Exhibit 10.26 Non-Employee Director Deferred Compensation Plan - Adoption Agreement, dated as of January 1, 2009


ADOPTION AGREEMENT




1.01    PREAMBLE 

By the execution of this Adoption Agreement the Plan Sponsor 
hereby [complete (a) or (b)]


		
	(a)
	x    adopts a new plan as of January 1, 2009




		
	(b)
	 ̈    amends and restates its existing plan as of January 1, 2009 which is the Amendment Restatement Date. 




Original Effective Date:  _____________


Pre-409A Grandfathering:     ̈ Yes    x No 






		
	1.02
	PLAN




Plan Name: Western Refining, Inc. Non-Employee Director Deferred Compensation Plan 

Plan Year:  ends 12/31






		
	1.03
	PLAN SPONSOR




	
		
	Name:
	Western Refining, Inc.

	Address:
	123 West Mills Avenue, Suite 200, El Paso, TX 79901

	Phone # :
	915-534-1400

	EIN#
	20-3472415

	Fiscal Yr:
	12/31






Is stock of the Plan Sponsor, any Employer or any Related Employer publicly traded on an established securities market?


x	
			
	Yes
	 ̈
	No







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	1.04
	EMPLOYER




The following entities have been authorized by the Plan Sponsor to participate in and have adopted the Plan (insert “Not Applicable” if none have been authorized):


Entity                        Publicly Traded on Est. Securities Market


	
					
	 
	 
	Yes
	 
	No

	Western Refining, Inc.
	 
	X
	 
	 

	 
	 
	 
	 
	 

	 
	 
	 
	 
	 

	 
	 
	 
	 
	 

	 
	 
	 
	 
	 

	 
	 
	 
	 
	 






		
	1.05
	ADMINISTRATOR




The Plan Sponsor has designated the following party or parties to be responsible for the administration of the Plan:


	
		
	Name:
	The Committee designated by the Board of Directors of the

	 
	Employer






		
	Note:
	The Administrator is the person or persons designated by the Plan Sponsor to be responsible for the administration of the Plan.  Neither Fidelity Employer Services Company nor any other Fidelity affiliate can be the Administrator.




		
	1.06
	KEY EMPLOYEE DETERMINATION DATES




 The Identification Date for the purpose of determining Key Employees is not applicable because Plan eligibility is limited to Non-Employee Directors.

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	2.01
	PARTICIPATION




(a)        Employees [complete (i), (ii) or (iii)] 

(i)     ̈    Eligible Employees are selected by the Employer.


(ii)     ̈    Eligible Employees are those employees of the Employer who satisfy the following criteria:


	
	
	 

	 

	 

	 

	 






(iii)    x    Employees are not eligible to participate.


(b)        Directors [complete (i), (ii) or (iii)]


(i)    x    All Non-Employee Directors are eligible to participate.


(ii)     ̈    Only Directors selected by the Employer are eligible to participate.


(iii)     ̈    Directors are not eligible to participate.



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	3.01
	COMPENSATION




For purposes of determining Participant contributions under Article 4 and Employer contributions under Article 5, Compensation shall be defined in the following manner [complete (a) or (b) and select (c) and/or (d), if applicable]:


	
			
	(a)
	 ̈
	Compensation as defined in Section 2.9 of the Plan, except

	 
	 
	 

	 
	 
	 

	 
	 
	 

	 
	 
	     

	 
	 
	     

	 
	 
	     

	 
	 
	 

	(b)
	 
	Compensation as defined in       [insert name of qualified plan] without regard to the limitation in Section 401(a)(17) of the Code for such Plan Year.

	 
	 
	 

	(c)
	X
	Director Compensation is defined as:

	 
	 
	Directors’ Fees

	 
	 
	Any other Directors’ Cash Compensation

	 
	 
	Any other Directors’ Stock Compensation

	 
	 
	 

	(d)
	 
	Compensation shall, for all Plan purposes, be limited to $     .

	 
	 
	 

	(e)
	 
	Not Applicable.






		
	3.02
	BONUSES




Compensation, as defined in Section 3.01 of the Adoption Agreement, includes the following type of bonuses:


	
								
	Type
	Will be treated as Performance
Based Compensation

	 
	 

	 
	 
	Yes
	 
	No
	 

	 
	 
	 
	 
	 
	 

	 
	 
	 
	 
	 
	 

	 
	 
	 
	 
	 
	 

	 
	 
	 
	 







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	4.01
	PARTICIPANT CONTRIBUTIONS




If Participant contributions are permitted, complete (a), (b), and (c).  Otherwise 
complete (d).


