0000950103-12-000171.txt : 20120113 0000950103-12-000171.hdr.sgml : 20120113 20120113164707 ACCESSION NUMBER: 0000950103-12-000171 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20120113 DATE AS OF CHANGE: 20120113 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Foster Paul L CENTRAL INDEX KEY: 0001349213 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: 6500 TROWBRIDGE DRIVE CITY: EL PASO STATE: TX ZIP: 79905 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Western Refining, Inc. CENTRAL INDEX KEY: 0001339048 STANDARD INDUSTRIAL CLASSIFICATION: PETROLEUM REFINING [2911] IRS NUMBER: 203472415 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-81351 FILM NUMBER: 12527126 BUSINESS ADDRESS: STREET 1: 6500 TROWBRIDGE DRIVE CITY: EL PASO STATE: TX ZIP: 79905 BUSINESS PHONE: (915) 775-3488 MAIL ADDRESS: STREET 1: 6500 TROWBRIDGE DRIVE CITY: EL PASO STATE: TX ZIP: 79905 SC 13D/A 1 dp27828_sc13da5.htm FORM SC 13D/A

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

SCHEDULE 13D

(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT

TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO

RULE 13d-2(a)

(Amendment No. 5)*

Western Refining, Inc.

(Name of Issuer)

Common Stock, $0.01 par value

(Title of Class of Securities)

959319 10 4

(CUSIP Number)

Paul L. Foster

123 W. Mills Avenue, Suite 200

El Paso, Texas 79901

(915) 534-1400

(Name, Address and Telephone Number of Person Authorized to

Receive Notices and Communications)

December 7, 2011

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-l(f) or 240.13d-l(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

(Continued on following pages)

(Page 1 of 10 Pages)

*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP No. 959319 10 4

13D

Page 2 of 10 Pages

1	NAME OF REPORTING PERSONS Paul L. Foster I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (see instructions)
	(a)	o
	(b)	x
3	SEC USE ONLY
4	SOURCE OF FUNDS (see instructions) OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)	o
6	CITIZENSHIP OR PLACE OF ORGANIZATION United States

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER 7,300,545
	8	SHARED VOTING POWER 18,328,784(1)
	9	SOLE DISPOSITIVE POWER 7,294,305
	10	SHARED DISPOSITIVE POWER 18,328,784(1)

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 25,629,329(1)(2)
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions)	o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 28.1%
14	TYPE OF REPORTING PERSON (see instructions) IN

(1)	Includes 138,889 shares of Common Stock that are issuable to Franklin Mountain Investments Limited Partnership (“FMILP”) upon the conversion of the Notes (as defined below) at a conversion price of $10.80 per share.

(2)

Of the shares indicated as beneficially owned by Mr. Foster, 785,314 shares are beneficially owned by WRC Refining Company (“WRCRC”), in which Mr. Foster holds a 97.3% interest, 17,543,470 are beneficially owned by FMILP in which Mr. Foster holds an 89.6% interest and 6,240 are restricted shares that will vest on March 27, 2012 and over which Mr. Foster has sole voting power. Mr. Foster is the controlling stockholder and Chief Executive Officer of WRCRC and the sole stockholder and President of Franklin Mountain G.P., LLC, the General Partner of FMILP, and as such, may be deemed to have voting and dispositive power over the shares owned by WRCRC and FMILP. Mr. Foster hereby disclaims the beneficial ownership of the shares corresponding to the interests of Jeff A. Stevens, Ralph A. Schmidt and Scott D. Weaver in WRCRC.

This Amendment No. 5 (the “Amendment”) constitutes the fifth amendment to the Schedule 13D originally filed by Paul L. Foster (the “Reporting Person”), with the Securities and Exchange Commission on January 31, 2006, as amended by Amendment No. 1 to such Schedule 13D filed on August 3, 2007, Amendment No. 2 to such Schedule 13D filed on August 27, 2007, Amendment No. 3 to such Schedule 13D filed on March 23, 2009 and Amendment No. 4 to such Schedule 13D filed on December 10, 2010 (as so amended, the “Schedule 13D”), with respect to the common stock, $0.01 par value (the “Common Stock”), of Western Refining, Inc. (the “Issuer”). Except as specifically amended by this Amendment, the Schedule 13D remains in full force and effect. Unless otherwise defined herein, all capitalized terms shall have the meanings ascribed to them in the Schedule 13D.

