exv10w21



 






Exhibit 10.21




WESTERN REFINING LONG-TERM INCENTIVE PLAN




NONQUALIFIED STOCK OPTION AGREEMENT




     This NONQUALIFIED STOCK OPTION AGREEMENT (this “Agreement”) is made as of the ___day of
___, 20___(“Grant Date”), between Western Refining, Inc., a Delaware corporation (the
“Company”), and ___(“Participant”). (All capitalized terms used but not
defined herein shall have the meanings set forth therefore in the Plan.)




	1.	 	Grant of Option. To carry out the purposes of the Western Refining Long-Term
Incentive Plan (the “Plan”), by affording Participant the opportunity to purchase shares of
common stock, $0.01 par value per share of the Company (“Common Stock”), and in consideration
of the mutual agreements and other matters set forth herein and in the Plan, the Company
hereby irrevocably grants to Participant the right and option (“Option”) to purchase all or
any part of an aggregate of ___(___) shares of Common Stock, effective as of the
Grant Date on the terms and conditions set forth herein and in the Plan, which Plan is
incorporated herein by reference as a part of this Agreement. All capitalized terms not
otherwise defined herein shall have the meanings set forth in the Plan. The Plan and this
Option shall be administered by the Committee. This Option shall not be treated as an
incentive stock option within the meaning of section 422(b) of the Internal Revenue Code of
1986, as amended (the “Code”).
	 
	2.	 	Purchase Price and Term. The purchase price of Common Stock purchased pursuant to
the exercise of this Option shall be $______  per share. Unless sooner terminated as provided
herein, this Option shall expire if not exercised within ten (10) years from the Grant Date.
	 
	3.	 	Exercise of Option. This Option shall be exercisable in the manner described below
for one-third (1/3) of the aggregate number of shares offered by this Option on and after each
of the first, second and third anniversaries of the Grant Date; provided, however, that this
Option may be exercised only prior to its expiration date and, except as otherwise provided
below, only while Participant remains an Employee of the Company. This Option will terminate
and cease to be exercisable upon Participant’s termination of employment or separation from
service with the Company, except that:






	 	(a)	 	if Participant’s employment with the Company terminates by reason of
Disability, all Options shall become immediately exercisable and Participant may
exercise this Option in full at any time during the period of one year following the
date of such termination;
	 
	 	(b)	 	if Participant dies while in the service of the Company or within the one-year
period following the date of Participant’s separation by reason of Disability, all
Options shall become immediately exercisable and Participant’s estate, or the person
who acquires this Option by bequest or inheritance or by reason of the




 









 






	 	 	 	death of Participant, may exercise this Option in full at any time during the period
of one year following the date of Participant’s death; or
	 		 	

	 	(c)	 	unless the Participant’s Employment or service is terminated for “Cause” (as
hereinafter defined), Participant may exercise any Options which were exercisable
immediately prior to Participant’s termination of Employment at any time during the
period of six (6) months following the date of such termination. Any Options not
exercisable immediately prior to Participant’s termination of Employment shall be
immediately terminated. “Cause” means (i) engaging in gross negligence, gross
incompetence or willful misconduct in the performance of duties; (ii) refusing, without
proper reason, to perform duties; (iii) willfully engaging in conduct which is
materially injurious to the Company or its Affiliates (monetarily or otherwise); (iv)
committing an act of fraud, embezzlement or willful breach of a fiduciary duty to the
Company or its Affiliates (including the unauthorized disclosure of confidential or
proprietary material information); or (v) being convicted of, pleading guilty to, or
pleading no contest to, a crime involving fraud, dishonesty or moral turpitude.







	 	 	Notwithstanding the foregoing, the Committee shall have the discretion to provide that the
Options may be exercised prior to the dates set forth above and for the continuation of any
Options for any period following termination of employment, but not to exceed the term of
the Option, upon such terms and conditions as may be determined by the Committee in its sole
discretion.






