees that no Seller Related Party shall have any rights or claims against any Financing Sources in any way relating to this Agreement, the Financing, the Financing Commitments or any of the Transactions, or in respect of any other document or any of the Transactions, or in respect of any oral or written representations made or alleged to have been made in connection herewith or therewith, including any Proceeding arising out of or relating in any way to this Agreement, the Financing Commitments or the performance thereof or the financings and transactions contemplated hereby or thereby, whether at law or in equity, in contract, in tort or otherwise; (h) agrees not to commence any Proceeding against any Financing Sources in connection with this Agreement, the Financing, the Financing Commitments or any of the Transactions, or in respect of any oral or written representations made or alleged to have been made in connection herewith or therewith, including any dispute arising out of or relating in any way to the Financing Commitments or the performance thereof or the Financing; (i) agrees that no Financing Source shall have any liability (whether in law or in equity, whether in contract, in tort or otherwise) to any Seller Related Party or their respective successors or assigns for any liabilities of any Seller Related Party under this Agreement or for any claim based on, in respect of, or by reason of, the Transactions or in respect of any oral or written representations made or alleged to have been made in connection herewith or therewith, including any dispute arising out of or relating in any way to the Financing Commitments, the Financing or the performance thereof or the financings and transactions contemplated hereby or thereby, whether at law or in equity, in contract, in tort or otherwise; provided, notwithstanding the foregoing, that nothing herein shall affect the rights of the Purchaser against the Financing Sources with respect to the Financing Commitments
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or any of the transactions contemplated hereby or any services thereunder; (j) agrees that the Financing Sources are express third-party beneficiaries of, and may enforce any of the provisions of Section 16.10(c) (Amendment and Waivers), Section 16.3 (Governing Law), Section 16.4 (Jurisdiction) and this Section 16.14 (Financing Sources), and that such provisions (and any provision of this Agreement, including the definition of “Financing Sources”, to the extent an amendment, supplement, waiver or other modification of such provision would modify the substance of Section 16.10(c) (Amendment and Waivers), Section 16.3 (Governing Law), Section 16.4 (Jurisdiction) and this Section 16.14 (Financing Sources)) shall not be amended in any way adverse to the Financing Sources without the prior written consent of the Financing Sources; and (k) agrees that in no event shall any Seller Related Party be entitled to, or permitted to seek, specific performance in respect of any Financing Source or the Purchaser’s or its Affiliates’ respective rights under this Agreement, the Financing Commitments or any other agreements with any Financing Source relating to the Financing.
16.15 Nonrecourse. Notwithstanding anything to the contrary contained herein or otherwise, this Agreement may only be enforced against, and any claims or causes of action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement or the Transactions, may only be made against the entities and Persons that are expressly identified as Parties in their capacities as such and no former, current or future stockholders, equityholders, controlling persons, directors, officers, employees, general or limited partners, members, managers, agents or Affiliates of any Party hereto, or any former, current or future direct or indirect stockholder, equity holder, controlling person, director, officer, employee, general or limited partner, member, manager, agent or Affiliate of any of the foregoing (each, a “Non-Recourse Party”) shall have any liability for any Liabilities of the Parties or for any claim (whether in tort, contract or otherwise) based on, in respect of, or by reason of, the Transactions or in respect of any representations made or alleged to be made in connection herewith. Without limiting the rights of any Party against the other Parties, in no event shall any Party or any of its Affiliates seek to enforce this Agreement against, make any claims for breach of this Agreement against, or seek to recover monetary damages from, any Non-Recourse Party.
16.16 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which taken together shall be deemed to constitute one and the same instrument. To evidence its execution of an original counterpart of this Agreement, a Party may send a copy of its original signature on the execution page hereof to the other Parties by facsimile or electronic transmission and such transmission shall constitute delivery of an executed copy of this Agreement to the receiving Party.
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the date hereof.
| SELLERS: | ||
| Marathon Petroleum Company LP | ||
| By: MPC Investment LLC, its general partner | ||
| By: | /s/ David R. Heppner | |
| Name: | David R. Heppner | |
| Title: | Senior Vice President | |
| Marathon Petroleum Supply and Trading LLC | ||
| By: | /s/ David R. Heppner | |
| Name: | David R. Heppner | |
| Title: | Authorized Person | |
| Tesoro Refining & Marketing Company LLC | ||
| By: | /s/ David R. Heppner | |
| Name: | David R. Heppner | |
| Title: | Vice President | |
| Western Refining Southwest LLC | ||
| By: | /s/ David R. Heppner | |
| Name: | David R. Heppner | |
| Title: | Vice President | |
[Signature Page to Equity and Asset Purchase Agreement]
| Tesoro Logistics Operations LLC | ||
| By: | /s/ C. Kristopher Hagedorn | |
| Name: | C. Kristopher Hagedorn | |
| Title: | Authorized Person | |
| Western Refining Terminals, LLC | ||
| By: | /s/ C. Kristopher Hagedorn | |
| Name: | C. Kristopher Hagedorn | |
| Title: | Authorized Person | |
[Signature Page to Equity and Asset Purchase Agreement]
| PURCHASER:
CVR Energy, Inc. | ||
| By: | /s/ Dane J. Neumann | |
| Name: | Dane J. Neumann | |
| Title: | President and Chief Executive Officer | |
[Signature Page to Equity and Asset Purchase Agreement]
Exhibit 10.1
Subscription Agreement
This SUBSCRIPTION AGREEMENT (this “Subscription Agreement”) is entered into on November 2, 2026, by and between CVR Energy, Inc., a Delaware corporation (the “Company”), and Trafigura US Holdings, Inc., a Delaware corporation (the “Subscriber”). Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Purchase Agreement (as defined below).
WHEREAS, concurrently with execution of this Subscription Agreement, the Company or an affiliate thereof has entered into an Equity and Asset Purchase Agreement by and among Marathon Petroleum Company LP, a limited partnership organized under the laws of the State of Delaware (“MPC”), Western Refining Southwest LLC, a limited liability company organized under the laws of the State of Delaware (“WRSW”), Tesoro Refining & Marketing Company LLC, a limited liability company organized under the laws of the State of Delaware (“TRMC”), Tesoro Logistics Operations LLC, a limited liability company organized under the laws of the State of Delaware (“TLO”), Western Refining Terminals LLC, a limited liability company organized under the laws of the State of Delaware (“WRT”), Marathon Petroleum Supply and Trading LLC, a Delaware limited liability company (“MPST,” and collectively with MPC, WRSW, TRMC, TLO and WRT, the “Sellers,” and each individually, a “Seller”), and CVR Energy, Inc., a corporation organized under the laws of the State of Delaware (the “Purchaser”) (as amended from time to time in accordance with its terms and Section 9(h) herein, the “Purchase Agreement”);
WHEREAS, pursuant to the Purchase Agreement, MPC, TRMC, TLO, WRT and MPST (each, an “Asset Seller” and, together, the “Asset Sellers”) currently directly or indirectly own the Purchased Assets (as defined in the Purchase Agreement), and the Asset Sellers desire to sell and assign to the Purchaser, and the Purchaser desires to purchase from the Asset Sellers, all rights and obligations of the Sellers to the Purchased Assets and the Assumed Liabilities (each as defined in the Purchase Agreement) in accordance with, and subject to the terms and conditions of, the Purchase Agreement (the “Asset Sale”);
WHEREAS, pursuant to the Purchase Agreement, WRSW and TLO (collectively, the “Equity Sellers”) desire to sell and assign, to the Purchaser, and the Purchaser desires to purchase and assume from the Equity Sellers, the Purchased Interests (as defined in the Purchase Agreement) in accordance with, and subject to the terms of, the Purchase Agreement (the “Equity Sale”);
WHEREAS, the Subscriber and the Company and/or their respective Affiliates, as applicable, are or, at or prior to Closing (as defined below), will be parties to the Commercial Agreements (as defined below);
WHEREAS, in connection with the Transactions, Subscriber desires to also subscribe for and purchase from the Company, and the Company desires to issue and sell to Subscriber in consideration of the payment of $800,000,000 in the aggregate (the “Purchase Price”), a number of newly issued shares of a new series of convertible preferred stock of the Company (the “Preferred Shares”) designated as Series A-1 Convertible Preferred Stock, which may be converted into shares of Common Stock of the Company (together with any shares of Common Stock issued pursuant to Section 2(b)(iii), the “Common Shares” and, together with the Preferred Shares, the “Subscribed Shares”) subject to the terms and conditions specified in the Certificate of Designations (as defined below) and set forth herein (the “PIPE Investment”); and
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WHEREAS, the Board of Directors of the Company has unanimously (a) determined that it is fair and in the best interests of the Company and its stockholders, and declared it advisable, that the Company enter into this Subscription Agreement and consummate the PIPE Investment and (b) approved this Subscription Agreement, including the Subscription Price set forth herein, and the PIPE Investment.
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants, and subject to the conditions herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
1. Certain Definitions. As used in this Subscription Agreement:
(a) “Acquisition Closing” means the consummation of the Asset Sale and the Equity Sale pursuant to the Purchase Agreement.
(b) “Affiliate” means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person. For this purpose, “control” means the possession, directly or indirectly, of the power to direct the management or policies of a Person, whether through ownership of voting securities, contract or otherwise. Neither the Company nor any of its Subsidiaries shall be deemed an Affiliate of Subscriber solely by reason of the PIPE Investment or Subscriber’s rights under the Transaction Documents.
(c) “Board” means the Board of Directors of the Company.
(d) “Business Day” means any day other than a Saturday, Sunday or other day on which banking institutions in New York, New York are authorized or required by law or executive order to close.
(e) “Capitalization Schedule” means the capitalization schedule attached hereto as Exhibit C.
(f) “Certificate of Designations” means the Certificate of Designations of Preferences, Rights and Limitations of the Preferred Shares, in the form attached hereto as Exhibit A, to be filed with the Secretary of State of the State of Delaware prior to the Closing.
(g) “Code” means the Internal Revenue Code of 1986, as amended.
(h) “Closing” means the consummation of the issuance and sale of the Preferred Shares and any Common Shares issuable pursuant to Section 2(b)(iii) against payment of the Purchase Price pursuant to Section 4, which shall be on the same date and substantially concurrently with the Acquisition Closing.
(i) “Closing Date” means the date of Closing.
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(j) “Closing Price” of the Common Stock of the Company on any date of determination means the closing sale price or, if no closing sale price is reported, the last reported sale price of the shares of the Common Stock of the Company on NYSE on such date. If the Common Stock of the Company is not traded on NYSE on any date of determination, the Closing Price of the Common Stock of the Company on such date of determination means the closing sale price as reported in the composite transactions for the principal United States securities exchange or automated quotation system on which the Common Stock of the Company is so listed or quoted, or, if no closing sale price is reported, the last reported sale price on the principal United States securities exchange or automated quotation system on which the Common Stock of the Company is so listed or quoted, or if the Common Stock of the Company is not so listed or quoted on a United States securities exchange or automated quotation system, the last quoted bid price for the Common Stock of the Company in the over-the-counter market as reported by OTC Markets Group Inc. or any similar organization, or, if that bid price is not available, the market price of the Common Stock of the Company on that date as determined by an Independent Financial Advisor retained by the Company for such purpose.
(k) “Commercial Agreements” means, collectively: (i) the Crude Oil Supply Agreement, dated as of the date hereof, by and between MND Holdco, LLC (“MND”) and Subscriber (the “North COSA”); (ii) the Inventory Purchase and Sale Agreement, dated as of the date hereof and effective as of the Commencement Date (as defined in the North COSA), by and between MND and Subscriber; (iii) the Crude Oil Supply Agreement (Legacy Refineries), dated as of the date hereof, by and between CVR Supply & Trading, LLC (“CVR S&T”) and Subscriber (the “South COSA”); (iv) the Product Offtake Agreement, dated as of the date hereof, by and between CVR S&T and Subscriber; (v) the Terminalling Agreement (Mandan), dated as of the date hereof, by and between Coffeyville Resources Refining & Marketing, LLC (“CRRM”) and Subscriber; (vi) the Letter Agreement Regarding Terminalling Agreement with St. Paul Park Refining Co. LLC, dated as of the date hereof, by and between the Company and Subscriber (the “SPP Side Letter”); (vii) the Assignment of Transportation Services Agreement, dated as of the date hereof, by and between MND and Subscriber; (viii) the Master Netting Agreement, dated as of the date hereof, by and among MND, CVR S&T and Subscriber, together with each joinder thereto and any amendment or supplement thereto extending it to the South COSA; (ix) the Commercial Agreement (ROFR – NGLs), dated as of the date hereof, by and between the Company and Subscriber; (x) the Commercial Agreement (ROFR – Commodities), dated as of the date hereof, by and between the Company and Subscriber; (xi) the Guaranty, to be delivered on or prior to the Closing, made by the Company and CVR S&T, jointly and severally, in favor of Subscriber; (xii) the Guarantee, to be delivered on or prior to the Closing, made by Trafigura Group Pte. Ltd. in favor of CVR S&T, MND, CRRM and St. Paul Park Refining Co. LLC; (xiii) the intercreditor or similar agreement to be entered into on or prior to the Closing by and among the Company, Subscriber and the lender(s) party thereto; (xiv) the Terminalling Agreement (SPP), to be entered into at, and conditioned upon, the Closing (and in any event no later than one (1) Business Day thereafter) pursuant to the SPP Side Letter, by and between St. Paul Park Refining Co. LLC and Subscriber; (xv) the Inventory Purchase and Sale Agreement (South), to be entered into on the Commencement Date (as defined in the South COSA), by and between MND and Subscriber, substantially in the form contemplated by Schedule G to the South COSA; and (xvi) the Temporary Assignments (as defined in each of the North COSA and the South COSA) and the Refinery Terminalling Agreements (as defined in the South COSA), if any, in each case entered into on or prior to the applicable Commencement Date.
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(l) “Commission” means the U.S. Securities and Exchange Commission.
(m) “Common Stock” means the common stock, par value $0.01 per share, of the Company.
(n) “Controlled Affiliate” means, with respect to any Person, any Affiliate of such Person that is, directly or indirectly, controlled by such Person.
(o) “Debt Commitment Letter” means the commitment letter, dated as of the date hereof, among the Company and the commitment parties party thereto, including the Bridge and ABL term sheets and the other exhibits, schedules and annexes thereto, in each case, as delivered to Subscriber on the date hereof and as amended, supplemented or replaced only as permitted by the Capital Plan and Section 9(h).
(p) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(q) “GAAP” means generally accepted accounting principles in the United States of America as of the date hereof; provided that for the financial statements of the Company prepared as of a certain date, GAAP referenced therein shall be GAAP as of the date of such financial statements.
(r) “Governmental Authority” means any federal, state, provincial, local, municipal, foreign or other government or governmental department, commission, board, bureau, agency, court, tribunal or other instrumentality or any regulatory or administrative agency, whether domestic, foreign or supranational.
(s) “Governmental Order” means any order, judgment, injunction, decree, writ, stipulation, determination or award issued, promulgated, made or entered by or with any Governmental Authority.
(t) “HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
(u) “Capital Plan” means the capital plan attached hereto as Exhibit D.
(v) “IEP” means Icahn Enterprises L.P.
(w) “IEP Holders” means IEP and its Affiliates (excluding the Company and its Subsidiaries) holding or committed to acquire Company securities to finance the Transactions.
(x) “IEP Investment Documents” means the subscription agreement entered into concurrently herewith between the Company and the IEP Holders in respect of their $500,000,000 equity commitment for the Transactions, together with the related certificate of designations, registration rights agreement and all other agreements, side letters and fee arrangements relating to that investment, in each case, dated as of the date hereof and as amended, supplemented or replaced only in accordance with this Subscription Agreement.
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(y) “IEP Side Letter” means the side letter, dated as of the date hereof, between Subscriber and the applicable IEP Holders executed and delivered concurrently with this Subscription Agreement.
(z) “Independent Financial Advisor” means an independent nationally recognized investment banking or valuation firm jointly selected by the Company and Subscriber and retained at the Company’s expense.
(aa) “Investor Rights Agreement” means the investor rights agreement, dated as of the date hereof, between the Company and Subscriber executed and delivered concurrently with this Subscription Agreement.
(bb) “Knowledge of the Company” means the actual knowledge, after reasonable inquiry of their direct reports responsible for the relevant matter, of the Company’s Chief Executive Officer, Chief Financial Officer and General Counsel, without personal liability on the part of any such individual.
(cc) “Person” means any individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization, Governmental Authority or other entity.
(dd) “Restricted Transaction” means any direct or indirect material transfer, acquisition or disposition of assets, determined by aggregating a series of related transactions, between the Company or any of its Subsidiaries (including CVR Partners, LP and its Subsidiaries), on the one hand, and IEP or any of its Affiliates (other than the Company and its Subsidiaries), on the other hand, other than a transaction contemplated by the Transaction Documents or permitted by the Capital Plan. For the avoidance of doubt, a sale, transfer or pledge of outstanding Company securities by a stockholder, or any foreclosure or other enforcement thereof, shall not constitute a Restricted Transaction solely by reason thereof.
(ee) “Securities Act” means the Securities Act of 1933, as amended.
(ff) “Subscriber Designee” means any individual designated by Subscriber to serve on the Board pursuant to the Investor Rights Agreement.
(gg) “Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, joint venture, association or other entity of which such Person (either alone or through or together with any other Subsidiary of such Person) (a) owns, directly or indirectly, more than fifty percent (50%) of the stock or other equity interests the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation, partnership, limited liability company, joint venture, association or other entity or (b) otherwise has the power to direct or cause the direction of the management and policies of such entity. For the avoidance of doubt, CVR Partners, LP and its subsidiaries shall be deemed Subsidiaries of the Company.
(hh) “Trading Day” means a day on which trading in the Common Stock generally occurs on NYSE or, if the Common Stock is not then listed on NYSE, on the principal securities exchange or market on which the Common Stock is then listed or traded, and a Closing Price is available; provided that if the Common Stock is not so listed or traded, “Trading Day” means a Business Day.
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(ii) “Transaction Documents” means this Subscription Agreement, the Certificate of Designations, the Investor Rights Agreement, the IEP Side Letter, the IEP Investment Documents, the Commercial Agreements, the Purchase Agreement and the equity commitments, backstop agreements, debt commitments and definitive financing agreements entered into to fund the Transactions, including any side letters relating to any of the foregoing.
(jj) “Transactions” has the meaning ascribed to such term in the Purchase Agreement.
2. Subscriptions.
(a) At the Closing, Subscriber hereby agrees to subscribe for and purchase, and the Company hereby agrees to issue and sell to Subscriber, upon payment of the Purchase Price and subject to Section 3, the Preferred Shares and any Common Shares issuable pursuant to Section 2(b)(iii) (the “Subscription”). The base price per Preferred Share shall be $53.37 (such price, the “Reference Price”), as adjusted by the applicable terms herein (the “Base Subscription Price”). The Reference Price and the Base Subscription Price shall be (i) equitably adjusted for any stock split, combination, reclassification or similar event during the applicable period and (ii) reduced by the per share amount (or, if non-cash, the per share fair market value, as determined in good faith by the Board) of any dividend or other distribution (whether ordinary or extraordinary) on the Common Stock declared, paid or having a record date between the date hereof and the Closing Date. For a dividend or distribution on any other equity security of the Company during that period, the reduction under clause (ii) shall equal the aggregate amount or fair market value of that distribution divided by the number of shares of Common Stock then outstanding. Each adjustment shall be made without duplication and only to the extent Subscriber does not receive the corresponding distribution under the Certificate of Designations or on the Common Shares. The Base Subscription Price shall also be reduced by the quotient obtained by dividing (A) the amount, if any, by which the aggregate consideration paid by the Company or any of its Subsidiaries in any tender offer or other repurchase of Common Stock (other than open-market repurchases at prevailing market prices and repurchases from employees or directors in connection with equity compensation arrangements) consummated during that period exceeds the product of (x) the arithmetic average of the Closing Prices for the ten (10) consecutive Trading Days immediately preceding the expiration of that tender offer (as finally amended) or, for any other repurchase, its consummation, in each case equitably adjusted to a consistent share basis for intervening events described in clause (i) and (y) the number of shares so repurchased, by (B) the number of shares of Common Stock outstanding immediately after that repurchase.
(b) Delay Compensation and Equity Position.
(i) Acquisition Delay. If Closing has not occurred by the six (6)-month anniversary of the date of this Subscription Agreement as a result of all waiting periods under any Antitrust Law applicable to the consummation of the Transactions having not yet expired as of such time, a credit shall accrue on the full Purchase Price at one percent (1.00%) per annum. The credit shall accrue from and including that six-month anniversary (the “Delay Commencement Date”) to but excluding the Closing Date.
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(ii) Conversion Delay. Subject to Section 9(l), if the HSR Clearance Condition under Section 5(b) of the Certificate of Designations has not been satisfied as of the six (6)-month anniversary of the date of this Subscription Agreement, a credit shall accrue on the full Purchase Price at one percent (1.00%) per annum. The credit shall accrue from and including such six-month anniversary to, but excluding, the HSR Clearance Date (as defined in the Certificate of Designations).
(iii) Calculation and Settlement. Each credit under clauses (i) and (ii) shall be calculated using actual days elapsed and a 360-day year, with quarterly compounding on March 31, June 30, September 30 and December 31. On each such date, that period’s accrual shall be added to the calculation base for that credit for subsequent periods. The credits shall be calculated separately and may accrue concurrently, without offset against each other. The sum of the two credits shall constitute the “Delay Adjustment Amount”.
At Closing, the Company shall satisfy the Delay Adjustment Amount by issuing additional Subscribed Shares without increasing the Purchase Price. The aggregate number of Subscribed Shares to be issued at Closing (the “Equity Position”) shall equal (A) the sum of the Purchase Price and the Delay Adjustment Amount divided by (B) the Base Subscription Price, as finally determined after giving effect to Sections 2(a) and 9(c). The price payable per Subscribed Share (the “Subscription Price”) shall equal the Purchase Price divided by the Equity Position.
The Subscribed Shares shall be issued as Preferred Shares, including any fractional Preferred Share. Subscriber may elect to receive whole Common Shares in lieu of an equal number of the additional Preferred Shares attributable to the Delay Adjustment Amount, subject to the HSR Clearance Condition and the 9.5% Beneficial Ownership Limitation under Sections 5(b) and 5(g) of the Certificate of Designations. Any remaining fraction shall be rounded up to the nearest whole share.
Following Closing, within five (5) Business Days after the last day of each calendar month, the Company shall satisfy the credit accrued under clause (ii) during such month on and after the Closing Date by issuing to Subscriber, without additional consideration, a number of Preferred Shares equal to (A) the amount of such credit divided by (B) the Base Subscription Price, as finally determined after giving effect to Sections 2(a) and 9(c).
(c) Pricing Schedule and Closing Calculations. The Company shall deliver to Subscriber with the Closing Notice a preliminary pricing schedule substantially in the form attached hereto as Exhibit E setting forth its calculation of the Reference Price, Base Subscription Price, Delay Adjustment Amount, Subscription Price and Equity Position with reasonable supporting detail. The Company shall update that schedule at Closing to reflect any adjustments required by Sections 2(a) and 2(b), and the Company and Subscriber shall agree in good faith on the final schedule at Closing. The schedule shall include the applicable discount and adjustments, the rates and accrual periods for each component of the Delay Adjustment Amount, and the resulting Subscription Price and Equity Position, together with supporting Bloomberg data or, if applicable, the Independent Financial Advisor’s calculations.
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(d) The proceeds of the Purchase Price will be used by the Company solely for the purpose of funding the consideration payable by the Company in connection with the consummation of the transactions under the Purchase Agreement.
3. Closing Conditions.
(a) Subscriber’s obligation to consummate the Subscription at the Closing is subject to the fulfillment or waiver by Subscriber, on or prior to the Closing Date, of each of the following conditions:
(i) Closing Deliveries. The Company shall have made, or shall make concurrently with Closing, the deliveries required by Section 4(b).
(ii) Legality. There shall not be in force any order, judgment or injunction entered by or with any Governmental Authority enjoining or prohibiting the issuance and sale of the Preferred Shares and any Common Shares to be issued at Closing under this Subscription Agreement, no Governmental Authority shall have instituted or threatened in writing a proceeding seeking to impose any such injunction or prohibition, and no law shall be in effect restraining, enjoining, making illegal or otherwise prohibiting the consummation of the Subscription.
(iii) Pending Actions. There shall not be pending any suit, action or proceeding by any Governmental Authority seeking to restrain, enjoin or prohibit the consummation of the Subscription.
(iv) Certificate of Designations. The Certificate of Designations shall have been duly filed with the Secretary of State of the State of Delaware and shall be in full force and effect as of the Closing.
(v) Representations and Warranties. (A) the representations and warranties of the Company set forth in Section 6(b) (including Part I of the Capitalization Schedule) shall be true and correct as of the date of this Subscription Agreement and as of the Closing Date as though made on and as of such date (other than representations and warranties that refer to a specified date, which need only be true and correct on and as of such specified date) except for de minimis inaccuracies; and (B) the representations and warranties of the Company set forth in Section 6(a) shall be true and correct in all material respects as of the date of this Subscription Agreement and as of the Closing Date as though made on and as of such date.
(vi) Listing. The Common Shares shall have been reserved and approved for listing by NYSE, subject only to official notice of issuance, and the Company shall have delivered the NYSE confirmation contemplated by Section 9(d).
(vii) Capitalization and Capital Plan. The Company shall have complied in all material respects with Section 9(r), subject to Subscriber’s prior written consent to any deviation. The Company’s capitalization and financing at Closing shall conform to the Capital Plan in all material respects, subject only to changes expressly permitted thereby or approved in writing by Subscriber.
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(viii) Acquisition Closing and Regulatory Approvals. All conditions to the Acquisition Closing under the Purchase Agreement as in effect on the date hereof (subject to amendments, supplements, waivers or other modifications permitted by Section 9(h)) shall have been satisfied or waived only as permitted by Section 9(h), other than conditions that by their nature are to be satisfied at the Acquisition Closing, each of which shall be capable of being satisfied and shall be satisfied substantially concurrently with Closing. The Acquisition Closing shall occur as part of the coordinated closing provided for in Section 4(a).
(ix) Acquisition Financing. The Company shall have received as part of the Closing provided for in Section 4(a), the acquisition debt and the IEP Holders’ and/or other acquisition equity financing and shall apply Company cash in the amounts and on the terms specified in the Capital Plan and the IEP Investment Documents, including the expressly permitted amounts, substitutions and flex, subject to the Flex Terms (as defined in the Capital Plan), in amounts sufficient, together with the Purchase Price to be funded at Closing, to consummate the Transactions and pay related fees and expenses.
(b) The Company’s obligation to consummate the Subscription at the Closing is subject to the fulfillment or waiver by the Company, on or prior to the Closing Date, of each of the following conditions:
(i) Closing Deliveries. Subscriber shall have made, or shall make concurrently with Closing, the deliveries required by Section 4(c).
(ii) Legality. There shall not be in force any order, judgment or injunction entered by or with any Governmental Authority enjoining or prohibiting the issuance and sale of the Preferred Shares and any Common Shares to be issued at Closing under this Subscription Agreement, no Governmental Authority shall have instituted or threatened in writing a proceeding seeking to impose any such injunction or prohibition, and no law shall be in effect restraining, enjoining, making illegal or otherwise prohibiting the consummation of the Subscription.
(iii) Pending Actions. There shall not be pending any suit, action or proceeding by any Governmental Authority seeking to restrain, enjoin or prohibit the consummation of the Subscription.
(iv) Representations and Warranties. The representations and warranties of Subscriber set forth in Section 7 hereof shall be true and correct in all material respects as of the date of this Subscription Agreement and as of the Closing Date as though made on and as of such date (other than representations and warranties that refer to a specified date, which need only be true and correct on and as of such specified date), except where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, materially impair Subscriber’s ability to consummate the transactions contemplated hereby.
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4. Closing Deliveries.
(a) Closing Mechanics. Subject to Section 3, the Closing shall occur on the same date and substantially concurrently with the Acquisition Closing, as part of a coordinated closing. At least five (5) Business Days (or such shorter period as the Company and Subscriber may agree in writing) before the anticipated Closing Date, the Company shall deliver written notice to Subscriber (the “Closing Notice”) specifying the anticipated Closing Date and wire instructions for delivery of the Purchase Price, together with the schedules required by Section 2(c). The Purchase Price shall be released and the Subscribed Shares issued only as part of that coordinated closing, when the parties to the Purchase Agreement are ready to consummate the Acquisition Closing and the conditions in Section 3 have been satisfied or waived by the party entitled to waive them (other than conditions to be satisfied at Closing, which shall then be satisfied or waived). If the Closing and the Acquisition Closing do not both occur on the anticipated Closing Date, all such funds shall be returned to Subscriber, without deduction or setoff, no later than the next Business Day, and any Subscribed Shares issued in respect thereof shall be cancelled only against that return. Such return shall not itself terminate this Subscription Agreement or waive any accrued claim; any subsequent funding remains subject to a new Closing Notice and Section 3.
(b) Company Deliveries. At Closing, the Company shall deliver to Subscriber the following, to the extent not previously delivered:
(i) counterparts of the Investor Rights Agreement, the Confidentiality Agreement contemplated thereby, the IEP Side Letter, any separate agreement required to give effect to Section 3.6 of the Investor Rights Agreement and the Commercial Agreements duly executed by each party thereto other than Subscriber and its Affiliates, and copies of the duly executed Purchase Agreement, Debt Commitment Letter, IEP Investment Documents and definitive acquisition financing agreements, including all exhibits, schedules, fee letters and side arrangements (provided that debt fee letters may be redacted as to pricing and other commercially sensitive terms that do not affect compliance with the Capital Plan), each in full force and effect at Closing, except to the extent replaced or terminated as expressly permitted by the Capital Plan or Section 9(h);
(ii) the Preferred Shares and any Common Shares issuable pursuant to Section 2(b)(iii), including shares attributable to the Delay Adjustment Amount, in book-entry form, free and clear of any liens or other restrictions (other than those arising under state or federal securities Laws or created by Subscriber), in the name of Subscriber or its nominee in accordance with its delivery instructions, and evidence from the Company’s transfer agent (or other evidence reasonably acceptable to Subscriber) of such issuance on the Closing Date;
(iii) [reserved]
(iv) a certificate signed on behalf of the Company by a senior executive officer certifying that the conditions set forth in Sections 3(a)(iv) through (ix) have been satisfied or will be satisfied concurrently with Closing;
(v) a certificate of the secretary or other authorized officer of the Company certifying as to and attaching (A) the certificate of incorporation of the Company, including the filed Certificate of Designations, (B) the bylaws of the Company and (C) duly executed board resolutions of the Board or a committee thereof, in form and substance reasonably satisfactory to Subscriber (1) authorizing the execution and delivery of this Subscription Agreement and the transactions contemplated hereby, including the issuance to Subscriber of the Preferred Shares and the Common Shares issuable pursuant to Section 2(b)(iii) or upon conversion of the Preferred Shares, and the documents being entered into in connection with the Transactions and the consummation thereof, and (2) as required by Section 9(p) and Section 9(q);
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(vi) a cross-receipt executed by the Company acknowledging receipt of the Purchase Price; and
(vii) the written NYSE confirmation contemplated by Section 9(d).
(c) Subscriber Deliveries. At Closing, Subscriber shall deliver to the Company or the applicable counterparty the following, to the extent not previously delivered:
(i) counterparts of this Subscription Agreement, the Investor Rights Agreement, the Confidentiality Agreement contemplated thereby, the IEP Side Letter, any separate agreement required to give effect to Section 3.6 of the Investor Rights Agreement and the Commercial Agreements (other than the Commercial Agreements described in clauses (xiv), (xv) and (xvi) (in the case of (xvi), solely with respect to the Commercial Agreements related to South COSA) of the definition thereof), in each case duly executed by Subscriber or its Affiliates party thereto;
(ii) the Purchase Price, by wire transfer of United States dollars in immediately available funds to the account specified in the Closing Notice; and
(iii) the information reasonably requested in the Closing Notice to issue the Subscribed Shares, including the legal name of the registered holder, and a duly completed and executed Internal Revenue Service Form W-9 or appropriate Form W-8, as applicable.
5. Registration Rights. The registration rights of Subscriber and its permitted transferees shall be governed by Article III of the Investor Rights Agreement.
6. Company Representations and Warranties. Except as disclosed in the Company SEC Documents filed before the date hereof (excluding risk factors and other forward-looking disclosures, other than factual information therein) or in a disclosure schedule delivered to Subscriber on the date hereof (with disclosure applying to other representations where its relevance is reasonably apparent), the Company represents and warrants to Subscriber as follows:
(a) Existence. Each of the Company and its Subsidiaries is a legal entity duly organized, validly existing, and in good standing under the laws of its respective jurisdiction of organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted, and is qualified to do business and is in good standing as a foreign legal entity in each jurisdiction where the ownership, leasing or operation of its assets or properties or conduct of its business requires such qualification, except where the failure to be so organized, qualified or in good standing, or to have such power or authority, would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, or reasonably be expected to prevent, materially delay or materially impair the ability of the Company to consummate the Transactions. For purposes of this Subscription Agreement, a “Company Material Adverse Effect” means any effect, event, development, change, state of facts, condition, circumstance or occurrence (“Effect”) that, individually or in the aggregate with any other Effect (whether or not foreseeable and whether or
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not covered by insurance) (I) is, or would reasonably be expected to be, materially adverse to the financial condition, properties, assets, operations, liabilities, business or results of operations of the Company and its Subsidiaries taken as a whole, or (II) materially impairs or delays the ability of the Company to (i) consummate the transactions contemplated by this Subscription Agreement, the Certificate of Designations and the Transaction Documents, or to perform its obligations hereunder or thereunder, or (ii) issue the Preferred Shares or the Common Shares issuable pursuant to Section 2(b)(iii) or upon conversion thereof; provided, however, that solely for purposes of clause (I), none of the following, alone or in combination, shall be deemed to constitute a Company Material Adverse Effect, or be taken into account in determining whether a Company Material Adverse Effect has occurred or would reasonably be expected to occur: (1) Effects generally affecting the economy, credit, capital, securities or financial markets or political, regulatory, economic or business conditions (including tariffs, trade policies and sanctions) in any jurisdiction in which the Company and its Subsidiaries have operations or in which products or services of the Company and its Subsidiaries are sold, (2) Effects that are the result of factors generally affecting the industries, markets or geographical areas in which the Company and its Subsidiaries have operations, (3) changes in the relationship of the Company or its Subsidiaries, contractual or otherwise, with customers, employees, unions, suppliers, distributors, financing sources, partners or similar relationship or any resulting Effect that was caused by the entry into, announcement, pendency or performance of the Transactions by, or resulting or arising from the identity of Subscriber, MPC, IEP or their respective Affiliates, (4) changes or modifications in accounting standards applicable to the Company or its Subsidiaries, including GAAP, or in any law applicable to the businesses of the Company and its Subsidiaries, including the repeal thereof, or in the interpretation or enforcement thereof, after the date of this Subscription Agreement, (5) any failure by the Company or its Subsidiaries to meet any internal or public projections or forecasts or estimates of revenues or earnings for any period, provided that the exception in this clause (5) shall not prevent or otherwise affect a determination that any Effect underlying such failure has resulted in, or contributed to, or would reasonably be expected to result in, or contribute to, a Company Material Adverse Effect, (6) Effects resulting from acts of war (whether or not declared), civil disobedience, hostilities, sabotage, terrorism, cyberterrorism, ransomware or malware, military actions or the escalation of any of the foregoing, any hurricane, flood, tornado, earthquake or other weather or natural disaster, or any epidemic, pandemic, outbreak of illness or other public health event (including pandemics and epidemics) or any other force majeure event, or any national or international calamity or crisis, (7) any actions taken or failed to be taken by the Company or any of its Subsidiaries that are expressly required by the Purchase Agreement, (8) any Effect or announcement of an Effect affecting the credit rating or other rating of financial strength of the Company, its Subsidiaries or any of their respective securities, provided that the exception in this clause (8) shall not prevent or otherwise affect a determination that any Effect underlying such Effect or announcement of an Effect has resulted in, or contributed to, or would reasonably be expected to result in, or contribute to, a Company Material Adverse Effect or (9) any change, in and of itself, in the market price or trading volume of the securities of the Company (it being understood that the facts or occurrences giving rise to or contributing to such change may be taken into account in determining whether there has been or would reasonably be expected to be a Company Material Adverse Effect, unless otherwise excluded in this definition); provided, however, that with respect to the foregoing clauses (1), (2), (4), and (6), such Effect shall be taken into account in determining whether a “Company Material Adverse Effect” has occurred or is occurring to the extent it materially and disproportionately adversely affects the Company and its Subsidiaries (taken as a whole) compared to other businesses operating in the industries and geographies in which the Company and its Subsidiaries operate (in which case only the incremental disproportionate impact may be taken into account, and only to the extent otherwise permitted by this definition).
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(b) Capitalization and Valid Issuance of Common Shares; Enforceability.
(i) The authorized equity interests of the Company consist of 350,000,000 shares of common stock, par value $0.01 per share, and 50,000,000 shares of preferred stock, par value $0.01 per share. At the close of business on October 30, 2026, there were 100,530,599 shares of Common Stock issued and outstanding. There are no shares of preferred stock of the Company issued and outstanding as of the date hereof. All outstanding equity securities of the Company are duly authorized, validly issued, fully paid and non-assessable. Part I of the Capitalization Schedule is true and complete and sets forth the Company’s capitalization as of such date, including all outstanding and reserved equity and equity-linked securities and rights to acquire equity interests.
(ii) [Reserved]
(iii) There are no Persons entitled to statutory, preemptive or other similar contractual rights to subscribe for the Preferred Shares and the Common Shares issuable pursuant to Section 2(b)(iii) or upon conversion thereof; and, except (A) for the Subscribed Shares to be issued pursuant to this Subscription Agreement or as set forth in the Certificate of Designations, the IEP Investment Documents or in accordance with the Capital Plan, (B) for awards issued pursuant to the Company’s benefit plans (including any employment agreement) and (C) as set forth in Section 6(b)(i), disclosed in the Company SEC Documents (as defined below) or expressly identified in Exhibit C, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, ownership interests in the Company are outstanding.
(iv) Upon issuance in accordance with this Subscription Agreement and the Certificate of Designations, as applicable, the Common Shares issuable pursuant to Section 2(b)(iii) or upon conversion of the Preferred Shares will be duly authorized, validly issued, fully paid and non-assessable and will be free and clear of any and all liens and restrictions on transfer, other than restrictions under applicable securities Laws, the Transaction Documents or liens created by Subscriber.
(v) The Certificate of Designations has been duly authorized by the Company. The Certificate of Designations sets forth the rights, preferences and priorities of the Preferred Shares, and the holders of the Preferred Shares will have the rights set forth in the Certificate of Designations upon filing with the Secretary of State of the State of Delaware.
(vi) The Preferred Shares and the Common Shares issuable pursuant to Section 2(b)(iii) or upon conversion thereof have been duly authorized and, when the Preferred Shares are issued and delivered against payment under this Subscription Agreement and the Common Shares are issued pursuant to Section 2(b)(iii) or upon conversion in accordance with the Certificate of Designations, respectively, will be validly issued, fully paid and non-assessable and will not have been issued in violation of any preemptive or similar rights created under the Company’s organizational documents or the laws of its jurisdiction of incorporation.
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(vii) This Subscription Agreement (including the transactions contemplated herein) has been duly authorized and validly executed and delivered by the Company, and assuming the due authorization, execution and delivery of the same by Subscriber, this Subscription Agreement shall constitute the valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors generally or by the availability of specific performance, injunctive relief and other equitable remedies, whether considered at law or equity.
(viii) Assuming the accuracy of the representations and warranties of Subscriber set forth in Section 7 and that all consents, approvals, and other authorizations described in Section 6(x) have been obtained and that all filings and other actions described in Section 6(x) have been made or taken, the execution and delivery of this Subscription Agreement, the issuance and sale of the Preferred Shares, the Common Shares issuable pursuant to Section 2(b)(iii) or upon conversion of the Preferred Shares and the performance by the Company of its obligations under this Subscription Agreement, and the consummation of the transactions contemplated herein, do not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company pursuant to the terms of (1) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, (2) the organizational documents of the Company or any of its Subsidiaries, or (3) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its respective properties that, in the case of clauses (1) and (3), would, individually or in the aggregate, have a Company Material Adverse Effect, or reasonably be expected to prevent, materially delay or materially impair the ability of the Company to consummate the Transactions.
(ix) The Company has no shareholder rights plan, “poison pill,” tax-benefit preservation plan or similar arrangement in effect. No ownership or transfer restriction in the Company’s certificate of incorporation or bylaws prohibits or restricts the issuance, ownership, conversion or permitted transfer or pledge of the Subscribed Shares contemplated hereby. The Company has elected in its certificate of incorporation not to be governed by Section 203 of the DGCL, and that election remains in effect.
(c) Company SEC Documents. Except as disclosed in the Company SEC Documents, since September 30, 2025, the Company’s forms, registration statements, reports, schedules and statements required to be filed by it under the Exchange Act or the Securities Act (all such documents filed prior to the date hereof, collectively the “Company SEC Documents”) have been filed with the Commission on a timely basis. The Company SEC Documents, at the time filed (or in the case of registration statements, solely on the dates of effectiveness) (except to the extent corrected by a subsequent Company SEC Document) (a) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made in the case
14
of any such documents other than a registration statement, not misleading, (b) complied as to form in all material respects with the applicable requirements of the Exchange Act and the Securities Act, as the case may be, and (c) complied as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect thereto. The financial statements and other financial information of the Company included in the Company SEC Documents were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or, in the case of unaudited statements, as permitted by Form 10-Q of the Commission), and fairly present (subject in the case of unaudited statements to normal and recurring and year-end audit adjustments) in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows of the Company and its consolidated Subsidiaries for the periods then ended. The independent auditor of the Company as of the date of the most recent audited balance sheet of the Company is an independent registered public accounting firm with respect to the Company and has not resigned or been dismissed as independent registered public accountants of the Company as a result of or in connection with any disagreement with the Company on any matter of accounting principles or practices, financial statement disclosure or auditing scope or procedures. Since the date of the most recent balance sheet of the Company audited by such auditor, (i) the interactive data in extensible Business Reporting Language included or incorporated by reference in the Company SEC Documents fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto and (ii) based on an annual evaluation of disclosure controls and procedures, except as set forth in the Company SEC Documents, the Company is not aware of (x) any significant deficiency or material weakness in the design or operation of internal controls over financial reporting that are likely to adversely affect its ability to record, process, summarize and report financial data or (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the internal controls over financial reporting of the Company. Neither the Company nor its Subsidiaries has any liability required by GAAP to be reflected or reserved against in a consolidated balance sheet, other than liabilities reflected or reserved in the latest balance sheet included in the Company SEC Documents, incurred in the ordinary course since its date, incurred under the Transaction Documents, or not reasonably expected to have a Company Material Adverse Effect.
(d) Registration Rights Priority. Except as expressly provided in the IEP Investment Documents and consistent with the Capital Plan, the Company has not granted registration rights that remain outstanding that (a) are equal or superior in priority to, or otherwise equal to or greater than, in any respect, those contained in Article III of the Investor Rights Agreement, (b) reduce the aggregate amount of securities that may be registered pursuant to Article III of the Investor Rights Agreement or (c) conflict in any material respect with the rights granted to Subscriber pursuant to Article III of the Investor Rights Agreement.
(e) Litigation. Except as set forth in the Company SEC Documents, there are as of the date of this Subscription Agreement no legal or governmental proceedings pending to which the Company is a party or to which any property or asset of any such entity is subject, that would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect or which challenges the validity of any of the Transaction Documents or the Certificate of Designations or the right of the Company to enter into any of the Transaction Documents or the Certificate of Designations or to consummate the transactions contemplated hereby and thereby.
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(f) Required Disclosures and Descriptions. As of the date of this Subscription Agreement, there are no legal or governmental proceedings pending or, to the Knowledge of the Company, threatened, against the Company or any of its Subsidiaries, or to which the Company or any of its Subsidiaries is a party, or to which any of their respective properties is subject, that are required to be described in the Company SEC Documents but are not described as required, and there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Company SEC Documents or to be filed as an exhibit to the Company SEC Documents that are not described or filed as required by the Securities Act or the Exchange Act.
(g) Taxes. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect:
(i) Each of the Company and its Subsidiaries has filed all Tax Returns required to have been filed (taking into account all valid extensions), such Tax Returns are true, accurate and complete in all respects and have been completed in accordance with applicable Law, and all Taxes due (whether or not shown to be due and payable on any Tax Return) have been paid, except for those which are being contested in good faith and by appropriate proceedings and in respect of which adequate reserves with respect thereto are maintained in accordance with GAAP;
(ii) None of the Company or its Subsidiaries has had any Tax deficiency proposed or assessed against it that has not been fully resolved and satisfied;
(iii) None of the Company or its Subsidiaries has executed any waiver of any statute of limitations on the assessment or collection of any Tax that remains outstanding;
(iv) There is no pending audit, suit, proceeding, claim, examination or other administrative or judicial proceedings ongoing, pending, or, to the Knowledge of the Company, threatened or proposed with respect to any Taxes of any of the Company or its Subsidiaries;
(v) Each of the Company and its Subsidiaries has withheld or collected from each payment made to each of its employees, the amount of all Taxes required to be withheld or collected therefrom, and has paid the same to the proper tax receiving officers or authorized depositories;
(vi) Each of the Company and its Subsidiaries has (x) properly collected and remitted all material sales, excise and similar Taxes with respect to sales made to its customers and properly collected and maintained any required registrations from customers and (y) for all sales to customers that are exempt from sales, excise and similar Taxes and that were made without charging or remitting sales, excise or similar Taxes, received and retained any appropriate Tax exemption certificates, registrations and other documentation qualifying such sale as exempt in the form required under applicable Law; and
(vii) For each of its taxable years beginning with its taxable year ending December 31, 2011, at least 90% of the gross income derived by CVR Partners, LP has been “qualifying income” within the meaning of Section 7704(d) of the Code.
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(h) Registration.
(i) Assuming the accuracy of the representations and warranties of Subscriber contained in Section 7, the issuance and sale of the Preferred Shares and any Common Shares pursuant to this Subscription Agreement are exempt from registration requirements of the Securities Act, and neither the Company nor, to the Knowledge of the Company, any authorized Representative acting on its behalf has taken or will take any action hereafter that would cause the loss of such exemption.
(ii) The Company is not an ineligible issuer and is a well-known seasoned issuer, in each case as defined under the Securities Act, and is eligible to register the Common Shares for resale by Subscriber on a registration statement on Form S-3 under the Securities Act.
(i) No Labor Disputes. As of the date of this Subscription Agreement, no labor dispute with the employees of any of the Company or its Subsidiaries exists or, to the Knowledge of the Company, is imminent, that would reasonably be expected to have a Company Material Adverse Effect.
(j) No Default. None of the Company or its Subsidiaries is in breach, default (or an event that, with notice or lapse of time or both, would constitute such an event) or violation in the performance of any obligation, covenant or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any agreement, indenture, lease or other instrument to which it is a party or by which it or any of its properties may be bound, which breach, default or violation would, if continued, reasonably be expected to materially impair the ability of any of the Company or its Subsidiaries to perform its obligations under the Transaction Documents.
(k) No Conflicts. Subject to receipt of the approvals and expiration or termination of waiting periods contemplated by Sections 9(d), 9(f) and 9(l) before the applicable action is taken, none of (a) the offering, issuance and sale by the Company of the Preferred Shares and any Common Shares pursuant to Section 2(b)(iii) and the application of the proceeds therefrom, (b) the execution, delivery and performance of the Transaction Documents or the Certificate of Designations, or (c) the consummation of the transactions contemplated thereby (i) constitutes or will constitute a violation of the organizational documents of any of the Company or its Subsidiaries, (ii) constitutes or will constitute a breach or violation of, or a default (or an event which, with notice or lapse of time or both, would constitute such a default) under, any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which any of the Company or its Subsidiaries is a party or by which any of them or any of their respective properties may be bound, (iii) violates or will violate any statute, Law, Permit or regulation or any order, judgment, decree or injunction of any court or Governmental Authority or body having jurisdiction over any of the Company or its Subsidiaries or any of its properties in a proceeding to which any of them or their property is or was a party, or (iv) results or will result in the creation or imposition of any Lien upon any property or assets of the Company, which conflicts, breaches, violations, defaults or liens, in the case of clauses (ii), (iii) or (iv), would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect or materially impair the ability of the Company to consummate the transactions contemplated by the Transaction Documents.