Item 2. Identity and Background

Item 2(c) of the Schedule 13D is hereby amended and restated by deleting the information contained therein and inserting the following:

“The Reporting Person’s principal occupation is to serve as the Executive Chairman of the Issuer.”

Item 4. Purpose of Transaction

Item 4 of the Schedule 13D is hereby amended and restated by deleting the information contained therein and inserting the following:

“See Item 3 above.

On July 26, 2007, the general and limited partners of RHC Holdings, L.P., namely: (i) WRCRC, as general partner and (ii) Jeff A. Stevens, FMILP, the Reporting Person, Ralph A. Schmidt and Scott D. Weaver as limited partners (collectively with WRCRC, the “Partners”) approved a pro rata distribution in kind to the Partners of all of the shares of Common Stock held by RHC Holdings, L.P. on August 2, 2007 (the “Distribution”). As a result of the Distribution, the Partners now directly hold the shares of Common Stock that they previously held indirectly through their respective ownership interests in RHC.

On August 2, 2007, the Partners entered into a Voting Agreement which provided for the voting of certain of their shares of Common Stock and granted an irrevocable proxy to vote such shares to the Reporting Person. On March 20, 2009, the Partners entered into an Amended and Restated Voting Agreement (the Voting Agreement, as so amended and restated, the “Voting Agreement”). On December 10, 2010, the Voting Agreement was terminated by the parties thereto.

On August 22, 2007, the Reporting Person donated 1,000,000 shares of Common Stock beneficially owned by the Reporting Person to a non-profit institution.

On March 26, 2008 and 2009, respectively, the Issuer granted 58,240 and 18,721 restricted shares of Common Stock to the Reporting Person as a form of long-term, equity-based compensation. These restricted shares will vest over three years from the date of grant.

On June 10, 2009, the Issuer publicly offered shares of its Common Stock and 5.75% Convertible Senior Notes Due 2014 (the “Notes”). Each $1,000 principal amount of the Notes is initially convertible into 92.5926 shares of Common Stock upon the occurrence of certain events, as described in the Issuer’s prospectus supplement relating to the Notes dated June 4, 2009. As part of the public offering, FMILP purchased 166,667 shares of Common Stock and $1,500,000 principal amount of the Notes. The Notes held by FMILP are currently convertible at the option of FMILP into an aggregate of 138,889 shares of Common Stock.

On several occasions in 2011, through unsolicited broker transactions, the Reporting Person and FMILP sold an aggregate of 1,020,000 and 2,040,000 shares of Common Stock, respectively, pursuant to the 2010 Sales Plan (as defined below). These amounts include the sales described in Item 5(c) below. In addition, in December 2011, the Reporting Person and FMILP entered into the 2011 Sales Plan (as defined below).

Except as disclosed herein and except that the Reporting Person may, from time to time or at any time, subject to market and general economic conditions, the requirements of federal or state securities laws and other factors, purchase additional shares of Common Stock in the open market, in privately negotiated transactions or otherwise, or sell at any time all or a portion of the shares of Common Stock now owned or hereafter acquired by the Reporting Person to one or more purchasers, as of the date of this Schedule 13D, the Reporting Person has no plans or proposals which relate to or would result in any of the following actions:

·	the acquisition by any person of additional securities of the Issuer, or the disposition of securities of the Issuer;

·	an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries;

·	a sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries;

·	any change in the present board of directors or management of the Issuer, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board;

·	any material change in the present capitalization or dividend policy of the Issuer;

·	any other material change in the Issuer’s business or corporate structure;

·	changes in the Issuer’s charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Issuer by any person;

·	causing a class of securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association;

·	a class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Act; or

·	any action similar to any of those enumerated above.

Depending on the factors described in the preceding paragraph, and other factors which may arise in the future, the Reporting Person may be involved in such matters and, depending on the facts and circumstances at such time, may formulate a plan with respect to such matters. In addition, the Reporting Person may entertain discussions with, or make proposals to, the Issuer, to other stockholders of the Issuer or to third parties.”