	4.	 	Manner of Exercise. In order to exercise this Option, the Participant shall deliver
to the Chief Financial Officer or other designated officer of the Company payment in full for
(i) the shares being purchased and (ii) unless other arrangements have been made with the
Committee, any required withholding taxes. The payment of the exercise price for each Option
shall be either in cash or by check payable and acceptable to the Company; provided, however,
with the consent of the Committee, which consent may be granted or withheld in the Committee’s
sole discretion and subject to any instructions or conditions as the Committee may impose,
payment of the exercise price and/or withholding may be made by (x) tendering to the Company
 shares of Common Stock having an aggregate Fair Market Value as of the date of exercise that
is not greater than the full exercise price for the shares with respect to which the Option is
being exercised and the amount required to be withheld, or (y) the Company may deliver
certificates for the shares of Common Stock for which the Option is being exercised to a
broker for sale on behalf of Participant, provided that Participant has irrevocably instructed
such broker to remit directly to the Company on Participant’s behalf from the proceeds of such
sale the full amount of the exercise price, plus all required withholding taxes. In the event
that Participant, with the consent of the Committee, elects to make payment as allowed under
clause (x) above, the Committee may, upon confirming that
Participant owns the number of shares being tendered,
authorize the issuance of a new certificate for the number of shares
being acquired pursuant to the exercise of the Option, less the number of shares being
tendered upon the exercise, and return to Participant (or not require surrender of) the
certificate for the shares being tendered upon the exercise.




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	5.	 	Status of Common Stock. The Company intends to register for issuance under the
Securities Act of 1933, as amended (the “Act”), the shares of Common Stock acquirable upon
exercise of this Option and to keep such registration effective throughout the period that
this Option is exercisable. In the absence of such effective registration or an available
exemption from registration under the Act, issuance of shares of Common Stock acquirable upon
exercise of the Option will be delayed until registration of such shares is effective or an
exemption from registration under the Act is available. The Company intends to use its
reasonable efforts to ensure that no such delay will occur. In the event that exemption from
registration under the Act is available upon an exercise of this Option, Participant (or the
person permitted to exercise this Option in the event of Participant’s incapacity or death),
if requested by the Company to do so, will execute and deliver to the Company in writing an
agreement containing such provisions as the Company may require assuring compliance with
applicable securities laws. The Company shall incur no liability to Participant for failure
to register the Common Stock or maintain the registration.
	 
	 	 	Participant agrees that the shares of Common Stock, which Participant may acquire by
exercising this Option, will not be sold or otherwise disposed of in any manner that would
constitute a violation of any applicable securities laws, whether federal or state.
Participant also agrees (i) that the certificates representing the shares of Common Stock
purchased under this Option may bear such legend or legends as the Committee deems
appropriate in order to assure compliance with applicable securities laws, (ii) that the
Company may refuse to register the transfer of the shares of Common Stock purchased under
this Option on the stock transfer records of the Company if such proposed transfer would, in
the opinion of counsel satisfactory to the Company, constitute a violation of any applicable
securities law and (iii) that the Company may give related instructions to its transfer
agent, if any, to stop registration of the transfer of the shares of Common Stock purchased
under this Option.
	 
	6.	 	Service Relationship. For purposes of this Agreement, Participant shall be
considered to be in the service of the Company as long as Participant remains an Employee,
Consultant or Non-Employee Director of either the Company, a parent or subsidiary corporation
(as defined in section 424 of the Code) of the Company, or a corporation or a parent or
subsidiary of such corporation assuming or substituting a new option for this Option. Any
question as to whether and when there has been a separation from service, and the cause of
such separation, shall be determined by the Committee in its sole discretion, and its
determination shall be final.
	 
	7.	 	Withholding of Tax. To the extent that the exercise of this Option or the
disposition of shares of Common Stock acquired by exercise of this Option results in
compensation income to Participant for federal or state income tax purposes, Participant shall
deliver to the Company at the time of such exercise or disposition such amount of money as the
Company may require to meet its obligation under applicable tax laws or regulations, and if
Participant fails to do so, the Company is authorized to withhold from any cash or Common
Stock remuneration then or thereafter payable to Participant any tax required to be withheld
by reason of such resulting compensation income. Upon an exercise of this Option, the Company
is further authorized in its discretion to satisfy any withholding




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	 	 	requirement out of any cash or shares of Common Stock distributable to Participant upon such
exercise.
	 	 	