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(l) Certain Fees. Except for fees expressly set forth in the Capital Plan, no fees or commissions are or will be payable by the Company to brokers, finders or investment bankers with respect to the sale of any of the Preferred Shares or the consummation of the transaction contemplated by this Subscription Agreement or the other Transaction Documents. Subscriber shall have no liability for any such fees or commissions.
(m) Insurance. Except as would not reasonably be expected to have a Company Material Adverse Effect, each of the Company and its Subsidiaries carry, or are covered by, insurance from insurers of recognized financial responsibility in such amounts and covering such risks as is reasonably adequate for the conduct of their respective businesses and the value of their respective properties and as is customary for companies engaged in similar businesses in similar industries. Except as would not reasonably be expected to have a Company Material Adverse Effect: all policies of insurance of the Company and its Subsidiaries are in full force and effect; the Company and its Subsidiaries are in compliance with the terms of such policies in all material respects; there are no material claims by any of the Company or its Subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; and none of the Company or its Subsidiaries has 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.
(n) Books and Records: Sarbanes-Oxley Compliance.
(i) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorizations; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(ii) The Company has established and maintains disclosure controls and procedures (to the extent required by and as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act), which are designed to provide reasonable assurance that material information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and communicated to the Company’s management, including its principal executive officer and principal financial officer, as appropriate, to allow for timely decisions regarding required disclosure. The Company has carried out evaluations of the effectiveness of its disclosure controls and procedures as of the end of the most recently completed fiscal quarter covered by the Company’s periodic reports filed with the Commission, and such disclosure controls and procedures are effective in all material respects to perform the functions for which they were established.
(iii) The Company and, to the Knowledge of the Company, its directors or officers, in their capacities as such, are in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith.
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(o) Listing and Maintenance Requirements. The Common Stock of the Company is listed on NYSE, and the Company has not received any notice of delisting. Subject to receipt of NYSE listing approval and compliance with Section 9(d), the issuance and sale of the Preferred Shares and issuance of the Common Shares pursuant to Section 2(b)(iii) or upon conversion of the Preferred Shares do not contravene NYSE rules and regulations. The Common Stock of the Company is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to the Knowledge of the Company is reasonably likely to, have the effect of, terminating the registration of the Common Stock of the Company under the Exchange Act nor has the Company received as of the date of this Subscription Agreement any notification that the Commission is contemplating terminating such registration. There shall be no requirement for approval of the Company’s stockholders or completion of a Schedule 14C information statement process for the issuance of the Preferred Shares or the Common Shares issuable pursuant to Section 2(b)(iii) or upon conversion on the terms contemplated hereby and by the Certificate of Designations. Any such approval required for the IEP Holders’ securities applies to those securities and not to the Preferred Shares.
(p) Compliance with Laws. None of the Company or its Subsidiaries is in violation of any applicable Law, except where such violation would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(q) Permits and Licenses. The Company and its Subsidiaries possess all Permits issued by each Governmental Authority necessary to conduct their respective businesses, except where the failure to possess such permits would not, individually or in the aggregate, have or reasonably be expected to result in a Company Material Adverse Effect. The Company and its Subsidiaries have fulfilled and performed all of their respective obligations with respect to the Permits, and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the holder of any such Permits, except for any of the foregoing that would not reasonably be expected to have a Company Material Adverse Effect. None of the Company or its Subsidiaries has received notice of any revocation or modification of any such Permits or has any reason to believe that any such Permits will not be renewed in the ordinary course, except where the revocation or modification of any such Permit or the failure to renew any such Permit would not, individually or in the aggregate, have or reasonably be expected to result in a Company Material Adverse Effect.
(r) Environmental Laws. The operations of the Company and its Subsidiaries are in compliance with all applicable Environmental Laws and no occurrences or conditions currently exist that would reasonably be expected to adversely affect the Company and its Subsidiaries’ continued compliance with such Environmental Laws except as (a) would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect or (b) have been disclosed in Company SEC Documents. As of the date of this Subscription Agreement, there are no present claims asserted against any of the Company or its Subsidiaries under applicable Environmental Laws, including claims relating to the release, spill or disposal of any Hazardous Substances resulting from the operations of the Company or its Subsidiaries, except as such claims (i) would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect or (ii) have been disclosed in Company SEC Documents.
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(s) Title to Properties. Each of the Company and its Subsidiaries has good and indefeasible title to all real property and good title to all personal property described in the Company SEC Documents as owned by the Company or its Subsidiaries, free and clear of all Liens except such (a) as are described in the Company SEC Documents or (b) as would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(t) ERISA Compliance. Except, in each case, for any such matter as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect (i) each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) for which any of the Company or its Subsidiaries would have any liability (each an “ERISA-Subject Plan”) has been maintained in material compliance with its terms and with the requirements of all applicable statutes, rules and regulations including ERISA and the Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any ERISA-Subject Plan excluding transactions effected pursuant to a statutory or administrative exemption; (iii) with respect to each ERISA-Subject Plan subject to Title IV of ERISA (A) no “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur, (B) no ERISA-Subject Plan is or is reasonably expected to be “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA), (C) there has been no filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any ERISA-Subject Plan or the receipt by any of the Company or its Subsidiaries from the Pension Benefit Guaranty Corporation or the plan administrator of any notice relating to the intention to terminate any ERISA-Subject Plan or ERISA-Subject Plans or to appoint a trustee to administer any ERISA-Subject Plan, (D) no conditions contained in Section 303(k)(1)(A) of ERISA for imposition of a lien shall have been met with respect to any ERISA-Subject Plan and (E) none of the Company or its Subsidiaries has incurred, or reasonably expects to incur, any liability under Title IV of ERISA (other than contributions to the ERISA-Subject Plan or premiums to the Pension Benefit Guaranty Corporation in the ordinary course and without default) in respect of an ERISA-Subject Plan (including a “multiemployer plan,” within the meaning of Section 4001(c)(3) of ERISA) (“Multiemployer Plan”); (iv) no Multiemployer Plan is, or is expected to be, “insolvent” (within the meaning of Section 4245 of ERISA), in “reorganization” (within the meaning of Section 4241 of ERISA), or in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 304 of ERISA); and (v) each ERISA-Subject Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification.
(u) Anti-Corruption. None of the Company or its Subsidiaries or, to the Knowledge of the Company, any director, officer, or employee is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), or any other anti-corruption or anti-bribery law of any jurisdiction in which the Company or its Subsidiaries operate (collectively, “Anti-Corruption Law”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA or other Anti-Corruption Laws) or any foreign political party or official
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thereof or any candidate for foreign political office, in contravention of the FCPA or other Anti-Corruption Laws and the Company or its Subsidiaries and, to the Knowledge of the Company, their Affiliates have conducted their businesses in compliance with the FCPA and any other Anti-Corruption Law and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(v) Money Laundering Laws. The operations of the Company and its Subsidiaries are and have been conducted at all times in a manner reasonably designed to ensure compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental entity (collectively, the “Money Laundering Laws”): and no action, suit or proceeding by or before any governmental entity involving the Company or its Subsidiaries with respect to the Money Laundering Laws is pending or, to the best Knowledge of the Company, threatened.
(w) Purchase Agreement. The Company has delivered to Subscriber true and complete copies of all Transaction Documents and all other agreements and arrangements relating to the financing of the Transactions or any other equity issuances by the Company then in effect, including all IEP Investment Documents, the IEP Side Letter, exhibits, schedules, side letters and fee arrangements, and all other material agreements and arrangements between the Company or its Subsidiaries and IEP or its Affiliates, whether or not related to the Transactions. None has been amended or waived except as disclosed to Subscriber in writing, and no notice of termination or uncured material default has been delivered or received thereunder by the Company or its Subsidiaries.
(x) Approvals. Assuming the accuracy of the representations and warranties of Subscriber set forth in Section 7, other than the necessary filings, notices, reports, consents, registrations, approvals, permits, expirations of waiting periods or authorizations (i) required to comply with state securities or “blue-sky” laws, (ii) required to be filed with or to the Commission and other regulatory authorities relating to the Transactions, (iii) required under the rules and regulations of the New York Stock Exchange (“NYSE”), (iv) required under the Exchange Act or the Securities Act, (v) contemplated by Section 9(l) with respect to the HSR Act, and (vi) as may be required with or to any foreign Governmental Authority pursuant to applicable foreign Laws, no filings, notices or reports are required to be made by any of the Company or its Subsidiaries with, nor are any consents, registrations, approvals, permits, expirations of waiting periods or authorizations required to be obtained by the Company or any of its Subsidiaries from, any Governmental Authority in connection with the execution, delivery and performance of this Subscription Agreement by the Company or the consummation by the Company of the PIPE Investment, except, in each case, those that the failure to make or obtain would not, individually or in the aggregate, have a Company Material Adverse Effect or reasonably be expected to prevent, materially delay or materially impair the ability of the Company to consummate the Transactions.
(y) Investment Company Status. The Company is not, and immediately after receipt of payment for the Preferred Shares will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
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(z) Sanctions. The Company will not, except as authorized under applicable Sanctions (as defined below), directly or indirectly use the proceeds of the offering of the Subscribed Shares hereunder, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other person or entity in violation of Sanctions (A) to fund or facilitate any activities of or business with any person, or in any country or territory, that, at the time of such funding, is the subject or the target of any sanctions administered or enforced by the U.S. Government, including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury, the Bureau of Industry and Security of the U.S. Department of Commerce or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person,” the European Union or any of its member states, His Majesty’s Treasury, the United Nations Security Council, or other relevant sanctions authority (collectively, “Sanctions”) or (B) in any other manner that will result in a violation by any person (including any person participating in the Transactions, whether as underwriter, advisor, investor or otherwise) of Sanctions. Neither the Company nor any of its Subsidiaries is a Person that is, or is owned or controlled by a Person such that it is, the subject or target of Sanctions that prohibit the transactions contemplated hereby.
(aa) No Side Agreements. Except for the Transaction Documents and arrangements disclosed to Subscriber in writing at signing, neither the Company nor any of its Subsidiaries has entered into any agreement or arrangement relating to the PIPE Investment that provides any investor with preferential equity economics subject to Section 9(c) and not disclosed as required thereby.
(bb) Absence of Changes. Since the date of the most recent consolidated balance sheet included in the Company SEC Documents through the date of this Subscription Agreement, no Company Material Adverse Effect has occurred.
7. Subscriber Representations and Warranties. Subscriber represents and warrants to the Company that:
(a) Subscriber (i) is duly established and validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of its jurisdiction of incorporation, and (ii) has the requisite organizational or trust power and authority to enter into and perform its obligations under this Subscription Agreement.
(b) This Subscription Agreement (including the transactions contemplated herein) has been duly authorized and validly executed and delivered by Subscriber and does not and will not contravene any provision of Subscriber’s organizational documents or, subject to receipt of the approvals and expiration or termination of waiting periods contemplated by Sections 9(f) and 9(l) before the applicable action is taken, any applicable law or any material contractual restriction binding on Subscriber or its assets, and assuming the due authorization, execution and delivery of the same by the Company, this Subscription Agreement shall constitute the valid and legally binding obligation of Subscriber, enforceable against Subscriber in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors generally and by the availability of specific performance, injunctive relief and other equitable remedies, whether considered at law or equity.
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(c) Assuming the accuracy of the representations and warranties of the Company in this Subscription Agreement and receipt of the approvals and expiration or termination of waiting periods contemplated by Sections 9(f) and 9(l) before the applicable action is taken, the execution and delivery of this Subscription Agreement, the purchase of the Subscribed Shares and performance by Subscriber of its obligations under this Subscription Agreement (including the compliance by Subscriber with all of the provisions of this Subscription Agreement) and the consummation of the transactions contemplated herein do not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under (or an event which, with or without notice or lapse of time or both, would become a default), or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber pursuant to the terms of (i) any material indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, (ii) the organizational documents of Subscriber, or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its properties.
(d) Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) satisfying the applicable requirements set forth on Annex A, and (ii) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and has provided the Company with the requested information on Annex A following the signature page hereto and such information provided is accurate and complete). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares.
(e) Except for the filings and approvals contemplated by Section 9(l), Subscriber is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance of this Subscription Agreement, and Subscriber is not aware of any fact or circumstances that would cause any such consent, waiver, authorization or order not to be obtained prior to the Closing Date.
(f) Subscriber understands that the Preferred Shares are non-voting preferred stock of the Company and that, unless and until converted into Common Stock, Subscriber may not have the ability to affect the outcome of corporate actions via its ownership of the Subscribed Shares. This acknowledgement does not limit any consent, designation, contractual or statutory right of Subscriber.
(g) Subscriber understands that the Subscribed Shares are being offered by the Company in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities Act. Subscriber understands that the Subscribed Shares issued by the Company may not be offered, sold or otherwise transferred by Subscriber absent an effective registration statement under the Securities Act, except (i) to the Company or a subsidiary thereof, (ii) pursuant to an applicable exemption from the registration requirements of the Securities Act (including, without limitation, Rule 144 or
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a private resale pursuant to the so-called “Section 4(a)(11⁄2)”), (iii) for the avoidance of doubt, any pledge of the Subscribed Shares to a lender under a margin loan or other financing such as a broker lien over account property generally or (iv) as otherwise permitted by this Subscription Agreement and, in each case of clauses (i) through (iv), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and as a result of these transfer restrictions, Subscriber may not be able to readily resell the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Subscribed Shares. Subscriber acknowledges and agrees that, at the time of issuance by the Company, the certificate or book entry position representing the Subscribed Shares will bear or reflect, as applicable, a legend substantially similar to the following:
THIS SECURITY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS SECURITY AGREES THAT THIS SECURITY MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, ONLY (I) PURSUANT TO ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (II) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR (III) TO CVR ENERGY, INC., IN EACH OF CASES (I) THROUGH (III) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
(h) Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from the Company. Subscriber further acknowledges that there have not been, and Subscriber hereby agrees that it is not relying on, any representations, warranties, covenants or agreements made to Subscriber by the Company or any of its Affiliates or any control persons, officers, directors, employees, partners, agents or representatives, any other party to the Transactions or any other person or entity, expressly or by implication, other than the representations, warranties, covenants and agreements of the Company expressly set forth in this Subscription Agreement, the Certificate of Designations, the other Transaction Documents to which Subscriber or its Affiliates is a party or an express beneficiary, and any certificate delivered to Subscriber pursuant thereto. Subscriber acknowledges that no representation or warranty is made as to the accuracy or attainability of projections, forecasts, estimates, budgets or prospective information, or the future performance of the Company or the acquired businesses. Nothing herein limits a claim for actual fraud in any such express representation or warranty.
(i) Subscriber’s acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under section 406 of ERISA, section 4975 of the Code, or any applicable similar law.
(j) Subscriber is not (i) a person or entity named on any sanctions list maintained by (A) the U.S. Department of the Treasury’s Office of Foreign Assets Control, including the List of Specially Designated Nationals and Blocked Persons, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identifications List, (B) the European Union, (C) the United Nations Security Council, (D) the government of the United Kingdom, including His Majesty’s Treasury, or (E) any
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individual European Union member state (clauses (A) through (E), collectively, “Sanctions Bodies”), (ii) fifty percent (50%) or more owned or controlled by, or acting on behalf of, a person, that is named on any sanctions list maintained by any Sanctions Bodies, (iii) operating, organized, resident in any jurisdiction subject to comprehensive territory-wide sanctions administered by any Sanctions Bodies, currently Cuba, Iran, North Korea, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, the Crimea region of Ukraine (each a “Sanctioned Country”), (iv) the government of a Sanctioned Country or the Government of Venezuela or (v) otherwise the target of sanctions administered by any Sanctions Bodies.
(k) If Subscriber is acting on behalf of (i) an employee benefit plan that is subject to Title I of ERISA, (ii) a plan, an individual retirement account or other arrangement that is subject to section 4975 of the Code, (iii) an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in clauses (i) and (ii) (each, an “ERISA Plan”), or (iv) an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 5(b)(4) of ERISA) or other plan that is not subject to the foregoing clauses (i), (ii) or (iii) but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (together with the ERISA Plans, the “Plans”), then Subscriber represents and warrants that none of the Company or any of its Affiliates (the “Transaction Parties”) has provided investment advice or has otherwise acted as the applicable Plan’s fiduciary with respect to its decision to acquire and hold the Subscribed Shares, and none of the Transaction Parties is or shall at any time be the Plan’s fiduciary with respect to any decision in connection with Subscriber’s investment in the Subscribed Shares.
(l) In making its decision to purchase the Subscribed Shares, Subscriber has relied upon its independent investigation and the express representations, warranties, covenants and agreements preserved by Section 7(h). Subscriber acknowledges and agrees that Subscriber has received such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the Company and the Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as Subscriber and Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares.
(m) Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber, on the one hand, and the Company or its representatives or Affiliates, on the other hand, and the Subscribed Shares were offered to Subscriber solely by direct contact between Subscriber and the Company or its representatives or Affiliates. Subscriber did not become aware of this offering of the Subscribed Shares, nor were the Subscribed Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Subscribed Shares (i) were not offered to it in any form of general solicitation or general advertising, including methods described in Rule 502(c) of Regulation D under the Securities Act, and (ii) are not being offered to it in a manner involving a public offering under, or, to its knowledge, in a distribution in violation of, the Securities Act or any other applicable securities laws.
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(n) Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Subscribed Shares. Subscriber is a sophisticated investor, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Subscribed Shares, and Subscriber has had an opportunity to seek, and has sought, such accounting, legal, business and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber acknowledges that none of the Company or any of its agents or Affiliates have provided any tax advice or any other representation or guarantee, whether written or oral, regarding the tax consequences of the transactions contemplated by this Subscription Agreement. This acknowledgement does not limit the express representations and warranties and other obligations preserved by Section 7(h).
(o) Subscriber has adequately analyzed and fully considered the risks of an investment in the Subscribed Shares and determined that the Subscribed Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber acknowledges specifically that a possibility of total loss exists.
(p) Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Subscribed Shares, or otherwise made any findings or determination as to the fairness of this investment.
(q) Subscriber has, and will have through Closing, sufficient cash, available lines of credit or other immediately available funds to fund the full Purchase Price and perform its other obligations hereunder. Subscriber acknowledges that its obligations are not subject to any financing, syndication, internal investment or executive-committee approval, additional due diligence or HSR clearance for conversion of the Preferred Shares.
(r) Neither the due diligence investigation conducted by Subscriber in connection with making its decision to acquire the Subscribed Shares nor any representations and warranties made by Subscriber herein shall modify, amend or affect Subscriber’s right to rely on the truth, accuracy and completeness of the Company’s representations and warranties contained herein or otherwise limit the express rights preserved by Section 7(h).
(s) No broker or finder is entitled to any brokerage or finder’s fee or commission solely in connection with the purchase of the Subscribed Shares by Subscriber.
8. Termination. This Subscription Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, if, prior to Closing, the Purchase Agreement is terminated in accordance with its terms; provided, no such termination shall relieve any party from liability for such party’s actual fraud or willful breach of any covenant or obligation contained in this Subscription Agreement prior to its termination. Nothing in this Section 8 limits Subscriber’s closing conditions, termination rights or rights to specific performance or other relief under Section 12(k). Except as set forth in this Section 8, this Subscription Agreement may be terminated only prior to Closing and only (i) by an instrument in writing, signed by each of the parties hereto and, solely to the extent required under Section 12(j), MPC, (ii) by Subscriber upon written notice to the Company in the event that the Closing shall not have occurred on or before
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the “Outside Date” specified in the Purchase Agreement as in effect on the date hereof, as extended only pursuant to Section 8.17(b) or Section 9.5(d) thereof as in effect on the date hereof (the “Outside Date”), or (iii) by either the Company or Subscriber if a Governmental Authority of competent jurisdiction shall permanently enjoin the consummation of the PIPE Investment or the Transactions and such injunction shall be final and non-appealable. No party may terminate under clause (iii) if its material breach is the principal cause of the event giving rise to that termination right, and Subscriber may not terminate under clause (ii) if its material breach is the principal cause of the failure to close by the Outside Date. Sections 4(a) (as to return of funds), 9(i), 9(o), 11 (as to surviving claims) and 12 shall survive termination. Termination shall not affect rights under any other Transaction Document, which shall be governed by their respective terms.
9. Certain Covenants.
(a) [Reserved]
(b) [Reserved]
(c) The Base Subscription Price determined pursuant to Section 2(a) before giving effect to the Delay Adjustment Amount shall be no higher than the effective net price per share paid, on an as-converted-to-Common Stock basis, by the IEP Holders or other investors in the equity financing for the Transactions or other common equity financings by the Company between the date hereof and the earlier of the Acquisition Closing and termination of the Purchase Agreement in accordance with its terms, in each case pursuant to arrangements entered into on or before such earlier date in connection with any such financing, after taking account of backstop fees (but excluding the previously disclosed commitment fee payable to IEP in connection with IEP’s commitment to finance a portion of the Transaction), discounts, rebates and other equity-related consideration. Such protections shall not apply to unrelated equity financings arranged after the Acquisition Closing or such earlier termination of the Purchase Agreement. The preferred equity issued to the IEP Holders in connection with their financing of the Transactions (the “IEP Acquisition Financing”) shall rank pari passu with the Preferred Shares, subject to Section 9(d). The preferred equity issued to the IEP Holders in the IEP Acquisition Financing shall not have more favorable economic terms, rights or benefits attaching to that preferred equity than the Preferred Shares without Subscriber’s prior written consent, except for the conversion mechanics expressly contemplated by Section 9(d). This Section 9(c) shall not require parity in, or consent to, governance, board-designation, registration or other arrangements with IEP as set forth in the IEP Investment Documents or arising from its existing or continuing ownership position, provided that such arrangements do not confer undisclosed preferential equity economics in contravention of the first sentence of this clause. The Company shall not amend the IEP preferred equity to circumvent the foregoing. The Base Subscription Price, Subscription Price and Equity Position shall be adjusted at Closing to give effect to the first sentence, without increasing the Purchase Price, to the extent applicable. The first sentence shall not apply to an issuance or purchasers in a Permitted Public Offering or ordinary-course grants, awards and issuances under Company equity compensation plans for employees, directors or consultants, but those exceptions shall not apply to preferential fees or other economic benefits granted to an IEP Holder or any other investor in connection with a Permitted Public Offering. The Company shall deliver to Subscriber on the date hereof copies of all agreements, side letters, fee arrangements and other arrangements between the Company or any of its Subsidiaries and IEP or any of its Affiliates relating to IEP’s Acquisition
27
equity financing or executed in connection with the announcement of the Transactions, all pending transactions between the Company or its Subsidiaries and IEP or its Affiliates proposed to occur before Closing, and all agreements and arrangements relating to any other equity issuances by the Company before Closing. From the date hereof until the earlier of the Acquisition Closing and termination of this Subscription Agreement, the Company shall promptly notify Subscriber of, and provide copies of, any proposed new such arrangement or amendment, supplement, waiver or replacement of any such arrangement before agreeing to or effecting it. From and after Closing, the Company shall promptly notify Subscriber of, and provide copies of, any proposed amendment, supplement, waiver, replacement or other arrangement relating to a financing covered by this Section 9(c) before agreeing to or effecting it. The Company shall promptly provide copies of the executed documents for each arrangement or modification required to be disclosed under this Section 9(c).
(d) The Company shall reserve sufficient issuance capacity under NYSE rules for the issuance of the Subscribed Shares and conversion of the Preferred Shares without stockholder approval, including shares attributable to the Delay Adjustment Amount, accrued or capitalized dividends and other adjustments under the Certificate of Designations. Before Closing, the Company shall obtain and deliver to Subscriber written confirmation of such treatment from the NYSE. The IEP Holders’ securities shall bear any stockholder-approval and Schedule 14C conditions applicable to their issuance or conversion and necessary to preserve that capacity. The IEP Investment Documents shall provide that, following issuance of any Common Shares pursuant to Section 2(b)(iii) or conversion of any Preferred Shares, any preferred equity of the IEP Holders outstanding pending satisfaction of those stockholder-approval or Schedule 14C conditions shall participate in liquidation solely on an as-converted-to-Common Stock basis, without any liquidation preference. The Company shall not issue or permit conversion of other securities, or waive those conditions, in a manner that impairs Subscriber’s issuance or conversion rights. If approval is required for Common Shares issuable upon exercise of Subscriber’s preemptive rights, the Company shall, at Subscriber’s reasonable written request, include those issuances in any stockholder approval and Schedule 14C process undertaken for the IEP Holders’ securities and use reasonable best efforts to obtain that approval promptly. The Company shall afford Subscriber and its counsel a reasonable opportunity to review and comment on related NYSE submissions, the information statement and responses to Commission comments insofar as they relate to Subscriber or its securities, and shall consider such comments in good faith. Such approval shall not delay any issuance or conversion otherwise permitted.
(e) Notwithstanding anything to the contrary contained in this Subscription Agreement, during the period commencing on the date of this Subscription Agreement and ending on the earliest of the Acquisition Closing, valid termination of this Subscription Agreement and termination of the Purchase Agreement in accordance with its terms, the Company (including its Controlled Affiliates and Subsidiaries) shall not, without the prior written consent of Subscriber (provided that the restrictions in this Section 9(e) shall not apply to actions taken by or on behalf of CVR Partners, LP or its Subsidiaries in the conduct of their respective businesses, except for transactions with IEP or its Affiliates (other than the Company and its Subsidiaries) under clause (v) below, but shall continue to apply to actions taken by the Company or its other Controlled Affiliates or Subsidiaries for their own account, including any sale, transfer or pledge of their interests in, or guarantee of indebtedness of, CVR Partners, LP or its Subsidiaries):
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(i) amend the Company’s organizational documents in a manner materially adverse to the rights, preferences or privileges of the Preferred Shares or Subscriber’s rights under the Transaction Documents;
(ii) consummate a merger or consolidation involving the Company, or a liquidation or dissolution of the Company, that would prevent or materially impair the PIPE Investment or materially adversely affect Subscriber’s rights under the Transaction Documents, other than the Transactions;
(iii) issue, redeem, repurchase or exchange any securities of the Company, other than (w) as contemplated by the Transaction Documents or consistent with the Capital Plan, (x) ordinary-course grants, awards and issuances under any Company equity compensation plan for employees, directors or consultants (a “CVR Compensation Plan”), (y) issuances upon conversion, exercise or settlement of securities or awards outstanding on the date hereof or issued or granted as permitted hereby, and (z) transactions solely among the Company and its wholly owned Subsidiaries that do not materially adversely affect Subscriber’s rights under the Transaction Documents;
(iv) authorize, issue or reclassify any (x) equity securities of the Company ranking on parity with or senior to the Preferred Shares or senior to the Common Stock, including as to dividends, liquidation or redemption; provided that the Company shall be permitted to increase in the authorized number of Preferred Shares to the extent necessary to issue Preferred Shares in satisfaction of the Delay Adjustment Amount or any credit under Section 2(b) or (y) debt securities of the Company convertible into any of the foregoing (other than in the case of clauses (x) and (y), the Preferred Shares, the preferred stock contemplated by the IEP Investment Documents and issuances expressly permitted by the Capital Plan);
(v) effect, approve or enter into a Restricted Transaction;
(vi) incur funded indebtedness in an aggregate principal amount exceeding $100,000,000 inconsistent with the Capital Plan, other than ordinary-course borrowings under the existing ABL facility for working capital purposes, ordinary-course debt unrelated to the Transactions, and indebtedness solely among the Company and its wholly owned Subsidiaries; or
authorize, agree or commit to do any of the foregoing.
(f) The Company and the Subscriber shall, and shall cause their respective Subsidiaries to, perform their respective obligations under the Transaction Documents and use reasonable best efforts to consummate the transactions contemplated thereby in accordance with their terms. Each of the Company and Subscriber shall use its respective reasonable best efforts to obtain all approvals and consents contemplated by or necessary to consummate the transactions contemplated by this Subscription Agreement or the other Transaction Documents to which it or its Affiliates is a party. Each of the Company and Subscriber agrees to execute and deliver all such documents or instruments, to take all appropriate action and to do all other things reasonably necessary, proper or advisable under applicable laws and regulations or as otherwise reasonably requested by the other to consummate the transactions contemplated by this Subscription Agreement. Notwithstanding anything to the contrary herein, in obtaining antitrust clearance for
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the issuance of Common Shares to Subscriber or conversion of the Preferred Shares, neither Subscriber nor any of its Affiliates shall be required to divest or hold separate assets, restrict its businesses or commercial arrangements, relinquish any material investment or governance right or commence litigation against a Governmental Authority. Failure to obtain such clearance shall not excuse Subscriber from funding the Purchase Price at Closing in accordance with this Subscription Agreement, and any unconverted Preferred Shares shall remain outstanding in accordance with the Certificate of Designations. No voluntary foreign-investment filing is required by this Subscription Agreement and the parties shall cooperate in responding to any legally required filing or Governmental Authority inquiry, subject to the foregoing limitations.
(g) The Company shall use the proceeds from the sale of the Preferred Shares solely as provided in Section 2(d).
(h) Except as expressly permitted by the Capital Plan, until the earliest of the Acquisition Closing, valid termination of this Subscription Agreement and termination of the Purchase Agreement in accordance with its terms, the Company shall not, and shall cause its Subsidiaries not to, amend, supplement, waive or otherwise modify the Purchase Agreement, the Debt Commitment Letter or the IEP Investment Documents in a manner materially adverse to Subscriber without Subscriber’s prior written consent (not to be unreasonably withheld, conditioned or delayed). No provision hereof requires consent to an extension expressly contemplated by Section 9.5(d) of the Purchase Agreement as in effect at signing. Subscriber shall use reasonable efforts to respond within five (5) Business Days after receiving a proposed modification and reasonable supporting information. The Company shall promptly provide copies of material amendments, waivers and notices of termination or material funding shortfalls relating to such documents, subject to customary redaction of debt pricing and other commercially sensitive terms not affecting compliance with the Capital Plan.
(i) Each of the parties to this Subscription Agreement will bear and pay all costs and expenses incurred by it or on its behalf in connection with the transactions contemplated under the Transaction Documents.
(j) The Company shall not adopt, amend, maintain or apply a shareholder rights plan, “poison pill” or any other similar plan or arrangement that will result in a “flip-in event,” “a triggering event” or for a Person to be deemed an “Acquiring Person” (as such terms are customarily defined in rights plans) solely by reason of (i) the issuance by the Company to Subscriber or its permitted transferees of the Subscribed Shares (including any shares issued on conversion, as dividends or under pre-emptive rights) in accordance with the terms of the Transaction Documents or (ii) Subscriber’s or its permitted transferees’ ownership, conversion, permitted transfer or pledge of the Subscribed Shares (including any shares issued on conversion, as dividends or under pre-emptive rights). The Company shall obtain and maintain any necessary exemption under any existing shareholder rights plan or similar arrangement. While Subscriber or its permitted transferees hold any Preferred Shares or Common Shares issued upon conversion thereof, the Company shall not amend or repeal Section 11.1 of its Certificate of Incorporation, or otherwise elect to become subject to Section 203 of the DGCL, without Subscriber’s prior written consent.
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(k) The Company shall promptly submit all necessary applications to cause the Common Shares issuable pursuant to Section 2(b)(iii) or upon conversion of the Preferred Shares, including shares attributable to accrued or capitalized dividends and adjustments under the Certificate of Designations, to be approved for listing on the NYSE before Closing, subject only to official notice of issuance. The Company shall obtain any additional listing approval before issuance of the relevant Common Shares and shall pay the related fees. The Company shall at all times reserve sufficient authorized and unissued Common Stock for issuance pursuant to Section 2(b)(iii) or upon conversion and use reasonable best efforts to maintain the listing and Exchange Act registration of the Common Stock while Subscriber holds Subscribed Shares, except in a transaction permitted by the Transaction Documents that preserves or satisfies Subscriber’s rights.
(l) With respect to the issuance of Common Shares pursuant to Section 2(b)(iii) and conversion of the Preferred Shares into Common Shares, the Company and Subscriber (i) shall promptly file or cause to be filed, (x) as promptly as practicable and in any event within ten (10) Business Days after the date hereof, the Notification and Report Form filings under the HSR Act in respect of Subscriber’s acquisition of Common Shares pursuant to Section 2(b)(iii) or upon conversion of the Preferred Shares, including shares attributable to the Delay Adjustment Amount and other adjustments and (y) as promptly as reasonably practicable, all required filings under other applicable antitrust laws that the Company or Subscriber reasonably determines in good faith to be necessary or appropriate to effect the transactions contemplated by this Subscription Agreement including, but not limited to, the conversion of Preferred Shares into Common Shares, (ii) shall consult and cooperate with each other in the preparation of such filings, and (iii) shall promptly inform the other parties of any material communication received by such party from any Governmental Authority regarding the transactions contemplated by this Subscription Agreement and shall enable the other party to participate in any communications and meetings with any Governmental Authority regarding the transactions contemplated by this Subscription Agreement unless prohibited by the Governmental Authority. Subscriber shall cause its Affiliates to cooperate and promptly provide all information required for their filings. The parties shall use reasonable best efforts to obtain clearance promptly, pursue the filings for the PIPE Investment separately from those for the Transactions, cooperate in maintaining effective clearance through the applicable issuance or conversion and make any supplemental or renewed filing needed to maintain that clearance promptly. Neither party shall voluntarily withdraw a filing, agree to extend a waiting period or enter into a timing agreement affecting the PIPE Investment without the other party’s prior written consent, not to be unreasonably withheld, conditioned or delayed. The Company shall, both before and after the Closing, promptly provide, and shall cause its Subsidiaries to provide, information and assistance reasonably requested for Subscriber’s filings, including information concerning the Transactions, and shall use reasonable best efforts to obtain any necessary information and assistance from MPC and the other sellers. Cooperation is subject to appropriate confidentiality and outside-counsel-only arrangements for competitively sensitive information and the limitations in Section 9(f). The Company shall also make, or cause the applicable Purchaser to make, the HSR filings for the Transactions under the Purchase Agreement as promptly as practicable and in any event within ten (10) Business Days after the date hereof, unless previously filed.
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(m) The Company, at its sole cost and expense, shall remove the legend described in Section 7(g) (or instruct its transfer agent to so remove such legend) from the book-entry account evidencing the Preferred Shares or the Common Shares (for purposes of Sections 9(m) and 9(n), the “Shares”) if (i) such Shares are sold pursuant to an effective registration statement under the Securities Act, (ii) such Shares are sold or transferred pursuant to Rule 144, or (iii) such Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable) as to such securities and without volume or manner of sale restrictions.
(n) In connection with a sale of the Shares by Subscriber in reliance on Rule 144, Subscriber or its broker shall deliver to the transfer agent and the Company a customary representation letter providing to the transfer agent and the Company any information necessary to determine that the sale of the Shares is made in compliance with Rule 144, including, only if the sales rely on non-Affiliate status, a certification that Subscriber is not an Affiliate of the Company and regarding the length of time the Shares have been held. Upon receipt of such representation letter, the Company shall promptly direct its transfer agent to remove the legend referred to in Section 7(g) from the appropriate book-entry accounts maintained by the transfer agent, and the Company shall bear all direct costs and expenses associated therewith. When Subscriber or its permitted assigns satisfy all applicable conditions for sale under Rule 144 without volume or manner-of-sale limitations or a current public information requirement, if the book-entry account for such Shares still bears the restrictive legend referred to in Section 7(g), the Company agrees, upon the request of Subscriber or its permitted assignees, to take all steps necessary to promptly effect the removal of the legend described in Section 7(g) from the Shares, and the Company shall bear all direct costs and expenses associated therewith, regardless of whether the request is made in connection with a sale or otherwise, so long as Subscriber or its permitted assigns provide to the Company any information the Company deems reasonably necessary to determine that the legend is no longer required under the Securities Act or applicable state laws, including a certification that the holder is not an Affiliate of the Company (and a covenant to inform the Company if it should thereafter become an Affiliate and to consent to the notation of an appropriate restrictive legend) and regarding the length of time the Shares have been held. The Company shall cooperate with Subscriber to effect the removal of the legend referred to in Section 7(g) at any time such legend is no longer appropriate.
(o) The Company shall not, and shall cause its Subsidiaries not to, amend, waive or knowingly take action principally intended to circumvent Subscriber’s rights under any Transaction Document, or enter into any agreement that prohibits or materially impairs its performance of those rights, without Subscriber’s prior written consent. Any successor to the Company in a merger, reorganization or sale of all or substantially all of its assets shall assume in writing the Company’s continuing obligations to Subscriber, unless those obligations have been fully satisfied in accordance with their terms. Conversion, redemption or transfer of Subscribed Shares shall not extinguish accrued claims or continuing rights under this Subscription Agreement or another Transaction Document.
(p) At or before Closing, the Company shall cause the Board to adopt resolutions expressly renouncing, to the fullest extent permitted by applicable law, any interest or expectancy of the Company in opportunities relating to commodities trading, supply, offtake, transportation, storage, refining, financing and related investments presented to Subscriber, its Affiliates (other than, for the avoidance of doubt, the Company and its Subsidiaries) or their respective directors, officers, employees, partners, members or agents, including any Subscriber Designee or Subscriber-designated board observer (collectively, the “Covered Persons”). The renunciation
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shall provide that no Covered Person has a duty to offer such opportunities to the Company or incurs liability to the Company solely by reason of pursuing, acquiring or directing such opportunities to another Person. The Company shall cause its Subsidiaries to take corresponding action necessary to give effect to the renunciation as to their own opportunities, to the extent permitted by applicable law. The Company shall not, and shall cause its Subsidiaries not to, revoke or adversely amend these protections without Subscriber’s prior written consent while Subscriber or any of its Controlled Affiliates holds any Subscribed Shares or a Subscriber Designee or Subscriber-designated board observer serves. Any subsequent revocation or amendment shall not affect matters occurring before it takes effect.
(q) To the extent an exemption is available under Rule 16b-3 under the Exchange Act, the Company shall cause the Board, or a committee consisting solely of at least two non-employee directors within the meaning of that rule, to approve in advance, for purposes of Rule 16b-3(d) or Rule 16b-3(e), as applicable, acquisitions and dispositions by Subscriber, its applicable Affiliates and any Subscriber Designee under the Transaction Documents, including the initial investment, conversion, dividends, adjustments, preemptive rights, redemptions and repurchases. Such approvals shall expressly cover Subscriber and its applicable Affiliates to the extent deemed directors by deputization. The Company shall deliver copies of the resolutions within two (2) Business Days after adoption. In connection with a merger, consolidation or similar transaction, the Company shall obtain corresponding advance approvals from the successor issuer for the covered persons to the same extent it obtains such approvals for its own directors or officers. The Company shall cooperate reasonably with Subscriber and its counsel in determining the approvals needed in light of the actual board representation or observer arrangements.
(r) Capital Plan. From the date hereof until the earliest of the Acquisition Closing, valid termination of this Subscription Agreement and termination of the Purchase Agreement in accordance with its terms, the Company shall comply, and shall cause its Subsidiaries to comply, with the Capital Plan, subject to its express exceptions and permitted substitutions and flex. During that period, the Company shall use reasonable best efforts to maintain financing commitments sufficient, together with the Purchase Price and committed Company cash, to consummate the Transactions through the Outside Date. No separate consent is required for a broadly marketed, bank-underwritten public offering of Common Stock at a discount to the then-market price not exceeding 15% of the Closing Price for the Common Stock on the day immediately preceding such offering, with aggregate gross proceeds of all such offerings, including underwriters’ options, not exceeding IEP’s $500,000,000 equity commitment at signing plus $250,000,000, the net proceeds of which are used first to reduce or replace that commitment or repay capital funded thereunder, dollar for dollar and without double counting, and thereafter solely for Transaction-related fees and expenses specified in the Capital Plan or to reduce Transaction-related debt, including the closing-date ABL draw (a “Permitted Public Offering”). Ordinary-course grants, awards and issuances under any CVR Compensation Plan and ordinary-course debt unrelated to the Transactions are excepted from the Capital Plan and the related representations, covenants and closing conditions, and the debt basket under Section 9(e)(vi) is permitted. Other common equity issuances by the Company before the Acquisition Closing remain subject to the Capital Plan and Section 9(c) and Section 9(s), and to preemptive rights only to the extent expressly provided in the Investor Rights Agreement. Following Closing, this Section 9(r) shall not impose a consent right over equity issuances, borrowings, refinancings or other corporate actions; provided that any replacement of the Bridge Facility with Permanent Financing shall comply with the agreed
33
aggregate amount, ranking, lien-priority and flex parameters in the Capital Plan, giving effect to concurrent repayments and excluding ordinary-course borrowings unrelated to the Transactions. No continuing consent right shall apply after the Bridge Facility has been repaid or replaced in full. Nothing herein enlarges Subscriber’s preemptive rights or the rights attaching to the Preferred Shares.
(s) Competitors. Without Subscriber’s prior written consent, before the Acquisition Closing, the Company shall not, and shall cause its Subsidiaries not to, permit any Person listed in Exhibit F to participate, directly or indirectly, in any equity financing by the Company, including under the Capital Plan or in any Permitted Public Offering, or in any private placement, syndication or transfer of the IEP Holders’ equity commitment for the Transactions or shares acquired pursuant to that commitment.
(t) Disclosure and Cleansing. The Company shall publicly disclose the material terms of the PIPE Investment within the time required by applicable Law and shall afford Subscriber a reasonable opportunity to review disclosure identifying Subscriber or its investment, without delaying a required filing or announcement. Subscriber shall keep confidential, and shall cause its Affiliates and representatives to keep confidential, all nonpublic information received in connection with the Transaction Documents, subject to the applicable confidentiality agreement. Information provided to a Subscriber Designee or board observer shall be governed by the applicable confidentiality agreement, Company policies and applicable Law. Except for disclosures required by Law or an express written cleansing agreement separately agreed by the Company, the Company shall have no obligation to disclose material nonpublic information at Subscriber’s request or to facilitate a sale or hedge. Subscriber shall comply with applicable securities Laws and the confidentiality and information-barrier arrangements under the Investor Rights Agreement. Nothing herein permits Subscriber to withhold funding or performance of its obligations or requires the Company to disclose privileged or competitively sensitive information outside appropriate protections.
10. [Reserved.]
11. Indemnification.
(a) The Company shall indemnify and hold harmless Subscriber, its permitted transferees and their respective directors, officers, employees and Affiliates from and against losses, liabilities, damages and reasonable out-of-pocket costs and expenses (including reasonable legal fees) arising from (i) any breach of a representation or warranty of the Company in this Subscription Agreement, or (ii) any breach by the Company of a covenant or obligation under this Subscription Agreement. Claims for breach of a representation or warranty must be notified in reasonable detail before expiration of its applicable survival period under Section 12(d); a timely notified claim survives until finally resolved. The aggregate liability for breaches of representations and warranties, other than those identified as fundamental in Section 12(d) or actual fraud, shall not exceed the Purchase Price. No basket or deductible applies. The indemnified party shall take commercially reasonable steps to mitigate recoverable losses, and recovery shall be reduced by insurance or third-party recoveries actually received in respect of the same loss, net of reasonable recovery costs. There shall be no duplicate recovery under this or another Transaction Document.
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(b) For a third-party claim, the indemnified party shall give prompt written notice, but delay shall relieve the Company only to the extent materially prejudiced. The Company may assume the defense with counsel reasonably acceptable to the indemnified party if it acknowledges its indemnity obligation in writing; the indemnified party may participate at its own expense, except that the Company shall pay reasonable separate counsel fees where a material conflict exists or the claim seeks material nonmonetary relief against the indemnified party. The Company shall not settle without the indemnified party’s written consent unless the settlement provides a full unconditional release, imposes no admission or nonmonetary obligation, and is paid entirely by the Company. If the Company does not diligently defend, the indemnified party may do so at the Company’s expense. This Section 11 does not make indemnification an exclusive remedy or limit equitable relief, actual fraud claims or separate rights under another Transaction Document.
(c) Following the Closing, except in the case of actual fraud, indemnification pursuant to this Section 11 shall be the sole and exclusive monetary remedy of Subscriber and the other indemnified Persons against the Company for any breach of any representation, warranty, covenant or agreement contained in this Subscription Agreement or any certificate delivered pursuant hereto, regardless of the form of action or theory of liability, whether in contract, tort or otherwise. Nothing herein shall limit the right to seek specific performance or other equitable relief or any express rights under another Transaction Document, subject in each case to the applicable limitations therein and no duplicative recovery.
12. Miscellaneous.
(a) All notices, requests, instructions, consents, claims, demands, waivers, approvals and other communications to be given or made hereunder by one or more parties hereto (or MPC) to one or more of the other parties hereto (or MPC) shall be in writing and shall be deemed to have been duly given or made on the date of receipt by the recipient thereof if received prior to 5:00 p.m., New York City time, and such day is a Business Day (or otherwise on the next succeeding Business Day) if (i) served by personal delivery or by a nationally recognized overnight courier service upon the party or parties for whom it is intended, (ii) delivered by registered or certified mail, return receipt requested or (iii) sent by email. Email shall be deemed received when transmitted if the sender does not receive a notice of delivery failure. Such communications shall be sent to the respective parties hereto at the following street addresses or email addresses or at such other street address or email address for a party as shall be specified for such purpose in a notice given in accordance with this Section 12(a):
If to the Company, to:
CVR Energy, Inc.
2277 Plaza Drive, Suite 500
Sugar Land, Texas 77479
Attention: Melissa Buhrig
Email: ***; ***
with copies to (which shall not constitute notice):
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Proskauer Rose LLP
Eleven Times Square
New York, NY 10036
Attention: JD DeSantis; Joshua Apfelroth; Louis Rambo
Email: ***; ***; ***
If to Subscriber, to:
Trafigura US Holdings, Inc.
845 Texas Avenue, Suite 3600
Houston, TX 77002
Attention: General Counsel
Email: ***
with copies to (which shall not constitute notice):
Baker Botts L.L.P.
910 Louisiana Street
Houston, TX 77002
Attention: Travis Wofford, Joseph Halloum, Carina Antweil
Email: ***; ***; ***
(b) Costs and expenses shall be borne and reimbursed in accordance with Section 9(i).
(c) Except as expressly permitted by this Section 12(c), neither this Subscription Agreement nor any rights that may accrue to Subscriber hereunder may be directly or indirectly transferred, conveyed or assigned, in whole or in part, without the prior written consent of each party hereto and, solely to the extent required under Section 12(j), MPC. Notwithstanding the foregoing, Subscriber may assign rights and delegate obligations to a Controlled Affiliate that agrees in writing to be bound hereby, provided that Subscriber remains liable for its funding obligation and such Affiliate’s performance, and may pledge or transfer Subscribed Shares and assign associated rights as expressly permitted by the Investor Rights Agreement. A permitted transfer of securities alone is not an assignment of Subscriber’s funding obligation.
(d) The representations and warranties in this Subscription Agreement and certificates delivered pursuant hereto shall terminate at Closing and shall not survive; provided that Sections 6(a) (solely as to the Company’s organization, existence and power), 6(b)(i) through (vii), 6(aa), 7(a), 7(b) and 7(q) (the “fundamental representations”) shall survive for twelve (12) months after Closing. No claim for breach of a representation or warranty may be brought after its applicable survival period, except a claim notified in reasonable detail before expiration shall survive until finally resolved. Covenants shall survive for their stated duration or, if none is stated, until fully performed. Nothing herein limits liability for actual common law fraud in an express representation or warranty herein, committed with actual knowledge of falsity and intent to deceive and justifiable reliance, excluding constructive or equitable fraud, negligent misrepresentation or imputed knowledge (“actual fraud”). In no event shall either party’s aggregate monetary liability under this Subscription Agreement exceed the Purchase Price, except for that party’s actual fraud. Neither party shall be liable for punitive damages (other than amounts paid to an unaffiliated third
36
party), speculative damages or duplicate recoveries. No representation, warranty or covenant is made by IEP or any other nonparty under this Subscription Agreement, and Section 12(p) shall apply. No provision of this Section 12(d) limits Subscriber’s obligation to fund the full Purchase Price or either party’s right to specific performance in accordance with Section 12(k).