Item 5. Interest in Securities of the Issuer

Item 5 of the Schedule 13D is hereby amended and restated by deleting the information contained therein and inserting the following:

“(a)(i) The Reporting Person is the beneficial owner of 25,629,329 shares of Common Stock, which, based on calculations made in accordance with Rule 13d-3 of the Securities Exchange Act of 1934, as amended, and there being 90,814,773 shares of Common Stock issued (including restricted shares but excluding treasury shares) as of October 28, 2011, constitutes 28.1% of the outstanding shares of Common Stock. Of the shares indicated as beneficially owned by the Reporting Person, 785,314 shares are beneficially owned by WRCRC in which the Reporting Person holds a 97.3% interest, 17,543,470 are beneficially owned by FMILP (including 138,889 shares of Common Stock that are issuable to FMILP upon conversion of the Notes at a conversion price of $10.80 per share) in which the Reporting Person holds an 89.6% interest and 6,240 are restricted shares that will vest on March 27, 2012 and over which the Reporting Person has sole voting power. The Reporting Person is the controlling stockholder and Chief Executive Officer of WRCRC and the sole stockholder and President of Franklin Mountain G.P., LLC, the General Partner of FMILP, and as such, may be deemed to have voting and dispositive power over the shares owned by WRCRC and FMILP. The Reporting Person hereby disclaims the beneficial ownership of the shares corresponding to the interests of Jeff A. Stevens, Ralph A. Schmidt and Scott D. Weaver in WRCRC.

(ii) FMILP is the beneficial owner of 17,543,470 shares of Common Stock which, based on the calculations in Item 5(a)(i) above constitutes 19.2% of the outstanding shares of Common Stock.

(iii) WRCRC is the beneficial owner of 807,302 shares of Common Stock which, based on the calculations in Item 5(a)(i) above constitutes 0.9% of the outstanding shares of Common Stock.

(b)(i) Of the shares indicated as beneficially owned by the Reporting Person in Item 5(a)(i) above, 6,240 are restricted shares that will vest on March 27, 2012 and over which the Reporting Person has sole voting power. The Reporting Person has shared voting and shared dispositive power over 18,328,784 shares, of which 785,314 shares are beneficially owned by WRCRC, in which the Reporting Person holds a 97.3% interest, and 17,543,470 shares are beneficially owned by FMILP (including 138,889 shares of Common Stock that are issuable to FMILP upon conversion of the Notes at a conversion price of $10.80 per share), in which the Reporting Person holds an 89.6% interest. The Reporting Person is the controlling stockholder and Chief Executive Officer of WRCRC and the sole stockholder and President of Franklin Mountain G.P., LLC, the General Partner of FMILP, as such, may be deemed to have voting and dispositive power over the shares owned by WRCRC and FMILP. WRCRC is a Texas corporation and FMILP is a Texas limited partnership and the business address of each is 123 W. Mills Avenue, Suite 200, El Paso, Texas 79901. During the past five years, neither WRCRC nor FMILP has (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) nor (ii) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of which was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. The Reporting Person has sole voting and sole dispositive power over the remaining 7,294,305 shares.

(ii) Of the shares indicated as beneficially owned by FMILP in Item 5(a)(ii) above, FMILP has shared voting and shared dispositive power over all of the shares. The Reporting Person holds an 89.6% interest in FMILP and is the sole stockholder and President of Franklin Mountain, G.P., LLC, the General Partner of FMILP and as such, may be deemed to have voting and dispositive power over all of its shares.

(iii) Of the shares indicated as beneficially owned by WRCRC in Item 5(a)(iii) above, WRCRC has shared voting and shared dispositive power over all of the shares. The Reporting Person holds a 97.3% interest in WRCRC and is the President, controlling stockholder and Chief Executive Officer of WRCRC and as such, may be deemed to have voting and dispositive power over all of its shares.

(c) As part of the transactions described in Item 4 of this Schedule 13D, the Reporting Person and FMILP have effected the following transactions through unsolicited broker transactions in the Common Stock during the past 60 days:

	Reporting Person

Transaction Date	Transaction Type	Amount of Shares	Average Price per Share
November 14, 2011	Sale	21,250	$15.3962
November 15, 2011	Sale	21,250	$15.5976
November 28, 2011	Sale	21,250	$11.6460
November 29, 2011	Sale	21,250	$11.5334
December 5, 2011	Sale	21,250	$13.2381
December 6, 2011	Sale	21,250	$12.9160
December 20, 2011	Sale	21,250	$12.3939
December 21, 2011	Sale	21,250	$12.6645