	8.	 	Reorganization of the Company. The existence of this Agreement shall not affect in
any way the right or power of the Company or its stockholders to make or authorize any or all
adjustments, recapitalizations, reorganizations or other changes in the Company’s capital
structure or its business; any merger or consolidation of the Company; any issuance of bonds,
debentures, preferred or prior preference stock ahead of or affecting the Common Stock or the
rights thereof; the dissolution or liquidation of the Company; any sale or transfer of all or
any part of its assets or business; or any other corporate act or proceeding, whether of a
similar character or otherwise.
	 
	9.	 	Recapitalization Events. In the event of stock dividends, spin-offs of assets or
other extraordinary dividends, stock splits, combinations of shares, recapitalizations,
mergers, consolidations, reorganizations, liquidations, issuances of rights or warrants and
similar transactions or events involving the Company (“Recapitalization Events”), then for all
purposes references herein to Common Stock shall mean and include all securities or other
property (other than cash) that holders of Common Stock of the Company are entitled to receive
in respect of Common Stock by reason of each successive Recapitalization Event, and the
exercise price of the Option shall be adjusted as deemed necessary or appropriate in the sole
discretion of the Committee to prevent enlargement or dilution of Participant’s rights under
this Agreement.
	 
	10.	 	Transfer of Option. Except as provided herein or in the Plan, all rights granted
hereunder shall not be transferable other than by will or the laws of descent and distribution
and shall be exercisable during the Participant’s lifetime only by the Participant or, in the
case of the Participant’s death or incapacity, by the Participant’s guardian or legal
representative. No transfer of this Option shall be effective unless the Committee receives
prior written notice of the terms and conditions of any intended transfer, determines that the
transfer complies with the requirements imposed hereunder with respect to Option transfers and
approves the transfer. Any purported assignment, alienation, pledge, attachment, sale,
transfer or encumbrance of this Option that does not satisfy the requirements set forth
hereunder shall be void and unenforceable against the Company.
	 
	11.	 	Severability. In the event that any provision of this Agreement shall be held
illegal, invalid or unenforceable for any reason, such provision shall be fully severable and
shall not affect the remaining provisions of this Agreement, and the Agreement shall be
construed and enforced as if the illegal, invalid or unenforceable provision had never been
included herein.
	 
	12.	 	Certain Restrictions. By executing this Agreement, Participant acknowledges that
Participant will enter into such written representations, warranties and agreements and
execute such documents as the Company may reasonably request in order to comply with this
Agreement, the securities laws or any other applicable laws, rules or regulations, or the
terms of the Plan.




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	13.	 	Amendment and Termination. Except as otherwise provided in the Plan or this
Agreement, no amendment or termination of this Agreement shall be made by the Company without
the written consent of the Participant.
	 
	14.	 	No Guarantee of Tax Consequences. The Company makes no commitment or guarantee to
Participant that any federal or state tax treatment will apply or be available to any person
eligible for benefits under this Agreement.
	 
	15.	 	Binding Effect. This Agreement shall be binding upon and inure to the benefit of any
successors to the Company and all persons lawfully claiming under Participant.
	 
	16.	 	Governing Law and Venue. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Texas, without regard to any principles of conflicts
of law. The courts in Dallas County, Texas shall be the exclusive venue for any dispute
regarding the Plan or this Agreement.





     IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by its officer
thereunto duly authorized, and Participant has executed this Agreement, all as of the day and year
first above written.


WESTERN REFINING, INC.




	 	 	 	 	 	 	 
	By:

	 	 	 	Date:	 	 
	 

	 	 
	 	 	 	 





PARTICIPANT:






	 	 	 	 	 
	 

	 	Date:	 	 
	 

	 	 
	 	 
	

	 		 	 
	Address:

	 		 	 
	

	 		 	 
	 

	 	 
	 	 
	

	 		 	 
	 

	 	 
	 	 







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