(e) This Subscription Agreement may not be amended or modified except by an instrument in writing, signed by each of the parties hereto and, solely to the extent required under Section 12(j), MPC. Each of Subscriber and the Company hereby agrees MPC shall be an express and intended third-party beneficiary of this Section 12(e) until the earliest of Closing, termination of the Purchase Agreement or consummation of the Transactions. No waiver is effective unless in writing by the party against whom it is asserted, and no waiver of one breach is a waiver of another. No vote or consent of other investors, including any series vote under the Certificate of Designations, may amend or waive Subscriber’s rights under this Subscription Agreement without Subscriber’s written consent.
(f) This Subscription Agreement, the Certificate of Designations and the other Transaction Documents to which Subscriber is a party constitute the entire agreement among the parties hereto with respect to the subject matter hereof and thereof and supersede all prior and contemporaneous agreements, negotiations, understandings, and representations and warranties, whether oral or written, with respect to such matters. Except as expressly provided herein, this Subscription Agreement shall not confer any rights or remedies upon any person other than the parties hereto, MPC solely as expressly provided in Section 12(j), the indemnified persons under Section 11 and Article III of the Investor Rights Agreement, and their respective heirs, executors, administrators, successors, legal representatives and permitted assigns.
(g) This Subscription Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective heirs, executors, administrators, successors, legal representatives, and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors, legal representatives and permitted assigns.
(h) The provisions of this Subscription Agreement shall be deemed severable, and the illegality, invalidity or unenforceability of any provision shall not affect the legality, validity or enforceability of the other provisions of this Subscription Agreement. If any provision of this Subscription Agreement, or the application of such provision to any Person or any circumstance, is illegal, invalid or unenforceable, (x) a suitable and equitable provision to be negotiated by the parties hereto, each acting reasonably and in good faith shall be substituted therefor in order to carry out, so far as may be legal, valid and enforceable, the intent and purpose of such illegal, invalid or unenforceable provision, and (y) the remainder of this Subscription Agreement and the application of such provision to other Persons or circumstances shall not be affected by such illegality, invalidity or unenforceability, nor shall such illegality, invalidity or unenforceability affect the legality, validity or enforceability of such provision, or the application of such provision, in any other jurisdiction.
(i) This Subscription Agreement may be executed in any number of counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement. A signed copy of this Subscription Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Subscription Agreement.
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(j) Subject to the express exceptions in Section 12(p), this Subscription Agreement may only be enforced against, and any legal proceeding, claim, obligation, liability or cause of action (whether in contract, in tort, at law, in equity or otherwise) based upon, arising out of, or related to this Subscription Agreement or the transactions contemplated hereby may only be brought against, the entities that are expressly named as parties hereto and then only with respect to the specific obligations set forth herein or therein with respect to such party; provided, however, that, only before the earliest of Closing, valid termination of this Subscription Agreement, termination of the Purchase Agreement or consummation of the Transactions, MPC shall be an express and intended third-party beneficiary solely of the Company’s right to enforce Subscriber’s obligation to fund the Purchase Price pursuant to Section 4, subject to satisfaction or waiver by Subscriber of all conditions in Section 3(a) and the Company’s concurrent performance. MPC’s consent to an amendment, assignment or consensual termination is required only during that period and only if it would materially and adversely affect that limited right. MPC shall have no greater rights than the Company, no right to enforce Subscriber’s post-Closing obligations and no right to prevent Subscriber from exercising an express termination right. Nothing in this Subscription Agreement creates an independent equity commitment or guaranty, eliminates any condition to funding, permits duplicate recovery, or permits recovery of a funding shortfall in excess of the Purchase Price. This Section 12(j) controls every reference herein to MPC’s beneficiary, consent or enforcement rights.
(k) The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Subscription Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Subscription Agreement and to enforce specifically the terms and provisions of this Subscription Agreement, this being in addition to any other remedy to which such party is entitled at law, in equity, in contract, in tort or otherwise. Subject to Section 12(j), MPC shall have the right to specific performance to cause the Company to enforce specifically the terms and provisions of this Subscription Agreement and to obtain such injunction or injunctions, without necessity of the requesting party or MPC posting a bond or other form of security. In the event that any proceeding should be brought in equity by either party to enforce the provisions of this Subscription Agreement or by MPC to cause the Company to so enforce such provisions, no party hereto shall allege, and each party hereto hereby waives the defense, that there is an adequate remedy at law. MPC shall be an express and intended third-party beneficiary of, and shall be entitled to enforce, such waiver, solely to the extent and for the period provided in Section 12(j).
(l) This Subscription Agreement shall be deemed to be made in and in all respects shall be interpreted, construed and governed by and in accordance with the laws of the state of Delaware without regard to the conflict of law principles thereof (or any other jurisdiction) to the extent that such principles would direct a matter to another jurisdiction.
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(m) EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY BE IN CONNECTION WITH, ARISE OUT OF OR OTHERWISE RELATE TO THIS SUBSCRIPTION AGREEMENT, ANY INSTRUMENT OR OTHER DOCUMENT DELIVERED PURSUANT TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY PROCEEDING DIRECTLY OR INDIRECTLY, IN CONNECTION WITH, ARISING OUT OF OR OTHERWISE RELATING TO THIS SUBSCRIPTION AGREEMENT, ANY INSTRUMENT OR OTHER DOCUMENT DELIVERED PURSUANT TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO HEREBY ACKNOWLEDGES AND CERTIFIES (i) THAT NO REPRESENTATIVE OF THE OTHER PARTIES HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTIES HERETO WOULD NOT, IN THE EVENT OF ANY ACTION OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) IT MAKES THIS WAIVER VOLUNTARILY AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS SUBSCRIPTION AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS, ACKNOWLEDGMENTS AND CERTIFICATIONS CONTAINED IN THIS SECTION 12(m).
(n) Each of the parties hereto agrees that: (i) it shall bring any proceeding in connection with, arising out of or otherwise relating to this Subscription Agreement, any instrument or other document delivered pursuant to this Subscription Agreement or the transactions contemplated hereby exclusively in the courts of the State of Delaware in the Court of Chancery of the State of Delaware, or (and only if) such court finds it lacks subject matter jurisdiction, the Superior Court of the State of Delaware (Complex Commercial Litigation Division); provided that if subject matter jurisdiction over the matter that is the subject of the proceeding is vested exclusively in the United States federal courts, such proceeding shall be heard in the United States District Court for the District of Delaware (the “Chosen Courts”); and (ii) solely in connection with such proceedings, (A) it irrevocably and unconditionally submits to the exclusive jurisdiction of the Chosen Courts, (B) it waives any objection to the laying of venue in any proceeding in the Chosen Courts, (C) it waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party, (D) mailing of process or other papers in connection with any such proceeding in the manner provided in Section 12(a) or in such other manner as may be permitted by applicable law shall be valid and sufficient service thereof and (E) it shall not assert as a defense any matter or claim waived by the foregoing clauses (A) through (D) of this Section 12(n) or that any Governmental Order issued by the Chosen Courts may not be enforced in or by the Chosen Courts.
(o) Until Closing or valid termination of this Subscription Agreement, the Subscriber covenants and agrees that it will not sell, pledge, assign, transfer, dispose of or encumber its assets in any manner, or incur any liabilities or obligations, in each case that would or would reasonably be expected to adversely impact its ability to perform its obligations hereunder. Without limiting the generality of the foregoing, the Subscriber covenants and agrees that it will not revoke the Subscription except pursuant to Section 8 or otherwise take any action with the intent or effect of avoiding payment or performance of any obligations hereunder in accordance with the terms of this Subscription Agreement. MPC shall be an express and intended third-party beneficiary of this Section 12(o) solely to the extent and for the period provided in Section 12(j). For purposes of this
39
Subscription Agreement, a “willful breach” means any intentional and willful material breach, or an intentional and willful failure to perform, in each case that is a consequence of an act or omission by a party with the knowledge that the taking of such act or failure to take such act would cause a breach of this Subscription Agreement.
(p) All claims, obligations, liabilities or causes of action (whether in contract or in tort, in law or in equity, or granted by statute) that may be based upon, in respect of, arise under, out or by reason of, be connected with or relate in any manner to this Subscription Agreement, or the negotiation, execution or performance of this Subscription Agreement (including any representation or warranty made in, in connection with, or as an inducement to, this Subscription Agreement), may be made only against (and are expressly limited to) the Company or Subscriber, in each case solely as to its own obligations hereunder. No Person other than the Company or Subscriber, including no member, partner, stockholder, Affiliate or representative thereof, nor any member, partner, stockholder, Affiliate or representative of any of the foregoing, shall have any liability (whether in contract or in tort, in law or in equity, or granted by statute) for any claims, causes of action, obligations or liabilities arising under, out of, in connection with or related in any manner to this Subscription Agreement or based on, in respect of or by reason of this Subscription Agreement or its negotiation, execution, performance or breach; and, to the maximum extent permitted by law, each of the Company and Subscriber hereby waives and releases all such liabilities, claims, causes of action and obligations against any such third Person. Without limiting the foregoing, to the maximum extent permitted by law, (i) each of the Company and Subscriber hereby waives and releases any and all rights, claims, demands or causes of action that may otherwise be available at law or in equity, or granted by statute, to avoid or disregard the entity form of the other or otherwise impose liability of the other on any third Person, whether granted by statute or based on theories of equity, agency, control, instrumentality, alter ego, domination, sham, single business enterprise, piercing the veil, unfairness, undercapitalization or otherwise; and (ii) each of the Company and Subscriber disclaims any reliance upon any third Person with respect to the performance of this Subscription Agreement or any representation or warranty made in, in connection with or as an inducement to this Subscription Agreement. Notwithstanding the foregoing, nothing in this Section 12(p) releases or limits any Person’s express obligations under another Transaction Document or any liability for that Person’s own actual fraud.
(q) The provisions of this Subscription Agreement shall apply to the full extent set forth herein with respect to any and all equity interests of the Company or any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise) which may be issued in respect of, in exchange for or in substitution of, the Subscribed Shares, and shall be appropriately adjusted for combinations, stock splits, recapitalizations and the like occurring after the date of this Subscription Agreement, without duplication of any adjustment under Section 2(a) or the Certificate of Designations.
[Signature pages follow.]
40
IN WITNESS WHEREOF, each of the Company and Subscriber has executed or caused this Subscription Agreement to be executed by its duly authorized representative as of the date first set forth above.
CVR ENERGY, INC.
| By: | /s/ Dane J. Neumann | |
| Name: Dane J. Neumann | ||
| Title: President and Chief Executive Officer |
| Address for Notices: | CVR Energy, Inc. | |
| 2277 Plaza Drive, Suite 500 | ||
| Sugar Land, Texas 77479 | ||
| Attn: Melissa Buhrig |
[Signature Page to Subscription Agreement]
| SUBSCRIBER: | ||
| Trafigura US Holdings, Inc. | ||
| By: | /s/ Robert Kreider | |
| Name: Robert Kreider | ||
| Title: Director | ||
| By: | /s/ Dereje Tedla | |
| Name: Dereje Tedla | ||
| Title: Authorized Representative | ||
| Address for Notices: | 845 Texas Avenue, Suite 3600 | |
| Houston, TX | ||
| 77002 |
Subscriber shall pay the Purchase Price, without deduction, setoff or withholding, by wire transfer of United States dollars in immediately available funds to the account of the Company specified by the Company in the Closing Notice.
[Signature Page to Subscription Agreement]
ANNEX A
ELIGIBILITY REPRESENTATIONS OF SUBSCRIBER
This Annex A should be completed by Subscriber and constitutes a part of the Subscription Agreement.
| A. | QUALIFIED INSTITUTIONAL BUYER STATUS (Please check the box, if applicable) |
| ☐ | Subscriber is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act). |
OR
| B. | ACCREDITED INVESTOR STATUS (Please check the box) |
| ☒ | Subscriber is an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) and has marked and initialed the appropriate box below indicating the provision under which it qualifies as an “accredited investor.” |
AND
| C. | AFFILIATE STATUS |
(Please check the applicable box)
SUBSCRIBER:
| ☒ | is: |
| ☐ | is not: |
an “affiliate” (as defined in Rule 144 under the Securities Act) of the Company or acting on behalf of an affiliate of the Company.
Rule 501(a), in relevant part, states that an “accredited investor” shall mean any person who comes within any of the below listed categories, or who the issuer reasonably believes comes within any of the below listed categories, at the time of the sale of the securities to that person.
Subscriber has indicated, by marking and initialing the appropriate box(es) below, the provision(s) below which apply to Subscriber and under which Subscriber accordingly qualifies as an institutional “accredited investor.”
| ☐ | Any bank, registered broker or dealer, insurance company, registered investment company, business development company, small business investment company, private business development company, or rural business investment company; |
| ☐ | Any investment adviser registered pursuant to section 203 of the Investment Advisers Act or registered pursuant to the laws of a state; |
| ☐ | Any investment adviser relying on the exemption from registering with the Commission under section 203(l) or (m) of the Investment Advisers Act; |
| ☐ | Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if such plan has total assets in excess of $5,000,000; |
| ☐ | Any employee benefit plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974 (“ERISA”), if (i) the investment decision is made by a plan fiduciary, as defined in section 3(21) of ERISA, which is either a bank, a savings and loan association, an insurance company, or a registered investment adviser, (ii) the employee benefit plan has total assets in excess of $5,000,000 or, (iii) such plan is a self-directed plan, with investment decisions made solely by persons that are “accredited investors”; |
| ☒ | Any (i) corporation, limited liability company or partnership, (ii) Massachusetts or similar business trust, or (iii) organization described in section 501(c)(3) of the Internal Revenue Code, in each case that was not formed for the specific purpose of acquiring the securities offered and that has total assets in excess of $5,000,000; |
| ☐ | Any trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Section 230.506(b)(2)(ii) of Regulation D under the Securities Act; |
| ☐ | Any entity, other than an entity described in the categories of “accredited investors” above, not formed for the specific purpose of acquiring the securities offered, owning investments in excess of $5,000,000; |
| ☐ | Any “family office,” as defined under the Investment Advisers Act that satisfies all of the following conditions: (i) with assets under management in excess of $5,000,000, (ii) that is not formed for the specific purpose of acquiring the securities offered, and (iii) whose prospective investment is directed by a person who has such knowledge and experience in financial and business matters that such family office is capable of evaluating the merits and risks of the prospective investment; |
| ☐ | Any “family client,” as defined under the Investment Advisers Act, of a family office meeting the requirements in the previous paragraph and whose prospective investment in the issuer is directed by such family office pursuant to the previous paragraph; or |
| ☐ | Any entity in which all of the equity owners are “accredited investors”. |
[Specify which tests: ]
| ☐ | Any director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director, executive officer, or general partner of a general partner of that issuer; |
| ☐ | Any natural person whose individual net worth, or joint net worth with that person’s spouse or spousal equivalent, exceeds $1,000,000. |
For purposes of calculating a natural person’s net worth: (a) the person’s primary residence shall not be included as an asset; (b) indebtedness that is secured by the person’s primary residence, up to the estimated fair market value of the primary residence at the time of the sale of securities, shall not be included as a liability (except that if the amount of such indebtedness outstanding at the time of sale of securities exceeds the amount outstanding 60 days before such time, other than as a result of the acquisition of the primary residence, the amount of such excess shall be included as a liability); and (c) indebtedness that is secured by the person’s primary residence in excess of the estimated fair market value of the primary residence at the time of the sale of securities shall be included as a liability;
| ☐ | Any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse or spousal equivalent in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year; |
| ☐ | Any natural person holding in good standing one or more professional certifications or designations or credentials from an accredited educational institution that the Commission has designated as qualifying an individual for accredited investor status; or |
| ☐ | Any natural person who is a “knowledgeable employee,” as defined in the Investment Company Act, of the issuer of the securities being offered or sold where the issuer would be an investment company, as defined in section 3 of such act, but for the exclusion provided by either section 3(c)(1) or section 3(c)(7) of such act. |
EXHIBIT A
[Certificate of Designations]
CVR ENERGY, INC.
CERTIFICATE OF DESIGNATIONS
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
SERIES A-1 CONVERTIBLE PREFERRED STOCK
(Par Value $0.01 Per Share)
CVR Energy, Inc. (the “Corporation”), a corporation organized and existing under the General Corporation Law of the State of Delaware (the “DGCL”), hereby certifies that, pursuant to the authority expressly granted to and vested in the Board of Directors of the Corporation (the “Board”) by the Amended and Restated Certificate of Incorporation of the Corporation, dated as of June 15, 2018 (as so amended and as further amended from time to time in accordance with its terms and the DGCL, the “Certificate of Incorporation”), which authorizes the Board, by resolution, to set forth the powers, preferences and relative, participating, optional and other special rights, and the qualifications, limitations or restrictions thereof, in one or more series of up to 50,000,000 shares of preferred stock, par value $0.01 per share (the “Preferred Stock”), and in accordance with the provisions of Section 151 of the DGCL, the Board duly adopted on [•] the following resolution, which resolution remains in full force and effect on the date hereof:
RESOLVED, that pursuant to the authority granted to and vested in it, the Board hereby creates a new series consisting of [•] shares of Preferred Stock, designated Series A-1 Convertible Preferred Stock, and hereby fixes the powers, preferences and relative, participating, optional and other special rights, and qualifications, limitations and restrictions of, such series of Preferred Stock as set forth in this certificate of designations (this “Certificate of Designations”):
General; Ranking.
There shall be created from the 50,000,000 shares of Preferred Stock of the Corporation authorized to be issued pursuant to the Certificate of Incorporation, a series of Preferred Stock designated as “Series A-1 Convertible Preferred Stock,” par value $0.01 per share (the “Series A-1 Preferred Stock”), and the authorized number of shares of Series A-1 Preferred Stock shall be [•]. For purposes of this Certificate of Designations, “Subscription Agreement” means the Subscription Agreement, dated as of November 2, 2026, between the Corporation and Trafigura US Holdings, Inc., and capitalized terms used but not defined herein have the meanings set forth therein.
Notwithstanding anything to the contrary herein, the shares of Series A-1 Preferred Stock and any shares of common stock, par value $0.01 per share, of the Corporation (the “Common Stock”) issued upon conversion thereof shall be in uncertificated, book-entry form as permitted by the Second Amended and Restated Bylaws of the Corporation (the “Bylaws”) and the DGCL.
The Series A-1 Preferred Stock shall rank pari passu with the Common Stock and any other class or series of stock issued by the Corporation ranking pari passu with the Common Stock with respect to payment of dividends, or upon liquidation, dissolution or winding up of the Corporation. The Series A-1 Preferred Stock shall rank junior to all Senior Securities with respect to both the payment of dividends and the distribution of assets on liquidation, dissolution or winding up. The term “Senior Securities” means any class or series of stock issued by the Corporation ranking senior to the Common Stock with respect to payment of dividends, or upon liquidation, dissolution or winding up of the Corporation.
Dividends.
The holders of the Series A-1 Preferred Stock shall be entitled to receive, with respect to any dividend or distribution of cash, securities or other property declared or made to holders of Common Stock, the amount that such holders of Series A-1 Preferred Stock would have been entitled to receive if the Series A-1 Preferred Stock were fully converted (disregarding for such purpose any conversion limitations hereunder) to Common Stock as provided in Section 5 on the record date for such dividend or distribution, which amounts shall be paid in the same form and at the same time as, and pari passu with, the payment to holders of Common Stock; provided that any delivery of Common Stock shall be subject to Section 5(b) and Section 5(g). A holder’s entitlement as of the applicable record date shall survive conversion before the payment date, without duplication of any corresponding adjustment or payment.
Liquidation.
In the event of any liquidation, dissolution or winding up of the Corporation, either voluntary or involuntary, the holders of the Series A-1 Preferred Stock shall be entitled to receive the aggregate amount that the holders of Series A-1 Preferred Stock would have been entitled to receive in respect of the Series A-1 Preferred Stock if the Series A-1 Preferred Stock were fully converted (disregarding for such purpose any conversion limitations hereunder) to Common Stock immediately prior to such liquidation, dissolution or winding up of the Corporation (the “As-Converted Amount”), which As-Converted Amount shall be paid pari passu with all holders of Common Stock.
Written notice of any liquidation, dissolution or winding up of the Corporation, stating the payment date or dates when and the place or places where the amounts distributable in such circumstances shall be payable, and describing the consideration to be distributed, the valuation of any noncash consideration and the calculation of each holder’s entitlement, shall be given in accordance with Section 13 not less than 15 days prior to any payment date stated therein, to the holders of record of the shares of Series A-1 Preferred Stock. The Corporation shall promptly provide supporting information reasonably requested by a holder.
Any distribution in connection with the liquidation, dissolution or winding up of the Corporation, or any bankruptcy or insolvency proceeding, shall be made in cash to the extent possible. Whenever any such distribution shall be paid in property other than cash, the value of such distribution shall be the fair market value of such property as determined in good faith by the Board.
Voting. Except as otherwise provided in the Certificate of Incorporation or this Certificate of Designations or as expressly required by law, the holders of Series A-1 Preferred Stock shall have no voting rights, including the right to elect any directors, and their consent shall not be required for taking any corporate action. On each matter on which the holders of Series A-1 Preferred Stock are entitled to vote separately as a series, each outstanding share shall have one vote. The Corporation shall provide each holder with the notices and written materials provided to holders of Common Stock in respect of stockholder meetings and actions by written consent at the same time as such materials are provided to the holders of Common Stock. Such delivery shall not confer general voting rights on the Series A-1 Preferred Stock.
Conversion. The Series A-1 Preferred Stock shall be convertible into Common Stock in accordance with the following:
Each share of Series A-1 Preferred Stock shall be convertible, at any time and from time to time, at the option of the holder thereof, into that number of shares of Common Stock (subject to Sections 5(b) and 5(g)) equal to the Conversion Rate in effect on the applicable Conversion Date. The “Conversion Rate” shall initially be one share of Common Stock for each share of Series A-1 Preferred Stock issued at the Closing under the Subscription Agreement (the date of such issuance, the “Issue Date”), subject to adjustment as set forth herein, and each fractional share of Series A-1 Preferred Stock shall be convertible into a proportionate number of shares of Common Stock. Holders shall effect conversions by providing the Corporation with a written notice (a “Notice of Conversion”), specifying the shares to be converted and the account to which the Common Stock is to be credited. The date on which the Corporation receives the Notice of Conversion shall be the “Conversion Date.” Within three (3) Business Days after the Conversion Date, the Corporation shall cause its transfer agent to credit the shares of Common Stock issuable upon conversion to the holder’s or its nominee’s account in uncertificated, book-entry form and update its records to reflect any remaining Series A-1 Preferred Stock. Conversion shall be effective on the Conversion Date, subject to Sections 5(b) and 5(g), notwithstanding any delay in that credit or record update. To the extent that the Beneficial Ownership Limitation contained in Section 5(g) applies to the converting holder, the determination of whether the Series A-1 Preferred Stock is convertible (in relation to other securities owned by such holder together with any Affiliates and Attribution Parties) and of how many shares of Series A-1 Preferred Stock are convertible shall be in the sole discretion of such holder, and the submission of a Notice of Conversion shall be deemed to be such holder’s determination of whether the shares of Series A-1 Preferred Stock may be converted (in relation to other securities owned by such holder together with any Affiliates and Attribution Parties) and how many shares of the Series A-1 Preferred Stock are convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, each holder will be deemed to represent to the Corporation each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this Section and the Corporation shall have no obligation to verify or confirm the accuracy of such determination.
HSR Clearance. No share of Series A-1 Preferred Stock shall be convertible into shares of Common Stock until the Corporation and the applicable holder have made the Notification and Report Form filings contemplated by Section 9(l) of the Subscription Agreement pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and the waiting period following those filings (and any extension thereof) has expired or been terminated
and that expiration or termination remains effective for the conversion, or such filings and waiting period are not required for such conversion under the HSR Act (the “HSR Clearance Condition”). For each share, the “HSR Clearance Date” means the first date on or after its issuance on which the HSR Clearance Condition for conversion of that share is satisfied. Neither stockholder approval nor filing or delivery of an information statement on Schedule 14C is a condition to conversion of the Series A-1 Preferred Stock. Each share of Series A-1 Preferred Stock shall be convertible into a number of fully paid and non-assessable shares of Common Stock equal to the Conversion Rate in effect on the applicable Conversion Date, together with any additional securities, cash, rights or other property deliverable pursuant to Section 5(c), in each case subject to Section 6.
Adjustments to Conversion Rate and Conversion Consideration. If the Corporation at any time or from time to time makes, issues or pays any dividend or other distribution payable on shares of Common Stock in cash, Common Stock, other securities, rights or other property, or shall effect a stock split or reverse stock split, or a combination, consolidation or reclassification of the Common Stock, then in each such event the Conversion Rate and/or the number, class and amount of securities, cash, rights or other property deliverable upon conversion shall be adjusted, as applicable, to give effect to such event, such that upon any conversion after any such event, a holder of Series A-1 Preferred Stock shall be entitled to receive the securities, cash, rights and other property which the holder would have received had the Series A-1 Preferred Stock been converted into Common Stock immediately before the applicable record date or, if there is no record date, the effective time of the event, disregarding for this purpose any conversion limitations hereunder and subject to Section 6. Cash dividends and cash distributions payable under Section 2(a) shall not be deferred or replaced by an adjustment under this Section 5(c). Any securities, rights or other property that cannot be delivered by reason of Section 5(b) or Section 5(g), together with any distributions thereon, shall remain deliverable upon conversion or, if later, promptly when permitted under those Sections, without delaying any otherwise permitted conversion. Adjustments shall take effect on the applicable record date or effective time and apply successively. No adjustment or entitlement under this Section 5(c) shall duplicate any dividend or distribution paid or separately payable under Section 2(a), any other adjustment or entitlement under this Section 5(c), or any consideration provided under Section 6 and no adjustment to the Conversion Rate shall be made in respect of any dividend or distribution to the extent such dividend or distribution is paid to the holders of Series A-1 Preferred Stock, or is payable to such holders upon conversion. Any additional shares of Series A-1 Preferred Stock issued pursuant to Section 2(b) or Section 9(c) of the Subscription Agreement shall have the Conversion Rate then in effect, but shall not be entitled to any dividend or distribution with a record date before their actual issuance.
Certificates as to Adjustments. Upon the occurrence of any adjustment or readjustment of the Conversion Rate or the securities, cash, rights or other property deliverable upon conversion pursuant to Section 5(c), the Corporation at its expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof and the principal financial officer of the Corporation shall verify such computation and prepare and furnish to each holder of Series A-1 Preferred Stock a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Corporation shall, upon the written request at any time of any holder of Series A-1 Preferred Stock, furnish or cause to be furnished to such holder a like certificate prepared by the Corporation setting forth (i) such adjustments and readjustments, the then applicable Conversion Rate and (ii) the number of shares of Common Stock or other securities and the amount, if any, of cash, rights or other property which at the time would be received upon the conversion of each share of Series A-1 Preferred Stock.
Notice of Record Date. If the Corporation takes a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend (including a cash dividend) or other distribution, any security or right convertible into or entitling the holder thereof to receive additional shares of Common Stock, or any right to subscribe for, purchase or otherwise acquire any shares of stock of any class or any other securities or property, or to receive any other right, the Corporation shall deliver, in compliance with applicable law, to each holder of Series A-1 Preferred Stock at least ten (10) days prior to the date specified therein, a notice specifying the date on which any such record is to be taken for the purpose of such dividend, distribution, security or right and the amount and character of such dividend, distribution, security or right. The Corporation shall also provide such notice at least ten (10) days before the effective time of any transaction described in Section 6, including reasonable details of the proposed treatment of the Series A-1 Preferred Stock, the calculation and valuation of the consideration and any adjustment under Section 6, and any election deadline. The Corporation shall promptly provide supporting information reasonably requested by a holder.
Issue Taxes. The Corporation shall pay any and all issue and other taxes, excluding any income, franchise or similar taxes, that may be payable in respect of any issue or delivery of (i) shares of Series A-1 Preferred Stock and (ii) shares of Common Stock on conversion of shares of Series A-1 Preferred Stock; provided, however, that the Corporation shall not be obligated to pay any transfer taxes resulting from any transfer requested by any holder in connection with any such conversion.
Beneficial Ownership Limitation. The Corporation shall not effect any conversion of the Series A-1 Preferred Stock, and a holder shall not have the right to receive Common Stock as dividends hereunder or convert any portion of the Series A-1 Preferred Stock, to the extent that, after giving effect to the receipt of Common Stock as dividends hereunder or conversion set forth on the applicable Notice of Conversion, such holder (together with such holder’s Affiliates, and any Persons acting as a group together with such holder or any of such holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by such holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock received as dividends or issuable upon conversion of the Series A-1 Preferred Stock with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon (i) conversion of the remaining, unconverted Series A-1 Preferred Stock beneficially owned by such holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Corporation subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, the Series A-1 Preferred Stock) beneficially owned by such holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 5(g), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the holder that the Corporation is not representing to the holder that such calculation is in compliance with Section 13(d) of the
Exchange Act and the holder is solely responsible for any schedules required to be filed in accordance therewith (other than as it relates to a holder relying on the number of shares issued and outstanding as provided by the Corporation pursuant to this Section). In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 5(g), in determining the number of outstanding shares of Common Stock, a holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Corporation’s most recent periodic or annual report filed with the Securities and Exchange Commission, as the case may be, (ii) a more recent public announcement by the Corporation or (iii) a more recent written notice by the Corporation or the transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request (which may be via email) of a holder, the Corporation shall promptly confirm orally and in writing to such holder the number of shares of Common Stock then outstanding. The “Beneficial Ownership Limitation” shall be 9.5% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of Series A-1 Preferred Stock held by the applicable holder. A holder, upon at least sixty-one (61) days advance notice to the Corporation, may terminate, increase or decrease the Beneficial Ownership Limitation provisions of this Section 5(g). The limitations contained in this Section 5(g) shall apply to a successor holder of Series A-1 Preferred Stock.
Consolidation, Merger, Etc. Subject to the other terms herein, if any reorganization or reclassification of the capital stock of the Corporation, consolidation or merger of the Corporation with or into any other entity, or sale or other disposition of all or substantially all of the assets of the Corporation and its subsidiaries, taken as a whole, in one or more transactions (each, a “Fundamental Transaction”) does not constitute a liquidation, dissolution or winding up of the Corporation for purposes of Section 3, then, as part of such Fundamental Transaction, provision shall be made so that each share of Series A-1 Preferred Stock shall thereafter be convertible into the number of shares of stock or other securities or property (including cash) that a holder of the number of shares of Common Stock deliverable upon conversion of such share of Series A-1 Preferred Stock would have been entitled to receive in connection with such event had the holder held such Common Stock immediately before the effective time thereof (disregarding for this purpose any conversion limitations hereunder) and, in any case, appropriate adjustment (as determined reasonably and in good faith by the Board) shall be made in the application of the provisions herein set forth with respect to the rights and interests thereafter of the holders of the Series A-1 Preferred Stock, to the end that the provisions set forth herein shall thereafter be applicable, as nearly equivalent as is practicable, in relation to any shares of stock or the securities or property (including cash) thereafter deliverable upon the conversion of the shares of Series A-1 Preferred Stock. If the Common Stock is exchanged or cancelled for consideration in the Fundamental Transaction, each holder may elect to receive the corresponding consideration for its Series A-1 Preferred Stock at the same time as holders of Common Stock, without first converting into Common Stock, subject to applicable law. The value of the consideration payable in exchange for each share of Series A-1 Preferred Stock shall equal the consideration payable in respect of that share on an as-converted-to-Common Stock basis, determined immediately before consummation without duplication of amounts already paid. To the extent delivery of voting securities is prohibited pending satisfaction of Section 5(b) or by Section 5(g), the applicable holder shall instead retain, or receive from the successor, an economically equivalent nonvoting security preserving the applicable conversion and distribution rights until delivery is lawful and
permitted under those Sections. Unless a holder receives the full consideration to which it is entitled in exchange for its shares, the surviving or successor entity shall expressly assume in writing all obligations with respect to its outstanding Series A-1 Preferred Stock, including the applicable ranking, distribution, conversion and protective rights. The Corporation shall not consummate a Fundamental Transaction unless the foregoing treatment has been provided for in binding transaction documents. In any tender or exchange offer for Common Stock made by the Corporation, each holder may tender its Series A-1 Preferred Stock, without prior conversion, for the consideration it would receive on an as-converted basis, disregarding conversion limitations solely for that calculation, on the same terms, including proration and payment timing, as holders of Common Stock. For any such offer by another person, the Corporation shall provide for such participation in any agreement it enters into relating to the offer and otherwise use reasonable best efforts to obtain such participation. The Corporation shall promptly notify each holder of any such offer and cooperate in its participation. Upon a holder’s timely request, the Corporation shall effect any conversion permitted under Sections 5(b) and 5(g) before the offer expires. Any delivery of voting securities shall remain subject to Sections 5(b) and 5(g), and the foregoing provisions for economically equivalent nonvoting securities shall apply to any consideration that cannot be delivered under those Sections.
Other Provisions.
Reasonable Best Efforts. The Corporation shall use its reasonable best efforts to effect conversion in accordance with Section 5 and shall preserve the issuance capacity reserved under Section 9(d) of the Subscription Agreement. The Corporation shall not issue or permit conversion of other securities, or amend or waive another series’ conversion conditions, in a manner that impairs conversion of the Series A-1 Preferred Stock. No stockholder approval or Schedule 14C condition applicable to another series shall apply to the Series A-1 Preferred Stock.
Record Holders. The Corporation and its transfer agent, if any, for the Series A-1 Preferred Stock may deem and treat the record holder of any shares of Series A-1 Preferred Stock as reflected on the books and records of the Corporation as the sole, true and lawful owner thereof for all purposes, and neither the Corporation nor any such transfer agent shall be affected by any notice to the contrary.
Reservation and Authorization of Common Stock. The Corporation covenants that, so long as any shares of Series A-1 Preferred Stock remain outstanding, the Corporation shall reserve and keep available, from its authorized and unissued shares of Common Stock solely for issuance and delivery upon the conversion of the shares of Series A-1 Preferred Stock and free of preemptive rights, a sufficient number of unissued shares of Common Stock to permit the conversion in full of all outstanding shares of Series A-1 Preferred Stock and additional shares required to be issued under Section 2(b) of the Subscription Agreement, taking into account accrued and capitalized dividends and adjustments pursuant to Section 5(c), and disregarding any conversion limitations hereunder. The Corporation further covenants that it shall (including, without limitation, engaging in best efforts to obtain any requisite stockholder approval and increase in authorized shares) take all necessary action to ensure that the authorized and unissued shares of Common Stock are at all times sufficient for such conversion. The Corporation covenants that all shares of Common Stock issuable upon conversion of the Series A-1 Preferred Stock will, at all times and in any event prior to any conversion, be duly approved for listing, subject only to official notice of issuance, on each securities exchange, if any, on which the Common Stock is then listed. All shares of Common Stock issued upon conversion shall be validly issued, fully paid and nonassessable, free of preemptive rights and liens created by the Corporation. The Corporation shall pay all transfer-agent and issuance expenses necessary to effect conversion.
Fractional Shares. No fractional shares of Common Stock or scrip shall be issued upon conversion of shares of the Series A-1 Preferred Stock. All shares of Common Stock (including fractions thereof) issuable upon conversion of more than one share of Series A-1 Preferred Stock held by the same holder shall be aggregated for purposes of determining whether the conversion would result in the issuance of any fractional share. If, after the aforementioned aggregation, the conversion would result in the issuance of a fraction of a share of Common Stock, in lieu of issuing any fractional share, the Corporation shall pay cash for that fraction based on the closing sale price of Common Stock on the principal exchange on the last day on which Common Stock traded before the Conversion Date, and the number of shares of Common Stock issued shall be rounded down, subject in all cases to Section 5(g).
Severability. If one or more of the provisions contained in this Certificate of Designations is held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. Furthermore, in lieu of any such invalid, illegal or unenforceable provision, there shall be added automatically as a part of this Certificate of Designations a provision as similar in terms to such invalid, illegal or unenforceable provision as may be possible and be legal, valid and enforceable, unless the requisite parties separately agree to a replacement provision that is valid, legal and enforceable.
Accrued Rights; Separate Agreements. Conversion or cancellation of Series A-1 Preferred Stock shall not waive or extinguish accrued rights or claims, including unpaid dividends. Rights under the Subscription Agreement and other agreements with a holder shall continue in accordance with their terms.
Restrictions and Limitations. So long as any shares of Series A-1 Preferred Stock remain outstanding, in addition to any approval required by applicable law or the Certificate of Incorporation, the Corporation shall not, directly or indirectly, take any of the following actions without the prior approval by vote or written consent of Trafigura US Holdings, Inc. or its designated assignee (the “Requisite Holders”):
amend, alter, repeal, waive or restate (whether by merger, reclassification, conversion, consolidation or otherwise) any provision of the Certificate of Incorporation, this Certificate of Designations or the Bylaws in a manner that would materially and adversely affect the rights, preferences or privileges of the Series A-1 Preferred Stock in a manner different from the effect on the Common Stock or, in the case of the Certificate of Designations, regardless of the effect on the Common Stock; or
increase or decrease the authorized number of shares of Series A-1 Preferred Stock, other than a decrease solely to retire shares converted in accordance with this Certificate of Designations, or issue any additional shares of Series A-1 Preferred Stock other than the initial issuance on the Issue Date of up to [●] shares and shares required to give effect to Section 2(b) or Section 9(c) of the Subscription Agreement.
Corporation’s Dealings with Holders of Series A-1 Preferred Stock. Except for payments and distributions made in accordance with Sections 2 and 3 or Section 2(b) of the Subscription Agreement, no payments shall be made to holders of Series A-1 Preferred Stock unless the right to receive such payments is made available to all holders of Series A-1 Preferred Stock on a pro rata basis based on the number of shares of Series A-1 Preferred Stock each such holder holds. This Section 9 shall not prohibit bona fide payments under separate commercial or financing arrangements, expense reimbursements, indemnification payments or payments in respect of other securities, in each case made for independent consideration or obligations and not as a means to circumvent this Section 9. Nothing in this Section 9 limits any additional contractual most-favored-nation or equal-treatment right of a holder.
Action Without a Meeting. With respect to any action by the holders of Series A-1 Preferred Stock on any matter on which such holders are entitled to vote as a separate class, such action may be taken without a meeting, without prior notice and without a vote, by the written consent of holders having voting power to cast not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all holders of the Series A-1 Preferred Stock entitled to vote were present and voted. The Corporation shall promptly provide each holder with a copy of any such consent and notice of the action taken.
Status of Reacquired Shares of Series A-1 Preferred Stock. Shares of Series A-1 Preferred Stock reacquired by the Corporation (including shares cancelled upon conversion into Common Stock) shall be retired and cancelled and shall resume the status of authorized and unissued shares of Preferred Stock, undesignated as to series, and may thereafter be designated and issued in accordance with the Certificate of Incorporation. The Corporation shall take such action and make such filings with the Secretary of State of the State of Delaware as may be required to reflect the retirement and cancellation of such shares.
No Impairment. The Corporation shall not, by amendment of the Certificate of Incorporation or through any reorganization, recapitalization, transfer of assets, merger, consolidation, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Corporation but will at all times in good faith assist in the carrying out of all the provisions of this Certificate of Designations and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the holders of the Series A-1 Preferred Stock against impairment. Compliance with one provision of this Certificate of Designations shall not excuse noncompliance with any other applicable provision. No failure or delay by a holder in exercising a right or remedy shall constitute a waiver thereof.
Notices. Any notice required by the provisions hereof to be given to:
the holders of Series A-1 Preferred Stock shall be in writing and delivered personally, by a nationally recognized overnight courier, by registered or certified mail, return receipt requested, or by email to the postal or email address shown in the Corporation’s records or otherwise designated by the holder in writing. Such notice shall be deemed given upon receipt if received before 5:00 p.m., New York City time, on a Business Day and otherwise on the next Business Day; email shall be deemed received when transmitted if the sender does not receive a notice of delivery failure. All notices shall comply with any additional requirements of the DGCL.
the Corporation shall be in writing and shall be deemed to have been duly given or made on the date of receipt by the recipient thereof if received prior to 5:00 p.m., New York City time, and such day is a Business Day (or otherwise on the next succeeding Business Day) if (i) served by personal delivery or by a nationally recognized overnight courier service upon the party or parties for whom it is intended, (ii) delivered by registered or certified mail, return receipt requested or (iii) sent by email; email shall be deemed received when transmitted if the sender does not receive a notice of delivery failure. Such communications shall be sent and addressed to 2277 Plaza Drive, Suite 500, Sugar Land, Texas 77479, Attn: Melissa Buhrig, ***; ***, or such other address as the Corporation shall provide in writing to the holders of Series A-1 Preferred Stock.
Amendments. No amendment, modification, alteration, repeal or waiver of any provision of this Certificate of Designations, whether directly or by merger, consolidation, conversion or otherwise, shall be effective without the prior approval of the Requisite Holders. No such action may materially and adversely affect a holder of Series A-1 Preferred Stock in a manner disproportionate to other holders of Series A-1 Preferred Stock without such holder’s prior written approval. Any reduction in an applicable consent threshold or change to this Section 14 or the definition of Requisite Holders that would materially impair a holder’s approval rights in a manner disproportionate to other holders of Series A-1 Preferred Stock shall also require that holder’s prior written approval. Consent to one action shall not constitute consent to any other action or a continuing waiver.
[The Remainder of this Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned has caused this Certificate of Designations to be duly executed this [_] day of [_], 20[_].
| CVR ENERGY, INC. | ||
| By: |
| |
| Name: | ||
| Title: | ||
EXHIBIT B
Investor Rights Agreement
INVESTOR RIGHTS AGREEMENT
This INVESTOR RIGHTS AGREEMENT (this “Agreement”), dated as of November 2, 2026 (the “Effective Date”), is entered into concurrently with the Subscription Agreement by CVR Energy, Inc., a Delaware corporation (the “Company”), and Trafigura US Holdings, Inc., a Delaware corporation (“Trafigura”). Trafigura executes on behalf of itself and shall cause each of its Controlled Affiliates to comply with the applicable provisions of this Agreement. The Company and Trafigura are each a “Party” and together the “Parties.”
WHEREAS, the Company, directly or through one or more of its Subsidiaries, has entered into that certain Equity and Asset Purchase Agreement, dated as of the Effective Date, with Marathon Petroleum Company LP and the other sellers named therein (the “Purchase Agreement”), pursuant to which the Company or such Subsidiary, as purchaser, will acquire the assets and equity interests described therein (the “Acquisition”);
WHEREAS, in connection with the financing of the Acquisition, Trafigura has agreed to purchase (the “Subscription”) shares of a new series of convertible preferred stock, par value $0.01 per share (the “Preferred Stock”), for an aggregate purchase price of $800,000,000 pursuant to that certain Subscription Agreement, dated as of the Effective Date, between Trafigura and the Company (the “Subscription Agreement”), including the additional Preferred Stock or, at Trafigura’s election, Common Stock issuable in respect of the Delay Adjustment Amount (as defined in the Subscription Agreement);
WHEREAS, the Company has filed, or prior to the Closing Date will file, with the Secretary of State of the State of Delaware a certificate of designations setting forth the powers, designations, preferences and relative, participating, optional and other special rights, and the qualifications, limitations and restrictions, of the Preferred Stock (as amended from time to time in accordance with its terms, the “Certificate of Designations”), pursuant to which, subject to the terms and conditions set forth therein, the Preferred Stock is convertible, at the option of the holder thereof, into shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”);
WHEREAS, in connection with the Subscription, Trafigura and the Company and/or their respective Affiliates have entered into the Commercial Agreements (as defined in the Subscription Agreement); and
WHEREAS, in connection with the Subscription, the Company and Trafigura desire to set forth their respective rights and obligations concerning board observer rights, registration of Shares, information rights, participation in certain future issuances of Company securities and certain transfer restrictions.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set forth herein, and intending to be legally bound, the Parties agree as follows:
DEFINITIONS
Defined Terms.
“Affiliate” has the meaning in Rule 12b-2 under the Exchange Act.
“Beneficially Own” has the meaning in Rule 13d-3 under the Exchange Act, excluding Shares deemed beneficially owned solely by reason of this Agreement.
“Board” means the Company’s board of directors.
“Business Day” means a day other than Saturday, Sunday or a day on which banking institutions in New York, New York are authorized or required by law or executive order to close.
“Change of Control” means (i) any merger, consolidation or similar business combination involving the Company following which the holders of the Company’s outstanding voting securities immediately before such transaction cease to hold a majority of the voting power of the surviving or resulting entity or its ultimate parent, (ii) any acquisition by any person or group, other than Icahn Enterprises L.P. and its Affiliates, of beneficial ownership of a majority of the voting power of the Company’s outstanding voting securities or (iii) any sale, lease or other disposition of all or substantially all of the consolidated assets of the Company and its Subsidiaries, in each case other than a transaction solely among the Company and its wholly owned Subsidiaries.
“Closing” and “Closing Date” have the meanings given in the Subscription Agreement.
“Controlled Affiliate” means an Affiliate directly or indirectly controlled by Trafigura.
“DTC” means The Depository Trust Company or its successor.
“Equity Position” means, without duplication, the Shares and other equity securities convertible into Shares issued to Trafigura or its Controlled Affiliates pursuant to the Subscription Agreement, together with any Shares issued or issuable upon conversion thereof or as dividends or adjustments thereon, including shares attributable to the Delay Adjustment Amount under the Subscription Agreement, determined on an as-converted basis and equitably adjusted for any stock split, combination, reclassification or similar transaction. For the retention thresholds in Articles II, IV and V and the lock-up releases under Section 6.3(e) and tag-along and other rights under the IEP Side Letter (as defined in the Subscription Agreement), the original Equity Position and the securities retained shall be adjusted correspondingly so that conversion, dividends and adjustments do not, by themselves, change the percentage retained.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Going Private Transaction” means any transaction or series of related transactions involving the Company in which Icahn Enterprises L.P. or any of its Affiliates acquires, directly or indirectly, outstanding equity securities of the Company held by unaffiliated stockholders and, as a result, the Common Stock ceases to be listed on a national securities exchange or the Company becomes eligible to terminate registration of the Common Stock under Section 12 of the Exchange Act.
“Ownership Percentage” means, at any time, the percentage obtained by dividing (a) the number of issued and outstanding Shares Beneficially Owned by Trafigura and its Controlled Affiliates, together with Shares issuable upon conversion of equity securities held by them, by (b) the total number of issued and outstanding Shares, together with Shares issuable upon conversion of all outstanding convertible equity securities of the Company, in each case without duplication and without regard to restrictions on conversion.
“Registrable Securities” means (i) Shares Beneficially Owned by Trafigura or any Permitted Holder on the Effective Date or acquired thereafter, including in connection with the Acquisition or the related financing and pursuant to Section 2(b)(iii) of the Subscription Agreement or Article V, (ii) Shares issued or issuable upon conversion of Preferred Stock held by Trafigura or any Permitted Holder, including Shares attributable to dividends or adjustments (including the Delay Adjustment Amount and other adjustments under the Subscription Agreement or the Certificate of Designations), without regard to any beneficial ownership limitation or restriction on, or notice period for, conversion, and (iii) any securities issued or issuable in respect of those Shares by way of stock dividend, stock split, reclassification, conversion, exchange, merger or similar transaction; provided that a security shall cease to be a Registrable Security as provided in Section 3.1.
“SEC” means the Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended.
“Shares” means shares of Common Stock.
“Subscription Price” has the meaning given in the Subscription Agreement and, for purposes of Section 5.1 before Closing, shall be determined as if Closing occurred on the date of the proposed issuance, including the Delay Adjustment Amount accrued through that date. For purposes of Section 5.1 after Closing, the Subscription Price shall be equitably adjusted for stock splits, combinations, reclassifications and similar events after Closing, without duplication of any adjustment under the Subscription Agreement.
“Subsidiary” has the meaning given in the Subscription Agreement.
BOARD REPRESENTATION
Board Observer Right.