	FMILP

Transaction Date	Transaction Type	Amount of Shares	Average Price per Share
November 14, 2011	Sale	42,500	$15.3959
November 15, 2011	Sale	42,500	$15.5974
November 28, 2011	Sale	42,500	$11.6456
November 29, 2011	Sale	42,500	$11.5335
December 5, 2011	Sale	42,500	$13.2378
December 6, 2011	Sale	42,500	$12.9160
December 20, 2011	Sale	42,500	$12.3939
December 21, 2011	Sale	42,500	$12.6652

WRCRC has not effected any transactions in the Common Stock during the past 60 days.

(d) No other person is known by the Reporting Person to have the right to receive or the power to direct the receipt of distributions from, or the proceeds from the sale of, the Common Stock beneficially owned by the Reporting Person.

(e) Not applicable.”

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Item 6 of the Schedule 13D is hereby amended and restated by deleting the information contained therein and inserting the following:

“The information provided or incorporated by reference in Items 3 and 4 of this Schedule 13D is hereby incorporated by reference herein.

On December 3, 2010, the Reporting Person and FMILP entered into a 10b5-1 sales plan (the “2010 Sales Plan”) authorizing Goldman, Sachs & Co. (“Goldman Sachs”) to sell up to an aggregate of 1,020,000 shares of Common Stock held by the Reporting Person and 2,040,000 shares of Common Stock held by FMILP pursuant to the 2010 Sales Plan. All sales of Common Stock under the 2010 Sales Plan will be made in Goldman Sachs’ discretion. This description of the 2010 Sales Plan is qualified in its entirety by reference to the terms of the 2010 Sales Plan, which is filed as Exhibit (c)(i) to this Schedule 13D.

On December 7, 2011, the Reporting Person and FMILP entered into a 10b5-1 sales plan (the “2011 Sales Plan”) authorizing Goldman Sachs to sell up to an aggregate of 2,000,000 shares of Common Stock held by the Reporting Person and 1,000,000 shares of Common Stock held by FMILP pursuant to the 2011 Sales Plan. All sales of Common Stock under the 2011 Sales Plan will be made in Goldman Sachs’ discretion. This description of the 2011 Sales Plan is qualified in its entirety by reference to the terms of the 2011 Sales Plan, which is filed as Exhibit (c)(ii) to this Schedule 13D.”

Item 7. Material to Be Filed as Exhibits

Exhibit (c) to the Schedule 13D is hereby replaced with the following:

“(c)(i) 10b5-1 Sales Plan dated as of December 3, 2010, by and among the Reporting Person, FMILP and Goldman Sachs (incorporated by reference to Exhibit (c) to Amendment No. 4 to the Reporting Person’s Schedule 13D filed with the Securities and Exchange Commission on December 10, 2010).

(c)(ii) 10b5-1 Sales Plan dated as of December 7, 2011, by and among the Reporting Person, FMILP and Goldman Sachs.”

Signatures

After reasonable inquiry and to the best of the knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: January 13, 2012

/s/ Paul L. Foster
Paul L. Foster

EXHIBIT INDEX

10b5-1 Sales Plan dated as of December 3, 2010, by and among the Reporting Person, FMILP and Goldman Sachs (incorporated by reference to Exhibit (c) to Amendment No. 4 to the Reporting Person’s Schedule 13D filed with the Securities and Exchange Commission on December 10, 2010).

10b5-1 Sales Plan dated as of December 7, 2011, by and among the Reporting Person, FMILP and Goldman Sachs.

EX-99.C.II 2 dp27828_ex-cii.htm EXHIBIT (C)(II)

Exhibit (c)(ii)

Sales Plan

Sales Plan, dated as of the date set forth on the signature page (the “Sales Plan”), among:

·	Paul L. Foster;

·	Franklin Mountain Investments Limited Partnership

(each a “Seller” and collectively, “Sellers”) and Goldman, Sachs & Co. (“Broker”).

WHEREAS, Sellers desire to establish the Sales Plan to sell shares of common stock, par value $0.01 per share (the “Stock”), of Western Refining, Inc. (the “Issuer”) in accordance with the requirements of Rule 10b5-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) as further set forth herein;

NOW, THEREFORE, Sellers and Broker hereby agree as follows:

1. Broker shall effect one or more sales (each a “Sale”) of shares of Stock (the “Shares”), as further set forth in the attached Annex A to this Sales Plan. All orders will be deemed day orders only and not held unless otherwise specified in Annex A.