		
	(a)
	Amount of Deferrals




A Participant may elect within the period specified in Section 4.01(b) of the Adoption Agreement to defer the following amounts of remuneration.  For each type of remuneration listed, complete “dollar amount” and / or “percentage amount”.


		
	(i)
	Compensation Other than Bonuses [do not complete if you complete (iii)]


        
	
						
	Type of Remuneration
	Dollar Amount
	% Amount
	Increment

	Min
	Max
	Min
	Max

	(a)    
	 
	 
	 
	 
	 

	(b)    
	 
	 
	 
	 
	 

	(c)    
	 
	 
	 
	 
	 






Note:  The increment is required to determine the permissible deferral amounts.  For example, a minimum of 0% and maximum of 20% with a 5% increment would allow an individual to defer 0%, 5%, 10%, 15% or 20%.


		
	(ii)
	Bonuses [do not complete if you complete (iii)]




	
						
	Type of Bonus
	Dollar Amount
	% Amount
	Increment

	Min
	Max
	Min
	Max

	(a)
	 
	 
	 
	 
	 

	(b)   
	 
	 
	 
	 
	 

	(c)   
	 
	 
	 
	 
	 






		
	(iii)
	Compensation [do not complete if you completed (i) and (ii)]




	
					
	Dollar Amount
	% Amount
	Increment

	Min
	Max
	Min
	Max

	 
	 
	 
	 
	 






		
	(iv)
	Director Compensation




	
						
	Type of Compensation
	Dollar Amount
	% Amount
	Increment

	Min
	Min
	Min
	Max

	Cash Compensation
	 
	 
	0%
	100%
	1%

	Stock Compensation
	 
	 
	0%
	100%
	1%

	 
	 
	 
	 
	 
	 

	 
	 
	 
	 
	 
	 






    

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	(b)
	Election Period




		
	(i)
	Performance Based Compensation




A special election period 


	
					
	 
	Does
	 
	 
	Does Not






apply to each eligible type of performance based compensation referenced in Section 3.02 of the Adoption Agreement.


The special election period, if applicable, will be determined by the Employer.


		
	(ii)
	Newly Eligible Participants




An Employee or Director who is classified or designated as an Eligible Employee or Director during a Plan Year 


	
					
	X
	May
	 
	 
	May Not






elect to defer Compensation earned during the remainder of the Plan Year by completing a deferral agreement within the 30 day period beginning on the date he is eligible to participate in the Plan.


		
	(c)
	Revocation of Deferral Agreement




A Participant’s deferral agreement will be irrevocable unless cancellation is otherwise permitted in accordance with Code Section 409A and the final regulations thereunder.




		
	(d)
	No Participant Contributions




 ̈    Participant contributions are not permitted under the Plan.



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	5.01
	EMPLOYER CONTRIBUTIONS




If Employer contributions are permitted, complete (a) and/or (b).  Otherwise 
complete (c).


		
	(a)
	Matching Contributions




		
	(i)
	Amount




For each Plan Year, the Employer shall make a Matching Contribution on behalf of each Participant who defers Compensation for the Plan Year and satisfies the requirements of Section 5.01(a)(ii) of the Adoption Agreement equal to [complete the ones that are applicable]:


		
	(A)
	 ̈          [insert percentage] of the Compensation the Participant has elected to defer for the Plan Year




		
	(B)
	 ̈    An amount determined by the Employer in its sole discretion 




		
	(C)
	 ̈    Matching Contributions for each Participant shall be limited to $      and/or      % of Compensation.




		
	(D)
	 ̈    Other:    


                         
                         


		
	(E)
	x    Not Applicable [Proceed to Section 5.01(b)] 



		
	(ii)
	Eligibility for Matching Contribution




A Participant who defers Compensation for the Plan Year shall receive an allocation of Matching Contributions determined in accordance with Section 5.01(a)(i) provided he satisfies the following requirements [complete the ones that are applicable]:


	
				
	(A)    
	 
	Describe requirements:
	 

	 
	 
	                    
	 

	 
	 
	                    
	 

	 
	 
	 
	 

	(B)    
	 
	Is selected by the Employer in its sole discretion to receive an allocation of Matching Contributions
	 

	 
	 
	 
	 

	(C)    
	 
	No requirements
	 







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	(iii)
	 Time of Allocation




Matching Contributions, if made, shall be treated as allocated [select one]:


	
			
	(A)    
	 
	As of the last day of the Plan Year

	 
	 
	 

	(B)    
	 
	At such times as the Employer shall determine in it sole discretion

	 
	 
	 

	(C)    
	 
	At the time the Compensation on account of which the Matching Contribution is being made would otherwise have been paid to the Participant