For so long as Trafigura and its Controlled Affiliates retain at least 50% of the Equity Position, Trafigura shall be entitled to appoint one non-voting observer to the Board (the “Board Observer”). The Board Observer shall be entitled to receive notice of and attend all meetings of the full Board in a non-voting capacity and to receive all materials provided to directors at the same time as they are provided to directors, subject to the Confidentiality Agreement and to customary exclusions for privileged information and matters presenting an actual conflict between the Company and Trafigura or its Affiliates. The Company shall also provide Trafigura with management access customary for this level of representation. The Board Observer shall not be a director and shall not owe fiduciary duties to the Company or its stockholders by virtue of serving in that capacity. The Board Observer shall comply with the Confidentiality Agreement and the Company’s conflicts of interest, codes of conduct, trading and disclosure policies, and other governance guidelines and policies applicable to the Company’s non-executive directors, in each case as appropriate to the Board Observer in that capacity and of which the Board Observer has been provided written copies in advance (or which have been filed with the SEC or posted on the Company’s website); provided that such policies shall not restrict activities of Trafigura or its Affiliates or representatives, other than the Board Observer in that capacity and subject to Section 2.8 or as provided in the Confidentiality Agreement or as may be agreed with Trafigura from time to time. The Company shall consult with Trafigura before adopting or materially changing its hedging policy with respect to, or entering into, any over-the-counter crack spread swap transactions (excluding ordinary-course inventory hedging transactions).
At any time while Trafigura is otherwise entitled to appoint the Board Observer under Section 2.1(a), Trafigura may, at its election, convert its right to appoint the Board Observer into the right to designate a Trafigura Designee by delivering written notice of such election to the Board (such election, a “Board Conversion Election”). Upon receipt of such notice, the Company shall use reasonable best efforts to cause the individual designated by Trafigura to be appointed to the Board as the Trafigura Designee as promptly as practicable or, if prohibited by applicable law or the rules of the exchange on which the Shares are then listed, promptly after such prohibition ceases. Upon a Board Conversion Election, the rights of Trafigura under Section 2.2 shall become effective, and its rights under Section 2.1(a) shall continue until the Trafigura Designee is appointed to the Board, at which point such right under Section 2.1(a) shall automatically terminate. The management access and hedging consultation rights in Section 2.1(a) shall continue to apply for so long as the ownership threshold in Section 2.2 is satisfied.
Trafigura Director Designation. Following a Board Conversion Election and subject to applicable law and the rules of the exchange on which the Shares are listed, while Trafigura and its Controlled Affiliates retain at least 50% of the Equity Position, Trafigura shall be entitled to designate one individual for nomination to the Board (such individual so designated, a “Trafigura Designee”). Each Trafigura Designee shall satisfy applicable law and exchange rules and the qualifications, policies and procedures generally applicable to the Company’s non-employee directors and director nominees and of which the Trafigura Designee has been provided written copies in advance (or which have been filed with the SEC or posted on the Company’s website), including completion of the Company’s customary director and officer questionnaire and background review. Trafigura shall have no obligation to exercise any designation right.
Nomination and Election of Trafigura Designees. The Company shall give Trafigura reasonable advance written notice of the date on which the Nominating and Corporate Governance Committee or the Board first expects to consider the slate of nominees for an election of directors, so that Trafigura has a reasonable opportunity to identify its nominee by written notice before that consideration. At each meeting of stockholders at which directors are elected, and in connection with each solicitation of consents for the election of directors, the Company shall nominate the individual identified in a written notice delivered by Trafigura as the Trafigura Designee in accordance with Section 2.2 and use reasonable best efforts to cause that individual’s election. The Company shall recommend that stockholders vote in favor of each such Trafigura Designee, include that designee in its proxy statement and form of proxy, and solicit proxies and otherwise support that designee’s election with no less effort or favor than it affords any other Board nominee. Trafigura shall cause such Trafigura Designee to provide the information and consents reasonably requested of the Company’s other director nominees in sufficient time for the Company to comply with applicable disclosure requirements. The Company shall not apply to the Trafigura Designee a director qualification or eligibility criterion adopted after the Effective Date that would have disqualified the Trafigura Designee if serving on the Effective Date, unless that criterion is required by applicable law or exchange rules. An individual’s affiliation with Trafigura shall not, by itself, render that individual ineligible to serve.
Vacancies and Additional Designees. If at any time during which Trafigura has the rights described in Section 2.2, no Trafigura Designee serves on the Board, whether because a designee is not elected or ceases to serve, Trafigura has not previously exercised its designation right or otherwise, Trafigura may identify in writing an individual to fill the resulting seat. Upon receipt of that notice, the Company shall use reasonable best efforts to cause such individual to be appointed or elected to the Board as promptly as practicable or, if prohibited by applicable law or exchange rules, promptly after such prohibition ceases, including by filling an existing vacancy. If the individual identified by Trafigura does not become a director, Trafigura may identify another individual in writing, and the Company’s obligations under this Section 2.4 shall continue until the applicable seat is filled. Trafigura’s Board Observer rights under Section 2.1(a) shall be reinstated whenever no Trafigura Designee serves on the Board, subject to the retention threshold in that Section, and shall continue until the seat is filled.
Board Committees. Nothing in this Agreement shall entitle Trafigura or any Trafigura Designee to membership on, appointment to, or observation of any committee of the Board, whether now existing or hereafter formed.
[Reserved].
Indemnification and Insurance. The Company shall provide each Trafigura Designee and (to the extent available) Board Observer, during and after service in that capacity, with respect to acts or omissions in that capacity, indemnification, advancement of expenses and coverage under the Company’s directors’ and officers’ liability insurance policies on terms no less favorable than those provided to the Company’s other current and former directors, as applicable.
Confidentiality. Subject to the applicable fiduciary duties (with respect to any Trafigura Designee) and the confidentiality agreement attached as Exhibit A (the “Confidentiality Agreement”), any Trafigura Designee or Board Observer who, in either case, is an employee, officer, director or other agent of Trafigura or any of its Controlled Affiliates may share with Trafigura and its representatives information received in its capacity as Board Observer or Trafigura Designee for the purposes described under this Article II, subject to the permitted recipients, onward-disclosure restrictions and information barriers established in accordance with the Confidentiality Agreement, Section 4.2 of this Agreement and Section 9(t) of the Subscription Agreement. At any time the Trafigura Designee is a member of the Board or Trafigura has identified a Board Observer, the Board shall not adopt any policy precluding the Trafigura Designee or Board Observer from speaking to Trafigura with respect to non-privileged matters (upon the advice of internal or outside counsel). The Company and Trafigura shall execute the Confidentiality Agreement concurrently with the initial appointment by Trafigura of a Trafigura Designee or Board Observer, as the case may be, and shall cause each Trafigura Designee or Board Observer to execute a joinder thereto. The Confidentiality Agreement shall permit disclosure to Trafigura and its Controlled Affiliates, advisers and actual or prospective lenders and financing sources who need to know the information and are subject to appropriate confidentiality obligations, and shall not restrict transfers or the exercise of rights expressly permitted by this Agreement or the Subscription Agreement.
REGISTRATION RIGHTS
Registrable Securities and Holders. For purposes of this Article III, “Permitted Holder” means Trafigura, any Controlled Affiliate holding Registrable Securities and any transferee to whom rights under this Article III are assigned in accordance with Section 6.2. Each Permitted Holder may exercise the rights expressly granted to it under this Article III, subject to any designation of a representative under Section 3.11. A security shall cease to be a Registrable Security when it has been sold pursuant to an effective registration statement or Rule 144, may be sold under Rule 144 without limitation as to volume or manner of sale and without the requirement for current public information, has ceased to be outstanding or is held by a person other than a Permitted Holder.
Shelf Registration. The Company shall, as promptly as practicable and in any event within 30 days after the Closing Date, file a resale registration statement, or designate an existing effective registration statement by filing any necessary prospectus supplement, covering all Registrable Securities. The Company shall use reasonable best efforts to cause the registration statement to become effective as promptly as practicable and in any event within 60 days after the Closing Date (or 90 days after the Closing Date if the registration statement is reviewed by the SEC) and, subject to Section 3.6, to maintain an effective registration statement and current, usable prospectus for the continuous or delayed resale of the covered securities until they cease to be Registrable Securities. The Company shall use Form S-3, including an automatically effective shelf if available, or, if Form S-3 is unavailable, another appropriate form, and shall convert to Form S-3 promptly after becoming eligible. The Company shall file amendments and replacement registration statements in time to avoid an interruption in the availability of a usable shelf and shall promptly include additional Registrable Securities issued or issuable after the initial filing. The plan of distribution shall permit ordinary brokerage and other open-market sales at prevailing prices, privately negotiated sales, sales through agents, block trades, marketed and overnight underwritten offerings and any other lawful method reasonably requested by a Permitted Holder. A registration under this Section 3.2 shall not count as a demand under Section 3.4. No minimum sale amount shall apply to a sale that does not require a separately requested underwritten takedown or demand registration.
Underwritten Shelf Offerings.
Any Permitted Holder may request an underwritten offering or block trade from an effective shelf with anticipated gross proceeds of at least $50 million or, if less, all remaining Registrable Securities held by the requesting Permitted Holders (each such offering, a “Demand Registration”). The Company shall use reasonable best efforts to facilitate the offering and pricing as promptly as practicable, including on an expedited timetable reasonably requested for an overnight offering or block trade, and shall prepare the applicable prospectus supplement and provide the assistance specified in Section 3.7. The Permitted Holders proposing to sell a majority of the Registrable Securities in the offering shall select the managing underwriters or placement agents, subject to the Company’s acceptance, which shall not be unreasonably withheld, conditioned or delayed. The Permitted Holders may not request more than two Demand Registrations under this Section 3.3 and demands under Section 3.4, in the aggregate, in any 12-month period.
Demand Registrations. If an effective resale shelf is unavailable for Registrable Securities or cannot reasonably accommodate a Permitted Holder’s proposed method of distribution, including because another registration form or materially different disclosure is reasonably necessary, that Permitted Holder may require the Company to register Registrable Securities with anticipated gross proceeds of at least $50 million or, if less, all remaining Registrable Securities held by that holder. Subject to Section 3.6, the Company shall file an appropriate registration statement within 30 days after receiving a written demand specifying the securities and proposed method of distribution, use reasonable best efforts to cause the registration statement to become effective promptly, and maintain its effectiveness until the distribution is completed; provided that, after 180 days, excluding any period of suspension, the Company may instead cover the remaining securities on an effective resale shelf pursuant to Section 3.2, but only if that shelf permits the distribution specified in the applicable demand without material interruption or limitation. A demand may relate to an underwritten or non-underwritten offering; provided that the Permitted Holders may not make more than two demands in any 12-month period, including Demand Registrations under Section 3.3. A registration or offering under Section 3.3 or this Section 3.4 shall not count toward the limits in those Sections if the registration fails to become effective, the offering is withdrawn because of a Company suspension or breach, or the offering cannot be completed because of a stop order, a failure to permit the proposed distribution or the failure of a closing condition, except to the extent caused by an act or omission of the requesting holder. The holder may renew its request without another waiting period. The availability of a shelf that does not permit the proposed distribution shall not relieve the Company of its obligations under this Section 3.4.
Piggyback Registrations.
If the Company proposes to register for sale or commence a registered offering of equity securities or securities convertible into, exchangeable for or exercisable for equity securities, whether for its own account or another holder’s account (other than for the account of an IEP Holder (as defined in the IEP Side Letter), unless pursuant to a Tag-Along Transaction (as defined in the IEP Side Letter)) and including a marketed or overnight takedown from an existing shelf, it shall give each Permitted Holder written notice and an opportunity to include Registrable Securities of the same class. The Company shall give notice at least five (5) Business Days before filing a new registration statement or, for a takedown from an existing shelf, as far before launch as reasonably practicable and, for a marketed offering, at least three (3) Business Days before launch where practicable. A Permitted Holder may elect to participate by written notice delivered within two (2) Business Days after receiving notice of a new filing or within the shorter reasonable period specified in an expedited takedown notice. The Company shall include the elected securities on the same distribution terms as the other securities in the offering, subject to a good-faith determination by the managing underwriter of the maximum number that can be sold without materially and adversely affecting the offering. In an offering initiated by the Company, priority shall be given first to the Company, then to the participating Permitted Holders, then to other selling holders. In an offering or block trade initiated by a Permitted Holder, including Trafigura or a Controlled Affiliate, under Section 3.3 or 3.4, priority shall be given first to the initiating Permitted Holders, then to other participating Permitted Holders pro rata based on requested inclusion, then to the Company and other holders. In an offering initiated by another securityholder, priority shall be given first to that securityholder, then to the participating Permitted Holders, then to the Company and other holders, subject to any rights validly granted before the
Effective Date and disclosed in writing to Trafigura. Securities of sellers at the same priority level shall be reduced pro rata based on requested inclusion unless those sellers agree otherwise. These priorities and any cutbacks are subject to Trafigura’s tag-along rights under the IEP Side Letter. This Section 3.5 shall not apply to registrations on Form S-4 or S-8, employee or director plans, dividend reinvestment or stock purchase plans, exchange offers or ordinary-course continuous at-the-market programs. A Permitted Holder may withdraw before pricing without liability other than for expenses it has expressly agreed to bear, and participation under this Section shall not constitute a demand under Section 3.4. If Trafigura elects not to receive nonpublic prelaunch notices, the Company shall use reasonable efforts to permit Trafigura to participate following public announcement of the offering to the extent practicable, without affecting its rights in future offerings.
Suspension of Registrations. The Company may suspend use of a registration statement by written notice to the affected Permitted Holders only if the Board or an authorized committee determines in good faith, after consultation with counsel, that the disclosure required for continued use would reveal material nonpublic information and disclosure at that time would be materially detrimental to the Company. No suspension under this Section 3.6 may continue for more than 30 consecutive days or 60 days in any rolling 12-month period, and the Company may not suspend use of a registration statement on more than two occasions in any rolling 12-month period. During any suspension applicable to a Permitted Holder, the Company shall impose comparable restrictions on sales of Company securities by Icahn Enterprises L.P. and its Affiliates. The Company shall not exempt any such person from a corresponding Company-imposed suspension unless the affected Permitted Holders receive equivalent relief. The Company shall terminate the suspension promptly when its basis ceases and promptly restore the availability of the affected registration statement and prospectus. A suspension notice shall not disclose the underlying nonpublic information and shall identify the sales subject to suspension. The Company shall notify the affected holders promptly when those sales may resume. If the Company determines in good faith, after consultation with counsel, that a registration statement or prospectus contains a material misstatement or omission, is subject to a stop order or otherwise cannot lawfully be used for a proposed sale, it shall promptly notify affected Permitted Holders without disclosing the underlying material nonpublic information. Those holders shall discontinue sales only under the affected registration statement until notified that a corrected prospectus is available or use has otherwise become lawful. The Company shall use reasonable best efforts promptly to correct the defect and restore lawful use. Any period during which sales are discontinued as a result of such defect shall count toward the 30- and 60-day limits above, except to the extent use of the affected registration statement remains prohibited by applicable law or an SEC order despite the Company’s reasonable best efforts promptly to cure the defect. The Company shall not extend that period by delaying corrective action. No suspension shall shorten a required effective period or excuse the prompt corrective filings required by Section 3.7. A suspension or stop-use notice shall not prohibit a sale under an unaffected registration statement or a sale otherwise lawfully available under Rule 144, except as required by law. A trading restriction applicable to the Board Observer or Trafigura Designee shall not, by itself, constitute a notice suspending sales by another Permitted Holder. An ordinary trading-window policy shall not independently restrict sales by a holder that is not subject to that policy, subject to applicable law and any underwriting lockup the holder expressly agrees to in writing. To the extent lawful and based upon the Company’s reasonable determination and the advice of counsel, the Company shall cooperate with its transfer agent to settle sales contracted before the selling holder received the applicable suspension or stop-use notice, including delivery of unlegended securities.
Registration Procedures and Expenses. Whenever Registrable Securities are registered or sold under this Article, the Company shall use reasonable best efforts to effect the registration and sale in accordance with the intended lawful method of distribution, and shall take the following actions as reasonably applicable:
Before filing a registration statement, material amendment or prospectus supplement concerning a Permitted Holder’s securities, furnish reasonable drafts to the selling holder and its counsel (at least two (2) Business Days before the initial shelf filing), permit a reasonable opportunity to comment on information relating to the holder or its distribution, consider those comments in good faith and make the corrections reasonably required to comply with the Securities Act. Prepare and file amendments, supplements and Exchange Act reports necessary to maintain an accurate and usable prospectus, promptly notify the selling holders of effectiveness, SEC comments or requests affecting their offering, a stop order, or a material misstatement or omission, and use reasonable best efforts to prevent or withdraw any stop order and restore a usable prospectus promptly. A selling holder may elect not to receive drafts containing material nonpublic information and may review only its selling-holder and distribution disclosure.
Provide reasonable numbers of electronic or printed copies of the current prospectus and supplements, consent to their lawful use in sales under the registration statement, maintain a transfer agent and registrar, arrange required exchange listing and customary state securities qualifications, and cooperate with selling holders, their agents and underwriters on filings with the Financial Industry Regulatory Authority (“FINRA”) and settlement. No qualification requires the Company to become subject to general service of process or taxation in a jurisdiction where it is not otherwise subject.
For an underwritten offering, enter into a customary underwriting or placement agreement containing customary Company representations, covenants and indemnities, provide customary officer certificates, Company counsel opinions and auditor comfort letters addressed to the selling holders and underwriters where reasonably available, make appropriate Company officers available for reasonable due diligence and marketing, and provide reasonable access to records, personnel and auditors needed for customary due diligence, subject to confidentiality, privilege, applicable law and customary auditor protocols. A Permitted Holder may limit access to personnel and advisers behind an appropriate information barrier rather than receiving material nonpublic information directly. The Company shall not be required to waive attorney-client privilege, but shall use commercially reasonable efforts to provide a nonprivileged alternative if material information is withheld.
Pay all registration, SEC and exchange filing, printing, transfer-agent, Company counsel and auditor fees, customary FINRA and state securities qualification costs, customary underwriter expenses payable by an issuer, and the reasonable fees and expenses of one counsel chosen by selling Permitted Holders holding a majority of the Registrable Securities being sold. Each selling holder shall bear only the underwriting discounts and selling commissions, fees of counsel it separately retains, and transfer taxes attributable to its sales. The Company shall pay these costs whether or not the registration becomes effective or the offering is completed. Selling holders bear only the amounts expressly allocated to them above.
Not require a selling holder to make representations to the Company, an underwriter or another person other than as to its identity, authority, title to the securities, intended method of distribution and information supplied by it expressly for the offering, together with customary agreements to comply with applicable law. Any selling holder’s indemnity and contribution obligations shall be limited as provided in Section 3.8. No holder must agree to an additional lockup except one it voluntarily accepts in writing in connection with its participation in a particular underwritten offering. The Company shall not impose a restriction on ordinary-course shelf or Rule 144 sales solely because another person conducts an offering.
Indemnification. The Company shall indemnify each selling Permitted Holder and its directors, officers, partners, members, advisers, agents, employees and controlling persons, the directors, officers, agents and employees of those controlling persons, and each underwriter, against losses, claims, damages, liabilities and reasonable costs and expenses of investigation and defense (including attorneys’ fees) arising under the Securities Act or otherwise from any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact required to be stated or necessary to make the statements not misleading (in the case of a prospectus, in light of the circumstances in which they were made) in a registration statement, prospectus or related registration materials, except to the extent the misstatement or omission is based on information furnished in writing by that selling holder expressly for inclusion in those materials. Each selling Permitted Holder shall, severally and not jointly, indemnify the Company and its directors, officers, agents, employees and controlling persons, the directors, officers, agents and employees of those controlling persons, and each underwriter, solely to the extent a material misstatement or omission in the applicable registration materials is based on information furnished in writing by that holder expressly for inclusion. Each holder’s aggregate liability under this Section 3.8, including contribution, shall not exceed the net proceeds received by that holder from the applicable offering. A person seeking indemnification shall promptly notify the indemnifying party of a claim. Failure to give prompt notice shall relieve the indemnifying party of its obligations only to the extent it is actually prejudiced. The indemnifying party may assume the defense with counsel reasonably satisfactory to the indemnified person. The indemnified person may retain separate counsel at the indemnifying party’s expense if counsel reasonably determines that a material conflict of interest exists. Neither party may settle a claim affecting an indemnified person without that person’s consent, not to be unreasonably withheld, unless the settlement provides an unconditional release, contains no admission of wrongdoing or nonmonetary obligation of that person and requires only payments made in full by the indemnifying party. The indemnifying party shall not be liable for a settlement entered into without its consent, not to be unreasonably withheld, conditioned or delayed. The foregoing indemnification shall survive any investigation by an indemnified person, transfer of securities and termination of this Agreement. If indemnification is unavailable or insufficient, the parties shall contribute to the applicable loss in proportion to their relative fault and other equitable considerations, subject to the holder’s aggregate liability limit in this Section 3.8. No person guilty of fraudulent misrepresentation within the meaning of Section 11(f) of the Securities Act shall be entitled to contribution from a person not guilty of such fraudulent misrepresentation.
Non-Underwritten Sales and Settlement. Subject to Section 6.3, a Permitted Holder may make ordinary brokerage, open-market, privately negotiated or other non-underwritten sales covered by an effective resale shelf without a minimum sale amount, Company consent or further notice to the Company if the existing registration statement and prospectus permit the sale. If a prospectus supplement or other filing is reasonably necessary to permit an identified non-underwritten distribution, the Company shall, promptly after receiving the selling-holder information reasonably necessary for the filing and in any event within five Business Days, use reasonable best efforts to file the supplement or take the other lawful action needed to enable the sale, subject to Section 3.6. The Company shall not require an unnecessary prospectus supplement as a condition to an otherwise covered ordinary brokerage sale. In connection with sales under an effective registration statement or pursuant to Rule 144, the Company shall promptly provide customary transfer-agent instructions and any customary Company counsel opinion reasonably required to remove restrictive legends and settle legally eligible shares through DTC without a restrictive notation, in each case in time for customary settlement if given reasonable notice and the information reasonably required to establish eligibility, and in any event within three (3) Business Days after receipt of the request and such information. The Company shall bear the customary costs of legend removal and DTC settlement. The Company may require customary seller and broker certifications reasonably necessary under applicable law but shall not condition settlement on a waiver of registration rights or a discretionary Company approval.
Rule 144 and Form S-3. For so long as Trafigura, a Controlled Affiliate or a transferee to which rights under this Article III have been assigned, holds any Preferred Stock or Shares issued or issuable pursuant to the Subscription Agreement that are Registrable Securities, the Company shall use reasonable best efforts to file timely reports required under the Exchange Act, maintain the public information reasonably necessary to permit sales under Rule 144, and remain eligible to use Form S-3 to the extent eligibility is within its control. At a Permitted Holder’s reasonable request, the Company shall provide a customary written statement of its compliance with applicable Rule 144 public-information and reporting requirements, cooperate reasonably with its transfer agent and Company counsel on a proposed Rule 144 sale, and take other actions reasonably necessary to permit a lawful sale without registration. Nothing here requires the Company to determine that a holder has ceased to be an affiliate or dispense with a legally applicable Rule 144 condition, or provide an inaccurate legal opinion. A holder’s ability to make a Rule 144 sale does not limit its right to use an effective registration statement while its securities remain Registrable Securities.
Holder Information and SEC Limitations. Trafigura may designate in writing a representative authorized to deliver registration notices and instructions for Trafigura and its Controlled Affiliates. The Company may rely on that representative’s instructions with respect to those holders, but the designation shall not transfer any right or bind an unaffiliated permitted transferee absent that transferee’s written authorization. A Permitted Holder shall furnish information concerning itself, its securities and its intended method of distribution only to the extent reasonably necessary for the requested registration and shall promptly notify the Company if it becomes aware that selling-holder information it furnished has become materially inaccurate. If the SEC limits the number of Registrable Securities that may be registered for resale or requires the use of a different permissible form, the Company shall promptly notify the affected holders, use reasonable best efforts to register the maximum number then legally permitted without identifying any holder as an underwriter without its consent, and register the remaining securities
promptly when permitted. Any reduction shall be allocated among the requesting Permitted Holders pro rata unless they direct otherwise. An SEC limitation shall not terminate the Company’s continuing obligations with respect to excluded securities, and no Permitted Holder shall be required to sell pursuant to a registration statement on terms it has not approved.
Effective Date. This Article III shall be effective upon, and apply, from and after the Closing Date, on the terms and conditions set forth herein.
INFORMATION
Information Rights. For so long as Trafigura and its Controlled Affiliates retain at least 15% of the Equity Position, the Company shall, upon Trafigura’s reasonable written request, furnish information concerning the Company and its Subsidiaries reasonably necessary for Trafigura or its Controlled Affiliates to satisfy financial reporting, audit, tax or regulatory obligations arising from their ownership of Company securities. The Company shall also furnish information relating to any fiscal period during which the foregoing retention threshold was satisfied if Trafigura reasonably requires that information to complete a reporting or audit obligation for that period. Information furnished under this Section 4.1 shall include reasonably available supporting schedules and reasonable access to appropriate finance personnel and independent auditors, in each case to the extent reasonably necessary for the applicable obligation and subject to customary auditor protocols. If Trafigura gives reasonable advance notice of an applicable filing or audit deadline, the Company shall use commercially reasonable efforts to provide the requested information in time for that deadline. The Company shall not be required under this Section 4.1 to provide routine budgets or unrestricted access to internal records, permit advance review of its public disclosures, or coordinate the timing of the Parties’ earnings announcements.
Information Barriers. Trafigura may elect by written notice not to receive any category of nonpublic information under this Article IV and may revoke that election by subsequent written notice. If Trafigura requires information under Section 4.1 but elects not to receive material nonpublic information directly, the Parties shall cooperate in good faith to establish a reasonably available lawful arrangement, including delivery to designated accounting personnel, independent auditors or other representatives subject to appropriate confidentiality obligations and information barriers, that permits Trafigura to meet the applicable reporting obligation. No such arrangement shall excuse a disclosure required by law or permit trading prohibited by law by a person while in possession of material nonpublic information. Trafigura shall use information furnished under this Article IV solely for the applicable reporting, audit, tax or regulatory purpose and may disclose it only to representatives who need to know it for that purpose or as required by law. Information furnished under this Agreement is subject to Section 9(t) of the Subscription Agreement. An agreed information barrier shall identify the recipients designated in writing by Trafigura, which may include the Board Observer or Trafigura Designee and designated support personnel, and permitted onward disclosure. To the extent an information barrier is implemented, the Company shall deliver material nonpublic information under Articles II, III, IV and V only to those designated recipients and shall not deliver such information to other personnel of Trafigura or its Affiliates without Trafigura’s prior written consent. An election, request or exercise of rights under this Agreement shall not, by itself, constitute consent to receive material nonpublic information outside an agreed information barrier.
FUTURE EQUITY ISSUANCES
Participation Right.
From the date of the Subscription Agreement and, following the Closing Date, for so long as Trafigura and its Controlled Affiliates retain at least 15% of the Equity Position, if the Company proposes to issue equity securities or securities convertible into, exchangeable for or exercisable for equity securities to any person at a price per Share (or, for convertible securities, an effective price per underlying Share) at or below the Subscription Price, the Company shall offer Trafigura the right, but not the obligation, to purchase up to its pro rata portion of the securities at the same price and on the same economic terms. Trafigura’s pro rata portion shall be calculated to maintain its Ownership Percentage immediately before the issuance after giving effect to the issuance to all purchasers, including Trafigura. If the proposed number of securities excludes Trafigura’s allocation, its entitlement shall equal that number multiplied by such Ownership Percentage and divided by one minus such Ownership Percentage. Any fractional entitlement shall be rounded down to the nearest whole security unless securities of that class may be issued in fractional amounts. Before the Closing Date, the Ownership Percentage for this purpose shall be calculated on a pro forma basis giving effect to the Subscription, including the Delay Adjustment Amount accrued through the date of the proposed issuance, and the other equity issuances contemplated to occur at Closing, but excluding the proposed issuance.
This Section 5.1 shall not apply to securities issued (i) pursuant to the Subscription Agreement, (ii) solely in respect of the IEP Holders’ initial $500,000,000 equity commitment, securities issued pursuant to the IEP Investment Documents (each as defined in the Subscription Agreement), in each case on the terms contemplated as of the date of the Subscription Agreement and, in the case of the IEP Investment Documents, disclosed in writing to Trafigura as of such date, (iii) common stock or other securities issued by the Company prior to the Closing Date in connection with the financing of the Acquisition, in the manner contemplated in writing to Trafigura as of the date of the Subscription Agreement, (iv) solely in the form of Common Stock or rights to acquire Common Stock, in the ordinary course under a compensation plan for employees, directors or consultants approved by the Board, (v) pursuant to a stock split or stock dividend, or (vi) upon conversion, exchange or exercise of securities issued before the Effective Date or otherwise in compliance with this Article V. No additional equity commitment, forward purchase, option or other right to acquire additional securities under the IEP Investment Documents, or amendment expanding the securities issuable thereunder, shall be exempt under clause (ii) or (vi), except for the conversion, dividend and adjustment rights attaching to the securities issued in respect of that initial commitment on those disclosed terms.
The Company shall give Trafigura written notice of the material terms of a proposed issuance at least 5 Business Days before the proposed issuance, except that the Company may provide an abbreviated notice period reasonably necessary to accommodate a broadly marketed public offering. Trafigura may elect to participate by written notice delivered within five Business Days after receipt of the Company’s notice or such shorter reasonable period specified
in an expedited notice. Trafigura’s purchase may close after the issuance to third parties to permit satisfaction of the HSR Clearance Condition and receipt of other required approvals, or compliance with the Beneficial Ownership Limitation, in each case as applicable under the Certificate of Designations or the Subscription Agreement. The Company shall use reasonable best efforts to obtain any such approval, including stockholder approval required under applicable exchange rules; provided that Trafigura’s separate purchase shall not delay a bona fide issuance to a third party solely because such approval remains outstanding. Any such deferral shall preserve Trafigura’s right to acquire its elected securities at the same price and on the same economic terms, with equitable adjustment for intervening dividends, distributions and stock splits as set forth in the Subscription Agreement.
CERTAIN AGREEMENTS
Standstill and Voting.
Standstill. Commencing on the date of the Subscription Agreement and ending on the earliest of (A) the date on which Trafigura and its Controlled Affiliates collectively Beneficially Own less than 4% of the outstanding Common Stock, measured on an as-converted basis, (B) the date on which Trafigura’s right to designate a Board Observer or Trafigura Designee ends, and (C) any earlier date specified in Section 6.1(d) (the “Restricted Period”), Trafigura shall not, and shall cause its Controlled Affiliates not to, directly or indirectly, without the prior written consent of the Board: (i) solicit proxies or consents with respect to securities of the Company, or conduct any public referendum or public campaign to withhold votes or oppose any recommendation of the Board; (ii) submit any stockholder proposal, nominate or seek the removal of any director, or seek to call a special meeting of stockholders or initiate any action by written consent; (iii) make any public proposal concerning, or commence, any tender or exchange offer, merger, acquisition of material assets, recapitalization or other extraordinary transaction involving the Company; (iv) form or join any group with any person other than its Controlled Affiliates with respect to securities of the Company, or enter into any voting agreement or arrangement with any such person, other than granting a proxy pursuant to a solicitation by the Board; (v) conduct any public campaign seeking to influence or change the Company’s management, Board composition, governance, capitalization, capital allocation or business strategy; (vi) publicly request any amendment or waiver of this Section 6.1 or publicly announce any intention to take any action prohibited hereby; or (vii) knowingly encourage, assist or enter into any agreement or arrangement with any other person to take any action prohibited by this Section 6.1.
Voting. Trafigura and its Controlled Affiliates may vote or abstain with respect to all voting securities of the Company Beneficially Owned by them in their sole discretion on all and any matters voted on by the Company’s stockholders.
Exceptions. Nothing in this Section 6.1 shall prohibit Trafigura or its Controlled Affiliates from (i) engaging in ordinary-course communications under the Commercial Agreements; (ii) communicating privately with the Board or management regarding any matter, or privately requesting or proposing a potential transaction or a waiver, termination or amendment of this Section 6.1, provided that such communication does not circumvent the restrictions on public conduct in Section 6.1(a); (iii) entering into or performing arrangements expressly contemplated by the Transaction Documents (as defined in the Subscription Agreement), including
the IEP Side Letter and the financing arrangements contemplated by the Capital Plan (as defined therein), exercising or enforcing rights under the Transaction Documents, including governance, conversion, participation, registration and permitted hedging rights, or exercising inspection or enforcement rights under applicable law; (iv) effecting pledges, transfers or lender enforcement permitted under Section 6.3 or the Subscription Agreement or (v) effecting purchases or sales of any securities of the Company by any pension plan, 401(k) plan or other employee benefit plan or discretionary investment fund independently managed and administered for the benefit of the directors, officers or employees of Trafigura or its Affiliates; provided, that such activities are not in connection with any intention, plan or arrangement to influence or acquire control over any member of the Company management, Board or policies. These restrictions shall not limit a Trafigura Designee’s actions in that individual’s capacity as a director or compliance with fiduciary duties, or the independent business activities permitted under Section 9(p) of the Subscription Agreement. A disclosure required by applicable law as a result of otherwise permitted conduct, including a permitted private communication, shall not itself constitute a breach of this Section 6.1.
Fall-Away. The restrictions in this Section 6.1 shall terminate and be of no further force and effect on the last day of the Restricted Period and, in any event, upon (i) the Company’s entry into a definitive agreement that if consummated would constitute a Change of Control, Going Private Transaction or sale of all or substantially all of its assets; (ii) the commencement by Icahn Enterprises L.P. or any of its Affiliates of a tender or exchange offer that, if consummated, would result in a Going Private Transaction; (iii) the commencement by any person or group, other than Trafigura or its Controlled Affiliates or any Permitted Holder, of a bona fide tender or exchange offer that, if consummated, would result in a Change of Control; (iv) the Company’s material breach of the Subscription Agreement, the Certificate of Designations, this Agreement or any other Transaction Document to which it is a party, in each case that remains uncured for ten (10) Business Days after written notice from Trafigura; or (v) the Company granting any other equity investor that invested in the Company for purposes of financing the Acquisition a waiver of standstill restrictions applicable to that investor that are similar to those in this Section 6.1 without concurrently granting a corresponding waiver on terms no less favorable to Trafigura. No expired or terminated restriction shall revive without Trafigura’s written agreement.
Assignments. Trafigura or any Permitted Holder may assign its rights under Article III and the related enforcement rights, in whole or in part, to a Controlled Affiliate, a lender or pledgee in connection with a pledge permitted under Section 6.3, or a transferee of securities in a transfer permitted under this Agreement and the Subscription Agreement, including upon foreclosure or other enforcement of such pledge; provided that the assignee agrees in writing to be bound by the applicable provisions of this Agreement. No Company consent or minimum transfer size shall be required therefor. The rights herein are otherwise personal to Trafigura and may be exercised for its Controlled Affiliates but may not be assigned to an unaffiliated transferee. Any Controlled Affiliate to which securities are transferred shall agree in writing to be bound by Section 6.3 and shall transfer such securities back to Trafigura or another Controlled Affiliate bound thereby before ceasing to be a Controlled Affiliate. An unaffiliated lender, pledgee or transferee shall not become subject to Section 6.1 solely by reason of such assignment or transfer. Transfers under this Section remain subject to applicable securities laws.
Lock-up; Pledges.
From the date of the Subscription Agreement until the date that is 180 days after the Closing Date (the “Lock-up Period”), Trafigura shall not, and shall cause its Controlled Affiliates not to, directly or indirectly, (i) offer, sell, contract to sell, lend or otherwise transfer or dispose of any Equity Position, (ii) sell short, purchase any put or other option to sell, sell any call or other option to purchase, or enter into any forward sale, collar or other derivative transaction referencing Common Stock or other arrangement transferring any economic consequence of ownership of the Common Stock, or (iii) enter into any swap referencing the Equity Position or Common Stock, whether settled by delivery of securities, in cash or otherwise (collectively, “CVR Stock Sales”), except as permitted below or with the Company’s prior written consent.
Nothing in this Agreement shall restrict, at any time, hedging transactions or options or derivatives referencing a basket or index of securities or commodities not composed primarily of Common Stock (“Permitted Hedges”). The foregoing restrictions shall not apply to (i) any pledge of the Equity Position to secure a margin loan or other financing, or any foreclosure or sale by the lender, (ii) transfers to Controlled Affiliates that agree in writing to be bound by this Section 6.3, provided that Trafigura remains responsible for their compliance and the securities are transferred back to Trafigura or another bound Controlled Affiliate before the transferee ceases to be a Controlled Affiliate, (iii) tendering into, or voting for, any tender offer, merger or other change of control transaction approved or recommended by the Board, or participating in any tender or exchange offer pursuant to Section 6 of the Certificate of Designations, (iv) “basket” hedges not including the equity of the Company, (v) commodity derivatives or (vi) sales pursuant to the IEP Side Letter or any lock-up release given effect under Section 6.3(e) of this Agreement. The Company shall promptly provide customary issuer agreements reasonably requested in connection with any permitted pledge, and lender enforcement and sales shall be free of contractual lock-up and transfer restrictions under the Transaction Documents and Company blackout periods, subject to applicable law. No pledge alone shall transfer voting or personal governance rights.
The Lock-up Period shall terminate upon (i) termination of any Commercial Agreement by the Company or its applicable Subsidiary other than for Trafigura’s or its applicable Affiliate’s uncured default, or by Trafigura or its applicable Affiliate for the Company’s or its applicable Subsidiary’s uncured default, (ii) the Company’s material breach of any Transaction Document (as defined in the Subscription Agreement), or (iii) the Company’s or Icahn Enterprises L.P.’s public announcement of a Change of Control, Going Private Transaction or sale of all or substantially all of the Company’s assets, or the occurrence of any event described in Section 6.1(d)(ii) or Section 6.1(d)(iii). If the Company grants an earlier release from similar restrictions to Icahn Enterprises L.P. or any other material equity investor with respect to equity issued to finance the Acquisition, Trafigura shall concurrently receive an equivalent release. Any sale pursuant to the tag-along rights provided in the IEP Side Letter, and any release from the lock-up under Section 6.3(e) of this Agreement, shall be permitted and given effect under this Section 6.3 notwithstanding the Lock-up Period.
Following expiration or termination of the Lock-up Period, CVR Stock Sales shall be permitted, subject to this paragraph. No CVR Stock Sale, whether during or after the Lock-up Period, shall cause Trafigura and its Controlled Affiliates, taken together, to have a net short economic position in Common Stock, taking into account their then-held Equity Position on an as-converted basis and without double counting offsetting or replacement transactions. CVR Stock Sales shall comply with applicable securities laws and, other than direct transfers permitted under paragraph (b), be executed through recognized dealers. The right of Trafigura and its Controlled Affiliates to convert shares of Preferred Stock into Shares, including the notice required for any such conversion, the applicable conversion rate and all other conversion mechanics, shall be as set forth in, and subject to, the Certificate of Designations. No lockup agreement or transfer restriction herein shall impede those conversion rights. Shares received upon conversion shall remain subject to the restrictions applicable under this Section 6.3 for the remainder of the Lock-up Period.
During the Lock-up Period, if Icahn Enterprises L.P. or any of its Affiliates (other than the Company and its Subsidiaries) sell or transfer shares of Common Stock or preferred stock on an as-converted basis, including through open-market sales, privately negotiated transactions, underwritten offerings, repurchases or redemptions by the Company or actual deliveries of Common Stock upon conversion, exchange or physical settlement of debt or other securities referencing Common Stock, representing, cumulatively from and after the Closing, at least fifteen percent (15%) of the shares of Common Stock outstanding immediately following the Closing (including shares issuable upon conversion of all preferred stock outstanding at such time, without regard to any restriction on conversion), fifty percent (50%) of Trafigura’s original Equity Position as of the Closing shall automatically be released from the restrictions of this Section 6.3, to the extent not previously released or sold pursuant to the IEP Side Letter. The remainder of such original Equity Position shall automatically be released from such restrictions upon the earlier of (i) such cumulative sales reaching twenty-five percent (25%) of the shares of Common Stock outstanding immediately following the Closing, calculated on the same basis, and (ii) the date that is one hundred eighty (180) days after the Closing Date. The issuance by Icahn Enterprises L.P. of debt securities or hybrid securities collateralized by, or exchangeable into, shares of Common Stock owned by Icahn Enterprises L.P. or its Affiliates (other than the Company and its Subsidiaries), the related pledge and hedging of such shares, and foreclosure or other enforcement of such pledge (including sales of such shares in connection with that enforcement) shall not count toward these thresholds, except to the extent such transaction has no bona fide business purpose other than to circumvent this Section 6.3(e). Cumulative sales shall include related and unrelated sales, and exclude transfers among Icahn Enterprises L.P. and such Affiliates that do not reduce their aggregate holdings, in each case without double counting. All share amounts used for purposes of this Section 6.3(e) shall be equitably adjusted for conversions, dividends, stock splits, combinations, reclassifications and similar events occurring after the Closing. Failure to provide notice or confirmation under the IEP Side Letter shall not delay an automatic release.
MISCELLANEOUS
No Inconsistent Agreements. The Company shall not enter into any agreement that grants another person rights materially and adversely inconsistent with Trafigura’s rights under this Agreement without Trafigura’s prior written consent. The Parties shall cooperate reasonably to carry out the provisions of this Agreement in accordance with applicable law and exchange rules.
Amendments and Waivers. Except for consents given by the Company pursuant to Section 6.3, no provision of this Agreement may be amended or waived except by a written instrument executed by the Company and Trafigura. No amendment or waiver shall materially adversely affect a Permitted Holder’s assigned rights under Article III without that holder’s written consent. No failure or delay in exercising any right under this Agreement shall operate as a waiver of that right, nor shall any single or partial exercise preclude any further exercise of that or any other right. Any amendment on behalf of the Company shall be approved in accordance with applicable law.
Specific Performance. Each Party acknowledges that a breach of Article II, III, IV, V or VI would cause irreparable harm for which monetary damages would not be an adequate remedy. Accordingly, subject to applicable law, each Party shall be entitled to seek specific performance, injunctive relief and other equitable remedies to prevent or remedy a breach of those provisions, without proof of actual damages or the posting of a bond or other security, in addition to any other remedy available at law or in equity.
Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement and any claim arising out of or relating to this Agreement shall be governed by the laws of the State of Delaware, without regard to conflict-of-laws principles that would require application of the laws of another jurisdiction. Each Party irrevocably submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware or, if that court lacks subject-matter jurisdiction, the state or federal courts located in Delaware, in any action arising out of or relating to this Agreement. Each Party waives, to the fullest extent permitted by law, any right to trial by jury in any such action.
Notices. All notices and other communications under this Agreement shall be in writing and delivered by personal delivery, nationally recognized overnight courier, registered or certified mail, return receipt requested, or email, to the Company at CVR Energy, Inc., 2277 Plaza Drive, Suite 500, Sugar Land, Texas 77479, Attention: Melissa Buhrig, email: ***, ***, with a copy (which shall not constitute notice) to Proskauer Rose LLP, Eleven Times Square, New York, NY 10036, Attention: JD DeSantis, Joshua Apfelroth and Louis Rambo, email: ***, ***, ***, and to Trafigura US Holdings, Inc. at 845 Texas Avenue, Suite 3600, Houston, Texas 77002, Attention: General Counsel, email: ***, with a copy (which shall not constitute notice) to Baker Botts L.L.P., 910 Louisiana Street, Houston, TX 77002, Attention: Travis Wofford, Joseph Halloum and Carina Antweil, email: ***, ***, ***, or to such other address or email address as a Party specifies by notice under this Section 7.5. A notice shall be deemed received upon receipt if received before 5:00 p.m., New York City time, on a Business Day and otherwise on the next Business Day. For these purposes, email shall be deemed received when transmitted if the sender does not receive a notice of delivery failure.
Miscellaneous.
This Agreement, together with the Subscription Agreement, the Certificate of Designations and the Confidentiality Agreement, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior agreements and understandings concerning that subject matter. This Agreement binds and benefits the Parties and their permitted successors and assigns. For the avoidance of doubt, if, in connection with an internal reorganization of the Company that does not result in a change in the ultimate beneficial ownership of the Company, the Registrable Securities are exchanged for securities of a surviving, resulting or successor entity or a direct or indirect parent thereof, the Company shall ensure that the agreement governing that reorganization provides for the continuation of the rights under Articles
II, III, IV and V with respect to such issuer and the securities received in exchange for such Registrable Securities and the assumption of the Company’s obligations under Articles II, III, IV and V by the issuer of such securities, in each case on equivalent terms and subject to the same ownership thresholds. Except for Permitted Holders with respect to rights expressly granted to them and the persons expressly entitled to protection under Sections 2.7 and 3.8, no person other than a Party has any right or remedy under this Agreement.
If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in effect, and the Parties shall negotiate in good faith a lawful replacement that gives effect to their original intent as nearly as practicable. This Agreement may be executed in counterparts, each of which constitutes an original and all of which together constitute one agreement. Signatures transmitted electronically shall be effective as original signatures. This Agreement shall terminate upon termination of the Subscription Agreement before the Closing Date, without prejudice to accrued rights or claims or any obligation to reimburse expenses. This Article VII shall survive such termination.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
| CVR ENERGY, INC. | ||
| By: | /s/ Dane J. Neumann | |
| Name: Dane J. Neumann | ||
| Title: President and Chief Executive Officer | ||
| TRAFIGURA US HOLDINGS, INC. | ||
| By: | /s/ Robert Kreider | |
| Name: Robert Kreider | ||
| Title: Director | ||
| By: | /s/ Dereje Tedla | |
| Name: Dereje Tedla | ||
| Title: Authorized Representative | ||
EXHIBIT A
[ ], 20[ ]
Trafigura US Holdings, Inc.
845 Texas Avenue, Suite 3600
Houston, Texas 77002
Attention: General Counsel
Ladies and Gentlemen:
This letter agreement (this “Agreement”) is entered into by and between CVR Energy, Inc., a Delaware corporation (the “Company”), and Trafigura US Holdings, Inc., a Delaware corporation (“Trafigura” or “you” and, together with the Company, the “Parties”). This Agreement constitutes the “Confidentiality Agreement” contemplated by, and is being entered into in connection with, (i) that certain Subscription Agreement, dated as of November 2, 2026 (the “Trafigura Subscription Agreement”), by and between Trafigura and the Company, pursuant to which Trafigura has agreed to subscribe for newly issued shares of convertible non-voting preferred stock of the Company (the “Preferred Stock”) and (ii) that certain Investor Rights Agreement, dated as of November 2, 2026, by and between the Company and Trafigura (the “Investor Rights Agreement”). Capitalized terms used but not defined herein have the meanings given to them in the Investor Rights Agreement.
