exv10w16



 





EXHIBIT 10.16




LONG-TERM EQUITY APPRECIATION RIGHTS AWARD

THIRD AMENDMENT AGREEMENT




     This LONG-TERM EQUITY APPRECIATION RIGHTS AWARD THIRD AMENDMENT AGREEMENT (this “Agreement”)
is entered into as of December 22, 2006 by and between Gary R. Dalke (the “Participant”), Western
Refining, Inc., a Delaware corporation (“WNR”), and Western Refining Company, L.P., a Delaware
limited partnership (“WRLP”).



R E C I T A L S:




     WHEREAS, WRLP has assumed responsibility for that certain Long-Term Equity Appreciation Rights
Plan (the “EAR Plan”), the terms of which are incorporated herein by reference;



     WHEREAS, the Participant was awarded 1,000 rights (the “Rights”) pursuant to the EAR Plan (the
“Award”), the relevant terms of which are incorporated by reference; and



     WHEREAS, the Participant, WRLP and WNR entered into an Amendment Agreement (the “First
Amendment”), the relevant terms of which are incorporated herein by reference, effective as of
November 9, 2005; and



     WHEREAS, pursuant to the First Amendment, the Participant, WRLP and WNR agreed, upon the
closing of an IPO of the Common Stock (the “Effective Time”), to cancel the Award, and as
consideration therefore, to make a payment of cash and/or restricted Common Stock (the “Restricted
Stock”) to the Participant pursuant to terms set forth in the First Agreement; and



     WHEREAS, the Participant, WRLP and WNR entered into an Amendment Agreement (the “Second
Amendment”), the relevant terms of which are incorporated herein by reference, effective as of
December 31, 2005; and



     WHEREAS, pursuant to the Second Amendment the Participant, WRLP and WNR clarified the timing
of the cash payment set forth in the First Amendment and provided for the termination of the EAR
Plan and the Award; and



     WHEREAS, the Participant, WRLP and WNR desire to modify the vesting dates of the Restricted
Stock.



     NOW THEREFORE, IT IS HEREBY AGREED, by and among WRLP, WNR and the Participant, as follows:



 









 






	1.	 	Section 2(b) of the Second Amendment is amended to read as follows:






	 	(a)	 	Any shares of Restricted Stock issued pursuant to clause (i) of sub-paragraph
(a) above shall be issued by WNR (provided that Participant continues employment with
WNR or its affiliates after the Effective Time) as promptly as possible after the
Effective Time pursuant to WNR’s Long-Term Incentive Plan (the “Incentive Plan”) to be
adopted by WNR on or before the Effective Time and shall be subject to the terms and
provisions thereof. The Restricted Stock, if any, issued to the Participant pursuant
to the terms of this Agreement shall vest ratably in each of WNR’s fiscal quarters over
two years beginning on the last day of WNR’s first full fiscal quarter after the
Effective Time and, effective as of December 21, 2006 on the 4th business
day prior to the end of the last month of each quarter ending after December 21, 2006 ;
provided, however, that any unvested Restricted Stock shall immediately and fully vest
upon a Change of Control (as defined in the Incentive Plan) or Disability (as defined
in the Incentive Plan) of the Participant.






	2.	 	Not an Employment or Similar Contract. This Agreement shall not confer on the
Participant any right with respect to continuance of employment or other service with the WNR
or any of its affiliates nor will it interfere with or prevent in any way the right that WNR
or any of its affiliates would otherwise have to terminate or modify the terms of the
Participant’s employment or other service at any time. The foregoing shall apply even if it
is alleged or proven that any such termination was to avoid benefits otherwise available to
the Participant under this Agreement.






	3.	 	Withholding. WRLP shall withhold all applicable taxes with respect to distributions
under this Agreement and the Participant otherwise agrees to comply with all laws applicable
to the withholding or payment of taxes applicable to issuances or vesting of Restricted Stock
under this Agreement






	4.	 	Inconsistency. To the extent of any inconsistency between the terms set forth herein
and those set forth in the EAR Plan, the Award, the First Amendment or the Second Amendment,
the terms set forth herein shall prevail.






	5.	 	Counterparts. This Agreement may be executed in any number of counterparts, all of
which together shall constitute one and the same agreement.





2









 






	6.	 	Further Assurances. Each party agrees to execute, acknowledge and deliver any other
agreements, documents or instruments and to take such other action as may reasonably be
required to carry out the intents and purposes of this Agreement.






	7.	 	Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, without regard to the conflict of law provisions of any
state or other jurisdiction.





[SIGNATURE PAGE FOLLOWS]




3









 





     IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement as of the date set
forth above.



	 	 	 	 	 
	 	THE PARTICIPANT:

 	 
	 	/s/ Gary R. Dalke
 	 
	 	Name:  	Gary R. Dalke 	 
	 	 	 
	 



	 	 	 	 	 
	 	WNR:



WESTERN REFINING, INC.

 	 
	 	By:  	/s/ Paul Foster
 	 
	 	Name:  	Paul Foster 	 
	 	Title:  	President 	 
	 



	 	 	 	 	 
	 	WRLP:

 	 
	 	By:  	Western Refining GP, LLC,
 	 
	 	its general partner 	 
	 	 	 	 
	 	By:  	     /s/ Paul Foster
 	 
	 	Name:  	Paul Foster 	 
	 	Title:  	President 	 
	 



4