	 
	 
	 

	(D)    


	 
	Other:
                    

	 
	 
	                    






		
	(b)
	Other Contributions


    
		
	(i)
	Amount




The Employer shall make a contribution on behalf of each Participant who satisfies the requirements of Section 5.01(b)(ii) equal to [complete the ones that are applicable]:


	
			
	(A)    
	 
	An amount equal to       [insert number] % of the Participant’s Compensation

	 
	 
	 

	(B)    
	 
	An amount determined by the Employer in its sole discretion

	 
	 
	 

	(C)    
	 
	Contributions for each Participant shall be limited to $           

	 
	 
	 

	(D)    
	X
	Other:
An amount equal to the amount in stock of the Employer that the Participant receives. 

	 
	 
	 

	 
	 
	 

	 
	 
	 

	(E)    
	 
	Not Applicable [Proceed to Section 6.01]

	 
	 
	 







- 8 -










		
	(ii)
	 Eligibility for Other Contributions




A Participant shall receive an allocation of other Employer contributions determined in accordance with Section 5.01(b)(i) for the Plan Year if he satisfies the following requirements [complete the one that is applicable]:




	
			
	(A)    
	X
	Describe requirements:

	 
	 
	The Participant received Employer Stock and further elected under the terms of this Plan to defer such amounts upon vesting or receipt.

	 
	 
	 

	 
	 
	 

	(B)    
	 
	Is selected by the Employer in its sole discretion to receive an allocation of other Employer contributions

	 
	 
	 

	(C)    
	 
	No requirements






		
	(iii)
	Time of Allocation




Employer contributions, if made, shall be treated as allocated [select one]:


	
			
	(A)    
	 
	As of the last day of the Plan Year

	 
	 
	 

	(B)    
	 
	At such time or times as the Employer shall determine in its sole discretion

	 
	 
	 

	(C)    


	X
	Other:
At the time each such amount is credited to the Participant’s account upon vesting.     

	 
	 
	Allocations shall occur as frequently as quarterly.

	 
	 
	 






		
	(c)
	No Employer Contributions




 ̈    Employer contributions are not permitted under the Plan.



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	6.01
	DISTRIBUTIONS




The timing and form of payment of distributions made from the Participant’s vested Account shall be made in accordance with the elections made in this Section 6.01 of the Adoption Agreement except when Section 9.6 of the Plan requires a six month delay for certain distributions to Key Employees of publicly traded companies. Distributions shall be made in cash, but amounts attributable to deferrals made in accordance with section 5.01(b) shall be made in-kind in stock if the Plan Sponsor so directs.


		
	(a)
	Timing of Distributions






	
				
	(i)
	All distributions shall commence in accordance with the following [choose one]:



	 
	(A)   
	X
	As soon as administratively feasible following the distribution event, but in all cases within 90 days of such distribution event.

	 
	(B)   
	 
	Monthly on specified day ____ [insert day]

	 
	(C)   
	 
	Annually on specified month and day       [insert month and day]

	 
	(D)   
	 
	Calendar quarter on specified month and day [     month of quarter (insert 1,2 or 3);    __  day (insert day)]






	
				
	(ii)
	The timing of distributions as determined in Section 6.01(a)(i) shall be modified by the adoption of:



	 
	(A)   
	 
	Event Delay – Distribution events other than those based on Specified Date or Specified Age will be treated as not having occurred for       months [insert number of months].



	 
	(B)   
	 
	Hold Until Next Year – Distribution events other than those based on Specified Date or Specified Age will be treated as not having occurred for twelve months from the date of the event if payment pursuant to Section 6.01(a)(i) will thereby occur in the next calendar year or on the first payment date in the next calendar year in all other cases.



	 
	(C)   
	 
	Immediate Processing – The timing method selected by the Plan Sponsor under Section 6.01(a)(i) shall be overridden for the following distribution events [insert events]:



	 
	 
	                 

	 
	 
	                 

	 
	 
	 
	 

	 
	(D)   
	X
	Not applicable.









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	(b)
	Distribution Events




Participants may elect the following payment events and the associated form or forms of payment. If multiple events are selected, the earliest to occur will trigger payment. For installments, insert the range of available periods (e.g., 5-15) or insert the periods available (e.g., 5,7,9).