This letter agreement shall become effective upon the appointment of any Board Observer or Trafigura Designee who, in either case, is an employee, officer, director or other agent of Trafigura or any of its Controlled Affiliates (an “Applicable Designee”) under Section 2.1 or Section 2.2 of the Investor Rights Agreement. The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement, an Applicable Designee may, if and to the extent he or she desires to do so, disclose non-privileged information he or she obtains while serving as a member of the Board (in the case of a Trafigura Designee) or an observer to the Board (in the case of a Board Observer), as applicable, to you and/or your Representatives (as hereinafter defined), and may discuss such information with any and all such persons, subject to the terms and conditions of this letter agreement and Section 9(t) of the Trafigura Subscription Agreement, and that other members of the Board may similarly disclose information to you if they wish to do so, subject to the Company’s policies and subject to their fiduciary duties. As a result, you may receive certain non-public information regarding the Company. You acknowledge that this information is proprietary to the Company and may include trade secrets or other business information the disclosure of which could harm the Company. In consideration for, and as a condition of, the information being furnished to you and your Controlled Affiliates, your and their respective agents, representatives, attorneys, advisors, directors, officers, or employees, and actual or prospective lenders and financing sources for your investment in the Company (collectively, in each case to the extent receiving Evaluation Material (as hereinafter defined), the “Representatives”), subject to the restrictions in Section 2, you agree to treat any and all information concerning or relating to the Company or any of its subsidiaries or current or former affiliates that is furnished to you or your Representatives (regardless of the manner in which it is furnished, including in written or electronic format or orally, gathered by visual inspection or otherwise) by any Trafigura Designee, any Board Observer or by or on behalf of the Company or any Company Representative (as defined below), including discussions or matters considered in meetings of the Board or Board committees, together with any notes, analyses, reports, models, compilations, studies, interpretations, documents, records or extracts thereof, in each case to the extent containing, referring, relating to, based upon or derived from such information, in whole or in part (collectively, “Evaluation Material”), in accordance with the provisions of this letter agreement, and to take or abstain from taking the other actions hereinafter set forth.
| 1. | The term “Evaluation Material” does not include information that (i) is or has become generally available to the public other than as a result of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement or any other obligation of confidentiality, (ii) was within your or any of your Representatives’ possession on a non-confidential basis prior to its being furnished to you by an Applicable Designee or by or on behalf of the Company, any of its subsidiaries or their respective agents, representatives, attorneys, advisors, directors (other than any Trafigura Designee), officers or employees (collectively, the “Company Representatives”), (iii) is received from a source other than any Applicable Designee, the Company or any of the Company Representatives, or (iv) is independently developed by you or your Representatives without use of or reference to Evaluation Material; provided, that in the case of (ii) or (iii) above, the source of such information was not believed by you, after reasonable inquiry, to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company, any of its subsidiaries or any other person with respect to such information at the time the information was disclosed to you. |
| 2. | You and your Representatives will, and you will cause your Representatives to, (a) keep the Evaluation Material strictly confidential, (b) not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company and (c) use the Evaluation Material only in connection with monitoring and advising you on your investment in and commercial and contractual arrangements with the Company or availing yourself of rights expressly provided or performing obligations under the agreements and instruments referred to in Section 6; provided, however, that you may privately disclose any of such information: (A) to your Representatives (i) who need to know such information, (ii) are bound by confidentiality obligations and use restrictions no less restrictive than those set forth herein and (iii) who are informed by you of the confidential nature of such information and, except for lenders and financing sources bound by written obligations satisfying clause (ii), agree to be bound by the terms of this letter agreement as if they were a party hereto; provided, further, that you will be responsible for any violation of this letter agreement by your Representatives as if they were parties to this letter agreement; and (B) to the Company and the Company Representatives. Subject to applicable law, this letter agreement shall not restrict the investment, trading or ordinary-course business activities of your or your Controlled Affiliates’ personnel who have not received or otherwise obtained Evaluation Material and are not acting at the direction of any person who has received Evaluation Material, subject to compliance with customary information-barrier arrangements. It is understood and agreed that no Applicable Designee shall disclose to you or your Representatives any Privileged Information (as defined below) that may be included in the Evaluation Material. “Privileged Information” as used in this letter agreement shall be solely and exclusively limited to the advice provided by legal counsel and any discussions, deliberations or materials concerning such advice or which would otherwise be subject to legal privileges and protections and shall not include factual information or the formulation or analysis of business strategy solely to the extent that it is not protected by the attorney-client, attorney work product or other legal privilege or protection. |
| 3. | In the event that you or any of your Representatives are required by applicable subpoena, legal process or other legal requirement to disclose any of the Evaluation Material, you will (a) promptly notify (except where such notice would be legally prohibited) the Company in writing by email so that the Company may seek a protective order or other appropriate remedy (and if the Company seeks such an order, you will provide such cooperation as the Company shall reasonably request), at its cost and expense and (b) produce or disclose only that portion of the Evaluation Material which your legal counsel advises you is legally required to be so produced or disclosed and you inform the recipient of such Evaluation Material of the existence of this letter agreement and the confidential nature of such Evaluation Material. In no event will you or |
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| any of your Representatives oppose action by the Company to obtain a protective order or other relief to prevent the disclosure of the Evaluation Material or to obtain reliable assurance that confidential treatment will be afforded the Evaluation Material, and you shall use reasonable efforts (at the Company’s cost and expense) to obtain confidential treatment of the disclosed Evaluation Material. No notice under this Section 3 shall be required for a disclosure in connection with a routine examination by a regulatory or supervisory authority having jurisdiction over you or your Representatives that is not specifically directed at the Company or the Evaluation Material. For the avoidance of doubt, it is understood that there shall be no “legal requirement” requiring you to disclose any Evaluation Material solely by virtue of the fact that, absent such disclosure, you would be prohibited from purchasing, selling, or engaging in derivative or other voluntary transactions with respect to the shares of common stock, $0.01 par value (“Common Shares”), of the Company or otherwise proposing or making an offer to do any of the foregoing, or you would be unable to file any proxy or other solicitation materials in compliance with Section 14(a) of the Exchange Act or the rules promulgated thereunder. |
| 4. | You acknowledge that (a) none of the Company or any of the Company Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of any Evaluation Material, and (b) none of the Company or any of the Company Representatives shall have any liability to you or to any of your Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. The foregoing does not limit any express representations, warranties, covenants or remedies under the agreements and instruments referred to in Section 6 or any claim for actual fraud. You and your Representatives (or anyone acting on your or their behalf) shall not directly or indirectly initiate contact or communication with any executive or employee of the Company or any of its subsidiaries other than the Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, General Counsel and Secretary, or such other persons approved in writing by the foregoing or the Board concerning Evaluation Material, or to seek any information in connection therewith from any such person other than the foregoing, without the prior consent of the Company; provided, however, the restriction in this sentence shall not in any way apply to any Trafigura Designee acting in his or her capacity as a Board member from seeking Company information in the discharge of his or her fiduciary duties (nor shall it apply to any other Board members, any Board Observer, contacts expressly permitted by the Investor Rights Agreement or ordinary course communications relating to commercial or contractual arrangements with the Company or its affiliates). |
| 5. | All Evaluation Material shall remain the property of the Company or its applicable owner. Neither you nor any of your Representatives shall by virtue of any disclosure of or your use of any Evaluation Material acquire any rights with respect thereto, all of which rights (including all intellectual property rights) shall remain exclusively with the Company or such owner. At any time after the date on which no Applicable Designee is a director of the Company or an observer to the Board, upon the request of the Company for any reason, you will promptly return to the Company or destroy all hard copies of the Evaluation Material and use reasonable best efforts to permanently erase or delete all electronic copies of the Evaluation Material in your or any of your Representatives’ possession or control (and, upon the request of the Company, shall promptly certify to the Company that such Evaluation Material has been erased or deleted, as the case may be). Notwithstanding the foregoing, the obligation to return, destroy, erase or delete Evaluation Material shall not cover information (a) that is maintained on routine computer system backup tapes, disks or other backup storage devices as long as such backed-up information is not used, disclosed, or otherwise recovered from such backup devices or (b) retained on a confidential basis solely to the extent required to comply with applicable law and/or any internal record retention requirements or, to the extent reasonably necessary, to |
3
| exercise rights or perform obligations under the agreements and instruments referred to in Section 6; provided, that such materials referenced in this sentence shall remain subject to the terms of this letter agreement applicable to Evaluation Material, and you and your Representatives will continue to be bound by the obligations contained in this letter agreement for as long as any such materials are retained by you or your Representatives. |
| 6. | You acknowledge, and will advise your Representatives, that the Evaluation Material may constitute material non-public information under applicable federal or state securities laws, and you agree that you shall not, and you shall use reasonable best efforts to ensure that your Representatives do not, trade or engage in any derivative or other transaction in the Common Shares or any of the Company’s other securities on the basis of such information in violation of such laws. This letter agreement shall not restrict transfers or the exercise of rights expressly permitted by the Investor Rights Agreement, the Certificate of Designations, the Trafigura Subscription Agreement, the IEP Side Letter or the Commercial Agreements (each of the latter two terms as defined in the Trafigura Subscription Agreement); provided that any such transfer or exercise remains subject to the confidentiality and use restrictions herein, applicable information-barrier arrangements and applicable law. |
| 7. | You hereby represent and warrant to the Company that (i) you have all requisite corporate, entity or other power and authority to execute and deliver this letter agreement and to perform your obligations hereunder, (ii) this letter agreement has been duly authorized, executed and delivered by you, and is a valid and binding obligation, enforceable against you in accordance with its terms, (iii) this letter agreement will not result in a violation of any terms or conditions of any agreements to which you are a party or by which you may otherwise be bound, and (iv) your entry into this letter agreement does not require approval by any owners or holders of any equity or other interest in you (except as has already been obtained). |
| 8. | Any waiver by the Company of a breach of any provision of this letter 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 letter agreement. The failure of the Company to insist upon strict adherence to any term of this letter agreement on one or more occasions shall not be considered a waiver or deprive the Company of the right thereafter to insist upon strict adherence to that term or any other term of this letter agreement. |
| 9. | Trafigura shall cause any Applicable Designee appointed pursuant to the Investor Rights Agreement to execute and deliver to the Company, before receiving any Evaluation Material, a customary joinder to this letter agreement solely with respect to the confidentiality, use, return or destruction, survival and related enforcement obligations applicable to such Applicable Designee in that capacity. |
| 10. | This letter agreement shall expire three (3) years from the date on which no Applicable Designee remains a director of the Company or an observer to the Board (whichever is later); except that you shall maintain in accordance with the confidentiality obligations set forth in this letter agreement any Evaluation Material (a) constituting trade secrets for such longer time as such information constitutes a trade secret of the Company as defined under 18 U.S.C. § 1839(3) and/or (b) retained pursuant to Section 5. |
| 11. | No licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this letter agreement. |
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| 12. | Each of the parties acknowledges that it has been represented by counsel of its choice throughout all negotiations that have preceded the execution of this letter agreement, and that it has executed the same with the advice of said counsel. Each party and its counsel cooperated and participated in the drafting and preparation of this letter agreement and the documents referred to herein, and any and all drafts relating thereto exchanged among the parties shall be deemed the work product of all of the parties and may not be construed against any party by reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this letter agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each of the parties, and any controversy over interpretations of this letter agreement shall be decided without regards to events of drafting or preparation. The term “including” shall in all instances be deemed to mean “including without limitation.” In all instances, the term “or” shall not be deemed to be exclusive. |
| 13. | Miscellaneous. This Agreement shall be governed in all respects by the laws of the State of Delaware. The state or federal courts located in Wilmington, Delaware shall each have non-exclusive jurisdiction over all disputes relating to this Agreement. This Agreement, together with the agreements and instruments referred to in Section 6, contains the entire understanding of the Parties with respect to the subject matter hereof and may be amended only by an agreement in writing executed by the Parties. Nothing in this Agreement amends or supersedes the agreements or instruments referred to in Section 6. Neither Party may assign this Agreement without the prior written consent of the other Party, except that Trafigura may assign its rights hereunder to a controlled Affiliate that holds Preferred Stock or Common Stock. Nothing in this Agreement shall confer any rights upon any person other than the Parties and their permitted successors and assigns. All notices hereunder shall be in writing and delivered by email (with confirmation of transmission) or by nationally recognized overnight courier to the addresses set forth on the signature pages hereto (or such other address as a Party may designate by notice). Each Party acknowledges that irreparable harm would result from any breach of this Agreement and that the other Party shall be entitled to seek specific performance and injunctive relief, in addition to any other remedy at law or in equity. If at any time subsequent to the date hereof, any provision of this Agreement shall be held by any court of competent jurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of such provision shall have no effect upon the legality or enforceability of any other provision of this Agreement. This Agreement may be executed in two or more counterparts either manually or by electronic or digital signature (including by facsimile or electronic mail transmission), each of which shall be deemed to be an original and all of which together shall constitute a single agreement. |
[Signature Pages Follow]
5
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between the Parties.
| Very truly yours, | ||
| CVR ENERGY, INC. | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Address for notices: | ||
| CVR Energy, Inc. 2277 Plaza Drive, Suite 500 | ||
| Sugar Land, Texas 77479 | ||
| Attention: Melissa Buhrig | ||
| Email: ***;*** | ||
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| Trafigura US Holdings, Inc. | ||
| By: |
| |
| Name: Robert Kreider | ||
| Title: Director | ||
| By: |
| |
| Name: Dereje Tedla | ||
| Title: Authorized Representative | ||
| Address for notices: | ||
| Trafigura US Holdings, Inc. 845 Texas Avenue, Suite 3600 | ||
| Houston, Texas 77002 | ||
| Attention: General Counsel | ||
| Email: *** | ||
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EXHIBIT C
***
EXHIBIT D
***
EXHIBIT E
***
EXHIBIT F
***
Exhibit 10.2
Confidential
Execution Version
Certain identified information in this Agreement denoted with “[***]” has been excluded from this exhibit pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and of the type that the registrant treats as private and confidential.
Crude Oil Supply Agreement
Between
Trafigura Trading LLC
and
MND Holdco, LLC
Dated November 2nd, 2026
Crude Oil Supply Agreement
This Crude Oil Supply Agreement (this “Agreement”) is entered into on November 2nd, 2026 (the “Effective Date”), between Trafigura Trading LLC, a Delaware limited liability company (“Trafigura”), and MND Holdco, LLC, a Delaware limited liability company (“CVR”). Trafigura and CVR are each referred to individually herein as a “Party” or collectively as the “Parties”.
WHEREAS, Affiliates of CVR are, concurrently with the execution hereof, entering into that certain Equity and Asset Purchase Agreement, by and among Marathon Petroleum Company LP, Tesoro Refining & Marketing Company LLC, Western Refining Southwest LLC, Western Refining Terminals LLC, Marathon Petroleum Supply and Trading LLC, and CVR Energy, Inc. (the “Purchase Agreement”) pursuant to which the Purchasers will acquire, directly or indirectly, 100% of the issued and outstanding membership interests in Saint Paul Park Refining Co. LLC, 1,700 common units, representing 17% of the issued and outstanding common interests of Minnesota Pipe Line Company, LLC and 1,700 shares of common stock, par value $0.01 per share, representing 17% of the issued and outstanding shares of MPL Investments, Inc. and certain other assets relating to the petroleum refineries located in Mandan, North Dakota (the “Mandan Refinery”) and St. Paul Park, Minnesota (the “SPP Refinery”);
WHEREAS, concurrently with the execution hereof, Trafigura and CVR Supply & Trading, LLC, are entering into [***], and the Parties intend that this Agreement and [***] operate together as a single crude oil intermediation arrangement;
WHEREAS, Trafigura is in the business of purchasing and selling crude oil and refined products; and
WHEREAS, the Parties desire to enter into this Agreement whereby Trafigura will purchase initial inventories of, and thereafter supply, and CVR will purchase, Crude Oil for processing at the Refineries pursuant to the terms defined herein, upon the consummation of the transactions contemplated by the Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the respective promises, conditions, terms, and agreements contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Trafigura and CVR do hereby agree as follows:
ARTICLE 1
DEFINITIONS AND CONSTRUCTION
1.1 Definitions. For purposes of this Agreement, including the foregoing recitals, the following terms shall have the meanings indicated below:
“Adequate Assurance” has the meaning set forth in Section 11.3.
“Adjustment Deadline” has the meanings set forth in Section 7.2(a).
“Affiliate” means, in relation to any Person, any entity controlled, directly or indirectly, by such Person, any entity that controls, directly or indirectly, such Person, or any entity directly or indirectly under common control with such Person. For this purpose, “control” of any entity or Person means ownership of a majority of the issued Equity Interests or voting power or control in fact of the entity or Person. With regard to CVR, Affiliate shall include only CVR Energy, Inc. and its subsidiaries, and expressly excludes Icahn Enterprises, L.P. and any of its subsidiaries other than CVR Energy, Inc. and its subsidiaries.
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“Agreement” means this Crude Oil Supply Agreement, as may be amended, modified, supplemented, extended, renewed, or restated from time to time in accordance with the terms hereof, including any Exhibits and Schedules attached hereto.
“Allocation Date” has the meaning set forth in Section 4.7(i).
“API” means the American Petroleum Institute.
“Applicable Law” means (i) any law, statute, regulation, code, ordinance, license, order, writ, injunction, decision, directive, judgment, policy, decree and any judicial or administrative interpretations thereof, (ii) any agreement, concession, or arrangement with any Governmental Authority or (iii) any applicable license, permit or compliance requirement applicable to either Party, including Environmental Laws.
“Assuring Party” has the meaning set forth in Section 11.3.
“Availability Fee Basis” has the meaning set forth in Schedule D.
“Bankrupt” means a Person that (i) is dissolved, other than pursuant to a consolidation, amalgamation or merger, (ii) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due, (iii) makes a general assignment, arrangement or composition with or for the benefit of its creditors, (iv) institutes or has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, (v) has a resolution passed for its winding-up, official management or liquidation, other than pursuant to a consolidation, amalgamation or merger, (vi) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for all or substantially all of its assets, (vii) has a secured party take possession of all or substantially all of its assets, or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all of its assets, (viii) causes or is subject to any event with respect to it which, under Applicable Law, has an analogous effect to any of the events specified in clauses (i) through (vii) above, inclusive, or (ix) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in any of the foregoing acts.
“Bankruptcy Code” means Title 11, U.S.C. §§ 101 et seq., as amended from time to time.
“Barrel” means forty-two (42) net U.S. gallons, measured at 60° F.
“Base Interest Rate” has the meaning set forth in Schedule D.
“Business Day” means a twenty-four (24)-hour period commencing 12:01 a.m. CT on a weekday on which banks are open for general commercial business in New York City.
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“Calculating Party” has the meaning set forth in Section 9.9(c).
“Canadian Trade Cycle” has the meaning set forth in Section 7.1(b).
“Catastrophic Loss” means any loss of Crude Oil resulting from a spill, fire, explosion, or other casualty event or loss.
“Change of Control” means an event or series of events by which CVR Parent at any time ceases to own, directly or indirectly, (i) 100% of the Equity Interests in CVR or ii) each of the Mandan Refinery and the SPP Refinery (it being understood that so long as CVR Parent owns, directly or indirectly, either the Mandan Refinery or the SPP Refinery, this clause (ii) is not triggered).
“Commencement Date” means the “Closing Date” as defined in the Purchase Agreement.
“Commencement Date Inventories” means the Initial Inventory as defined in the Inventory Purchase and Sale Agreement.
“Confidential Information” means (a) information regarding the terms and conditions or subject matter of any Transaction Document; (b) all communications between the Parties and all information and other material supplied to, or received by, a Party from another Party in connection with negotiations leading to any Transaction Document which is either marked “confidential” or by its nature is intended to be for the knowledge of the recipient alone; or (c) all information (including, without limitation, data, reports, interpretations, forecasts, records, analyses, compilations, studies or other documents) concerning a Party or its Affiliates which is provided to the other Party in connection with any Transaction Document;.
“Confirmation” means a written communication confirming the terms of a Third-Party Contract between Trafigura and a Counterparty, for the sale of Crude Oil, which shall specify the price, volume, grade, quality, quantity, delivery point, date of delivery, identity of the Counterparty and payment and performance terms, in substantially the form of Schedule E.
“Contract Price” means the purchase price for Crude Oil specified in a Third-Party Contract.
[***].
“Counterparty” means, with respect to a Third-Party Contract, the third-party suppliers of Crude Oil to be purchased by Trafigura and sold to CVR pursuant to the terms hereof.
“Cover Exposure” has the meaning set forth in Section 11.4.
“Crude Oil” means [***].
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“Crude Oil Pool” means (i) the discrete volume of Crude Oil from either Canada or the United States acquired by Trafigura from a Counterparty pursuant to a Third-Party Contract and (ii) any specific quantity of crude oil from the same region that CVR elects to pool and treat as a single discrete volume. For pricing purposes, CVR may only pool volumes that are [***].
For ease of administration, Crude Oil Pools will be volumetrically averaged and priced based on the geographic region they originate from. The Parties acknowledge and agree that a Crude Oil Pool may be comprised of more than one parcel and that such individual parcels shall be identified in a given Crude Oil Withdrawal for pricing purposes.
“Crude Oil Withdrawal” has the meaning set forth in Section 7.3.
“CT” means the prevailing time in the Central Time zone.
“[***]” means the crude oil storage, blending and transfer facilities located at or near [***].
“CVR” has the meaning set forth in the preamble of this Agreement.
“CVR Parent” means CVR Energy, Inc. (NYSE: CVI).
“CVR Parent Guaranty” means a guaranty from CVR Parent in favor of Trafigura as beneficiary in the form of Exhibit A.
“Default” or “Event of Default” means an occurrence of the events or circumstances described in Article 16.
“Defaulting Party” has the meaning set forth in Section 16.2.
“Delivery Point” shall be as described on Schedule A attached hereto.
“Designated Tanks” means the tanks set forth on Schedule B, identifying any tanks located at Third-Party Storage Facilities. The Designated Tanks shall only contain Crude Oil.
“Dispute Notice” has the meaning set forth in Section 9.9(a).
“Effective Date” has the meaning set forth in the preamble of this Agreement.
“Eligible Collateral” means, at Assuring Party’s discretion, (a) [***], (b) [***], (c) [***], or (d) a parent company guaranty for a duration and in an amount reasonably sufficient to cover a value up to the Cover Exposure from a guarantor reasonably acceptable to the Insecure Party.
“Environmental Law” means any existing or past Applicable Law, policy, judicial or administrative interpretation thereof or any legally binding requirement that governs or purports to govern the protection of persons, natural resources or the environment (including the protection of ambient air, surface water, groundwater, land surface or subsurface strata, endangered species or wetlands), occupational health and safety and the manufacture, processing, distribution, use, generation, handling, treatment, storage, disposal, transportation, release or management of solid waste, industrial waste or hazardous substances or materials.
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“Equity Interests” means, with respect to any Person, any and all shares, interests, participations or other equivalents, including membership interests (however designated, whether voting or nonvoting), of equity of such Person, including, if such Person is a partnership, partnership interests (whether general or limited) and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of property of, such partnership, but excluding debt securities convertible or exchangeable into such equity.
“Final Inventory” has the meaning set forth in Section 17.1.
“Force Majeure” means any cause or event reasonably beyond the control of a Party, including, fires, earthquakes, lightning, floods, explosions, storms, adverse weather, landslides and other acts of natural calamity or acts of God; strikes, grievances, actions by or among workers or lock-outs (whether or not such labor difficulty could be settled by acceding to any demands of any such labor group of individuals and whether or not involving employees of Mandan Refinery, SPP Refinery or Trafigura); accidents at, closing of, or restrictions upon the use of pipelines, railroads or other transportation mechanisms; disruption or breakdown of, explosions or accidents to wells, storage plants, terminals, machinery or other facilities; acts of war, hostilities (whether declared or undeclared), civil commotion, pandemics, epidemics, embargoes, blockades, terrorism, sabotage or acts of the public enemy; any act or omission of any Governmental Authority; good faith compliance with any order, request or directive of any Governmental Authority; curtailment, interference, failure or cessation of supplies reasonably beyond the control of a Party; or any other cause reasonably beyond the control of a Party, whether similar or dissimilar to those above and whether foreseeable or unforeseeable.
“GAAP” means generally accepted accounting principles in the United States, applied consistently with prior practices.
“Governmental Authority” means any federal, state, regional, local or municipal governmental body, agency, instrumentality, authority or entity established or controlled by a government or subdivision thereof, including any legislative, administrative or judicial body, or any person purporting to act therefor, and shall include NYMEX.
“Handling Fee” has the meaning set forth in Schedule D.
“Hedge Adjustment Amount” has the meaning set forth in Section 9.8(c).
“Hedge Adjustments” has the meaning set forth in Section 9.8(f).
“Hedge Margin Amount” has the meaning set forth in Schedule D.
“Implemented Hedge” has the meaning set forth in Section 9.8(b).
“Indemnified Party” has the meaning set forth in Section 18.3.
“Indemnification Party” has the meaning set forth in Section 18.3.
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“Indemnifying Claim” has the meaning set forth in Section 18.3.
“Independent Inspector” means an independent third-party inspection company that is generally recognized in the petroleum industry as experienced in measuring the quantity and quality of petroleum products. Unless specifically provided otherwise in this Agreement, the Parties shall share equally in any costs incurred therefor.
“Indicative Delivery Windows” has the meaning set forth in Section 1.1(a)(i).
“Indicative Supply Price” has the meaning set forth in Section 1.1(a).
“Indicative Supply Pricing List” has the meaning set forth in Section 1.1(a).
“Indifference Grade List” has the meaning set forth in Section 1.1(a).
“Initial Term” has the meaning set forth in Section 2.1.
“Insecure Party” has the meaning set forth in Section 11.3.
“Inventory Availability Fee” has the meaning set forth in Schedule D.
“Inventory Hedges” has the meaning set forth in Schedule D.
“[***] Agreement” means the [***] Agreement between [***] and CVR dated as of [***].
“Letter of Credit” means an irrevocable, transferable standby letter of credit.
“Liabilities” means any losses, claims, charges, damages, deficiencies, assessments, interests, penalties, costs, and expenses of any kind (including reasonable attorneys’ fees and other fees, court costs and other disbursements), directly or indirectly arising out of or related to any claim, suit, proceeding, judgment, settlement or judicial or administrative order, including any Liabilities with respect to Environmental Laws.
“Liquidation Amount” has the meaning set forth in Section 17.2.
“Liquidation Reserve [***]” has the meaning set forth in Schedule D.
“Liquidation [***]” has the meaning set forth in Schedule D.
“Mandan Refinery” has the meaning set forth in the recitals to this Agreement.
“Mandate” has the meaning set forth in Section 1.1(a)(i).
“[***]” means the [***].
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[***].
“Monthly Crude Nomination” has the meaning set forth in Section 7.1(a).
“Narrowed Grade List” has the meaning set forth in Section 1.1(a)(i).
“Nomination Adjustment” has the meaning set forth in Section 7.2(a).
“Nomination Deadline” has the meaning set forth in Section 7.1(b).
“NYMEX” means the New York Mercantile Exchange.
“Optimization Transaction” has the meaning set forth in Section 1.1(a).
“Party” or “Parties” has the meaning set forth in the preamble of this Agreement.
“Pass-Through Costs” means [***].
“Performing Party” has the meaning set forth in Section 16.2.
“Periodic Reports” has the meaning set forth in Section 11.1.
“Person” means an individual, corporation, partnership, limited liability company, joint venture, trust or unincorporated organization, joint stock company or any other private entity or organization, Governmental Authority, court or any other legal entity, whether acting in an individual, fiduciary or other capacity.
“Pipeline” or “Pipelines” means [***] and any other pipeline owned or operated by a Pipeline Operator and used for shipments of Crude Oil hereunder.
“Pipeline Agreement(s)” means any agreement for the shipment of Crude Oil between CVR and a Pipeline Operator.
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“Pipeline Operator” means the entity that operates a Pipeline.
“Potential Event of Default” means any event or circumstance that, with notice or the passage of time, or both, would constitute an Event of Default.
“Product Offtake Agreement” means the Product Offtake Agreement dated as of the Effective Date between the Parties.
“Prudent Industry Practice” means the practices, methods and standards generally followed by prudent and diligent operators in the United States, acting in good faith, consistent with Applicable Law and good engineering practice.
“Purchase Agreement” has the meaning set forth in the recitals to this Agreement.
“Refineries” means, collectively, the Mandan Refinery and the SPP Refinery and all of the related facilities owned and operated by them or their Affiliates, including the processing, storage, receiving, loading and delivery facilities, piping and related facilities, together with existing or future modifications or additions, and any associated or adjacent facility that is used by the Refineries to carry out the terms of this Agreement.
“Renewal Term” has the meaning set forth in Section 2.2.
“Representatives” has the meaning set forth in Section 9.9(d).
“Reserve Cap” has the meaning set forth in Schedule D.
“Reserve Start Date” has the meaning set forth in Schedule D.
“Run Forecast” has the meaning set forth in Section 4.7(m).
“Scheduled Maintenance” means regularly scheduled maintenance turnarounds at either of the Refineries.
“Screen Rate” has the meaning set forth in Schedule D.
“SEC” means the Securities and Exchange Commission.
“Senior Executives” has the meaning set forth in Section 9.9(d).
“SOFR” means secured overnight financing rate.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the SOFR).
“SPP Refinery” has the meaning set forth in the recitals to this Agreement.
“Subscription Agreement” means that certain Subscription Agreement, dated as of November 2, 2026, by and between CVR Parent and Trafigura US Holdings, Inc.
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“Supply Month” has the meaning set forth in Section 4.7(a).
“Tank Maintenance” has the meaning set forth in Section 4.4(a).
“Target Grades” has the meaning set forth in Section 4.7(e)(i).
“Taxes” means any and all foreign, federal, state and local taxes (other than taxes on income), duties, fees and charges of every description on or applicable to Crude Oil, including all gross receipts, environmental, spill, ad valorem and sales and use taxes, however designated, paid or incurred directly or indirectly with respect to the ownership, purchase, exchange, use, transportation, resale, importation or handling of Crude Oil or related WTI Contracts, including for any Tax, any interest, penalties or additions to tax attributable to any such Tax, including penalties for the failure to file any tax return or report.
“Technical Dispute” has the meaning set forth in Section 9.9(e).
“Temporary Assignment” means any of the agreements among Trafigura, CVR (or its Affiliates) and a Terminal Operator or Pipeline Operator, pursuant to which CVR’s transportation and/or storage rights set forth in the applicable Terminal Agreements or Pipeline Agreements, together with all applicable shipper history, are temporarily assigned by CVR or its Affiliates to Trafigura, including with respect to [***].
“Term” has the meaning set forth in Section 2.2.
“Term Supply Proposal” has the meaning set forth in Section 4.7(l).
“Terminal” or “Terminals” means any facility owned or operated by a Terminal Operator and used to store, transport or blend Crude Oil hereunder.
“Terminal Agreement” or “Terminal Agreements” means any agreement for the storage of Crude Oil between CVR and a Terminal Operator.
“Terminal Operator” or “Terminal Operators” means (i) [***] and (ii) other Persons providing terminal services for Crude Oil while Trafigura has title to such Crude Oil.
“Termination Date” has the meaning set forth in Section 17.2.
“Termination Payment” has the meaning set forth in Schedule D.
“Third-Party Contract” means a contract between Trafigura and a Counterparty for the supply of Crude Oil to CVR. A Third-Party Contract shall include those sales of Crude Oil by CVR to Trafigura.
“Third-Party Crude Oil” has the meaning set forth in Section 4.5.
“Third-Party Sale Transaction” means a sale or exchange of Crude Oil on CVR’s behalf to a third-party purchaser.
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“Third-Party Storage Costs” means storage, tankage and terminalling fees actually paid by Trafigura to a Person other than CVR or any of its Affiliates for the storage of Crude Oil at a facility other than the Designated Tanks, to the extent such storage is undertaken at the request or direction of CVR or is required for purposes of this Agreement.
“Third-Party Storage Facilities” means the crude oil storage terminals listed in Schedule C (owned or operated by Persons other than CVR or its Affiliates) at which Crude Oil intended for supply to the Refineries is stored, as such Schedule may be amended from time to time by mutual written agreement of the Parties.
“Trafigura” has the meaning set forth in the preamble to this Agreement.
“Trafigura Parent” means Trafigura Group Pte. Ltd.
“Trafigura Parent Guaranty” means a guaranty from Trafigura Parent in favor of CVR as beneficiary in the form of Exhibit B.
“Trafigura Terminalling Agreements” means that certain Terminalling Agreement, dated as of the Effective Date, by and between Coffeyville Resources Refining & Marketing, LLC and Trafigura and a Terminalling Agreement to be entered into pursuant to the side letter between CVR Parent and Trafigura dated as of the Effective Date.
“Transaction Document” means this Agreement, [***], the Master Netting Agreement, the Product Offtake Agreement, [***], the Trafigura Terminalling Agreements, the Temporary Assignments, and the CVR Parent Guaranty.
“Transactions” means any agreement by the Parties to purchase and sell Crude Oil pursuant to the terms of this Agreement.
“Transfer Price” has the meaning set forth in Section 9.1.
“Transition Services Agreement” has the meaning set forth in Section 4.6.
“True-Up” has the meaning set forth in Section 9.4(c).
“UCC” means the New York Uniform Commercial Code.
“Weekly Invoice” has the meaning set forth in Section 9.3(a).
“Weekly Net Volume” has the meaning set forth in Section 7.6.
“Weekly Period” has the meaning set forth in Section 7.3.
“Weekly Volume Confirmation” has the meaning set forth in Section 9.3(b).
“WTI” means West Texas Intermediate crude oil and any crude oil meeting the specifications of the WTI NYMEX futures contract for delivery at [***].
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“WTI Contracts” means WTI NYMEX futures contracts on which the WTI Price component of the Transfer Price is based.
“WTI Differential” has the meaning set forth in Section 9.1(b).
“WTI Price” has the meaning set forth in Section 9.1(a).
“WTI Price Rolls” has the meaning set forth in Section 9.2.
1.2 Interpretation.
(a) All references in this Agreement to Exhibits, Schedules, Articles and Sections refer to the corresponding Exhibits, Schedules, Articles and Sections of or to this Agreement unless expressly provided otherwise. All headings herein are intended solely for convenience of reference and shall not affect the meaning or interpretation of the provisions of this Agreement.
(b) All Exhibits and Schedules to this Agreement are attached hereto and by this reference incorporated herein for all purposes.
(c) Unless expressly provided otherwise, the words “this Agreement,” “herein,” “hereby,” “hereunder” and “hereof,” and words of similar import, refer to this Agreement as a whole and not to any particular Section. The words “this Article” and “this Section,” and words of similar import, refer only to the Article or Section hereof in which such words occur. The word “including” as used herein means “including without limitation” and does not limit the preceding words or terms.
(d) The Parties acknowledge that they and their counsel have reviewed and revised this Agreement and that no presumption of contract interpretation or construction shall apply to the advantage or disadvantage of the drafter of this Agreement.
ARTICLE 2
TERM OF AGREEMENT
2.1 Initial Term. The term of this Agreement shall commence on the Effective Date and shall continue until the last day of the month in which the tenth (10th) anniversary of the Commencement Date occurs (“Initial Term”), unless terminated earlier pursuant to the terms of this Agreement.
2.2 Renewal. Subject to the provisions of Section 2.1 above, the Initial Term may be extended [***] (the “Renewal Term”), upon written notice from Trafigura to CVR [***]. The Initial Term and the Renewal Term, if any, shall constitute the “Term” of this Agreement. Trafigura may extend this Agreement under this Section 2.2 [***].
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2.3 Early Termination. If a Change of Control occurs and, in Trafigura’s reasonable judgment, (A) the creditworthiness of the acquiring or resulting parent entity would be materially weaker following the Change of Control, or (B) the acquirer or any of its Affiliates is subject to Sanctions or fails to satisfy Trafigura’s “know your customer” requirements under Section 15.2, Trafigura may give CVR written notice of its concern. If CVR fails to resolve such concern to Trafigura’s reasonable satisfaction within [***] after receipt of such notice, Trafigura may terminate this Agreement by giving CVR not less than [***]’ written notice. Any termination under this Section 2.3 shall be treated as a no-fault termination, shall not constitute an Event of Default, and no Termination Payment shall be payable in connection therewith.
2.4 [***]. The Parties intend that this Agreement and [***] operate as part of a crude oil intermediation arrangement. Accordingly:
(a) Termination of this Agreement. If this Agreement is terminated for any reason, other than under Section 3.4, the Parties agree that [***] shall continue in full force and effect. If [***] is terminated for any reason, other than the equivalent of Section 3.4 of [***], the Parties agree that this Agreement shall continue in full force and effect.
(b) Close-Out. If a Performing Party exercises its rights under Section 17.2 under this Agreement or under the equivalent provision of [***], it shall do so in respect of all Transactions under both agreements as of the same Termination Date, and the resulting amounts shall be netted and settled under the Master Netting Agreement.
(c) Final Settlement. Article 17 shall apply to any termination of this Agreement under this Section 2.4.
ARTICLE 3
CONDITIONS PRECEDENT; PRE-COMMENCEMENT DATE ACTIVITIES
3.1 Mutual Conditions Precedent. The Parties’ respective obligations commencing on the Commencement Date contemplated by this Agreement are conditional upon the satisfaction of the following conditions on or as of the Commencement Date, unless waived in writing by each Party in its sole discretion:
(a) the closing of the transactions contemplated by the Purchase Agreement shall have occurred; and
(b) the consummation of the Subscription contemplated by that certain Subscription Agreement, dated as of November 2nd, 2026 by and between Trafigura and CVR Parent as in effect on the date hereof shall have occurred.
3.2 Certain Pre-Commencement Date Covenants. From and after the Effective Date, to the extent within such Party’s control, each Party shall use all commercially reasonable efforts to ensure the fulfillment of each of the conditions referred to in Sections 3.1 prior to the Commencement Date. If the Parties are unable to effectuate the contemplated assignment of any contract or agreement necessary for either Party to perform its obligations under this Agreement, then the Parties shall use good faith efforts to negotiate and enter into an agreement prior to or on the Commencement Date, pursuant to which CVR will (to the fullest extent permitted by the terms of the relevant contracts and agreements) provide Trafigura with the same benefits and burdens of the relevant contracts and agreements as if such Contract or Agreement had actually been assigned to Trafigura by CVR in accordance with the terms of this Section 3.2.
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3.3 Notice of Commencement Date. CVR shall provide Trafigura with notice, to the best of its knowledge, of the closing of the transactions contemplated by the Purchase Agreement and the occurrence of the Commencement Date, including, to the extent possible, at [***] day intervals prior to such Commencement Date.
3.4 Termination for Non-Fulfillment of Conditions Precedent. Effective upon the date of receipt of written notice by the other Party, either Party may terminate this Agreement at any time if (a) the Commencement Date has not occurred by the “Outside Date” (as defined in the Purchase Agreement) or (b) the Purchase Agreement is terminated in accordance with its terms prior to the Commencement Date.
ARTICLE 4
SALE OF CRUDE OIL TO CVR
4.1 Commencement Date Inventories. [***], on the Commencement Date, CVR shall sell to Trafigura, and Trafigura shall purchase from CVR, the Commencement Date Inventories. The price to be paid by Trafigura to CVR for the Commencement Date Inventories shall be [***].
4.2 Supply of Crude Oil. Beginning on the Commencement Date, Trafigura agrees to [***] pursuant to Article 7. CVR shall determine the crude slate, by grade, and the volumes of Crude Oil to be supplied to each Refinery. CVR may also determine, or require changes to the origin of Crude Oil to be supplied to each Refinery to the extent that (and only to the extent that) CVR reasonably determines that Crude Oil from a particular origin has caused, or is reasonably likely to cause, a quality, operational, regulatory, sanctions, compliance, logistical or other issue for CVR or at the relevant Refinery. Trafigura shall [***]. Trafigura shall supply such Crude Oil to CVR and CVR agrees to purchase such Crude Oil from Trafigura pursuant to the terms of this Agreement. In no event, however, shall CVR have the right to claim an ownership interest in any volumes of Crude Oil prior to the transfer of title thereof pursuant to the provisions of Section 6.2.
4.3 Designated Tanks. CVR shall maintain for Trafigura’s benefit sufficient capacity in the Designated Tanks to [***]. Trafigura will, during the Term, have (a) the right to store Crude Oil in the Designated Tanks, and (b) the right to access the Designated Tanks to remove Crude Oil. CVR may add tanks to, or delete tanks from the list of Designated Tanks upon delivery of written notice to Trafigura. If a tank is to be removed from the list of Designated Tanks, CVR shall notify Trafigura and remove all Crude Oil from such tank prior to the change in status thereof. Such notice will include the alternative Designated Tank(s) or other location(s) elected by CVR to which the Crude Oil in such tank will be transferred. If such Crude Oil is not transferred to another Designated Tank, any sale of such Crude Oil to a party other than CVR shall be deemed to be a Third-Party Sale Transaction. During the Term, the only material stored in the Designated Tanks shall be Crude Oil owned by Trafigura. CVR agrees that, subject to Section 4.5, no other materials shall be stored or commingled with any of Trafigura’s Crude Oil in the Designated Tanks.
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4.4 Tank Maintenance and Emergency Repairs.
(a) Tank Downtime. CVR may take any Designated Tank out of service (“Tank Maintenance”) on written notice to Trafigura as far in advance as operationally practicable, but in any event [***] beforehand. The notice shall state the tank number and the alternative Designated Tank or other location for the Crude Oil in that tank. The Parties shall cooperate in good faith to set the effective date of the Tank Maintenance and to adjust the Monthly Crude Nominations and Pipeline and Terminal nominations as needed.
(b) Emergency Repairs and Unscheduled Downtime. If an emergency, equipment failure, safety or environmental condition, or requirement of a Governmental Authority requires a Designated Tank to be taken out of service, CVR may do so without prior notice to Trafigura; provided that CVR shall provide notice as soon as reasonably practicable, and in any event within [***] after the tank is taken out of service. CVR shall keep Trafigura reasonably informed of the cause, the expected duration and the steps being taken to return the tank to service.
4.5 Exclusive Supplier. Trafigura shall be the exclusive supplier of crude oil to the Refineries during the Term [***].
4.6 CVR Transition Plan. The Parties acknowledge that CVR has entered into that certain Crude Supply Agreement, effective as of the Commencement Date, by and between CVR, Marathon Petroleum Supply and Trading LLC, and Marathon Petroleum Canada Trading & Supply ULC (the “Transition Services Agreement”). CVR shall not extend the term of the Transition Services Agreement with respect to crude oil supply services without the prior written consent of Trafigura.
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4.7 Supply Planning; Identification of Supply.
(a) [***]
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ARTICLE 5
PURCHASE OF CRUDE OIL FROM COUNTERPARTIES
5.1 Third-Party Contracts.
(a) Terms of Third-Party Contracts. The quantity and quality of Crude Oil sold and delivered to CVR shall conform in all material respects to such specifications as agreed upon by the Parties prior to Trafigura’s contractual commitment to purchase Crude Oil. The terms and conditions of each Third-Party Contract must be commercially reasonable and conform to standard industry practices. CVR is not authorized to bind Trafigura in connection with the negotiation or execution of any Third-Party Contract, nor to make any representations to any Counterparty on behalf of Trafigura except as otherwise expressly provided under Section 4.5 or elsewhere in this Agreement. Unless expressly authorized by Trafigura in writing, any advice, recommendations, warranties or representations made to any Counterparty by CVR shall be the sole and exclusive responsibility of CVR, and CVR shall be liable for all errors, omissions or misinformation that it provides to Trafigura or to any Counterparty.
(b) Conditional Acceptance. Subject to Section 4.5, CVR shall have no authority to bind Trafigura to, or enter into on Trafigura’s behalf, any Third-Party Contract. If CVR has negotiated an offer from a Counterparty for a quantity of Crude Oil that CVR wishes to have Trafigura acquire, CVR may indicate to such Counterparty the conditional acceptance of such offer, which conditional acceptance shall be specifically subject to obtaining the agreement of Trafigura to such offer in Trafigura’s sole discretion.
5.2 Confirmations. For each transaction involving the purchase and sale of Crude Oil, Trafigura shall issue and send to CVR a summary of Confirmations and, upon request from CVR, a copy of all Third-Party Contracts to the extent permissible under applicable confidentiality obligations. Trafigura shall use best efforts to ensure that each Third-Party Contract permits its disclosure to CVR. If applicable confidentiality obligations prohibit Trafigura from sending a copy of a Third-Party Contract to CVR, then the Parties shall cooperate in good faith to cause a mutually acceptable independent auditor to review such Third-Party Contract on behalf of CVR. If CVR does not object in writing to a Confirmation within [***] of receipt, such Confirmation shall be deemed accepted and binding on the Parties.
5.3 Payment Responsibility. Trafigura shall pay Counterparty and third-party invoices for Crude Oil. Upon request from CVR, Trafigura shall promptly provide CVR with copies of all such Counterparty and third-party invoices and contracts. Trafigura shall be responsible for paying all applicable Pass-Through Costs, and CVR will reimburse Trafigura for such charges upon receipt of an invoice therefor with supporting documentation. All refunds or adjustments of any type received by Trafigura shall be for the account of CVR.
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5.4 Crude Oil Gains and Losses. For each Supply Month, “Crude Oil Gains and Losses” shall be the difference between (a) the volume of Crude Oil purchased by Trafigura under the applicable Third-Party Contracts, as shown on the Counterparty’s or Pipeline Operator’s meter tickets at the point of purchase, and (b) the volume delivered to CVR at the Delivery Points under Section 8.1 With respect to Crude Oil Gains and Losses which are covered by a Pipeline tariff, Trafigura shall pass through to CVR the positive value of any such Crude Oil gains and the negative value of any such Crude Oil losses provided for by the applicable Pipeline tariff. All other Crude Oil Gains and Losses shall be for CVR’s account, valued at [***] and shown as a separate line item in the Weekly Invoice. Trafigura shall supply CVR with the meter tickets and other supporting documentation for all such gains and losses, whether covered by a Pipeline tariff or not.
5.5 WARRANTY OF QUALITY & TITLE; WARRANTY DISCLAIMER. OTHER THAN WITH RESPECT TO THE CRUDE OIL PURCHASED FROM CVR [***] OR IN CONNECTION WITH THE TRANSITION SERVICES AGREEMENT, TRAFIGURA FULLY AND UNCONDITIONALLY WARRANTS THAT ALL CRUDE OIL SOLD PURSUANT TO THIS AGREEMENT SHALL CONFORM IN ALL RESPECTS TO ANY AGREED-TO SPECIFICATIONS, AND THAT TRAFIGURA HAS CLEAR, GOOD AND MERCHANTABLE TITLE TO ALL CRUDE OIL SOLD TO CVR PURSUANT TO THIS AGREEMENT (INCLUDING THE FINAL INVENTORY). EXCEPT FOR THE WARRANTIES AS SET FORTH IN THE FIRST SENTENCE OF THIS SECTION 5.5, TRAFIGURA MAKES NO OTHER WARRANTY EXPRESS OR IMPLIED, INCLUDING FITNESS OR SUITABILITY OF CRUDE OIL FOR ANY PARTICULAR PURPOSE OR OTHERWISE.
5.6 Claims. The Parties shall consult with each other and coordinate how to handle and resolve any claims made by a Counterparty, a Pipeline Operator, Terminal Operator, supplier, or transporter against Trafigura or any claims that Trafigura may bring against any such Person. In all instances wherein claims are made by a third-party against Trafigura related to the acquisition, transportation or handling of Crude Oil hereunder, CVR shall have the right to either direct Trafigura to take commercially reasonable actions in the handling of such claims or assume the handling of such claim in the name of Trafigura. To the extent that CVR believes that any claim should be made by Trafigura against any third-party (whether a Counterparty, terminal facility, pipeline, storage facility or otherwise), Trafigura will take any commercially reasonable actions as requested by CVR either directly, or by allowing CVR to do so, to prosecute such claim and all recoveries resulting from the prosecution of such claim shall be for the account of CVR. Trafigura shall, in a commercially reasonable manner, cooperate with CVR in prosecuting any such claim and shall be entitled to assist in the prosecution of such claim. All costs, expenses and damages arising from the pursuit of such claims shall be solely for CVR’s account except to the extent arising from Trafigura’s negligence or willful misconduct.
5.7 Trafigura Insurance Obligation. Trafigura shall, at Trafigura’s cost and expense, procure and maintain in full force and effect throughout the Term of this Agreement insurance coverages of the following types and amounts and with insurance companies rated not less than [***], or otherwise reasonably satisfactory to CVR in respect of Trafigura’s purchase of Crude Oil under this Agreement: [***].
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5.8 Mutual Insurance Obligations. Both Parties shall, at their sole cost and expense, procure and maintain in full force and effect throughout the Term of this Agreement the following insurance coverages and amounts and with insurance companies rated not less than [***], or otherwise reasonably satisfactory to each Party in respect of the purchase of Crude Oil under this Agreement:
(a) [***], with a minimum limit of [***].
(b) [***] with a limit of at least [***].
5.9 Additional Insurance Requirements.
(a) Each Party agrees to include the other Party as an additional insured on [***] with respect to each Party’s respective obligations under this Agreement. Trafigura agrees to waive its right of subrogation, and to cause its insurers to waive their right of subrogation, on its [***] in favor of CVR to the extent that indemnity is owed under this Agreement. CVR agrees to waive its right of subrogation, and to cause its insurers to waive their right of subrogation, on its [***] in favor of Trafigura to the extent that indemnity is owed under this Agreement.
(b) Each Party shall cause its insurance carriers to furnish the other Party with insurance certificates, in a standard form and from a properly authorized party reasonably satisfactory to such Party, evidencing the existence of the coverages and endorsements required. Each Party agrees to provide the other Party with thirty (30) days’ advance notice of cancellation or material change of any policy set forth herein.
(c) The mere purchase and existence of insurance does not reduce or release either Party from any liability incurred or assumed under this Agreement.
(d) Each Party shall comply with all notice and reporting requirements in the foregoing policies and timely pay all premiums.
(e) All policies set forth in this Article 5 shall be primary and non-contributory in respect of other insurance that may be available to CVR. Such limits may be provided by a combination of primary and excess policies.
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ARTICLE 6
DELIVERY
6.1 Delivery Points.
(a) Delivery Points. Unless specifically agreed otherwise by the Parties, all Crude Oil shall be delivered to CVR at the Delivery Points.
(b) Evidence of Delivery. The occurrence of each delivery, receipt or transfer of Crude Oil under this Agreement shall be evidenced as follows, according to the type of location:
(i) for Crude Oil delivered from or through a Pipeline, the meter ticket and run ticket issued by the relevant Pipeline Operator at the applicable Delivery Point or receipt point. Linefill and in-transit balances shall be evidenced by the Pipeline Operator’s shipper statements;
(ii) for Crude Oil received into, held in or delivered from a Terminal or other third-party storage facility, the relevant Terminal Operator’s receipt and delivery tickets, inventory statements and in-tank transfer confirmations; and
(iii) for Crude Oil received into, held in or withdrawn from the Designated Tanks, the daily inventory report prepared by CVR in the form agreed by the Parties and, for withdrawals to a Refinery, the custody-transfer meter records at the applicable Delivery Points.
(c) Delivery of Evidence. Each Party shall promptly give the other copies of all evidence described in paragraph (b) that it receives. CVR shall use commercially reasonable efforts to cause each Pipeline Operator and Terminal Operator to deliver that evidence directly to Trafigura.
6.2 Title and Risk of Loss. Title and risk of loss to the Crude Oil shall pass from Trafigura to CVR at the Delivery Points, and CVR shall assume title and risk of loss of such Crude Oil as it passes the Delivery Points. Before title and risk of loss transfer at the Delivery Points, Trafigura shall be solely responsible for compliance with all Applicable Laws pertaining to the possession, handling and use of such Crude Oil including all Environmental Laws. At and after title and risk of loss transfer at the Delivery Points, CVR shall be solely responsible for compliance with all Applicable Laws, including all Environmental Laws, pertaining to the possession, handling, use and processing of such Crude Oil.
6.3 Casualty. If a Catastrophic Loss of Crude Oil occurs prior to the passage of title and risk of loss to CVR, any such Catastrophic Loss shall be for Trafigura’s account. Conversely, any Catastrophic Loss of Crude Oil occurring on or after the passage of title and risk of loss shall be for CVR’s account.
6.4 Pipeline and Terminal Nominations.
(a) Responsibility of Trafigura. By the nomination deadline of each Pipeline Operator and Terminal Operator for each Supply Month, Trafigura shall nominate in accordance with the Monthly Crude Nomination (as adjusted under Section 7.2) and the Confirmations issued for that Supply Month, Trafigura shall be responsible for making nominations to each Pipeline Operator and Terminal Operators as required by each of them for such month; provided that Trafigura’s obligation to make such nominations shall be conditioned on its receiving from CVR the Monthly Crude Nomination. CVR shall provide to Trafigura information in a timely manner and will use commercially reasonable efforts to provide such information at least [***] prior to nomination submission time, in order to make such nominations or other scheduling actions in accordance
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with the pipeline lead-time requirements. Trafigura shall not be responsible if a Pipeline or terminal is unable to accept Trafigura’s nomination or if the Pipeline or terminal must allocate Crude Oil among its shippers, except to the extent that such non-acceptance is due to Trafigura’s negligence or willful misconduct, including, without limitation, Trafigura’s failure to timely nominate in accordance herewith. Any Pipeline and Terminal capacity, assigned to Trafigura by CVR, on any Pipeline or at any Terminal that is subject to this Agreement shall only be used by Trafigura for the benefit of CVR.
(b) Responsibility of CVR. CVR shall deliver each Monthly Crude Nomination, and may make Nomination Adjustments, in accordance with Sections 7.1 and 7.2. All shipments of Crude Oil on the Pipelines shall be subject to the procedures set forth therein.
6.5 Refinery Tank Movements.
(a) Movements Between Designated Tanks. Transfers of Crude Oil between Designated Tanks shall not be deliveries to CVR, and title and risk of loss shall remain with Trafigura. CVR shall record each such transfer, including any transfer under Section 4.4, in the next Monthly Crude Nomination or daily inventory report, and shall not commingle Crude Oil from different Crude Oil Pools except (i) in accordance with Section 4.5, or (ii) as the Parties agree.
(b) Notice of Unplanned Changes. CVR shall notify Trafigura promptly, and in any event within [***], of any unplanned reduction or interruption in a Refinery’s charge rate that is expected to change weekly withdrawals by more than [***]. CVR shall then submit a revised Monthly Crude Nomination as soon as practicable.
6.6 Temporary Assignment. No later than the Commencement Date, Trafigura and CVR shall enter into a Temporary Assignment. In connection with its performance hereunder, Trafigura will not take any actions that would breach any term of any tariff, Pipeline Agreements or Terminal Agreements. Trafigura shall manage any Pipeline or Terminal capacity and any shipper history assigned to it by CVR or its Affiliates solely for the benefit of CVR and in accordance with CVR’s directions, and CVR may at any time by written notice direct Trafigura to reduce or release any such capacity or history. Upon the expiration or termination of this Agreement, Trafigura shall promptly release and assign back to CVR any rights assigned pursuant to a Temporary Assignment. Any history of usage, including allocation rights, on any Pipeline or in any Terminal, arising in connection with this Agreement, shall be the history and rights of CVR, whether such usage is pursuant to a Temporary Assignment or otherwise.
ARTICLE 7
CRUDE OIL FORECAST; CRUDE OIL MOVEMENT
7.1 Monthly Crude Nomination; Transfers of Crude Oil.
(a) Subject to Section 4.7, Trafigura agrees to sell to CVR the volume of Crude Oil nominated by CVR for each Supply Month in accordance with, and subject to, the terms of this Agreement. No later than the Nomination Deadline for each Supply Month, CVR shall nominate by email to Trafigura at [***] the volume of Crude Oil to be delivered in that Supply Month, by Refinery (the “Monthly Crude Nomination”). [***].
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(b) “Nomination Deadline” means [***].
7.2 Nomination Adjustments.
(a) CVR may adjust a Monthly Crude Nomination (each such adjustment, a “Nomination Adjustment”) by email to Trafigura no later than the [***] of the calendar month before the relevant Supply Month (the “Adjustment Deadline”). If the [***] is not a Business Day, the Adjustment Deadline is the last Business Day before the [***] of the calendar month before the relevant Supply Month. No Nomination Adjustment may deviate by more than [***] from the original Monthly Crude Nomination [***].
(b) CVR may request a Nomination Adjustment after the Adjustment Deadline, or one exceeding the percentage in paragraph (a). Trafigura shall review the request in good faith and promptly tell CVR whether it will supply Crude Oil as requested.
(c) [***].
7.3 Crude Oil Withdrawals. CVR may withdraw Crude Oil from the Designated Tanks at any time; provided that no Event of Default has occurred and is continuing with respect to CVR, and Trafigura has given CVR written notice suspending withdrawals on that ground. Each withdrawal of Crude Oil from the Designated Tanks is a “Crude Oil Withdrawal,” and each seven day period running from Wednesday to Tuesday during the Term (as such period may be shortened or lengthened by mutual written agreement of the Parties, including to align with the end of a calendar month, calendar quarter or calendar year) is a “Weekly Period.” No later than [***] on each Business Day, CVR shall notify Trafigura of the Crude Oil Withdrawals expected in the next [***], by Refinery and Crude Oil Pool. CVR shall also notify Trafigura within [***] of any change that is expected to cause actual Crude Oil Withdrawals for a Supply Month to differ from the Monthly Crude Nomination (as adjusted) by more than [***].
7.4 Movements Through Third-Party Facilities. As CVR reasonably directs from time to time, Trafigura shall instruct the relevant Pipeline Operator or Terminal Operator to move Crude Oil between Pipelines, Terminals or other third-party storage facilities and the Designated Tanks, in accordance with the applicable tariff and operating procedures. If a Pipeline Operator or Terminal Operator fails to perform and Trafigura has a right to claim against it, Trafigura shall, at its option, either (a) pursue any such claim at CVR’s request, and CVR shall be entitled to recover from Trafigura an amount equal to whatever Trafigura actually recovers or (b) assign such claim to CVR and permit CVR to pursue it in CVR’s name.
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7.5 Crude Oil Pool Ledger and WTI Differential.
(a) Trafigura shall keep a ledger of all Crude Oil in the Designated Tanks and Third-Party Storage Facilities, on a first-in, first-out basis by Crude Oil Pool. It shall record (i) all volumes bought [***] or delivered to the Delivery Points under Third-Party Contracts and any Third-Party Crude Oil owned by CVR and stored in the Designated Tanks under Section 4.5(c), which shall be recorded as CVR’s and excluded from the Crude Oil Pools, and (ii) all Crude Oil Withdrawals. Trafigura shall give CVR the ledger weekly, or more often if CVR reasonably requests.
(b) The WTI Differential for each Crude Oil Pool at any time shall be [***]. Each Confirmation’s differential shall be [***]. Promptly after each delivery into a Crude Oil Pool, Trafigura shall recalculate that pool’s WTI Differential and notify CVR of the updated figure.
(c) For this Section 7.5, the Commencement Date Inventories shall be treated as a delivery into the relevant Crude Oil Pool [***].
7.6 Weekly Net Volume Calculation. No later than [***] after the end of each Weekly Period, CVR shall calculate and notify Trafigura of the net volume of Crude Oil, by Crude Oil Pool, withdrawn by CVR during that Weekly Period (the “Weekly Net Volume”). It shall be calculated in Barrels as (a) the volume of Crude Oil in the Designated Tanks at the start of the Weekly Period, plus (b) Crude Oil delivered into the Designated Tanks during the Weekly Period under Third-Party Contracts, minus (c) the volume of Crude Oil in the Designated Tanks at the end of the Weekly Period, in each case as measured in accordance with Article 8. CVR shall provide reasonable supporting documentation. The Weekly Net Volume shall form the basis of the Weekly Volume Confirmation under Section 9.3(b).
7.7 Estimates and Reconciliations. If final meter tickets, tank gauges or Pipeline or Terminal reports are not available when a calculation under this Article 7 must be made, CVR shall make the calculation on its good-faith estimate of the relevant volumes. The final volumes shall be taken into account in the calculations for the following period, or in the True-Up under Section 9.4(c).
ARTICLE 8
CRUDE OIL INSPECTION AND MEASUREMENT
8.1 Delivered Volumes. The volume of all Crude Oil (i) purchased and sold under this Agreement, and (ii) delivered to CVR at a Delivery Point, shall be based on the pipeline meter ticket volumes at the flange connection between the applicable delivering pipeline and the receiving storage facility at a Delivery Point, absent manifest error or fraud.
8.2 Quality of Delivered Volumes. The quality of all volumes of Crude Oil delivered to CVR hereunder shall be based on the Pipeline, Terminal, or Independent Inspector determination pursuant to the applicable Third-Party Contract, absent manifest error or fraud. Each Party shall promptly deliver to the other Party a copy of any such Pipeline, Terminal or Independent Inspector’s report.
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8.3 Crude Oil Blending. No blending, mixing, commingling or any other change of disposition in the Crude Oil after determination of volume in accordance with Section 8.1 shall (i) cause any Crude Oil to cease to be Crude Oil for the purposes of this Agreement, or (ii) exclude that portion of the blended, mixed, or commingled product constituting Crude Oil from any calculation provided under this Agreement.
8.4 Other Calculations. Except as otherwise provided in this Agreement (including Section 8.1), the calculation of any volumes and the components of any calculations shall be determined using the best available information provided by Terminal Operators, Terminals, Pipelines, and other third parties regularly providing such information. The Parties shall mutually agree on volumes and calculation methodologies to the extent not covered by the foregoing. Unresolved volumetric disputes under this Section shall be resolved under Section 16.5 unless the Parties mutually agree on an alternate method of dispute resolution.
ARTICLE 9
PRICE AND PAYMENT
9.1 Crude Oil Purchase Price. For each Barrel in a Crude Oil Pool delivered to the Delivery Points, CVR shall pay Trafigura an amount equal to the transfer price (the “Transfer Price”), which shall be equal to [***]. The provisions of this Article 9 are intended to apply only for pricing purposes and shall not be deemed or construed to alter the intention of the Parties that all Crude Oil shall be owned exclusively by Trafigura until the passage of title occurs consistent with the provisions of Section 6.2. Notwithstanding anything to the contrary herein, the Transfer Price for Transactions shall be a floating price based on the mutually agreed index of market prices (adjusted for contract differentials), all as more specifically set forth in this Article 9. For purposes of calculating the Transfer Price, the following provisions shall apply:
(a) WTI Price. The WTI Price is the actual Crude Oil WTI NYMEX [***] settlement price for WTI Contracts published by NYMEX [***] (the “WTI Price”).
(b) WTI Differential. The WTI differential (the “WTI Differential”) shall be equal to the difference between the Contract Price and the WTI Price. The WTI Differential shall be [***].
(c) Inability to Determine Reference Price or Index. If either (i) NYMEX fails to publish or calculate the futures prices for WTI, (ii) there is a material suspension of trading in futures contracts for WTI, (iii) WTI or its futures contracts cease to be traded on the NYMEX, or (iv) there is a material change in the content, composition or constitution of the formula for calculation of prices for WTI or its futures contracts, in each case, for any month during the Term of this Agreement, Trafigura and CVR shall immediately meet and negotiate in good faith to agree upon an alternative price (or a method for determining an alternative price) and/or alternative index (as applicable). If Trafigura and CVR have not agreed on or before the [***] Business Day following the first pricing date on which any such event in clauses (a) through (iv) occurred or existed, then such price (or the method for determining such price) shall be determined by a mutually acceptable leading dealer in the relevant market. If the Parties are unable to agree on such a leading dealer, the Parties shall each appoint a leading dealer, which is not an Affiliate of either Party, in the relevant market who shall together appoint a leading dealer to resolve the question.
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9.2 WTI Price Rolls. CVR may at any time change a WTI Contract by notifying Trafigura of the new WTI Contract. The values applicable to any such changes to the applicable WTI Contract(s) (the “WTI Price Rolls”) shall be mutually agreed by the Parties or, absent agreement, determined by reference to the published NYMEX settlement prices for the relevant WTI Contracts on the date of such change. For the avoidance of doubt, the Parties acknowledge that Trafigura shall not be required to enter into any such WTI Contracts on CVR’s behalf or to deliver evidence of any such WTI Contracts to CVR. Rather, it is the intent of the Parties that any applicable rolls of WTI Contracts shall be accounted for and invoiced separately from the calculation of the Transfer Price. The Parties agree that [***], the Party owed any amounts for WTI Price Rolls will invoice the other Party at the same time that invoicing for the True-Up occurs. All actual or deemed costs and fees related to any substitution or replacement of any WTI Contracts shall be for CVR’s account. Absent any instructions from CVR to the contrary, the Parties agree that an expiring WTI Contract will roll to the next succeeding month contract [***].
9.3 Invoices.
(a) Weekly Invoices. With respect to each week following the Commencement Date, Trafigura shall prepare and deliver to CVR an invoice for the volume of Crude Oil Withdrawals made during such week [***] (“Weekly Invoice”). Such Weekly Invoices shall identify the estimated volume and grade of Crude Oil to be delivered at the applicable Delivery Point. For any Crude Oil Withdrawals on a non-Business Day not otherwise provided for herein, Trafigura shall prepare and deliver to CVR a Weekly Invoice therefor which identifies the estimated volume and grade of Crude Oil to be delivered at the applicable Delivery Point [***]. The Parties acknowledge that the Transfer Price included in any Weekly Invoice will be trued up on a monthly basis in accordance with Section 9.4(c) to reflect the actual Transfer Price based on the actual components set forth in Section 9.1. Each Weekly Invoice shall include a separate line item for Hedge Adjustment Amounts under Section 9.8, which may be a charge to or a credit in favor of CVR, and the [***] under Section 9.10.
(b) [***] Confirmation. [***] during the Term, Trafigura will prepare and deliver to CVR a statement summarizing the volume of Crude Oil delivered to a Delivery Point during the previous [***] and the Parties shall mutually agree to any adjustments thereto (the “[***] Confirmation”).
9.4 Calculation of the Transfer Price.
(a) Invoice Calculations. The Transfer Price set forth in the Weekly Invoice shall be based on the volume and grade for each Crude Oil Withdrawal.
(b) Components of Transfer Price. Prior to a Crude Oil Withdrawal of a Crude Oil Pool, or portion thereof, Trafigura shall continuously update its books and records to reflect the best information available with respect to each component of the Transfer Price for such Crude Oil Pool, or portion thereof, including volume. Upon the occurrence of the first Crude Oil Withdrawal with respect to a Crude Oil Pool, all other components of the Transfer Price shall be continually updated by Trafigura and the best available information shall be used for purposes of calculating the Weekly Invoice or in connection with the [***] Confirmation, as applicable.
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(c) True-Up. [***], Trafigura and CVR will confer and the Parties will jointly prepare a statement that reflects the difference, if any, between the actual volumes of Crude Oil delivered to a Delivery Point, based on the month-end Pipeline Operator tickets, and the volumes of Crude Oil previously paid for pursuant to a Weekly Invoice during the previous calendar month and any adjustments to the WTI Differential (the “True-Up”). If the Parties cannot agree on the amount of any True-Up, the dispute will be resolved in accordance with Section 9.9. If the True-Up determines that the actual volume of Crude Oil delivered to Delivery Points during the month differs from the volume of Crude Oil paid for by CVR during the month, then the owing Party shall pay to the other Party the difference in accordance with the procedures herein.
9.5 Inventory Availability Fee. For each Weekly Period, Trafigura shall invoice CVR weekly for the Inventory Availability Fee applicable to such Weekly Period. [***], Trafigura shall recalculate the Inventory Availability Fee in order to true-up for each Weekly Period ending in such month based on final volumes, prices and rates, and the difference from the amounts invoiced shall be included and paid as a separate adjustment in the next Weekly Invoice.
9.6 Pass-Through Costs. On a weekly basis during the Term, Trafigura shall invoice CVR for all Pass-Through Costs incurred by Trafigura during the preceding week. Trafigura shall provide supporting documentation of all Pass-Through Costs for each week during the Term. The invoice delivered by Trafigura to CVR for Pass-Through Costs provided for by this Section 9.6 shall include all Pass-Through Costs incurred during the previous week and CVR shall make one payment to Trafigura therefor. For the avoidance of doubt, CVR will make one payment to Trafigura for the total Pass-Through Costs incurred and will not make piecemeal payments therefor. However, this does not preclude Trafigura from including Pass-Through Costs that were not included in a previous week’s invoices in a subsequent weekly invoice; provided that any Pass-Through Costs not invoiced within [***] following the date on which they were incurred shall not be recoverable from CVR. Amounts recovered as Pass-Through Costs under this Section 9.6 shall not also be recovered under any other provision of this Agreement, and no cost or charge shall be charged to CVR more than once.
9.7 Payment.
(a) Form of Payment. Each Party shall pay, or cause to be paid, by electronic transfer of same day funds in U.S. Dollars, all undisputed amounts that become due and payable by such Party to a bank account or accounts designated by and in accordance with instructions issued by the other Party. Each payment of undisputed amounts (the disputed portion of which is addressed under Section 9.9) owing hereunder shall be in the full amount due without reduction or offset for any reason (except as expressly allowed under this Agreement), including Taxes, exchange charges or bank transfer charges. Notwithstanding the immediately preceding sentence, the paying Party shall not be responsible for a designated bank’s disbursement of amounts remitted to such bank, and a deposit in same day funds of the full amount of each statement with such bank shall constitute full discharge and satisfaction of such statement. All payments under this Agreement shall be subject to the netting and set-off provisions of the Master Netting Agreement, which shall apply as against each Party and any assignee of any of such Party’s rights hereunder.
(b) Timing of Payment. Payment for any Weekly Invoice that is received by [***] on the due date defined in Section 9.3 shall be due and payable on the [***], unless otherwise provided herein. Payment for any Weekly Invoice received after [***] on the due date defined in Section 9.3 shall be due and payable on the [***], unless otherwise provided herein.
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Payments owing under Section 9.2 for any amounts owing for the WTI Price Rolls, under Section 9.8 for any Hedge Adjustment Amounts (to the extent not netted in a Weekly Invoice), under Section 9.4(c) for Crude Oil pursuant to any True-Up, under Section 9.5 for the Inventory Availability Fee, and under Section 9.6 for any Pass-Through Costs shall be due and payable by the owing Party on the [***].
Payments owing for any Final Inventory under Article 17 for Crude Oil shall be due and payable on the [***].
(c) Interest. All payments under this Agreement not paid by the due date as defined herein shall accrue interest at the Base Interest Rate. Interest shall run from, and including, the applicable due date of the payment to, but excluding, the date that payment is received.
9.8 Hedge Adjustments.
(a) Back-to-Back Pricing. CVR acknowledges that Trafigura purchases Crude Oil under Third-Party Contracts [***].
(b) CVR Requested Fixed Volume. The WTI Price component of the Transfer Price for volume nominated but not yet delivered (“Fixed Volume”) may be fixed at CVR’s written request on the basis of prevailing market price at the relevant time of the request. Each such request shall specify the index, volume, tenor and any price, (each, a “CVR Requested Fixed Volume”). Trafigura or its Affiliates may [***].
(c) Calculation. For each Implemented Hedge, Trafigura shall calculate the realized gain or loss on its settlement, close-out or adjustment, plus any brokerage, exchange and clearing fees and other execution costs that Trafigura actually incurs (the “Hedge Adjustment Amount”). Trafigura shall determine each Hedge Adjustment Amount in good faith and in a commercially reasonable manner, and shall provide reasonable supporting documentation, including trade confirmations.
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(d) Review and Approval. Trafigura shall confirm to CVR in writing the execution of each Implemented Hedge (including the trade date, instrument, volume and price) no later than the end of the Business Day on which it is executed. CVR may at any time direct Trafigura in writing to modify or close out any Implemented Hedge, and Trafigura shall use commercially reasonable efforts to do so promptly. Trafigura shall provide CVR with a statement of all open Implemented Hedges weekly, or more often if CVR reasonably requests.
(e) Gains and Losses. If a Hedge Adjustment Amount [***].
(f) Invoicing. Each Hedge Adjustment Amount shall be shown as a separate line item (“Hedge Adjustments”) in the Weekly Invoice for the Weekly Period in which the relevant Implemented Hedge is settled, closed out or adjusted. That line item shall show, for each Implemented Hedge, the trade date, the instrument, the volume, the execution and settlement prices and the resulting amount. Hedge Adjustment Amounts shall be netted against the other amounts in that Weekly Invoice.
(g) No Double Counting. Amounts settled under this Section 9.8 shall not also be recovered as Pass-Through Costs, WTI Price Rolls under Section 9.2, costs of a Nomination Adjustment or variance under Section 7.2(c), or net cancellation costs or gains under Section 1.1(a) and no cost, loss or gain shall be charged or credited to CVR more than once under any combination of those provisions.
9.9 Disputed Amounts.
(a) Notice of Dispute. If a Party in good faith disputes any amount in an invoice, statement, Weekly Invoice, Weekly Volume Confirmation, True-Up or other calculation or determination under this Agreement, it shall give the other Party written notice (a “Dispute Notice”). It shall do so promptly and in any event within [***] after receipt or, for any True-Up, within [***] after the end of the relevant month. The Dispute Notice shall identify the disputed items and amounts, explain the reasons for the dispute and include reasonable supporting documentation. Except for manifest error or fraud, any amount not disputed within that period shall be final and binding on the Parties.
(b) Payment Pending Resolution. Despite any dispute, and notwithstanding Section 9.7(a), the paying Party shall pay all amounts invoiced or claimed under this Agreement in full on the due date, in the amount determined by Trafigura (or, where this Agreement expressly gives the determination to CVR, in the amount determined by CVR). Within [***] after the dispute is resolved under this Section 9.9(b), (i) the receiving Party shall refund to the paying Party any amount paid in excess of the amount determined to be owed, with interest at the Base Interest Rate from (and including) the date of such payment to (but excluding) the date of refund, and (ii) the paying Party shall pay any shortfall, with interest at the Base Interest Rate from (and including) the original due date to (but excluding) the date of payment. No payment under this paragraph (b) waives either Party’s rights in respect of the disputed amount.
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(c) Failure to Calculate. If this Agreement requires a Party (the “Calculating Party”) to make and notify a calculation or determination by a stated time and it fails to do so, the other Party may make and notify that calculation or determination itself, on a reasonable estimate if necessary. The amount so calculated shall be used for all purposes of this Agreement, subject to later adjustment and reconciliation if the Calculating Party subsequently makes and notifies the calculation properly.
(d) Escalation. Any dispute under this Section 9.9 shall first be referred to each Party’s representatives with day-to-day responsibility for administering this Agreement (the “Representatives”). They shall meet (in person or by video conference) and try to resolve it within [***] after the Dispute Notice is delivered. If the Representatives do not resolve it within that period, it shall be referred to a senior executive of each Party with authority to settle it (the “Senior Executives”). The Senior Executives shall try to resolve it within a further [***], and the Parties shall give them all pertinent information. A joint written decision of the Representatives or the Senior Executives shall bind the Parties. This paragraph (d) satisfies the requirements of Section 16.5 for disputes under this Section 9.9.
(e) Expert Determination. If the Senior Executives do not resolve a dispute within the period in paragraph (d), and the dispute concerns (i) an alleged error in a calculation of an amount or rate under this Agreement, (ii) a determination of an observable or externally verifiable price, valuation, rate or benchmark (including the WTI Price, any WTI Differential, any Screen Rate or any volume measured under Article 8), or (iii) whether a price or valuation quoted by Trafigura is consistent with the prevailing market (each, a “Technical Dispute”), either Party may refer it to an independent expert under this paragraph (e). Every other dispute shall be resolved under Section 16.5 and Article 22.
(i) The referring Party shall propose an expert in writing and identify the specific issue to be decided. The expert shall be an independent individual or firm with recognized expertise in crude oil trading, pricing or measurement, as relevant, with no conflict of interest with either Party. If the Parties have not agreed a joint appointment within [***] after the proposal, either Party may ask the American Arbitration Association to nominate the expert, and the Parties shall appoint that nominee.
(ii) The expert shall act as an expert and not as an arbitrator, and the Federal Arbitration Act and the law of arbitration shall not apply to the expert, the procedure or the decision. The determination shall take place in Houston, Texas and be conducted in English. Each Party shall promptly give the expert the information and access to records the expert reasonably requests, subject to Article 21.
(iii) The expert shall deliver a final written decision, with full reasons, within [***] after appointment. The decision shall be final and binding on the Parties absent manifest error or fraud. The expert’s fees and the costs of the reference shall be paid as the expert decides, or, if the expert does not decide, by the Parties equally.
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(f) Continued Performance. Pending resolution of any dispute under this Section 9.9, each Party shall keep performing its obligations under this Agreement, including its payment obligations under paragraph (b). Nothing in this Section 9.9 prevents a Party from seeking interim or injunctive relief from a court of competent jurisdiction under Article 22.
9.10 Liquidation Reserve.
Liquidation Reserve [***].
(a)
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ARTICLE 10
TAXES
Trafigura shall be liable for all Taxes imposed on Crude Oil [***]. CVR shall be liable for (i) all Taxes imposed on Crude Oil [***], and (ii) all Taxes imposed [***]. The Parties agree to cooperate in support of obtaining appropriate tax treatment for the transactions associated with this Agreement, including, without limitation, the exchange of applicable documentation related to taxes, tax exemptions, licensing, registrations, certifications, and other similar information.
ARTICLE 11
INFORMATION AND REQUESTS FOR ADEQUATE ASSURANCES
11.1 Financial Information. CVR shall make available to Trafigura (a) within ninety (90) days following the end of each of its fiscal years, audited financial statements for such fiscal year certified by independent certified public accountants, and (b) within forty-five (45) days after the end of its first three (3) fiscal quarters of each fiscal year, unaudited consolidated financial statements for such fiscal quarter. CVR will be deemed to have furnished such reports and information described above if one of CVR’s Affiliates files an Annual Report on Form 10-K or Quarterly Report on Form 10-Q (collectively, the “Periodic Reports”) with the SEC which includes, on a consolidated basis, the results of CVR. In all cases the financial statements provided hereunder shall be for the most recent accounting period and the annual and quarterly financial statements shall be prepared in accordance with GAAP; provided, however, that in the case of CVR’s financial statements, should any such financial statements not be timely available due to a delay in preparation or certification or due to the filing of such Periodic Reports on a later date by CVR Parent or its Affiliate, such delay shall not be considered an Event of Default so long as CVR or its Affiliate diligently pursues the preparation, certification and delivery of such financial statements and provided further, however, that in the event CVR or its Affiliates cease filing Periodic Reports with the SEC, then CVR shall provide to Trafigura financial statements in the same form and on the same schedule as CVR or its Affiliates provide such financial statements to its/their lenders.
11.2 Parent Guaranty. On or prior to the Commencement Date, (a) CVR shall deliver to Trafigura and maintain for the duration of the Term and until [***], a CVR Parent Guaranty from CVR Parent, and (b) Trafigura shall deliver to CVR and maintain for the duration of the Term, a Trafigura Parent Guaranty from Trafigura Parent.
11.3 Adequate Assurances. Either Party (the “Insecure Party”) may, upon notice to the other Party (“Assuring Party”), require that the Assuring Party provide it with satisfactory security for or adequate assurance (collectively, “Adequate Assurance”) of the Assuring Party’s performance within [***] of giving such notice if:
(a) the Insecure Party reasonably determines that reasonable grounds for insecurity exist with respect to the Assuring Party’s ability to perform its obligations hereunder; or
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(b) the Assuring Party defaults with respect to any payment hereunder (after giving effect to any applicable grace period).
In the event the Insecure Party gives such a notice pursuant to Section 11.3(a) above, such notice shall include a summary of the information upon which it has based its determination that such reasonable grounds for insecurity exist. Such summary shall be in sufficient detail to reasonably communicate grounds that insecurity exists; however, in no event shall the nature of the notice relieve the Assuring Party of its obligation to provide Adequate Assurance hereunder.
11.4 Eligible Collateral. Any requirement for Adequate Assurance shall be satisfied only by the Assuring Party’s delivery of Eligible Collateral. Eligible Collateral shall be posted in a form and an amount reasonably calculated to protect the Insecure Party from its financial exposure hereunder (“Cover Exposure”). All costs associated with providing Adequate Assurance shall be the responsibility of the Assuring Party. In addition, in order to continue to satisfy any requirement for Adequate Assurance, the amount of any Eligible Collateral shall be adjusted from time to time so that it is sufficient to satisfy the Cover Exposure, as it may fluctuate from time to time. Both Parties shall, from time to time, compute their Cover Exposure in a commercially reasonable manner.
11.5 Failure to Give Adequate Assurance. Without prejudice to any other legal remedies available to the Insecure Party and without the Insecure Party incurring any Liabilities (whether to the Assuring Party or to a third party), the Insecure Party may, at its sole discretion, take any or all of the following actions if the Assuring Party fails to give Adequate Assurance as required pursuant to Section 11.3, after providing Assuring Party written notice and [***] (or such longer period if provided herein) to cure: (a) withhold or suspend its obligations, including payment obligations, under this Agreement, (b) proceed against Assuring Party for damages occasioned by Assuring Party’s failure to perform, or (c) exercise its termination rights under Article 16.
ARTICLE 12
COMPLIANCE WITH APPLICABLE LAWS
12.1 Compliance with Laws. Each Party shall, in the performance of its duties under this Agreement, comply in all material respects with all Applicable Laws. Each Party shall maintain the records required to be maintained by Environmental Laws and shall make such records available to the other Party upon request.
12.2 Reports. All reports or documents rendered by either Party to the other Party shall, to the best of such rendering Party’s knowledge and belief, accurately and completely reflect the facts about the activities and transactions to which they relate. Each Party shall promptly notify the other Party if at any time such rendering Party has reason to believe that the records or documents previously furnished to such other Party are no longer accurate or complete in any material respect.
ARTICLE 13
SCHEDULED MAINTENANCE
At least [***] prior to the beginning of any Scheduled Maintenance, CVR shall provide written notice to Trafigura thereof. In the event of any changes to such Scheduled Maintenance schedule, CVR will provide Trafigura with notice of any updates to such schedule as soon as practical following any change. On or before [***] of each year, CVR shall provide to Trafigura a non-binding schedule of the Scheduled Maintenance then anticipated for the following calendar year.
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ARTICLE 14
FORCE MAJEURE
14.1 Event of Force Majeure. Neither Party shall be liable to the other Party if it is rendered unable by an event of Force Majeure to perform in whole or in part any of its obligations hereunder (other than payment obligations), for so long as the event of Force Majeure exists and to the extent that performance is hindered by the event of Force Majeure; provided, however, that the Party unable to perform shall use all commercially reasonable efforts to avoid or remove the event of Force Majeure. During the period that performance by one of the Parties of a part or whole of its obligations has been suspended by reason of an event of Force Majeure, the other Party likewise may suspend the performance of all or a part of its obligations to the extent that such suspension is commercially reasonable, except for any payment and indemnification obligations.
14.2 Notice. The Party rendered unable to perform its obligations hereunder shall give notice to the other Party within [***] after receiving notice of the occurrence of an event of Force Majeure, including, to the extent feasible, the details and the expected duration of the event of Force Majeure and the volume of Crude Oil affected. Such Party shall promptly notify the other Party when the event of Force Majeure is terminated.
14.3 Termination and Curtailment. In the event that a Party’s performance is suspended due to an event of Force Majeure in excess of [***] from the date that notice of such event is given, and so long as such event is continuing, the non-claiming Party, in its sole discretion, may terminate or curtail its obligations under this Agreement by notice to the other Party, and neither Party shall have any further liability to the other Party in respect of this Agreement except for the rights and remedies previously accrued under this Agreement, including any payment and indemnification obligations by either Party under this Agreement.
14.4 Resumption of Performance. If this Agreement is not terminated pursuant to this Article 14 or any other provision of this Agreement, performance of this Agreement shall resume to the extent made possible by the end or amelioration of the event of Force Majeure in accordance with the terms of this Agreement; provided, however, that the Term of this Agreement shall not be extended for the period of any event of Force Majeure.
ARTICLE 15
MUTUAL REPRESENTATIONS, WARRANTIES AND COVENANTS
15.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party as of the Effective Date of this Agreement and as of the date of each purchase and sale of Crude Oil hereunder, that:
(a) It is an “Eligible Contract Participant” as defined in Section 1a(12) of the Commodity Exchange Act, as amended.
(b) It is a “forward contract merchant” in respect of this Agreement and each sale of Crude Oil hereunder is a forward contract for purposes of the Bankruptcy Code.
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(c) It is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation and in good standing under such law.
(d) It has the corporate, governmental or other legal capacity, authority and power to execute this Agreement, to deliver this Agreement and to perform its obligations under this Agreement, and has taken all necessary action to authorize the foregoing.
(e) The execution, delivery and performance in connection with this Agreement do not violate or conflict with any Applicable Law, any provision of its constitutional documents, any order or judgment of any court or Governmental Authority applicable to it or any of its assets or any contractual restriction binding on or affecting it, its Affiliates or any of its or their respective assets.
(f) All governmental and other authorizations, approvals, consents, notices, and filings that are required to have been obtained or submitted by it with respect to this Agreement have been obtained or submitted and are in full force and effect, and all conditions of any such authorizations, approvals, consents, notices and filings have been complied with.
(g) Its obligations under this Agreement constitute its legal, valid and binding obligations, enforceable in accordance with its terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law and an implied covenant of good faith and fair dealing).
(h) No Event of Default under Article 16 with respect to it has occurred and is continuing, and no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement.
(i) There is not pending or, to its knowledge, threatened against it any action, suit or proceeding at law or in equity or before any court, tribunal, Governmental Authority, official or any arbitrator that is likely to affect the legality, validity, or enforceability against it of this Agreement or its ability to perform its obligations under this Agreement.
(j) It is not relying upon any representations of the other Party, other than those expressly set forth in this Agreement.
(k) It has entered into this Agreement as principal (and not as advisor, agent, broker or in any other capacity, fiduciary or otherwise), with a full understanding of the material terms and risks of the same and is capable of assuming those risks.
(l) It has made its trading and investment decisions (including their suitability) based upon its own judgment and any advice from its advisors as it has deemed necessary, and not in reliance upon any view expressed by the other Party.
(m) The other Party (i) is acting solely in the capacity of an arm’s-length contractual counterparty with respect to this Agreement, (ii) is not acting as a financial advisor or fiduciary or in any similar capacity with respect to this Agreement and (iii) has not given to it any assurance or guarantee as to the expected performance or result of this Agreement.
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(n) Neither it nor any of its Affiliates has been contacted by or negotiated with any finder, broker or other intermediary in connection with the sale of Crude Oil hereunder who is entitled to any compensation with respect thereto (other than brokers’ fees agreed upon by the Parties).
(o) None of its directors, officers, employees or agents or those of its Affiliates has received or will receive any commission, fee, rebate, gift or entertainment of significant value in connection with this Agreement.
(p) Neither it nor any of its Affiliates, directors, or officers (i) is the target of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the U.S. Department of State, the United Nations Security Council, the European Union or the United Kingdom (“Sanctions”), or (ii) is owned or controlled by, or acting on behalf of, any such person. Neither Party shall perform this Agreement in any manner that would violate applicable Sanctions, export control or anti-boycott laws, and neither Party shall be required to perform any obligation hereunder to the extent such performance would violate such laws. In connection with this Agreement, each Party shall comply with the U.S. Foreign Corrupt Practices Act of 1977 and all other applicable anti-bribery and anti-corruption laws, and shall not, directly or indirectly, offer, pay, promise or authorize the payment of anything of value to any government official or other person for the purpose of improperly obtaining or retaining business or any improper advantage. Either Party may suspend performance, without liability, to the extent and for so long as performance would violate applicable Sanctions, and may terminate this Agreement upon written notice if the other Party breaches this Section 15.1(p) in any material respect.
15.2 Know Your Customer.
(a) Each Party shall promptly provide to the other Party all documentation and other evidence that the other Party reasonably requests to be satisfied that it has completed all necessary “know your customer,” anti-money laundering, counter-terrorist financing or similar checks required by the other Party’s internal policies or by Applicable Law in connection with the transactions contemplated by this Agreement.
(b) Promptly on the other Party’s request, each Party shall provide evidence of any changes to, and copies of updated versions of, any documentation it has provided under paragraph (a).
15.3 Acknowledgment. CVR acknowledges that Trafigura is a commodity merchant and, notwithstanding anything to the contrary herein, any Affiliate of Trafigura is a permitted Counterparty to any Third-Party Contract or Third-Party Sale Transaction; provided that such Third-Party Contract or Third-Party Sale Transaction is on arm’s-length terms and the applicable Confirmation identifies such Affiliate as the Counterparty and confirms such terms.
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ARTICLE 16
DEFAULT AND REMEDIES
16.1 Events of Default. Notwithstanding any other provision of this Agreement, an Event of Default shall be deemed to occur with respect to a Party when:
(a) Such Party (or, if applicable, any Affiliate of such Party that is a party to a Transaction Document) fails to perform any material obligation or covenant (including payment) to the other Party under this Agreement, [***], the Product Offtake Agreement, the Trafigura Terminalling Agreement, the CVR Parent Guaranty or the Trafigura Parent Guaranty (in each case, subject to the terms of the Master Netting Agreement), which failure, if curable, is not cured to the reasonable satisfaction of the other Party within [***] from the date that such Party receives written notice that corrective action is needed; provided that a failure to pay subject to a Dispute Notice shall not constitute an Event of Default;
(b) Such Party breaches any material representation or material warranty made or repeated or deemed to have been made or repeated in this Agreement by such Party, or any warranty or representation in this Agreement proves to have been incorrect or misleading in any material respect when made or repeated or deemed to have been made or repeated under this Agreement; provided, however, that if such breach is curable, it is only an Event of Default if such breach is not cured to the reasonable satisfaction of the other Party (in its reasonable discretion) within [***] from the date that such Party receives notice that corrective action is needed;
(c) Such Party becomes Bankrupt; provided that, in the case of the type of events described in clauses (iv), (vi), (vii) or (viii) of the definition of Bankrupt, instituted by an unaffiliated third party, such proceeding is not dismissed within [***] of commencement of such action;
(d) Such Party fails to provide Adequate Assurance in accordance with Section 11.3;
(e) Such Party (i) consolidates or amalgamates with, merges with or into, or transfers all or substantially all of its assets to, another entity (including an Affiliate) or any such consolidation, amalgamation, merger or transfer is consummated, and (ii) the successor entity resulting from any such consolidation, amalgamation or merger or the Person that otherwise acquires all or substantially all of the assets of such Party does not assume, in a manner reasonably satisfactory to the other Party, all of such Party’s obligations hereunder and under the other Transaction Documents;
(f) CVR creates, incurs or grants any lien or other encumbrance on any Crude Oil owned by Trafigura (other than liens arising by operation of law or under the tariff of any Pipeline Operator or Terminal Operator or as otherwise contemplated in this Agreement), and such lien or
encumbrance is not released within [***] after written notice from Trafigura;
(g) CVR materially breaches the terms of, loses any material rights with respect to, or allows to lapse any material permit required in connection with the ownership or operation of the Refineries or CVR’s performance hereunder, and such breach, loss or lapse is not cured within [***] after CVR becomes aware of such breach, loss, or lapse;
(h) CVR sells, leases, subleases, transfers or otherwise disposes of, in one transaction or a series of related transactions, all or a material portion of the assets of either Refinery and does not (i) maintain any credit support then in place or replace such credit support with credit support from a counterparty with equivalent or higher credit, and (ii) satisfy customary KYC requirements of Trafigura (and no Termination Payment shall be payable in respect of an Event of Default under this Section 16.1(h));
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(i) CVR abandons operations at either Refinery for any reason other than due to Force Majeure or Scheduled Maintenance; or
(j) CVR materially breaches or defaults under any contract granting rights with respect to any Third-Party Storage Facilities, such breach is not cured within [***] after CVR becomes aware of such breach, and such breach causes Trafigura to be unable to meet its obligations hereunder.
16.2 Remedies. Notwithstanding any other provision of this Agreement, upon the occurrence of an Event of Default with respect to either Party (the “Defaulting Party”), the other Party (the “Performing Party”) shall in its sole discretion, in addition to all other remedies available to it and without incurring any Liabilities to the Defaulting Party or to third parties, be entitled to do one or more of the following: (a) suspend its performance under this Agreement without prior notice to the Defaulting Party, (b) proceed against the Defaulting Party for damages occasioned by the Defaulting Party’s failure to perform, and (c) upon [***]’s notice to the Defaulting Party, immediately terminate and liquidate all Transactions between the Parties by calculating a Liquidation Amount, in the manner set forth in Section 17.2, and the Termination Payment. Notwithstanding the foregoing, in the case of an Event of Default described in Section 16.1(c) or Section 16.1(d), no prior notice shall be required. Following termination of the Transaction Documents, the Liquidation Amount and, if applicable, the Termination Payment are the Performing Party’s sole and exclusive remedy for the loss of the benefit of the Transaction Documents.
16.3 Instructions Concerning Operational Matters. At any time upon an Event of Default by CVR, Trafigura may instruct (a) the Terminal Operators to cancel any Crude Oil nominations scheduled for delivery from Trafigura to CVR and re-nominate such Crude Oil to Trafigura’s consignee as Trafigura may direct and (b) the relevant Pipeline that Trafigura will be using CVR’s nominated shipping capacity to ship Crude Oil that otherwise would be sold to CVR to Trafigura’s consignee as Trafigura may direct. It is the Parties’ understanding that all Crude Oil shall be exclusively owned and controlled by Trafigura until delivered to CVR at a Delivery Point.
16.4 Additional Remedies for Trafigura Event of Default. If Trafigura commits an Event of Default, including becoming Bankrupt, then in addition to any other rights or remedies available hereunder, CVR may cause the termination of this Agreement within the meaning of Section 556 of the Bankruptcy Code by (i) providing notice of termination to Trafigura, and (ii) providing notice of termination to third parties of any and all assignments of lease storage agreements, terminalling agreements, throughput agreements and pipeline transportation rights agreements. In this regard, Trafigura acknowledges that time is of the essence and CVR may act unilaterally to minimize economic damages and disruption to its business. Such notices of termination referenced in this Section 16.4 shall be effective [***] after the date of such notices. Any Crude Oil not purchased by CVR within such [***] period shall be sold by Trafigura and any such sale shall be treated as a Third-Party Sale Transaction and any gains or losses from such sales or exchanges shall be for the account of CVR. Any such amounts shall be included in the Weekly Invoice, unless the Parties mutually agree to document any such transaction as a price roll, with respect to the WTI Price, in accordance with common oil industry trading practices.
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16.5 Dispute Resolution. Trafigura and CVR shall use good faith efforts to resolve all disputes arising out of or relating to this Agreement through good faith negotiations. If negotiations fail to resolve the dispute within [***], then Trafigura and CVR shall each nominate a senior representative of its management team to meet at a mutually agreed location to resolve the dispute. The good faith efforts to resolve disputes set forth in this Section 16.5 shall be concluded within [***] of written notice of the dispute, unless this period is extended by written agreement signed by Trafigura and CVR. Nothing in this Section 16.5 precludes Trafigura and CVR from using a third-party neutral to assist them to resolve a dispute. Any dispute that cannot be resolved by the Parties will be resolved in a court of competent jurisdiction as provided in Article 22.
ARTICLE 17
FINAL SETTLEMENT AT TERMINATION
17.1 Effects of Termination. Upon the termination or expiration of this Agreement, Trafigura may either sell to CVR or to a third party (a) all Crude Oil located in the Designated Tanks and the Third-Party Storage Facilities and (b) all Crude Oil in pipelines to be delivered into the Designated Tanks or the Third-Party Storage Facilities (collectively, the “Final Inventory”). Any Final Inventory sold to CVR shall be purchased at the Transfer Price [***]. Before selling any Final Inventory to a third party, Trafigura shall give CVR written notice of the volumes, grades and locations concerned and the price at which Trafigura is prepared to sell them, and CVR shall have [***] from receipt to elect in writing to purchase all or any part of those volumes at [***]. Trafigura may sell to a third party only those volumes that CVR has not elected to purchase, at a price no lower than that offered to CVR. Any Final Inventory that Trafigura elects to sell to a third party shall be removed from the Designated Tanks and the Third-Party Storage Facilities within [***] after the date of termination or expiration, at Trafigura’s cost and in accordance with Section 4.3, and any sale to a third party shall be treated as a Third-Party Sale Transaction. CVR shall have no obligation to purchase, and no liability in respect of, any Final Inventory that Trafigura elects to sell to a third party.
17.2 Close Out of Transactions Under the Agreement. Upon the occurrence of an Event of Default, the Performing Party shall, in its sole discretion, in addition to all other remedies available to it and without incurring any Liabilities to the Defaulting Party or to third parties, be entitled to designate a date not earlier than the date of such notice (the “Termination Date”) on which all Transactions shall terminate. The Performing Party shall be entitled to close out and liquidate each Transaction at its market price, as determined by the Performing Party in a commercially reasonable manner as of the Termination Date, and to calculate an amount equal to the difference, if any, between the market price and the Transfer Price for each Transaction. The Performing Party shall aggregate the net gain or loss with respect to all terminated Transactions as of the Termination Date, together with, where CVR is the Defaulting Party, the cost incurred by Trafigura to unwind any hedging arrangements relating to the terminated Transactions, less any gain realized by Trafigura on that unwind, to a single dollar amount (the “Liquidation Amount”). The Performing Party shall notify the Defaulting Party of the Liquidation Amount due from or due to the Defaulting Party, after taking into account any Adequate Assurance. In addition to the Liquidation Amount, upon the designation of a Termination Date following an Event of Default for which a Termination Payment is payable in accordance with Section 16.2, the Defaulting Party shall pay to the Performing Party the Termination Payment, which shall become due and payable on the Termination Date.