	
						
	



	 
	 
	Lump Sum
	Installments

	 
	 
	 
	 
	 

	(i)    
	 
	Specified Date
	     
	      years

	 
	 
	 

	(ii)    
	 
	Specified Age
	     
	      years

	 
	 
	 

	(iii)    
	X
	Separation from Service
	__X__
	_____  years

	 
	 
	 

	(iv)    
	 
	Separation from Service plus 6 months
	     
	      years

	 
	 
	 

	(v)    
	 
	Separation from Service plus       months [not to exceed       months]
	     
	      years

	 
	 
	 

	(vi)    
	 
	Retirement
	     
	      years

	 
	 
	 

	(vii)    
	 
	Retirement plus 6 months
	     
	      years

	 
	 
	 

	(viii)    
	 
	Retirement plus       months [not to exceed       months]
	     
	      years

	 
	 
	 

	(ix)    
	 
	Later of Separation from Service or Specified Age
	     
	      years

	 
	 
	 

	(x)    
	 
	Later of Separation from Service or Specified Date
	     
	      years

	 
	 
	 

	(xi)    
	 
	Disability
	_____
	      years

	 
	 
	 

	(xii)    
	 
	Death
	     
	      years

	 
	 

	(xiii)    
	 
	Change in Control
	     
	      years






The minimum deferral period for Specified Date or Specified Age event shall be n/a years. 
 
Installments may be paid [select each that applies] 

	
		
	 
	Monthly

	 
	Quarterly

	 
	Annually







- 11 -








		
	(c)
	Specified Date and Specified Age elections may not extend beyond age Not Applicable [insert age or “Not Applicable” if no maximum age applies]. 




- 12 -










		
	(d)
	Payment Election Override 
 
Payment of the remaining vested balance of the Participant’s Account will automatically occur at the time specified in Section 6.01(a) of the Adoption Agreement in the form indicated upon the earliest to occur of the following events [check each event that applies and for each event include only a single form of payment]:  



	
						
	 
	EVENTS
	FORM OF PAYMENT

	 
	Separation from Service
	 
	Lump sum
	 
	Installments

	 
	Separation from 
Service before Retirement
	 
	Lump sum
	 
	Installments

	X
	Death
	X
	Lump sum
	 
	Installments

	X
	Disability
	X
	Lump sum
	 
	Installments

	 
	Not Applicable
	 
	 
	 
	 








		
	(e)
	Involuntary Cashouts 



	
		
	 
	If the Participant’s vested Account at the time of his Separation from Service does not exceed $______ distribution of the vested Account shall automatically be made in the form of a single lump sum in accordance with Section 9.5 of the Plan.



	X
	There are no involuntary cashouts.






		
	(f)
	Retirement 



	
		
	 
	Retirement shall be defined as a Separation from Service that occurs on or after the Participant [insert description of requirements]:



	 
	        

	 
	        



	X
	No special definition of Retirement applies.
















		
	(g)
	Distribution Election Change 
 
A Participant




	
		
	 
	Shall

	X
	Shall Not





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be permitted to modify a scheduled distribution date and/or payment option in accordance with Section 9.2 of the Plan.


A Participant shall generally be permitted to elect such modification n/a number of times.


Administratively, allowable distribution events will be modified to reflect all options necessary to fulfill the distribution change election provision.




		
	(h)
	Frequency of Elections




The Plan Sponsor


	
		
	X
	Has

	 
	Has Not






Elected to permit annual elections of a time and form of payment for amounts deferred under the Plan.





- 14 -








		
	7.01
	VESTING




		
	(a)
	Matching Contributions 
 
The Participant’s vested interest in the amount credited to his Account attributable to Matching Contributions shall be based on the following schedule:




	
								
	 
	Years of Service
	Vesting %
	 
	 

	 
	0
	     
	(insert ‘100’ if there is immediate vesting)
	 

	 
	1
	     
	 
	 

	 
	2
	     
	 
	 

	 
	3
	     
	 
	 

	 
	4
	     
	 
	 

	 
	5
	     
	 
	 

	 
	6
	     
	 
	 

	 
	7
	     
	 
	 

	 
	8
	     
	 
	 

	 
	9
	     
	 
	 

	 
	 
	 
	 
	 

	



	Other:
                 
	 
	 

	 
	                 
	 
	 

	 
	 
	 
	 

	



	Class year vesting applies.
            
	 
	 
	 

	 
	 
	 
	 
	 

	X
	Not applicable.
	 
	 
	 






		
	(b)
	Other Employer Contributions 
 
The Participant’s vested interest in the amount credited to his Account attributable to Employer contributions other than Matching Contributions shall be based on the following schedule:





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	Years of Service
	Vesting %
	 

	 
	0
	_____
	(insert ‘100’ if there is immediate vesting)

	 
	1
	     
	 

	 
	2
	     
	 

	 
	3
	     
	 

	 
	4
	     
	 

	 
	5
	     
	 

	 
	6
	     
	 

	 
	7
	     
	 

	 
	8
	     
	 

	 
	9
	     
	 

	 
	 
	 
	 

	X
	Other:
Amounts shall be 100% vested at the time of    
	 

	 
	allocation.             
	 