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17.3 Payment of Liquidation Amount and Termination Payment. As soon as reasonably practicable after the Termination Date, the Performing Party shall provide the Defaulting Party with a statement showing, in reasonable detail, the calculation of the Liquidation Amount and the Termination Payment, if any. If the Defaulting Party owes the Liquidation Amount and/or the Termination Payment to the Performing Party, the Defaulting Party shall pay the Liquidation Amount, and, if applicable, the Termination Payment, the on the [***]. If the Performing Party owes the Liquidation Amount to the Defaulting Party, the Performing Party shall pay the Liquidation Amount once it has reasonably determined all amounts owed by the Defaulting Party to it under all Transactions. Notwithstanding anything to the contrary in this Agreement or any other Transaction Document, the Termination Payments in the aggregate under all Transaction Documents shall not exceed the “Termination Payment” as set forth in Schedule D.
17.4 Non-Exclusive Remedy. The Performing Party’s rights under this Article 17 shall be in addition to, and not in limitation or exclusion of, any other rights that it may have (whether by agreement, operation of law or otherwise), including any rights and remedies under the UCC; provided, however, that if the Performing Party elects to exercise its rights under Section 17.2, it shall do so with respect to all Transactions. The Performing Party may enforce any of its remedies under this Agreement successively or concurrently at its option. No delay or failure on the part of a Performing Party to exercise any right or remedy to which it may become entitled on account of an Event of Default shall constitute an abandonment of any such right, and the Performing Party shall be entitled to exercise such right or remedy at any time during the continuance of an Event of Default. All of the remedies and other provisions of this Article 17 shall be without prejudice and in addition to any right of setoff, recoupment, combination of accounts, lien or other right to which any Party is at any time otherwise entitled (whether by operation of law, in equity, under contract or otherwise).
17.5 Logistics Arrangements on Termination. Upon the expiration or termination of this Agreement, Trafigura shall, at CVR’s election, assign to CVR or its designee any Terminal Agreement, Pipeline Agreement, Assigned Logistics Agreement or other agreement for the storage or transportation of Crude Oil held by Trafigura in its own name in connection with the supply of Crude Oil to the Refineries, in each case to the extent assignable and subject to any required third-party consents, which Trafigura shall use commercially reasonable efforts to obtain. Pending any such assignment, Trafigura shall hold such agreements for the benefit of CVR and shall not amend, terminate or waive any right under them without CVR’s prior written consent.
ARTICLE 18
INDEMNIFICATION AND CLAIMS
18.1 Trafigura’s Duty to Indemnify. To the fullest extent permitted by Applicable Law and except as specified otherwise elsewhere in this Agreement, Trafigura shall defend, indemnify and hold harmless CVR, its direct and indirect parents, Affiliates, and their directors, officers, employees, representatives, agents and contractors for and against any Liabilities directly or indirectly arising out of or in connection with (i) any breach by Trafigura of any covenant or
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obligation contained herein or otherwise made in connection herewith or any representation or warranty of Trafigura made herein or in connection herewith proving to be false or misleading, (ii) Trafigura’s negligence or willful misconduct, (iii) any failure by Trafigura to comply with or observe any Applicable Law, or (iv) injury, disease, or death of any person or damage to or loss of any property, fine or penalty, any of which is caused by Trafigura or its employees, representatives, agents or contractors while physically present at the Designated Tanks, Third Party Storage Facilities, or the Refineries in performing Trafigura’s obligations under this Agreement, except to the extent that such injury, disease, death or damage to or loss of property was caused by the negligence or willful misconduct on the part of CVR, its Affiliates or any of their respective employees, representatives, agents or contractors.
18.2 CVR’s Duty to Indemnify. To the fullest extent permitted by Applicable Law and except as specified otherwise elsewhere in this Agreement, CVR shall defend, indemnify and hold harmless Trafigura, its direct and indirect parents, Affiliates, and their directors, officers, employees, representatives, agents and contractors for and against any Liabilities directly or indirectly arising out of or in connection with (i) any breach by CVR of any covenant or obligation contained herein or otherwise made in connection herewith or any representation or warranty of CVR made herein or in connection herewith proving to be false or misleading, (ii) CVR’s negligence or willful misconduct, (iii) any failure by CVR to comply with or observe any Applicable Law, or (iv) injury, disease, or death of any person or damage to or loss of any property, fine or penalty, any of which is caused by CVR or its employees, representatives, agents or contractors in performing CVR’s obligations under this Agreement, except to the extent that such injury, disease, death, or damage to or loss of property was caused by the negligence or willful misconduct on the part of Trafigura, its Affiliates or any of their respective employees, representatives, agents or contractors.
18.3 Notice of Indemnity Claim. The Party to be indemnified (the “Indemnified Party”) shall notify the other Party (the “Indemnifying Party”) as soon as practicable after receiving notice of any claim, demand, suit or proceeding brought against it which may give rise to the Indemnifying Party’s obligations under this Agreement (such claim, demand, suit or proceeding, an “Indemnification Claim”), and shall furnish to the Indemnifying Party the complete details within its knowledge. Any delay or failure by the Indemnified Party to give notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations except to the extent, if any, that the Indemnifying Party shall have been materially prejudiced by reason of such delay or failure.
18.4 Defense of Indemnity Claim. The Indemnifying Party shall have the right to assume the defense, at its own expense and by its own counsel, of any Indemnification Claim; provided, however, that such counsel is reasonably acceptable to the Indemnified Party. Notwithstanding the Indemnifying Party’s appointment of counsel to represent an Indemnified Party, the Indemnified Party shall have the right to employ separate counsel, and if the Indemnifying Party shall not have employed counsel to represent the Indemnified Party within a reasonable time after notice of the institution of such Indemnification Claim, the Indemnifying Party shall bear the reasonable fees, costs and expenses of such separate counsel. If requested by the Indemnifying Party, the Indemnified Party agrees to reasonably cooperate with the Indemnifying Party and its counsel in contesting any claim, demand, or suit that the Indemnifying Party defends, including, if appropriate, making any counterclaim or cross-complaint. All costs and expenses incurred in connection with the Indemnified Party’s cooperation shall be borne by the Indemnifying Party. Each Party shall keep the other Party reasonably informed of any proceedings related to the Indemnification Claim.
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18.5 Settlement of Indemnity Claim. No claim or action underlying any Indemnification Claim may be settled or compromised (i) by the Indemnified Party without the consent of the Indemnifying Party or (ii) by the Indemnifying Party without the consent of the Indemnified Party. The mere purchase and existence of insurance does not reduce or release either Party from any liability incurred or assumed under this Agreement.
ARTICLE 19
LIMITATION ON DAMAGES
Except as otherwise expressly provided in this Agreement, the Parties’ liability for damages is limited to direct damages only, and neither Party shall be liable for specific performance, lost profits or other business interruption damages, or special, consequential, incidental, punitive, exemplary or indirect damages, in tort, contract or otherwise, of any kind, arising out of or in any way connected with the performance, the suspension of performance, the failure to perform or the termination of this Agreement. Each Party acknowledges the duty to mitigate damages hereunder.
ARTICLE 20
AUDIT RIGHTS
During the Term, either Party and its duly authorized representatives, upon reasonable notice and during normal working hours, shall have access to the accounting records and other documents maintained by the other Party that relate to this Agreement, including, for the avoidance of doubt, Third-Party Contracts. CVR’s access shall include the records used to calculate the Inventory Availability Fee (including the Hedge Margin Amount and the Inventory Hedges), any Hedge Adjustment Amount and any other fee or amount charged to CVR under this Agreement, including Trafigura’s records of any Implemented Hedges. Notwithstanding the foregoing, in no event shall either Party have any obligation to share with the other Party any books and records for transactions other than Transactions under this Agreement.
ARTICLE 21
CONFIDENTIALITY
21.1 Confidentiality Obligation. The Parties agree that the specific terms and conditions of this Agreement and any information exchanged between the Parties under this Agreement are confidential and that neither Party shall disclose them to any third party, except (a) as may be required by court order, Applicable Laws or a Governmental Authority or (b) to such Party’s or its Affiliates’ employees, auditors, directors, consultants, banks, financial advisors, rating agencies, insurance companies, insurance brokers and legal advisors. All information subject to this confidentiality obligation shall only be used for purposes of and with regard to this Agreement and shall not be used by either CVR or Trafigura for any other purpose. Trafigura acknowledges that pursuant to this Agreement it will be receiving material nonpublic information with regard to CVR Parent and will be prohibited from trading in CVR Parent’s shares while in possession of such information, as U.S. securities laws prohibit trading shares of a company while in possession of material nonpublic information. The confidentiality obligations under this Agreement shall survive
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termination of this Agreement for a period of one (1) year following the termination or expiration of this Agreement. Notwithstanding anything to the contrary herein, the Parties agree that this Agreement may be filed at the SEC with any redactions therein that may be requested by CVR (after consultation with Trafigura) and accepted by the SEC. Nothing in this Agreement, including restrictions on the use of Confidential Information, shall be construed to create a standstill or any other restriction whatsoever on the ability of a Party or its Affiliates or owners to purchase or sell securities or other instruments of companies, purchase or sell any companies substantially in their entirety (whether by merger, asset sale or otherwise), purchase or sell assets of any companies, provide financing to any companies or conduct any activities in the ordinary course of its business.
21.2 Disclosure. In the case of disclosure required by court order, Applicable Laws or a Governmental Authority under Section 21.1 and if the disclosing Party’s counsel advises that it is permissible to do so, the disclosing Party shall notify the other Party in writing of any proceeding of which it is aware that may result in disclosure and use reasonable efforts to prevent or limit such disclosure at the disclosing Party’s cost. The Parties shall be entitled to all remedies available at law, or in equity, to enforce or seek relief in connection with the confidentiality obligations contained herein.
21.3 Tax Matters. Notwithstanding the foregoing, each Party agrees that it and its Affiliates and their directors, officers, employees, agents or attorneys may disclose to any and all persons the structure and any of the tax aspects of the transactions contemplated by this Agreement that are necessary to describe or support any U.S. federal income tax benefits that may result therefrom, or any materials relating thereto, that either Party has provided or will provide to the other Party and its Affiliates and their directors, officers, employees, agents or attorneys in connection with this Agreement, except where confidentiality is reasonably necessary to comply with Applicable Laws.
ARTICLE 22
GOVERNING LAW
22.1 Choice of Law. This Agreement shall be governed by, construed and enforced under the laws of the State of New York without giving effect to its conflicts of laws principles.
22.2 Jurisdiction. Each of the Parties hereby irrevocably submits to the exclusive jurisdiction of the Texas Business Courts or, if the Texas Business Courts decline to exercise or do not have jurisdiction, any federal court of competent jurisdiction situated in Houston, Texas, or, if any federal court declines to exercise or does not have jurisdiction, in any Texas state court in Harris County (without recourse to arbitration unless both Parties agree in writing). Each Party hereby irrevocably waives, to the fullest extent permitted by Applicable Law, any objection to personal jurisdiction, whether on grounds of venue, residence or domicile.
22.3 Waiver. Each Party waives, to the fullest extent permitted by Applicable Law, any right it may have to a trial by jury in respect of any proceedings relating to this Agreement.
ARTICLE 23
ASSIGNMENT
23.1 Successors. This Agreement shall inure to the benefit of and be binding upon the Parties, their respective successors and permitted assigns.
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23.2 No Assignment. Neither Party shall assign this Agreement or its rights or interests hereunder in whole or in part, or delegate its obligations hereunder in whole or in part, without the express written consent, which consent shall not be unreasonably withheld, of the other Party except in the case of assignment to an Affiliate if (a) such Affiliate assumes in writing all of the obligations of the assignor and (b) the assignor provides the other Party with evidence of the Affiliate’s financial responsibility at least equal to that of the assignor. Further, no consent shall be required for transfer of an interest in this Agreement by merger provided that the transferee entity (x) assumes in writing all the obligations of the transferor and (y) provides the other Party with evidence of financial responsibility at least equal to that of the transferor. Notwithstanding anything to the contrary herein, Trafigura may collaterally assign its rights under this Agreement, including rights to any receivables, without the consent of CVR; provided that any such assignee shall take subject to the Master Netting Agreement and to all of CVR’s rights of netting, set-off and recoupment under this Agreement.
23.3 Null and Void. Any attempted assignment in violation of this Article 23 shall be null and void ab initio and the non-assigning Party shall have the right, without prejudice to any other rights or remedies it may have hereunder or otherwise, to terminate this Agreement effective immediately upon notice to the Party attempting such assignment.
23.4 Assignment of Claims. If a dispute, claim or controversy should arise hereunder between Trafigura and any Counterparty and Trafigura is unwilling to contest or litigate such matter, the Parties shall agree to an assignment of Trafigura’s rights and interests as necessary to allow CVR to contest, litigate or resolve such matter by a mutually acceptable alternative means that will allow CVR to pursue the claim.
ARTICLE 24
NOTICES
All invoices, notices, requests, and other communications given pursuant to this Agreement shall be in writing and sent by overnight mail or electronic mail. A notice shall be deemed to have been received upon receipt in the case of a notice sent by overnight mail or one (1) full Business Day after the date of transmittal via email (if confirmed by the notifying Party’s transmission report), or on the following Business Day if received after 5:00 p.m. CT, at the respective Party’s address set forth below and to the attention of the person or department indicated. A Party may change its address by giving written notice in accordance with this Article 24, which notice is effective upon receipt.
| The address for notices or other communications to CVR is: |
The address for notices or other communications to Trafigura is: | |
| Name: MND Holdco, LLC | Name: Trafigura Trading LLC | |
| All Notices: | All Notices: | |
| Address: 2277 Plaza Drive Suite 500 Sugar Land, TX 77479 Attn: Refinery Optimization Email: [***] |
Address: Texas Tower, 845 Texas Ave Ste 3600, Houston, TX 77002 Attn: Houston Crude Operations Email: [***] | |
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| With a copy to:
Address: 2277 Plaza Drive, Suite 500 Sugar Land, TX 77479 Attn: Legal Services Phone: [***] Email: [***] |
With a copy to:
Address: Texas Tower, 845 Texas Ave Ste 3600, Houston, TX 77002 Attn: Legal Email: [***] |
ARTICLE 25
NO WAIVER, CUMULATIVE REMEDIES
25.1 No Waiver. The failure of a Party hereunder to assert a right or enforce an obligation of the other Party shall not be deemed a waiver of such right or obligation. The waiver by any Party of a breach of any provision of, Event of Default or Potential Event of Default under this Agreement shall not operate or be construed as a waiver of any other breach of that provision or as a waiver of any breach of another provision of, Event of Default or Potential Event of Default under this Agreement, whether of a like kind or different nature.
25.2 Cumulative Remedies. Each and every right granted to the Parties under this Agreement or allowed to the Parties by law or equity shall be cumulative and may be exercised from time to time in accordance with the terms thereof and applicable law.
ARTICLE 26
NATURE OF THE TRANSACTION AND RELATIONSHIP OF PARTIES
26.1 No Partnership. This Agreement shall not be construed as creating a partnership, association, or joint venture between the Parties. It is understood that CVR is an independent contractor with complete charge of its employees and agents in the performance of its duties hereunder, and, except as specifically agreed to by the Parties, nothing herein shall be construed to make CVR, or any employee or agent of CVR, an agent or employee of Trafigura.
26.2 Nature of the Transaction. Although the Parties intend and expect that the transactions contemplated hereunder constitute purchases and sales of Crude Oil between them, in the event that any transaction contemplated hereunder is reconstrued by any court, bankruptcy trustee or similar authority to constitute a loan from Trafigura to CVR, then CVR shall be deemed to have pledged all Crude Oil (until such time as payment in respect of such Crude Oil has been made in accordance with the terms of this Agreement) as security for the performance of CVR’s obligations under this Agreement, and shall be deemed to have granted to Trafigura a first-priority lien and security interest in such Crude Oil and all the proceeds thereof. Trafigura may file a UCC-1 financing statement or any other reasonable or customary evidence of such lien and security interest in any relevant jurisdiction. CVR shall not create, incur or grant any lien or other encumbrance on any Crude Oil owned by Trafigura, other than liens arising by operation of law or under the tariff of any Pipeline Operator or Terminal Operator.
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26.3 No Authority. Neither Party shall have the right or authority to negotiate, conclude or execute any contract or legal document with any third person on behalf of the other Party, to assume, create, or incur any liability of any kind, express or implied, against or in the name of the other Party, or to otherwise act as the representative of the other Party, unless expressly authorized in writing by the other Party.
26.4 Intercreditor Arrangements. The Parties shall cooperate in good faith with CVR’s lenders to enter into an intercreditor or similar agreement with Trafigura, in form reasonably acceptable to the Parties, on or prior to the Commencement Date, which shall (a) confirm that Crude Oil owned by Trafigura (and the proceeds thereof) is excluded from the collateral securing the indebtedness of CVR and its Affiliates, and (b) provide for Trafigura’s access to the Designated Tanks to remove its Crude Oil.
ARTICLE 27
MISCELLANEOUS
27.1 Severability. If any Article, Section, or provision of this Agreement shall be determined to be null and void, voidable or invalid by a court of competent jurisdiction, then for such period that the same is void or invalid, it shall be deemed to be deleted from this Agreement and the remaining portions of this Agreement shall remain in full force and effect.
27.2 Entire Agreement. The terms of this Agreement constitute the entire agreement between the Parties with respect to the matters set forth in this Agreement, supersede all prior representations, agreements and understandings and no representations or warranties shall be implied or provisions added in the absence of a written agreement to such effect between the
Parties. This Agreement shall not be modified or changed except by written instrument executed by a duly authorized representative of each Party.
27.3 No Representations. No promise, representation or inducement has been made by either Party that is not embodied in this Agreement, and neither Party shall be bound by or liable for any alleged representation, promise or inducement not so set forth.
27.4 Time of the Essence. Time is of the essence with respect to all aspects of each Party’s performance of any obligations under this Agreement.
27.5 No Third-Party Beneficiary. Nothing expressed or implied in this Agreement is intended to create any rights, obligations, or benefits under this Agreement in any Person other than the Parties and their successors and permitted assigns.
27.6 Survival. All confidentiality, payment, and indemnification obligations (including the payment and indemnification obligations that arise out of termination, including the Liquidation Amount and the Termination Payment) shall survive the expiration or termination of this Agreement.
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27.7 Counterparts. This Agreement may be executed by the Parties in separate counterparts and initially delivered by electronic mail or otherwise, with original signature pages to follow and all such counterparts shall together constitute one and the same instrument.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, each Party has caused this Agreement to be executed by its duly authorized representative, effective as of the Effective Date.
| Trafigura Trading LLC | ||||||||
| By: | /s/ Robert Kreider |
By: | /s/ Dereje Tedla | |||||
| Title: | President |
Title: | Treasurer | |||||
| Date: | November 2, 2026 |
Date: | November 2, 2026 | |||||
| MND Holdco, LLC | ||||||||
| By: |
/s/ Dane J. Neumann |
|||||||
| Title: |
President and Chief Executive Officer |
|||||||
| Date: |
November 2, 2026 |
|||||||
SCHEDULE A
DELIVERY POINTS
[Omitted pursuant to Item 601(a)(5) of Regulation S-K. CVR Energy, Inc. will furnish a copy of this schedule to the Securities and Exchange Commission upon request.]
SCHEDULE B
DESIGNATED TANKS
[Omitted pursuant to Item 601(a)(5) of Regulation S-K. CVR Energy, Inc. will furnish a copy of this schedule to the Securities and Exchange Commission upon request.]
SCHEDULE C
THIRD-PARTY STORAGE FACILITIES
[Omitted pursuant to Item 601(a)(5) of Regulation S-K. CVR Energy, Inc. will furnish a copy of this schedule to the Securities and Exchange Commission upon request.]
SCHEDULE D
FEES
[***]
SCHEDULE E
FORM OF CONFIRMATION
[Omitted pursuant to Item 601(a)(5) of Regulation S-K. CVR Energy, Inc. will furnish a copy of this schedule to the Securities and Exchange Commission upon request.]
EXHIBIT A
CVR Parent Guaranty
[Omitted pursuant to Item 601(a)(5) of Regulation S-K. CVR Energy, Inc. will furnish a copy of this exhibit to the Securities and Exchange Commission upon request.]
EXHIBIT B
Trafigura Parent Guaranty
[Omitted pursuant to Item 601(a)(5) of Regulation S-K. CVR Energy, Inc. will furnish a copy of this exhibit to the Securities and Exchange Commission upon request.]
Exhibit 10.3
STOCKHOLDERS AND REGISTRATION RIGHTS AGREEMENT
This STOCKHOLDERS AND REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of November 2, 2026 (the “Effective Date”), is entered into by CVR Energy, Inc., a Delaware corporation (the “Company”), and Icahn Enterprises Holdings L.P., a Delaware limited partnership (“IEP”). IEP executes on behalf of itself and shall cause each of its Controlled Affiliates that holds Shares to comply with the applicable provisions of this Agreement. The Company and IEP are each a “Party” and together the “Parties.”
WHEREAS, IEP and its Controlled Affiliates Beneficially Own a majority of the outstanding shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”), as of the Effective Date;
WHEREAS, the Company, directly or through one or more of its Subsidiaries, has entered into that certain Equity and Asset Purchase Agreement, dated as of November 2, 2026, with Marathon Petroleum Company LP and the other sellers named therein and CVR Energy, Inc., as purchaser (the “Purchase Agreement”), pursuant to which the purchaser will acquire the assets and equity interests described therein (the “Acquisition”);
WHEREAS, in connection with the financing of the Acquisition, American Entertainment Properties Corp., a Controlled Affiliate of IEP (the “Subscriber”), has agreed to purchase additional shares of Common Stock or equity interests convertible into Common Stock for an aggregate purchase price of $500,000,000 pursuant to that certain Subscription Agreement, dated as of the date hereof, between the Subscriber and the Company;
WHEREAS, in connection with the Subscriber’s agreement to provide financing for the Acquisition, the Company and IEP desire to set forth their respective rights and obligations concerning representation on the Board, registration of Shares, certain future issuances of Company securities and the provision of information following any reduction in IEP’s voting power; and
WHEREAS, a committee of directors disinterested with respect to this Agreement has recommended its approval to the Board, and the Board, acting on that recommendation, has approved this Agreement and determined that the Subscriber’s commitment to provide financing for the Acquisition constitutes sufficient consideration for purposes of Section 122(18) of the Delaware General Corporation Law.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set forth herein, and intending to be legally bound, the Parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms.
“Affiliate” has the meaning in Rule 12b-2 under the Exchange Act.
“Beneficially Own” has the meaning in Rule 13d-3 under the Exchange Act.
“Board” means the Company’s board of directors.
“Board Ownership Percentage” means, at any time, the percentage obtained by dividing (a) the number of issued and outstanding Shares Beneficially Owned by IEP and its Controlled Affiliates at such time by (b) the lesser of (i) the total number of issued and outstanding Shares at such time and (ii) the total number of issued and outstanding Shares as of immediately following the consummation of the Acquisition, as appropriately adjusted for any stock split, stock dividend, combination, reclassification or similar transaction occurring after, in the case of the amounts determined under clause (a) and (b)(i), the Effective Date, and, in the case of the amount determined under clause (b)(ii), the consummation of the Acquisition; provided that the Board Ownership Percentage shall not exceed 100%. For purposes of this definition, the number of issued and outstanding Shares Beneficially Owned by any Person and the total number of issued and outstanding Shares shall be determined, without duplication, assuming the conversion into Common Stock of all preferred stock outstanding at the applicable time, whether or not then convertible.
“Business Day” means a day other than Saturday, Sunday or a day on which banks in New York City are required to close.
“Controlled Affiliate” means an Affiliate directly or indirectly controlled by IEP.
“DTC” means The Depository Trust Company or its successor.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Necessary Action” means all actions that are within the power of a specified Person, consistent with such Person’s fiduciary duties.
“Person” means any individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization, governmental authority or other entity of any kind.
“Registrable Securities” means Shares Beneficially Owned by IEP or any Permitted Holder on the Effective Date or acquired thereafter, including in connection with the Acquisition or the related financing, and Shares issuable upon conversion of any preferred stock Beneficially Owned by IEP or any Permitted Holder, whether or not then convertible, and any securities issued or issuable in respect of those Shares by way of stock dividend, stock split, reclassification, conversion, exchange, merger or similar transaction; provided that a security shall cease to be a Registrable Security as provided in Section 3.1.
“SEC” means the Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended.
“Shares” means shares of Common Stock.
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“Subsidiary” means, with respect to any Person, any entity of which that Person directly or indirectly owns a majority of the outstanding voting interests or otherwise has the power to direct the management and policies.
“Threshold Date” means the first date after the Effective Date on which IEP and its Controlled Affiliates cease collectively to hold more than 50% of the voting power of the Company’s outstanding securities entitled generally to vote in the election of directors.
ARTICLE II
BOARD REPRESENTATION
Section 2.1 Director Designations.
(a) Subject to applicable law and the rules of the exchange on which the Shares are listed, IEP shall be entitled to designate for nomination to the Board (i) six individuals for so long as IEP and its Controlled Affiliates collectively Beneficially Own more than 50% of the issued and outstanding Common Stock, (ii) five individuals if IEP and its Controlled Affiliates collectively Beneficially Own at least 40% but not more than 50% of the issued and outstanding Common Stock, and, if neither clause (i) nor clause (ii) applies, (iii) four individuals if the Board Ownership Percentage is at least 30%, (iv) three individuals if the Board Ownership Percentage is at least 20% but less than 30%, (v) two individuals if the Board Ownership Percentage is at least 10% but less than 20%, and (vi) one individual if the Board Ownership Percentage is at least 5% but less than 10% (each individual so designated, an “IEP Designee”). Any reduction in IEP’s designation entitlement shall take effect in accordance with Section 2.1(c). Any subsequent increase in the percentage of the issued and outstanding Common Stock collectively Beneficially Owned by IEP and its Controlled Affiliates or in the Board Ownership Percentage shall increase IEP’s designation entitlement to the number specified in this Section 2.1 with such designation entitled to take effect in accordance with Section 2.1(c), and the Company shall take all Necessary Action pursuant to Section 2.3 to fill any resulting additional seats. IEP may, by written notice to the Company, designate any then-serving member of the Board as an IEP Designee, other than a director designated by another stockholder pursuant to a contractual designation right, provided that the total number of IEP Designees does not exceed IEP’s then-applicable designation entitlement under Section 2.1. Notwithstanding anything to the contrary in this Agreement, if the Board Ownership Percentage is less than 10% for a period of five or more years, any subsequent increase in the Board Ownership Percentage shall not permit an increase in the number of IEP Designees.
(b) The numbers of directors specified in Section 2.1(a) assume that the authorized size of the Board is ten directorships (the “Current Board Size”). If the authorized size of the Board exceeds the Current Board Size, the number of IEP Designees to which IEP is entitled shall increase to the number necessary to preserve at least the proportion of the Board represented by its otherwise applicable entitlement based on the Current Board Size, rounded up to the nearest whole directorship. A reduction in the authorized size of the Board shall not reduce IEP’s designation entitlement below the number otherwise specified in Section 2.1(a).
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(c) If an increase or reduction in the percentage of the issued and outstanding Common Stock collectively Beneficially Owned by IEP and its Controlled Affiliates or in the Board Ownership Percentage would increase or reduce IEP’s designation entitlement under Section 2.1(a), such increase in designation shall become effective at the next annual meeting of stockholders of the Company and such reduction in designation entitlement shall become effective immediately prior to the next annual meeting of stockholders of the Company following such reduction, based on the applicable ownership percentages as of immediately prior to the mailing of the Company’s proxy statement for the annual meeting; provided, however, that all IEP Designees shall resign from the Board when the Board Ownership Percentage ceases to be equal to or greater than 5%. Subject to the foregoing proviso, until a reduction in designation entitlement becomes effective, IEP shall retain its designation and replacement rights based on its entitlement immediately before such reduction, including the right to fill any vacancy pursuant to Section 2.3. Immediately prior to such annual meeting of stockholders, IEP shall cause the number of IEP Designees in excess of its resulting entitlement, as selected by IEP, to tender their resignations to the Board for its consideration in accordance with applicable law. A reduction in designation entitlement shall not, by itself, remove any director from the Board.
Section 2.2 Nomination and Election of IEP Designees. The Company shall give IEP reasonable advance written notice of the date on which the Nominating and Corporate Governance Committee or the Board first expects to consider the slate of nominees for an election of directors, so that IEP has a reasonable opportunity to identify its nominees by written notice before that consideration. At each meeting of stockholders at which directors are elected (an “Election Meeting”), and in connection with each solicitation of consents for the election of directors, the Company shall take all Necessary Action to nominate each individual identified in a written notice delivered by IEP as an IEP Designee in accordance with Section 2.1 and take all Necessary Action to cause that individual’s election. The Company shall take all Necessary Action to recommend that stockholders vote in favor of each such IEP Designee, include that designee in its proxy statement and form of proxy, and solicit proxies and otherwise support that designee’s election with no less effort or favor than it affords any other Board nominee. IEP shall cause each IEP Designee to provide the information and consents reasonably requested of the Company’s other director nominees in sufficient time for the Company to comply with applicable disclosure requirements. The Company shall not apply to an IEP Designee a director qualification or eligibility criterion adopted after the Effective Date that would have disqualified an IEP Designee serving on the Effective Date, unless that criterion is required by applicable law or exchange rules. An individual’s past or present affiliation with IEP shall not, by itself, render that individual ineligible to serve.
Section 2.3 Vacancies and Additional Designees. If fewer IEP Designees serve on the Board than IEP is then entitled to designate under Section 2.1, whether because (i) of the death, resignation, retirement, removal, disqualification or other cessation of service of an IEP Designee, (ii) IEP has not exercised a designation right, (iii) an IEP Designee fails to be elected at an Election Meeting by the requisite stockholders of the Company or (iv) an IEP Designee otherwise ceases to serve on the Board, IEP may identify in writing one or more individuals to fill the resulting seats. Upon receipt of that notice, the Company shall take all Necessary Action to cause each such individual to be appointed or elected to the Board as promptly as practicable, including by filling an existing vacancy or creating an additional directorship, as applicable. If an individual identified by IEP does not become a director for any reason, IEP may identify another individual in writing, and the Company’s obligations under this Section 2.3 shall continue until the applicable seat is filled.
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Section 2.4 Board Committees. Except with respect to any committee of disinterested directors formed with respect to an actual or potential conflict, for so long as IEP is entitled to designate at least one IEP Designee, the Company shall, at IEP’s request, take all Necessary Action to appoint at least one qualified IEP Designee to each standing committee of the Board and offer membership to at least one qualified IEP Designee on each newly formed committee, in each case subject to applicable law, and exchange independence requirements. The Company shall not establish an executive committee or any other committee with substantially similar broad authority unless at least one qualified IEP Designee serves on that committee or IEP consents in writing. Subject to the first sentence of this Section 2.4, except in the case of a matter presenting an actual or potential conflict between the Company and IEP or any of its Affiliates, the Board or committee, as applicable shall take all Necessary Action to ensure that consideration and approval of the appointment or removal of the Chief Executive Officer or Chief Financial Officer, a material acquisition or disposition of assets or businesses, a material issuance of equity or equity-linked securities, or a similar extraordinary transaction occurs at a meeting of the full Board or a committee on which at least one qualified IEP Designee serves. At the election of the applicable IEP Designee, that designee may attend as a nonvoting observer any meeting of a Board committee on which that designee does not serve and receive the related notices and materials when committee members receive them, subject to the confidentiality obligations applicable to directors. Nothing in this Section 2.4 requires the appointment or attendance of an IEP Designee on a committee of disinterested directors established to address an actual conflict between the Company and IEP or any of its Affiliates, requires appointment or attendance prohibited by applicable law or exchange rules, or requires the disclosure of privileged information if outside counsel reasonably determines that disclosure would jeopardize the privilege.
Section 2.5 Stockholder Rights Plans. The Company shall not adopt, amend or maintain a stockholder rights plan, poison pill or substantially similar arrangement without IEP’s prior written consent which consent shall not be unreasonably withheld. Any such arrangement shall (i) permit IEP and its Affiliates to increase their aggregate Beneficial Ownership by at least two percentage points above their aggregate Beneficial Ownership percentage immediately before adoption or amendment without becoming an acquiring Person, triggering the arrangement or suffering dilution and (ii) not treat any Person as Beneficially Owning Shares solely by reason of that Person’s economic exposure under cash-settled swaps or other cash-settled derivative instruments, or count the Shares referenced by such instruments in determining whether any ownership threshold has been met, in each case to the extent such instruments do not confer voting or dispositive power over the referenced Shares. A transfer among IEP and its Affiliates shall not trigger the arrangement.
Section 2.6 Indemnification and Insurance. The Company shall provide each IEP Designee, during and after service on the Board with respect to acts or omissions in that capacity, indemnification, advancement of expenses and coverage under the Company’s directors’ and officers’ liability insurance policies on terms no less favorable than those provided to the Company’s other current and former directors, as applicable.
Section 2.7 Confidentiality. Subject to the applicable designee’s fiduciary duties and the confidentiality agreement attached as Exhibit A (the “Confidentiality Agreement”), an IEP Designee who is an employee, officer, director or other agent of IEP or any of its Affiliates may share with IEP and its representatives information received in that designee’s capacity as a director.
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The Company and IEP shall execute the Confidentiality Agreement concurrently with this Agreement.
Section 2.8 Applicability. The provisions of this Article II shall apply from and after the Effective Date.
ARTICLE III
REGISTRATION RIGHTS
Section 3.1 Registrable Securities and Holders. For purposes of this Article III, “Permitted Holder” means IEP, any Affiliate holding Registrable Securities and any transferee to whom rights under this Article III are assigned in accordance with Section 6.1. Each Permitted Holder, and any pledgee, secured party, collateral agent or trustee to whom such rights have been assigned may, subject to any designation of a representative under Section 3.11, exercise the rights expressly granted to it under this Article III. Registrable Securities shall not cease to be Registrable Securities solely by reason of a pledge, an assignment permitted by Section 6.1 or a transfer upon enforcement of a security interest to a person that becomes a Permitted Holder. A security shall cease to be a Registrable Security when it has been sold pursuant to an effective registration statement or is eligible for resale without restriction (including volume or manner of sale requirements) under Rule 144 under the Securities Act, has ceased to be outstanding, is held by a person other than a Permitted Holder. Eligibility to sell a security under Rule 144 shall not, by itself, terminate registration rights while the holder remains an affiliate of the Company or is subject to the volume or manner-of-sale limitations of Rule 144. The rights under this Article III are independent of the ownership thresholds in Article II, shall survive the Threshold Date and shall not be conditioned on IEP retaining representation on the Board.
Section 3.2 Shelf Registration. Upon the written request of IEP or any other Permitted Holder, the Company shall, as promptly as practicable and in any event within 30 days, file a resale registration statement, or designate an existing effective registration statement by filing any necessary prospectus supplement, covering all Registrable Securities specified in the request. The Company shall use reasonable best efforts to cause the registration statement to become effective promptly and, subject to Section 3.6, to maintain an effective registration statement and current, usable prospectus for the continuous or delayed resale of the covered securities until they cease to be Registrable Securities. The Company shall use Form S-3, including an automatically effective shelf if available, or, if Form S-3 is unavailable, another appropriate form, and shall convert to Form S-3 promptly after becoming eligible. The Company shall file amendments and replacement registration statements in time to avoid an interruption in the availability of a usable shelf and, upon written request, shall promptly include additional Registrable Securities acquired after the initial filing. The plan of distribution shall permit ordinary brokerage and other open-market sales at prevailing prices, privately negotiated sales, sales through agents, block trades, marketed and overnight underwritten offerings and any other lawful method reasonably requested by a Permitted Holder. The plan of distribution shall also permit pledges, sales by pledgees upon enforcement, deliveries upon exchange or settlement of indebtedness exchangeable for Registrable Securities and related hedging transactions, in each case to the extent permitted by applicable law. The Company shall provide customary cooperation reasonably requested in connection with such transactions, including customary issuer agreements, selling-holder supplements and transfer-agent instructions. A request or registration under this Section 3.2 shall not count as an Offering Request. No minimum sale amount shall apply to a sale that does not require a separately requested Underwritten Takedown or Demand Registration.
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Section 3.3 Underwritten Shelf Offerings.
(a) Any Permitted Holder may request an underwritten offering or block trade from an effective shelf with anticipated gross proceeds of at least $25 million (each such offering, an “Underwritten Takedown”). The Company shall use reasonable best efforts to facilitate the offering and pricing as promptly as practicable, including on an expedited timetable reasonably requested for an overnight offering or block trade, and shall prepare the applicable prospectus supplement and provide the assistance specified in Section 3.7. The Permitted Holders that initiated the offering, acting by holders of a majority of the Registrable Securities proposed to be sold by such initiating Permitted Holders, shall select the managing underwriters or placement agents, subject to the Company’s acceptance, which shall not be unreasonably withheld, conditioned or delayed. There shall be no numerical limit on requests for Underwritten Takedowns or Demand Registrations (each, an “Offering Request”). The Company shall not grant another holder priority over an offering initiated under this Section 3.3 without IEP’s prior written consent. Notwithstanding anything to the contrary in this Agreement (other than Section 3.3(b)), if the Company has launched a registered underwritten offering of Shares for its own account (including by delivering a notice to the Permitted Holders under Section 3.5) at any time after the date that is thirty (30) days before an Offering Request relating to an underwritten offering and before the offering so requested has launched, and the Company continues in good faith to pursue its offering, then (i) the Company shall not be obligated to take any action to effect the requested offering, (ii) no Permitted Holder shall sell or offer to sell Registrable Securities in an underwritten offering pursuant to such Offering Request, and (iii) the Permitted Holders may instead participate in the Company’s offering in accordance with Section 3.5, in each case until the earliest of (A) the abandonment, cessation or withdrawal of the Company’s offering, (B) forty five (45) days after the date on which the Company launched its offering and (C) the completion of the Company’s offering.
(b) At any time between the Effective Date and the closing of the Acquisition, and following or concurrently with the Company’s public offering of Shares in connection with the Acquisition, IEP and its Affiliates may effect any underwritten registered secondary offering of Shares, including any Shares sold pursuant to an option granted to the underwriters (the “Pre-Closing Offering”). The Company shall take, and shall cause its Subsidiaries to take, all actions reasonably necessary, proper or advisable to facilitate the offer and sale of such Shares and the consummation of the Pre-Closing Offering promptly and consistent with the offering, marketing and settlement timetable reasonably requested by IEP, including making the registration and other filings necessary for the offering, taking the actions contemplated by Section 3.7 and cooperating to permit timely delivery of the Shares to the underwriters against payment. IEP shall determine the size, pricing, timing and other terms of the Pre-Closing Offering in its sole discretion and may terminate or defer the Pre-Closing Offering, in whole or in part, at any time.
Section 3.4 Demand Registrations. If an effective resale shelf is unavailable for Registrable Securities or cannot reasonably accommodate a Permitted Holder’s proposed method of distribution, including because another registration form or materially different disclosure is reasonably necessary, that Permitted Holder may require the Company to register Registrable
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Securities with anticipated gross proceeds of at least $25 million or, if less, all remaining Registrable Securities held by that holder (each such registration, a “Demand Registration”). Subject to Section 3.6, the Company shall file an appropriate registration statement within 30 days after receiving a written demand specifying the securities and proposed method of distribution, use reasonable best efforts to cause the registration statement to become effective promptly, and maintain its effectiveness until the distribution is completed; provided that, after 180 days, excluding any period of suspension, the Company may instead cover the remaining securities on an effective resale shelf pursuant to Section 3.2, but only if that shelf permits the distribution specified in the applicable demand without material interruption or limitation. A demand may relate to an underwritten or non-underwritten offering, and there shall be no numerical limit on demands. To the extent relating to an underwritten offering, Demand Registrations shall be subject to the stand-down for a Company offering set forth in Section 3.3(a). A registration shall not be deemed completed if it is withdrawn because of a Company suspension or breach, becomes unavailable because of a stop order or fails to permit the proposed distribution, and the holder may renew its demand without another waiting period. The availability of a shelf that does not permit the proposed distribution shall not relieve the Company of its obligations under this Section 3.4.
Section 3.5 Piggyback Registrations.
(a) If the Company proposes to register for sale or commence a registered offering of equity securities or securities convertible into, exchangeable for or exercisable for equity securities, whether for its own account or another holder’s account and including a marketed or overnight takedown from an existing shelf, it shall give each Permitted Holder written notice and an opportunity to include Registrable Securities of the same class. The Company shall give notice at least ten (10) Business Days before filing a new registration statement or, for a takedown from an existing shelf, as far before launch as reasonably practicable and, for a marketed offering, at least three (3) Business Days before launch where practicable. A Permitted Holder may elect to participate by written notice delivered within five (5) Business Days after receiving notice of a new filing or within the shorter reasonable period specified in an expedited takedown notice. The Company shall include the elected securities on the same distribution terms as the other securities in the offering, subject to a good-faith determination by the managing underwriter of the maximum number that can be sold without materially and adversely affecting the offering. In an offering initiated by the Company, priority shall be given first to the Company, then to the participating Permitted Holders, then to other selling holders. In an offering initiated by a Permitted Holder other than IEP or an Affiliate, priority shall be given first to the initiating Permitted Holders, then to other participating Permitted Holders pro rata based on requested inclusion, then to the Company and other holders. In an offering initiated by another securityholder, priority shall be given first to that securityholder, then to the participating Permitted Holders, then to the Company and other holders, subject to any rights validly granted before the Effective Date and disclosed in writing to IEP. Securities of sellers at the same priority level shall be reduced pro rata based on requested inclusion unless those sellers agree otherwise. In any underwritten offering in which a Permitted Holder participates pursuant to this Section 3.5, the Company shall select the managing underwriters or placement agents (except that, in an offering initiated by a Permitted Holder under Section 3.3 or Section 3.4, the initiating Permitted Holders shall make such selection in accordance with the applicable Section), and no Permitted Holder participating pursuant to this Section 3.5 shall have any right to select, or to approve the selection of, the managing underwriters or placement agents. Notwithstanding anything to the contrary in this Agreement, neither the
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Company nor any other securityholder may include securities in any registration or offering requested by IEP or any of its Affiliates under Section 3.2, 3.3 or 3.4 without IEP’s prior written consent (other than pursuant to the terms of that certain Investor Rights Agreement entered into between the Company and Trafigura US Holdings, Inc. as in effect on the date hereof). The Company shall not grant any registration rights inconsistent with this Section 3.5 without IEP’s prior written consent. This Section 3.5 shall not apply to registrations on Form S-4 or S-8, employee or director plans, dividend reinvestment or stock purchase plans, exchange offers or ordinary-course continuous at-the-market programs; a marketed offering shall not be excluded merely because it is described as an at-the-market program. A Permitted Holder may withdraw before pricing without liability other than for expenses it has expressly agreed to bear, and participation under this Section shall not constitute an Offering Request. If IEP elects not to receive nonpublic prelaunch notices, the Company shall use reasonable efforts to permit IEP to participate following public announcement of the offering to the extent practicable, without affecting its rights in future offerings.
Section 3.6 Suspension of Registrations. The Company may suspend use of a registration statement by written notice to the affected Permitted Holders only if the Board or an authorized committee determines in good faith, after consultation with counsel, that the disclosure required for continued use would reveal material nonpublic information and disclosure at that time would be materially detrimental to the Company. No suspension under this Section 3.6 may continue for more than 30 consecutive days or 60 days in any rolling 12-month period, and the Company may not suspend use of a registration statement on more than one occasion in any rolling 12-month period. The Company shall terminate the suspension promptly when its basis ceases and promptly restore the availability of the affected registration statement and prospectus. A suspension notice shall not disclose the underlying nonpublic information and shall identify the sales subject to suspension; the Company shall notify the affected holders promptly when those sales may resume. If the Company determines in good faith, after consultation with counsel, that a registration statement or prospectus contains a material misstatement or omission, is subject to a stop order or otherwise cannot lawfully be used for a proposed sale, it shall promptly notify affected Permitted Holders without disclosing the underlying material nonpublic information. Those holders shall discontinue sales only under the affected registration statement until notified that a corrected prospectus is available or use has otherwise become lawful. The Company shall use reasonable best efforts promptly to correct the defect and restore lawful use. Any period during which sales are discontinued as a result of such defect shall count toward the 30- and 60-day limits above, except to the extent use of the affected registration statement remains prohibited by applicable law or an SEC order despite the Company’s reasonable best efforts promptly to cure the defect. The Company shall not extend that period by delaying corrective action. No suspension shall shorten a required effective period or excuse the prompt corrective filings required by Section 3.7. A suspension or stop-use notice shall not prohibit a sale under an unaffected registration statement or a sale otherwise lawfully available under Rule 144, except as required by law. A trading restriction applicable to an IEP Designee shall not, by itself, constitute a notice suspending sales by another Permitted Holder. An ordinary trading-window policy shall not independently restrict sales by a holder that is not subject to that policy, subject to applicable law and any underwriting lockup the holder expressly agrees to in writing. Nothing in this Agreement permits any person to trade while in possession of material nonpublic information.
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Section 3.7 Registration procedures and expenses. Whenever Registrable Securities are registered or sold under this Article, the Company shall use reasonable best efforts to effect the registration and sale in accordance with the intended lawful method of distribution, and shall take the following actions as reasonably applicable:
(a) Before filing a registration statement, material amendment or prospectus supplement concerning a Permitted Holder’s securities, furnish reasonable drafts to the selling holder and its counsel, permit a reasonable opportunity to comment on information relating to the holder or its distribution, and make the corrections reasonably required to comply with the Securities Act. Prepare and file amendments, supplements and Exchange Act reports necessary to maintain an accurate and usable prospectus; promptly notify the selling holders of effectiveness, SEC comments or requests affecting their offering, a stop order, or a material misstatement or omission; use reasonable best efforts to prevent or withdraw any stop order and restore a usable prospectus promptly. A selling holder may elect not to receive drafts containing material nonpublic information and may review only its selling-holder and distribution disclosure.
(b) Provide reasonable numbers of electronic or printed copies of the current prospectus and supplements, consent to their lawful use in sales under the registration statement, maintain a transfer agent and registrar, arrange required exchange listing and customary state securities qualifications, and cooperate with selling holders, their agents and underwriters on filings with the Financial Industry Regulatory Authority (“FINRA”) and settlement. No qualification requires the Company to become subject to general service of process or taxation in a jurisdiction where it is not otherwise subject.
(c) For an underwritten offering, enter into a customary underwriting or placement agreement containing customary Company representations, covenants and indemnities; provide customary officer certificates, Company counsel opinions and auditor comfort letters addressed to the selling holders and underwriters where reasonably available; make appropriate Company officers available for reasonable due diligence and marketing; and provide reasonable access to records, personnel and auditors needed for customary due diligence, subject to confidentiality, privilege, applicable law and customary auditor protocols. A Permitted Holder may limit access to personnel and advisers behind an appropriate information barrier rather than receiving material nonpublic information directly. The Company shall not be required to waive attorney-client privilege, but shall use commercially reasonable efforts to provide a nonprivileged alternative if material information is withheld.
(d) Pay all registration, SEC and exchange filing, printing, transfer-agent, Company counsel and auditor fees, customary FINRA and state securities qualification costs, customary underwriter expenses payable by an issuer, and the reasonable fees and expenses of one counsel chosen by selling Permitted Holders holding a majority of the Registrable Securities being sold. Each selling holder shall bear only the underwriting discounts and selling commissions, fees of counsel it separately retains, and transfer taxes attributable to its sales. The Company shall pay these costs whether or not the registration becomes effective or the offering is completed; selling holders bear only the amounts expressly allocated to them above.
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(e) Not require a selling holder to make representations to the Company, an underwriter or another person other than as to its identity, authority, title to the securities, intended method of distribution and information supplied by it expressly for the offering, together with customary agreements to comply with applicable law. Any selling holder’s indemnity and contribution obligations shall be limited as provided in Section 3.8. No holder must agree to a lockup except one it voluntarily accepts in writing in connection with its participation in a particular underwritten offering. The Company shall not impose a restriction on ordinary-course shelf or Rule 144 sales solely because another person conducts an offering.