	 
	 
	 

	



	Class year vesting applies.
            
	 

	 
	 
	 
	 

	 
	Not applicable.
	 
	 







- 16 -








		
	(c)
	Acceleration of Vesting 



A Participant’s vested interest in his Account will automatically be 100% upon the occurrence of the following events: [select the ones that are applicable]:


	
			
	(i)    
	 
	Death

	 
	 
	 

	(ii)    
	 
	Disability

	 
	 
	 

	(iii)    
	 
	Change in Control

	 
	 
	 

	(iv)    
	 
	Eligibility for Retirement

	 
	 
	 

	(v)    
	 
	Other:                       

	 
	 
	                       

	 
	 
	 

	(vi)    
	X
	Not applicable.






		
	(d)
	Years of Service 



		
	(i)
	A Participant’s Years of Service shall include all service performed for the Employer and 



	
		
	 
	Shall

	 
	Shall Not






include service performed for the Related Employer. 

		
	(ii)
	Years of Service shall also include service performed for the following entities:




	
	
	     

	     

	     

	     

	     






		
	(iii)
	Years of Service shall be determined in accordance with (select one)




	
			
	(A)    
	 
	The elapsed time method in Treas. Reg. Sec.  1.410(a)-7

	 
	 
	 

	(B)    
	 
	The general method in DOL Reg. Sec.  2530.200b-1 through b-4

	 
	 
	 

	(C)    
	 
	The Participant’s Years of Service credited under [insert name of plan]                 
                     

	 
	 
	 

	(D)    
	 
	Other:                         

	 
	 
	                          

	 
	 
	                          





- 17 -










		
	(iv)
	x Not applicable.





- 18 -








		
	8.01
	UNFORESEEABLE EMERGENCY




(a)    A withdrawal due to an Unforeseeable Emergency as defined in Section 2.24:


	
		
	X
	Will

	 
	Will Not [if Unforeseeable Emergency withdrawals are not permitted, proceed to Section 9.01]






be allowed.


		
	(b)
	Upon a withdrawal due to an Unforeseeable Emergency, a Participant’s deferral election for the remainder of the Plan Year:




	
		
	X
	Will

	 
	Will Not






be cancelled.  If cancellation occurs, the Participant may resume participation in accordance with Article 4 of the Plan.





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	9.01
	INVESTMENT DECISIONS




Investment decisions regarding the hypothetical amounts credited to a Participant’s Account shall be made by [select one]:


	
			
	(a)   


	X
	The Participant or his Beneficiary

	(b)   
	 
	The Employer







- 20 -








		
	10.01
	GRANTOR TRUST




The Employer [select one]:


	
		
	X
	Does

	 
	Does Not






intend to establish a grantor trust in connection with the Plan.



- 21 -








		
	11.01
	TERMINATION UPON CHANGE IN CONTROL




The Plan Sponsor


	
		
	X
	Reserves

	 
	Does Not Reserve






the right to terminate the Plan and distribute all vested amounts credited to Participant Accounts upon a Change in Control as described in Section 9.7.


		
	11.02
	AUTOMATIC  DISTRIBUTION UPON CHANGE IN CONTROL




Distribution of the remaining vested balance of each Participant’s Account


	
		
	 
	Shall

	X
	Shall Not






automatically be paid as a lump sum payment upon the occurrence of a Change in     Control as provided in Section 9.7.


		
	11.03
	CHANGE IN CONTROL




A Change in Control for Plan purposes includes the following [select each definition that applies]:


		
	(a)
	x    A change in the ownership of the Employer as described in Section 9.7(c) of the Plan.




		
	(b)
	x    A change in the effective control of the Employer as described in Section 9.7(d) of the Plan.




		
	(c)
	x    A change in the ownership of a substantial portion of the assets of the Employer as described in Section 9.7(e) of the Plan.




		
	(d)
	 ̈    Not Applicable.







- 22 -








		
	12.01
	GOVERNING STATE LAW




The laws of Delaware shall apply in the administration of the Plan to the extent not preempted by ERISA.



- 23 -






EXECUTION PAGE






The Plan Sponsor has caused this Adoption Agreement to be executed this 24th day of August, 2009.




	
		
	PLAN SPONSOR:
	/s/ Scott D. Weaver

	By:
	Scott D. Weaver

	Title:
	Vice President & Assistant Secretary













- 24 -










APPENDIX A 
SPECIAL EFFECTIVE DATES
Not Applicable







- 25 -