Section 3.8 Indemnification. The Company shall indemnify each selling Permitted Holder and its directors, officers, partners, members and controlling persons, and each underwriter, against losses, claims, damages, liabilities and reasonable expenses of defense arising under the Securities Act or otherwise from a material misstatement or omission in a registration statement, prospectus or related registration materials, except to the extent the misstatement or omission is based on information furnished in writing by that selling holder expressly for inclusion in those materials. Each selling Permitted Holder shall, severally and not jointly, indemnify the Company and its directors, officers and controlling persons, and each underwriter, solely to the extent a material misstatement or omission in the applicable registration materials is based on information furnished in writing by that holder expressly for inclusion. Each holder’s aggregate liability under this Section 3.8, including contribution, shall not exceed the net proceeds received by that holder from the applicable offering. A person seeking indemnification shall promptly notify the indemnifying party of a claim; failure to give prompt notice shall relieve the indemnifying party of its obligations only to the extent it is actually prejudiced. The indemnifying party may assume the defense with counsel reasonably satisfactory to the indemnified person. The indemnified person may retain separate counsel at the indemnifying party’s expense if counsel reasonably determines that a material conflict of interest exists. Neither party may settle a claim affecting an indemnified person without that person’s consent, not to be unreasonably withheld, unless the settlement provides an unconditional release and contains no admission of wrongdoing by that person. If indemnification is unavailable, the parties shall contribute to the applicable loss in proportion to their relative fault and other equitable considerations, subject to the holder’s aggregate liability limit in this Section 3.8.
Section 3.9 Non-Underwritten Sales and Settlement. A Permitted Holder may make ordinary brokerage, open-market, privately negotiated or other non-underwritten sales covered by an effective resale shelf without a minimum sale amount, Company consent or further notice to the Company if the existing registration statement and prospectus permit the sale. If a prospectus supplement or other filing is reasonably necessary to permit an identified non-underwritten distribution, the Company shall, promptly after receiving the selling-holder information reasonably necessary for the filing and in any event within five Business Days, use reasonable best efforts to file the supplement or take the other lawful action needed to enable the sale, subject to Section 3.6. The Company shall not require an unnecessary prospectus supplement as a condition to an otherwise covered ordinary brokerage sale. In connection with sales under an effective registration statement or pursuant to Rule 144, the Company shall promptly provide customary transfer-agent instructions and any customary Company counsel opinion reasonably required to remove restrictive legends and settle legally eligible shares through DTC without a restrictive notation, in each case in time for customary settlement if given reasonable notice and the information reasonably required to establish eligibility. The Company shall bear the customary costs of legend removal and DTC settlement. The Company may require customary seller and broker certifications reasonably necessary under applicable law but shall not condition settlement on a waiver of registration rights or a discretionary Company approval.
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Section 3.10 Rule 144 and Form S-3. For so long as any Registrable Securities remain outstanding, the Company shall use reasonable best efforts to file timely reports required under the Exchange Act, maintain the public information reasonably necessary to permit sales under Rule 144, and remain eligible to use Form S-3 to the extent eligibility is within its control. At a Permitted Holder’s reasonable request, the Company shall provide a customary written statement of its compliance with applicable Rule 144 public-information and reporting requirements, cooperate reasonably with its transfer agent and Company counsel on a proposed Rule 144 sale, and take other actions reasonably necessary to permit a lawful sale without registration. Nothing here requires the Company to determine that a holder has ceased to be an affiliate, dispense with a legally applicable Rule 144 condition or provide an inaccurate legal opinion. A holder’s ability to make a Rule 144 sale does not limit its right to use an effective registration statement while its securities remain Registrable Securities.
Section 3.11 Holder Information and SEC Limitations. IEP may designate in writing a representative authorized to deliver registration notices and instructions for IEP and its Affiliates. The Company may rely on that representative’s instructions with respect to those holders, but the designation shall not transfer any right or bind an unaffiliated permitted transferee absent that transferee’s written authorization. A Permitted Holder shall furnish information concerning itself, its securities and its intended method of distribution only to the extent reasonably necessary for the requested registration and shall promptly notify the Company if it becomes aware that selling-holder information it furnished has become materially inaccurate. If the SEC limits the number of Registrable Securities that may be registered for resale or requires the use of a different permissible form, the Company shall promptly notify the affected holders, use reasonable best efforts to register the maximum number then legally permitted without identifying any holder as an underwriter without its consent, and register the remaining securities promptly when permitted. Any reduction shall be allocated among the requesting Permitted Holders pro rata unless they direct otherwise. An SEC limitation shall not terminate the Company’s continuing obligations with respect to excluded securities, and no Permitted Holder shall be required to sell pursuant to a registration statement on terms it has not approved.
ARTICLE IV
INFORMATION FOLLOWING THRESHOLD DATE
Section 4.1 Information Rights. From and after the Threshold Date, for so long as IEP’s Board Ownership Percentage is at least 5%, the Company shall, upon IEP’s reasonable written request, furnish information concerning the Company and its Subsidiaries reasonably necessary for IEP or its Affiliates to satisfy financial reporting, audit, tax or regulatory obligations arising from their ownership of Company securities. The Company shall also furnish information relating to any fiscal period during which the applicable voting threshold was satisfied if IEP reasonably requires that information to complete a reporting or audit obligation for that period. Information furnished under this Section 4.1 shall include reasonably available supporting schedules and reasonable access to appropriate finance personnel and independent auditors, in each case to the extent reasonably necessary for the applicable obligation and subject to customary auditor protocols. If IEP gives reasonable advance notice of an applicable filing or audit deadline,
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the Company shall use commercially reasonable efforts to provide the requested information in time for that deadline. The Company shall not be required under this Section 4.1 to provide routine budgets or unrestricted access to internal records, permit advance review of its public disclosures, or coordinate the timing of the Parties’ earnings announcements. Notwithstanding any ownership threshold or termination of this Article IV, the Company shall furnish information and reasonable assistance reasonably requested by IEP or its Affiliates to prepare or file tax returns, determine tax liabilities or tax attributes, or respond to tax examinations or proceedings, in each case relating to any period during which IEP or any of its Affiliates held Company securities.
Section 4.2 Information Barriers. IEP may elect by written notice to the Company not to receive any category of nonpublic information under this Article IV and may revoke that election by subsequent written notice to the Company. If IEP requires information under Section 4.1 but elects not to receive material nonpublic information directly, the Parties shall cooperate in good faith to establish a reasonably available lawful arrangement, including delivery to designated accounting personnel, independent auditors or other representatives subject to appropriate confidentiality obligations and information barriers, that permits IEP to meet the applicable reporting obligation. No such arrangement shall excuse a disclosure required by law or permit trading by a Person while in possession of material nonpublic information. IEP shall use information furnished under this Article IV solely for the applicable reporting, audit, tax or regulatory purpose and may disclose it only to representatives who need to know it for that purpose or as required by law.
ARTICLE V
FUTURE EQUITY ISSUANCES
Section 5.1 Participation right.
(a) Beginning immediately after consummation of the Acquisition and the related equity issuances, and for so long as the Board Ownership Percentage is equal to or greater than 5%, if the Company proposes to issue equity securities or securities convertible into, exchangeable for or exercisable for equity securities to any person, the Company shall offer IEP the right, but not the obligation, to purchase up to its pro rata portion of the securities on the same price and material economic terms. IEP’s pro rata portion shall equal the number of securities proposed to be issued multiplied by the Board Ownership Percentage immediately before the issuance. If the consideration for a proposed issuance consists in whole or in part of property other than cash, IEP may exercise its participation right by paying cash equal to the fair market value of such consideration attributable to the securities purchased by IEP, as reasonably determined in good faith by the Board.
(b) This Section 5.1 shall not apply to securities issued (i) in connection with the Acquisition or its related financing, (ii) under a compensation plan for employees or directors approved by the Board in the ordinary course, (iii) pursuant to a stock split or stock dividend, or (iv) upon conversion, exchange or exercise of securities issued before the Effective Date or otherwise in compliance with this Article V. For purposes of clause (ii), Shares shall be counted when the applicable award is granted and shall not be counted again upon exercise or settlement of that award.
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(c) The Company shall give IEP written notice of the material terms of a proposed issuance at least 10 Business Days before the proposed issuance, except that the Company may provide an abbreviated notice period reasonably necessary to accommodate a broadly marketed public offering. IEP may elect to participate by written notice delivered within five Business Days after receipt of the Company’s notice or such shorter reasonable period specified in an expedited notice. IEP’s purchase may close after the issuance to third parties to permit the receipt of legally required approvals. The Company shall take all Necessary Action to obtain any such approval, including stockholder approval required under applicable exchange rules; provided that IEP’s separate purchase shall not delay a bona fide issuance to a third party solely because such approval remains outstanding.
ARTICLE VI
TRANSFERS AND TERMINATION
Section 6.1 Assignments. IEP may assign its rights under this Agreement, in whole or in part, to any Affiliate, provided that such Affiliate agrees in writing to be bound by the applicable provisions of this Agreement (such an Affiliate, a “Permitted Assignee”). If a Permitted Assignee ceases to qualify as an Affiliate of IEP at any time following IEP’s assignment thereto of such right or rights under this Agreement, upon such time, such Permitted Assignee shall no longer be entitled to exercise such rights. IEP may assign its rights under Article III, in whole or in part, to any transferee that acquires Shares constituting Registrable Securities, provided that the transferee agrees in writing to be bound by the applicable provisions of this Agreement. No Company consent or minimum transfer size shall be required. Any Permitted Holder may pledge or grant a security interest in Registrable Securities and assign its rights under Article III, in whole or in part, to the related pledgee, secured party, collateral agent or trustee, including in connection with indebtedness exchangeable for Registrable Securities, without the Company’s consent and whether or not such person then acquires the underlying Registrable Securities. Such person may exercise the assigned rights in accordance with the applicable financing arrangements upon agreeing in writing to be bound by the applicable provisions of this Agreement. IEP may also assign its rights and obligations under Article V, without the Company’s consent, to a Person acquiring all of the Shares then Beneficially Owned by IEP and its Controlled Affiliates, provided that such Person agrees in writing to be bound by this Agreement. Upon such assignment of rights and obligations under Article III and Article V, references to IEP and its Affiliates in Article V, the related definitions and Section 6.2 shall refer to such assignee and its Affiliates, as applicable.
Section 6.2 Termination; Survival. The rights and obligations under Articles II, IV and V shall terminate when the Board Ownership Percentage ceases to be equal to or greater than 5%. Article III shall terminate when no Registrable Securities remain outstanding; provided that Section 3.8 shall survive termination of Article III. Termination of any Article or this Agreement shall not affect any rights or obligations accrued before termination.
ARTICLE VII
MISCELLANEOUS
Section 7.1 No Inconsistent Agreements. The Company shall not enter into any agreement that grants another person rights materially and adversely inconsistent with IEP’s rights under this Agreement without IEP’s prior written consent. The Parties shall cooperate reasonably to carry out the provisions of this Agreement in accordance with applicable law and exchange rules. Nothing in this Agreement requires an unlawful issuance or director appointment or the omission of a disclosure required by law.
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Section 7.2 Amendments and Waivers. No provision of this Agreement may be amended or waived except by a written instrument executed by the Company and IEP. No failure or delay in exercising any right under this Agreement shall operate as a waiver of that right, nor shall any single or partial exercise preclude any further exercise of that or any other right. Any amendment on behalf of the Company shall be approved in accordance with applicable law and the Company’s applicable related-party transaction procedures.
Section 7.3 Specific Performance. Each Party acknowledges that a breach of this Agreement would cause irreparable harm for which monetary damages would not be an adequate remedy. Accordingly, subject to applicable law, each Party shall be entitled to seek specific performance, injunctive relief and other equitable remedies to prevent or remedy a breach of those provisions, without proof of actual damages or the posting of a bond or other security, in addition to any other remedy available at law or in equity.
Section 7.4 Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement and any claim arising out of or relating to this Agreement shall be governed by the laws of the State of Delaware, without regard to conflict-of-laws principles that would require application of the laws of another jurisdiction. Each Party irrevocably submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware or, if that court lacks subject-matter jurisdiction, the state or federal courts located in Delaware, in any action arising out of or relating to this Agreement. Each Party waives, to the fullest extent permitted by law, any right to trial by jury in any such action.
Section 7.5 Notices. All notices and other communications under this Agreement shall be in writing and delivered by personal delivery, nationally recognized overnight courier or email with confirmation of receipt, to the Company at 2277 Plaza Drive, Suite 500, Sugar Land, Texas 77479, Attn: Melissa Buhrig or Email: ***, *** and to IEP at 16690 Collins Avenue, PH-1, Sunny Isles Beach, FL 33160, ***, with a copy to Proskauer Rose, LLP, Eleven Times Square, New York, NY 10036, Attention: Joshua Apfelroth; JD DeSantis; Louis Rambo or Email: ***; ***; ***, or to such other address or email address as a Party specifies by notice under this Section 7.5. A notice is effective upon receipt; provided that a notice received by email after 5:00 p.m. at the recipient’s location, or on a day that is not a Business Day, shall be deemed received on the next Business Day.
Section 7.6 Miscellaneous.
(a) This Agreement, together with the Confidentiality Agreement if executed, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior agreements and understandings concerning that subject matter. This Agreement binds and benefits the Parties and their permitted successors and assigns. Each Permitted Holder, permitted assignee under Section 6.1 and person expressly entitled to indemnification under Section 3.8 is an intended third-party beneficiary of the provisions applicable to such person and may enforce those provisions. Except as provided in the preceding sentence, no person other than a Party has any right or remedy under this Agreement.
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(b) If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in effect, and the Parties shall negotiate in good faith a lawful replacement that gives effect to their original intent as nearly as practicable. This Agreement may be executed in counterparts, each of which constitutes an original and all of which together constitute one agreement. Signatures transmitted electronically shall be effective as original signatures. Each Party shall bear its own expenses incurred in negotiating and executing this Agreement, except as otherwise expressly provided herein.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
| CVR ENERGY, INC. | ||
| By: | /s/ Dane Neumann | |
| Name: Dane Neumann | ||
| Title: President and Chief Executive Officer | ||
| ICAHN ENTERPRISES HOLDINGS L.P. | ||
| By: Icahn Enterprises G.P. Inc., its general partner | ||
| By: | /s/ Ted Papapostolou | |
| Name: Ted Papapostolou | ||
| Title: President | ||
Exhibit 99.1
CVR ENERGY ANNOUNCES TRANSFORMATIVE TRANSACTION
TO ACQUIRE 2 REFINERIES AND MARKETING PLATFORM FROM MARATHON PETROLEUM
| • | Transformative increase to its asset portfolio, nearly doubling refining capacity |
| • | Expands and diversifies its footprint with high-quality refineries in new distribution areas |
| • | Synergistic marketing business is anticipated to provide margin uplift across integrated platform |
| • | Improved positioning for potential future acquisitions and margin improvement opportunities |
SUGAR LAND, Texas (November 3, 2026) – CVR Energy, Inc. (NYSE: CVI) (“CVR Energy”) today announced that it has entered into a definitive agreement with subsidiaries and affiliates of Marathon Petroleum Corporation (NYSE: MPC) (“Marathon”) under which CVR Energy would acquire (the “Acquisition”) Marathon’s St. Paul Park, Minnesota and Mandan, North Dakota refineries, along with Marathon’s related marketing business (collectively, the “Acquired Business”), for a total purchase price of approximately $4.2 billion, plus net working capital.
The Acquired Business generated approximately $1.2 billion of EBITDA reflecting current favorable market conditions for the trailing twelve months ended September 30, 2026, when adjusted for CVR Energy’s accounting policies. For the nine months ended September 30, 2026, the Acquisition would have increased CVR Energy’s EBITDA from approximately $900 million, on a stand-alone basis, to approximately $2.0 billion, on a pro forma basis. Additionally, earnings per share for the nine months ended September 30, 2026 would have increased from $3.73 per share, on a stand-alone basis, to $7.67 per share, on a pro forma basis, an accretion in earnings per share of over 105% for stockholders. These figures do not include approximately $70 million in estimated future annual run-rate synergies, primarily relating to Selling, General, & Administrative (“SG&A”) expenses and commercial and operational opportunities.
“We are thrilled to deliver on our plan to strategically grow and diversify our business. We are acquiring 2 well-maintained, highly productive refineries from Marathon that have generated more than $1.1 billion of EBITDA for the first nine months of 2026. In light of current favorable market conditions, we expect the Acquired Business to continue to generate substantial cash flows over at least the next twelve months,” said Dane Neumann, President and Chief Executive Officer of CVR Energy. “Marathon has been an excellent steward of these high-quality assets, and we look forward to welcoming the hardworking employees at these facilities into the CVR Energy family. Looking ahead, with a larger and stronger asset portfolio, we believe CVR Energy is well-positioned to deliver more durable cash flow through the cycle, provide meaningful commercial and operational synergies and significant per share accretion, strengthening CVR Energy’s position while serving as a platform for future growth.”
Transaction Terms
Under the terms of the purchase agreement, CVR Energy would acquire:
| • | St. Paul Park Refinery: 105,000 barrel-per-day refinery in St. Paul Park, Minnesota; |
| • | Mandan Refinery: 72,000 barrel-per-day refinery in Mandan, North Dakota; and |
| • | Marketing Business: Integrated marketing channel supplying up to 590 branded locations across the Upper Midwest and Northern Great Plains regions. |
CVR Energy’s Board of Directors has unanimously approved the transaction, which is expected to close by the end of 2026. The transaction is subject to customary closing conditions and regulatory clearance, including the expiration or termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act.
Strategic and Financial Benefits
This transaction is expected to:
Deliver a Transformative Increase in Scale and Scope. The acquisition would increase CVR Energy’s crude oil throughput capacity from approximately 207,000 to approximately 384,000 barrels per day while establishing its footprint across the Upper Midwest and Northern Great Plains regions, diversifying CVR Energy’s asset portfolio and broadening its exposure to regional transportation fuel demand. By increasing both the scale and scope of CVR Energy’s asset base, the acquisition would position CVR Energy to significantly grow its earnings.
Add High-Quality, Well-Maintained Assets. The refineries have an average complexity of approximately 7.8. Under Marathon’s ownership, the refineries had strong operating records, averaging 98% utilization from 2023 to 2025, excluding turnarounds.
Add an Established, Synergistic Marketing Business. The marketing business is expected to increase margin optimization opportunities across CVR Energy’s entire platform by introducing new distribution channels while creating a base for expansion of CVR Energy’s existing footprint. Product distribution for gasoline, ultra-low sulfur diesel, jet fuel and asphalt is balanced between local rack sales and wholesale channels, and the business’s high blending capacity reduces exposure to volatile renewable identification number (“RIN”) costs, decreasing compliance outlay.
Create More Durable and Diversified Earnings on an Expanded Platform for Growth. A larger, more diversified asset base is expected to support consistent free cash flow generation through the cycle and reduce the inherent volatility of CVR Energy’s existing, smaller refining system. Increased production capacity is expected to produce sustainable capital returns and greater balance sheet flexibility, along with a larger platform for future expansion opportunities.
Deliver Accretion and Synergies. The transaction is expected to significantly enhance earnings and cash flow from operations per share before synergies. CVR Energy expects approximately $70 million of annual run-rate SG&A and commercial and operational synergies.
Improve Competitive Positioning. A larger platform strengthens CVR Energy’s strategic reach and position, adding new geographies including the Upper Midwest and Northern Great Plains regions.
Financing and Capital Structure
CVR Energy expects to fund the transaction, including related fees and expenses, from a combination of $2.5 billion of committed secured debt financing, a $500 million equity commitment from our controlling shareholder, an $800 million equity investment from Trafigura US Holdings, Inc. (“Trafigura”) and cash on hand. An affiliate of Trafigura is also entering into long-term commercial arrangements with CVR Energy subsidiaries. In connection with the new secured financing, CVR’s existing 7.500% Senior Notes due 2031 and 7.875% Senior Notes due 2034 will become secured on an equal and ratable basis with the new secured debt, and CVR’s existing 5.750% Senior Notes due 2028 will be redeemed.
Advisors
Barclays serves as exclusive financial advisor to CVR Energy, and Vinson & Elkins and Proskauer Rose LLP serve as legal counsel. Barclays, Wells Fargo and Mizuho are providing fully committed debt financing for a portion of the acquisition consideration.
Conference Call and Webcast
CVR Energy previously announced that it will host its third quarter 2026 Earnings Conference Call on Tuesday, November 3, 2026, at 10 a.m. Eastern. The Earnings Conference Call will also include discussion of Company developments including the potential transaction, forward-looking information and other material information about business and financial matters.
The third quarter 2026 Earnings Conference Call will be webcast live and can be accessed on the Investor Relations section of CVR Energy’s website at www.CVREnergy.com. For investors or analysts who want to participate during the call, the dial-in number is (800) 715-9871, conference ID 3388257. A repeat of the call can be accessed for seven days by dialing (800) 770-2030, conference ID 3388257. The webcast will be archived and available on the Investor Relations section of CVR Energy’s website at www.CVREnergy.com.
Non-GAAP Measures
Our management uses certain non-GAAP measures, and reconciliations to those measures, to evaluate current and past performance and prospects for the future to supplement our financial information presented in accordance with accounting principles generally accepted in the United States (“GAAP”). These non-GAAP measures are important factors in assessing our operating results and profitability and include the measures defined below.
EBITDA—Consolidated net income before (i) interest expense, net, (ii) income tax expense and (iii) depreciation and amortization expense.
Reconciliation of Acquired Business Net Income to EBITDA for the Twelve months ended September 30, 2026
| Twelve Months Ended September 30, |
Nine Months Ended September 30, |
Year Ended December 31, |
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| (in millions) | 2026 | 2026 | 2025 | 2025 | ||||||||||||
| Net income (1) |
$ | 791 | $ | 768 | $ | 270 | $ | 293 | ||||||||
| Income tax expense (2) |
276 | 269 | 95 | 102 | ||||||||||||
| Depreciation and amortization |
91 | 69 | 89 | 111 | ||||||||||||
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| EBITDA |
$ | 1,158 | $ | 1,106 | $ | 454 | $ | 506 | ||||||||
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Reconciliation of Pro Forma and Historical EBITDA for the Nine months ended September 30, 2026
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| (in millions) | Pro Forma | CVR Energy | Acquired Business (*) |
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| Net income |
$ | 1,032 | $ | 449 | $ | 768 | ||||||
| Interest expense, net |
261 | 105 | — | |||||||||
| Income tax expense |
331 | 122 | 269 | |||||||||
| Depreciation and amortization |
396 | 237 | 69 | |||||||||
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| EBITDA |
$ | 2,020 | $ | 913 | $ | 1,106 | ||||||
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| (*) | Adjusted for CVR Energy’s accounting policies. |
| (1) | Net income has been adjusted to reflect the accounting policy change to conform the Acquired Business’ accounting for turnaround costs to CVR Energy’s policy of capitalizing such costs, thereby reducing cost of revenue. |
| (2) | Income tax expense has been adjusted to reflect the tax effect of the accounting policy change to conform the Acquired Business’ accounting for turnaround costs to CVR Energy’s policy of capitalizing such costs. |
We present these measures because we believe they may help investors, analysts, lenders and ratings agencies analyze our results of operations and liquidity in conjunction with our GAAP results, including but not limited to our operating performance as compared to other publicly traded companies in the refining and fertilizer industries, without regard to historical cost basis or financing methods and our ability to incur and service debt and fund capital and turnaround expenditures. Non-GAAP measures have important limitations as analytical tools, because they exclude some, but not all, items that affect net earnings and operating income. These measures should not be considered substitutes for their most directly comparable GAAP financial measures.
Forward-Looking Statements
This news release may contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Statements concerning current estimates, expectations and projections about future results, performance, prospects, opportunities, plans, actions and events and other statements, concerns, or matters that are not historical facts are “forward-looking statements,” as that term is defined under the federal securities laws. These forward-looking statements include, but are not limited to, statements regarding future: statements regarding the pending acquisition of the Acquired Business including the anticipated benefits, synergies and cost savings of the Acquisition, and the expected financing and closing thereof; margin uplift; potential acquisitions; margin improvement; accretion in earnings per share of over 105% or at all; synergies; continued safe and reliable operations; and other matters. You can generally identify forward-looking statements by our use of forward-looking terminology such as “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “explore,” “evaluate,” “intend,” “may,” “might,” “plan,” “potential,” “predict,” “seek,” “should,” or “will,” or the negative thereof or other variations thereon or comparable terminology. These forward-looking statements are only predictions and involve known and unknown risks and uncertainties, many of which are beyond our control. Investors are cautioned that various factors may affect these forward-looking statements, including (among others) conditions to the closing of the Acquisition, including the expiration or termination of the waiting period under the HSR Act and the
receipt of other required regulatory approvals; the Acquisition is not completed within the expected time frame, or anticipated benefits of the Acquisition are not realized; the intended permanent financing for the Acquisition is not consummated on favorable terms; occurrence of any event, change, or circumstance that could terminate the equity and asset purchase agreement; demand for fossil fuels and price volatility of crude oil, other feedstocks and refined products; the ability of the Company to pay or increase cash dividends and of CVR Partners to make cash distributions; potential operating hazards; costs of compliance with existing or new laws and regulations and potential liabilities arising therefrom; our controlling shareholder’s intention regarding ownership of our common stock or CVR Partners’ common units; general economic and business conditions; political disturbances, geopolitical instability and tensions; existing and future laws, rulings, policies and regulations, including the reinterpretation or amplification thereof by regulators, and including but not limited to those relating to the environment, climate change, and/or the production, transportation, or storage of hazardous chemicals, materials, or substances, like ammonia; political uncertainty and impacts to the oil and gas industry and the United States economy generally as a result of actions taken by the administration, including the imposition of tariffs or changes in climate or other energy laws, rules, regulations, or policies; impacts of plant outages; potential operating hazards from accidents, fires, severe weather, tornadoes, floods, wildfires, or other natural disasters; the health and economic effects of any pandemic, and other risks. For additional discussion of risk factors which may affect our results, please see the risk factors and other disclosures included in our most recent Annual Report on Form 10-K, any subsequently filed Quarterly Reports on Form 10-Q and our other Securities and Exchange Commission (“SEC”) filings. These and other risks may cause our actual results, performance or achievements to differ materially from any future results, performance or achievements expressed or implied by these forward-looking statements. Given these risks and uncertainties, you are cautioned not to place undue reliance on such forward-looking statements. The forward-looking statements included in this news release are made only as of the date hereof. CVR Energy disclaims any intention or obligation to update publicly or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except to the extent required by law.
About CVR Energy, Inc.
Headquartered in Sugar Land, Texas, CVR Energy is a diversified holding company primarily engaged in the petroleum refining and marketing businesses as well as in the nitrogen fertilizer manufacturing business through its interest in CVR Partners, LP. CVR Energy subsidiaries serve as the general partner and own approximately 37 percent of the common units of CVR Partners, LP.
For further information, please contact:
Investor Relations:
Richard Roberts
CVR Energy, Inc.
(281) 207-3205
InvestorRelations@CVREnergy.com
Exhibit 99.2 PRELIMINARY DRAFT Acquisition of St. Paul Park and Mandan Refineries, Including Associated Marketing & Logistics Assets Third Quarter 2026 Earnings November 3, 2026
Forward-Looking Statements This presentation contains “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, as amended. These statements are based on current expectations. Forward-looking statements are statements that are not statements of historical fact, including statements about beliefs, opinions and expectations. Such statements are subject to a number of assumptions, risks and uncertainties, many of which are beyond the control of CVR Energy, Inc. (together with its subsidiaries, “CVI”, “CVR Energy”, “we”, “us” or the “Company”). The words and phrases “should,” “could,” “may,” “will,” “believe,” “plan,” “intend,” “expect,” “potential,” “possible,” “anticipate,” “estimate,” “forecast,” “view,” “efforts,” “goal,” and similar expressions identify forward-looking statements and express expectations about future events. However, the absence of these words does not mean that the statements are not forward-looking. These forward-looking statements include, but are not limited to, statements regarding any potential transaction (the “Potential Transaction”) with Marathon Petroleum Corporation and its affiliates (“Marathon”), pro forma descriptions of the combined company and its operations, integration and transition plans, synergies, opportunities and anticipated future performance. These forward-looking statements also include, but are not limited to, statements regarding impact of Renewable Fuel Standard on our business including, but not limited to, renewable volume obligations and potential reallocation thereof; Renewable Identification Number pricing and availability; small refinery exemptions (SREs) or other hardship relief to Company’s obligated-party subsidiaries or others; and the full or partial grant or denial of hardship relief to our obligated-party subsidiaries, including the impact of EPA rulings and past, current or potential challenges thereto and the impact thereof on our financial position, operations and cash flow. Certain operational, financial and market information contained in this presentation has been provided by or derived from information furnished by Marathon and from third-party sources, including industry publications, government agencies, market data providers, consultants and publicly available information. Such information includes, without limitation, historical operational and financial data for the St. Paul Park, Minnesota and Mandan, North Dakota refineries and associated marketing and logistics assets, capacity and throughput data, historical utilization rates, EBITDA and margin figures attributable to the target assets, infrastructure and logistics descriptions, and branded location counts. Neither CVR Energy nor its advisors have independently verified such information, and no representation or warranty, express or implied, is made as to its accuracy, completeness or reliability. Certain market data and industry forecasts referenced herein have been obtained from third-party sources believed to be reliable, including reports and publications from the Energy Information Administration (EIA), Bloomberg, Turner Mason & Company, Argus, OPIS and NYMEX. CVR Energy has not independently verified such market data or forecasts and makes no representation or warranty with respect thereto. There are a number of risks and uncertainties that could cause actual results to differ materially from the forward-looking statements included in this presentation. Forward-looking statements are not guarantees of future performance, and we cannot assure any reader that such statements will prove correct or that the forward-looking events and circumstances will occur. Actual results may differ materially from those anticipated or implied in the forward-looking statements due to numerous risks and uncertainties. These include the expected timing and likelihood of completion of the Potential Transaction, including the timing, receipt and terms and conditions of any required governmental and regulatory approvals of the Potential Transaction that could reduce anticipated benefits or cause the parties to abandon the Potential Transaction, the ability to successfully integrate the businesses, the occurrence of any event, change or other circumstances that could give rise to the termination of the purchase agreement, including in circumstances that would require CVR Energy to pay a reverse termination fee pursuant to the purchase agreement, the possibility that competing offers or transaction proposals may be made, the risk of litigation relating to the proposed transaction, including resulting expense or delay, the possibility that the proposed transaction will not be completed in the expected timeframe or at all, the risk that the parties may not be able to satisfy the conditions to the Potential Transaction in a timely manner or at all, risks related to disruption of management time from ongoing business operations due to the Potential Transaction, the risk that the Potential Transaction and its announcement could have an adverse effect on the ability of CVR Energy to retain customers and retain and hire key personnel and maintain relationships with suppliers, customers and others with whom CVR Energy conducts business and on its operating results and businesses generally, employee departures, the risk the pending Potential Transaction could distract management and incur substantial costs, the risk that problems may arise in successfully integrating the businesses or assets, which may result in the combined company not operating as effectively and efficiently as expected, certain restrictions during the pendency of the Potential Transaction that may impact CVR Energy’s ability to pursue certain business opportunities or strategic transactions, the risk that the combined company may be unable to achieve synergies and other strategic benefits or it may take longer than expected to achieve those synergies, and other important factors that could cause actual results to differ materially from those projected. All such factors are difficult to predict and are beyond CVR Energy’s control, including those detailed in CVR Energy’s annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K that are available on the SEC’s website at www.sec.gov. There are a number of risks and uncertainties that could cause actual results to differ materially from the forward-looking statements included in this presentation. Forward-looking statements are not guarantees of future performance, and we cannot assure any reader that such statements will prove correct or that the forward-looking events and circumstances will occur. Actual results may vary materially from those expressed or implied as a result of various factors, including, but not limited to, those set forth under “Risk Factors” in the Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and any other filings with the Securities and Exchange Commission (“SEC”) by CVR Energy, Inc. or CVR Partners, LP. All such factors are difficult to predict and are beyond CVR Energy’s control. All forward-looking statements are based on assumptions that CVR believes to be reasonable but that may not prove to be accurate. Any forward-looking statement speaks only as of the date on which such statement is made, and CVR undertakes no obligation to correct or update any forward-looking statement, whether as a result of new information, future events or otherwise, except as required by applicable law. Readers are cautioned not to place undue reliance on these forward-looking statements that speak only as of the date hereof. Non-GAAP Financial Measures Certain financial information in this presentation (including EBITDA and Adjusted EBITDA) are not presentations made in accordance with accounting principles generally accepted in the United States of America (“GAAP”) and use of such terms varies from others in the same industry. Non-GAAP financial measures should not be considered as alternatives to income from continuing operations, income from operations or any other performance measures derived in accordance with GAAP. Non-GAAP financial measures have important limitations as analytical tools, and you should not consider them in isolation or as substitutes for results as reported under GAAP. This presentation includes a reconciliation of certain non-GAAP financial measures to the most directly comparable financial measures calculated in accordance with GAAP. Market and Industry Data The market and industry data included in this presentation is based on a variety of sources, including industry publications, government publications and other published sources, information from customers, distributors, suppliers, trade and business organizations and publicly available information (including reports and other information others file with the SEC, which we did not participate in preparing and as to which we make no representation), as well as our good faith estimates, which have been derived from management’s knowledge and experience. Estimates of market size and relative positions in a market are difficult to develop and inherently uncertain. Accordingly, investors should not place undue weight on the industry and market share data presented in or discussed during this presentation. 1
Transaction Overview Transaction Highlights A Asse sset t M Ma ap p SK • St. Paul Park, MN Refinery MB ON Acquired Assets • Mandan, ND Refinery Williston Basin • Access to up to 590 branded locations Clearbrook ND MT MN • $4.2bn purchase price, plus net working capital Mandan § Purchase price is subject to certain customary Consideration closing adjustments • Purchase price is to be paid 100% in cash to the SD St. Paul Park WI applicable Seller WY • $1.3bn of new equity • $2.5bn of new senior secured financing IA • Cash on hand NE Financing IN • Net working capital, payment of related fees and (1) refinancing of certain indebtedness funded at close IL through additional cash and/or ABL draw CO KS Pro Forma Company Highlights MO Coffeyville KY NM Cushing TN Up to 590 4 384 mbpd OK Branded Locations AR Wynnewood Complex Refineries Pro Forma Across the Upper Across PADD II Crude Capacity Midwest TX MS Minnesota Pipeline rd LA 3 Party Product rd 3 Party Crude th 4 Largest YTD PF >50% CFFO PADD II St. Paul Park Mandan EBITDA: and EPS Coffeyville Wynnewood Capacity: 105mbpd Capacity: 72mbpd Refiner (2) (3) Complexity: 8.3 Complexity: 6.9 Capacity: 132mbpd Capacity:74.5mbpd $2.0bn Accretion th (Currently 9 ) (4) (4) Complexity: 11.0 Complexity: 10.5 Source: Company filings and materials. 1. The existing Unsecured Notes due 2031 and 2034 will be secured on an equal and ratable basis with the new Secured Debt and the $183mm of outstanding Unsecured Notes due 2028 will be redeemed in full. 2. As of 9/30/2026. On a pro forma basis, EBITDA calculated as income (loss) before income taxes plus depreciation and amortization per the combined carve-out financial statements of the St. Paul Park and Mandan refining business plus CVI consolidated EBITDA per financial statements. 2 3. Based on management estimates. 4. Represents Company calculated metrics.
Key Investment Highlights A transformational acquisition that nearly doubles crude processing capacity, creating a more scaled, diversified and resilient business Key Investment Highlights Compelling • Unique opportunity to acquire high-quality, geographically advantaged assets from an established operator Acquisition in • Immediately value accretive with substantial upside, given forward market outlook (1) § Implied asset acquisition multiple of ~ 3.6x LTM EBITDA for the target Attractive Regions Transformative • Materially expands crude processing capacity from 207mbpd to 384mbpd Increase in Scale and • Adding new geographies including the Upper Midwest and Northern Great Plains regions Scope • Established wholesale marketing platform with up to 590 branded locations across the Upper Midwest and Northern Great Plains Integrated Marketing regions Platform Supports • Diversified distribution channels and blending capacity provide steady outlets for refinery production and reduce reliance on spot Stable, Diversified sales Earnings • Improves ability to manage volatile RIN compliance costs High-Quality, Well- • Complex refineries that have operated safely and reliably at high utilization (98% average 2023-2025) Maintained Assets • Ability to access and process cost advantaged feedstocks • Larger, more diversified asset base should support stronger through-the-cycle free cash flow generation, more sustainable capital Diversified Earnings returns and greater balance sheet flexibility Support Financial • Potential for meaningful SG&A, commercial and operational synergies Resilience § $70mm in estimated annual run-rate synergies by FY2028 Improved Strategic • Larger platform with greater strategic reach improves relative positioning for future growth and margin improvement, supported by Positioning a more diversified shareholder base 1. LTM EBITDA as of 9/30/2026. EBITDA calculated as income (loss) before income taxes plus depreciation and amortization per the combined carve-out financial statements of the St. Paul Park and Mandan refining business. 3
Transformative Increase in Scale Substantially larger enterprise with enhanced access to Northern PADD II regions U.S. Refining Landscape (mbpd) 2,986 2,515 2,809 1,714 1,023 678 384 302 219 207 (2) (3) (3) (3) Pro Forma Status Quo 983 (mbpd) 806 573 440 384 375 365 285 267 260 207 183 180 (2) (3) (3) (3) (3) (3) Pro Forma Status Quo Represents Status Quo MPC Source: Respective company’s public filings. 1. Represents crude oil throughput capacity as of latest annual company filing, unless footnoted as #3. Total refinery capacity reflects decrease in capacity from closures of Los Angeles and Benicia by Phillips 66 and Valero, respectively. Phillips 66 capacity includes full ownership of Borger and Wood River refineries. 2. Solid bar represents Pro Forma MPC refining capacity, excluding St. Paul Park and Mandan. Dotted bar represents Status Quo MPC refining capacity, including St. Paul Park and Mandan. 3. Represents total throughput capacity as of latest annual company filing. Company does not disclose crude capacity by region. 4 U.S. Independent Refiners by (1) U.S. Refiners by PADD II Capacity (1) Capacity
Compelling Global Market Outlook Compelling forward margin outlook, supported by continuing global supply dislocations and historically low inventory levels U.S. Gross Refining Margins Overview (1) (WTI 3-2-1 Crack Spread , $/bbl) Compelling forward margins supported by supply / demand imbalances generated by ongoing limitations on global refining capacity • Supply-demand fundamentals support a compelling margin environment: $60 U.S. gross refining margins are materially above five-year averages, while net exports have surged • In 2026, the Iran War and Ukrainian drone strikes on Russian refineries have $40 cut global refinery runs by over 5mmbpd, with Russia’s refining capacity reduced by as much as 60% over the summer • Outlook expected to remain compelling for at least the next 12–24 months $20 § Global conflicts are ongoing § Extended infrastructure repair and restart timeline expected once hostilities - cease Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec § Global inventory restocking required to rebuild historically low levels 2026 YTD 2025 5-Yr Average 5-Yr Range § Global light product demand remaining resilient (3) U.S. Net Exports Surged to a Record 6mmbpd U.S. Gasoline + Diesel Days of Supply (2) (U.S. Crude Oil and Refined Product Net Exports , million bpd) Days Current: 24.5 6.0 35 4.0 30 2.0 25 - (2.0) 20 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec 2026 YTD 2025 5-Yr Average 5-Yr Range 2026 YTD 2025 5-Yr Average 5-Yr Range Source: Wall Street Research, U.S. Energy Information Administration (EIA), WoodMackenzie, Data as of 10/16/2026. 1. U.S. Gulf Coast products minus WTI Cushing; weekly average. 2. Crude oil and petroleum products; four-week average. 5 3. Gasoline plus distillate inventories divided by four-week average product supplied.
PADD II Refining Landscape Continues to Benefit Strong PADD II margin environment reflects global dynamic (3) Overview Mid Con Gasoline Margin $/bbl • Large supply region with advantaged crude oil access $60 § Diversified regions with limited consolidation outside the top players § Proximity to the Bakken and Canada provides access to cost advantaged $40 feedstock supply (1) § WCS-WTI differential currently exceeds $35/bbl $20 • Tight product balances support Mid-Con fundamentals § Mid-Con days of supply down 11% (gasoline) and 15% (distillate) vs. U.S. (2) declines of 2% and 1% - (3) § Mid-Con crack averaged $46/bbl in 2026 YTD vs. $22/bbl in 2025 • Differentials and RIN costs remain key variables ($20) 10/23/21 10/23/22 10/23/23 10/23/24 10/23/25 10/23/26 § Widening light-heavy differentials support margins, though higher 2026 RIN prices partially offset stronger crack spreads; Maya Light – Heavy (4) differential currently exceeds $7/bbl (1) (3) WCS – WTI (Cushing) Mid Con Diesel Margin $/bbl $/bbl ($5) $125 ($15) $75 ($25) $25 ($35) ($45) ($25) 10/23/21 6/23/23 2/21/25 10/23/26 10/23/21 10/23/22 10/23/23 10/23/24 10/23/25 10/23/26 Source: U.S. Energy Information Administration (EIA), Bloomberg, Company filings, Wall Street Research. 1. WTI – WCS differential per Bloomberg, as of 10/23/2026. 2. Year-to-date 2026 average days of supply compared to year-to-date 2025 average. 3. Mid-Con 87 conventional gasoline and Mid-Con ULSD, each less WTI Midland; daily, as of 10/23/2026. 6 4. Maya Light – Heavy differential per Bloomberg, as of 10/23/2026.
Asset Overview | St. Paul Park Refinery St. Paul Park, MN 105 mbpd | 8.3 NCI 17% 101% ~72% ~25% ~80% Minnesota Pipeline Interest Avg. Crude Utilization Avg. Margin Capture Canadian Heavy Crude Clean Product Yield Supports Sourcing (1) (2023A – 2025A) (2023A – 2025A) Processed Canadian / Bakken Crude Product Charges & Yields Key Highlights Other One of only two refineries in Jet / Kerosene 3% Minnesota, primarily serving the 2% Minneapolis-St. Paul demand center Heavy ULSD Crude 30% 25% Gasoline Processes Canadian and Bakken 49% crude supplied via 17% Minnesota Pipeline interest and Clearbrook hub Light Crude position 72% LPG Asphalt 3% 14% Mississippi River access and high- value asphalt production Other 2% Source: Company filings and materials. Utilization and margin capture reflect 2023A – 2025A averages. 7 1. Average margin capture calculated as gross margin per barrel divided by Group 3 3-2-1 crack spread.
Asset Overview | Mandan Refinery Mandan, ND 72 mbpd | 6.9 NCI 93% ~83% 50% 96% ~93% Avg. Crude Utilization Avg. Margin Capture RFS SRE Received Bakken Light Crude Clean Product Yield (1) (2) 2023 – 2025 Processed (2023A – 2025A) (2023A – 2025A) Product Charges & Yields Key Highlights LPG Only refinery in North Dakota, serving Butanes Slurry 2% key demand centers across North 4% 2% Dakota and Minnesota Direct access to gathered Bakken crude via the High Plains Pipeline ULSD System Gasoline 38% 55% Light Crude Rail loading provides access to 96% premium U.S. gasoline, diesel and jet fuel regions Jet Fuel 3% Received partial (50%) SRE waivers 2023-2025 Source: Company filings and materials. Utilization and margin capture reflect 2023A – 2025A averages. 1. 2024A reflects Mandan major turnaround. 8 2. Average margin capture calculated as gross margin per barrel divided by Group 3 3-2-1 crack spread.
Integrated Marketing and Logistics Platform Up to 590 150 mbpd 14% 17% Branded locations across Avg. gasoline and diesel volumes Branded share of volumes Interest in the Minnesota Pipeline (1) (2) MN, ND, WI, SD and IA (2023A – 2025A) (2023A – 2025A avg.) Marketing: Branded Network Logistics: Crude In-to-Product Out Product Crude Supply Storage Placement 127 353 Minnesota Pipeline St. Paul Park: 94 Magellan open-stock 59 32 (17%) – Canadian tanks / 3.0 mmbbls system and Bakken crude capacity 14 Clearbrook hub Mandan: 59 tanks / North Products position 3.0 mmbbls capacity System High Plains Pipeline Cottage Grove: 984 Truck racks at both – direct gathered mbbls crude refineries Bakken crude capacity 122 9 288 110 10 Rail loading at both Diversified route-to-market across branded retail, unbranded wholesale and Mississippi River Clearbrook: 2 tanks / refineries; seasonal commercial channels; top 25 customers contribute 75% of marketing EBITDA barge access 600 mbbls capacity river dock Integrated Platform Supports Advantaged Crude Sourcing and Flexible, Premium Product Placement Source: Company filings and materials. Note: Storage capacities preliminary and subject to confirmation. 1. Site count as of May 31, 2026. 9 2. Gasoline and diesel volumes; FY2023A – FY2025A average.
rd 3 Quarter Earnings Updates Third Quarter Highlights Three Months Ended $ in Millions (unless otherwise noted) September 30, 2026 Consolidated Net Income (Attributable To CVR Energy) $570 Adjusted EBITDA $582 UAN Distributions to CVR Energy $7 Petroleum Segment Net Income $746 Adjusted EBITDA $565 Total Throughput (bpd) 227,637 Adjusted Refining Margin ($ / throughput bbl) $34.97 Nitrogen Fertilizer Segment Net (Loss) Income ($11) Adj. EBITDA $20 Ammonia Utilization Rate (%) 80% Consolidated Balance Sheet Cash and Cash Equivalents $1,278 Debt and Finance Lease Obligations $1,781 Nitrogen Fertilizer Debt and Finance Lease $569 10
Questions & Answers Integrated Marketing Platform Compelling Acquisition in Transformative Increase in Scale Supports Stable, Diversified Attractive Regions and Scope Earnings High-Quality, Well-Maintained Diversified Earnings Support Improved Strategic Assets Financial Resilience Positioning 11
Non-GAAP Reconciliation CVR Energy Adjusted EBITDA Reconciliation To Net Income $800 (79) $700 222 (155) (87) $600 1 582 570 $500 459 $400 $300 $200 209 $100 $0 2Q 2026 Adj. EBITDA Petroleum Nitrogen Fertilizer Corporate & Other 3Q 2026 Adj. EBITDA RFS, Derivatives & D&A Interest, Taxes & NCI3Q 2026 Net Income (1) Inventory 1. Changes in the RFS liability include adjustments to reflect the August 2026 SRE Decision and the August 2025 SRE Decision in the amount of $253 million and $488 million for the three and nine months ended September 30, 2026 and 2025, respectively, as well as the revaluation of the RVO. 12
Non-GAAP Reconciliation Nine Months Ended $ in Millions September 30, 2026 Target Assets Before Target Assets as 9/30/2026 YTD EBITDA Reconciliation Reclassification CVR Pro Forma Total Reclassification Reclassified (1) Net Income $697 $71 $768 $449 $1,032 (+) Interest Expense - - - 105 261 (2) (+) Income Tax 246 23 269 122 331 (+) Depreciation and Amortization 69 - 69 237 396 YTD PF EBITDA $1,012 $94 $1,106 $913 $2,020 Twelve Months Ended $ in Millions September 30, 2026 Target Assets Before Target Assets as 9/30/2026 LTM EBITDA Reconciliation Reclassification CVR Pro Forma Total Reclassification Reclassified (1) Net Income $719 $72 $791 $333 $1,124 (+) Interest Expense - - - 134 134 (2) (+) Income Tax 253 23 276 115 391 (+) Depreciation and Amortization 91 - 91 382 473 LTM PF EBITDA $1,063 $95 $1,158 $964 $2,122 1. Net income has been adjusted to reflect the accounting policy change to conform the Acquired Business’ accounting for turnaround costs to CVR Energy’s policy of capitalizing such costs, thereby reducing cost of revenue. 2. Income tax expense has been adjusted to reflect the tax effect of the accounting policy change to conform the Acquired Business’ accounting for turnaround costs to CVR Energy’s policy of 13 capitalizing such costs.