2. This Sales Plan shall become effective as of the date hereof and shall terminate on the earliest of (a) June 22, 2012, (b) the date on which Broker has sold all Shares specified in Annex A, (c) the date that this Sales Plan is terminated in accordance with paragraph 11 below, or (d) the date Broker receives notice of the death or dissolution of any Seller.

3. Sellers each understand that Broker may effect Sales hereunder jointly with orders for other sellers of Stock of the Issuer and that the average price for executions resulting from bunched orders will be assigned to Sellers’ respective accounts.

4. Each Seller represents and warrants that such Seller is not aware of material, nonpublic information with respect to the Issuer or any securities of the Issuer (including the Stock) and is entering into this Sales Plan in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1.

5. It is the intent of the parties that this Sales Plan comply with the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act and this Sales Plan shall be interpreted to comply with the requirements of Rule 10b5-1(c). Sellers have consulted with their own advisors as to the legal and tax aspects of Sellers’ adoption and implementation of this Sales Plan.

6. Sellers represent that the Shares are “restricted securities” and/or that Sellers may be deemed “affiliates” of the Issuer as those terms are defined under Rule 144 of the Securities Act of 1933. Sellers shall not take, and shall not cause any person or entity with which he or she would be required to aggregate sales of Stock pursuant to paragraph (a)(2) or (e) of Rule 144 to take, any action that would cause the Sales not to comply with Rule 144. Sellers have provided Broker with ten (10) executed Forms 144, which Broker will complete and file on behalf of Sellers. Sellers understand and agree that unless otherwise agreed or instructed, Broker will generally make one Form 144 filing as necessary at the beginning of each three-month period commencing prior to the first Sale to be effected pursuant to this Plan; provided that Broker may file Forms 144 more or less frequently as may be appropriate under the circumstances. Such Form 144 shall specify that the Sales are being effected in accordance with a Sales Plan intended to comply with Rule 10b5-1. Sellers agree to provide Broker with such information as is reasonably necessary for Broker accurately and timely to complete the Forms 144.

7. Each Seller represents and warrants that such Seller is currently permitted to sell Stock in accordance with the Issuer’s insider trading policies and has obtained the approval of the Issuer’s counsel to enter into this Sales Plan and that, other than any Rule 144 requirements set forth herein, there are no contractual, regulatory, or other restrictions applicable to the Sales contemplated under this Sales Plan that would interfere with Broker’s ability to execute Sales and effect delivery and settlement of such Sales on behalf of that Seller, other than restrictions with respect to which the Seller has obtained all required consents, approvals and waivers. Sellers shall notify Broker immediately in the event that any of the above statements become inaccurate prior to the termination of this Sales Plan.

8. Sellers will not directly or indirectly communicate any information relating to Issuer or Issuer securities to any employee of Broker or its affiliates who is directly or indirectly involved in executing this Sales Plan at any time while this Sales Plan is in effect.

9. Sellers shall make all filings, if any, required under Sections 13(d) and 16 of the Exchange Act.

10. Sellers understand that Broker may not effect a Sale due to a market disruption or a legal, regulatory or contractual restriction applicable to the Broker or any other event or circumstance (a “Blackout”). Each Seller also understands that even in the absence of a Blackout, Broker may be unable to effect Sales consistent with ordinary principles of best execution due to insufficient volume of trading, failure of the Stock to reach and sustain a limit order price, or other market factors in effect on the date of a Sale set forth in Annex A (“Unfilled Sales”).

Broker agrees that if Issuer enters into a transaction that imposes trading restrictions on the Sellers, such as a stock offering requiring an affiliate lock-up (an “Issuer Restriction”), and if Issuer or any Seller shall provide Broker at least three (3) days’ prior notice of such trading restrictions, then Broker will cease effecting Sales under this Sales Plan until notified by Issuer and any Seller that such restrictions have terminated. All required notifications to Broker under this paragraph 10 shall be made in writing (signed by Sellers and Issuer) and confirmed by telephone as follows: (Attn: Single Stock Risk Management, c/o Control Room; Fax No. (212) 256-6533; Tel: (212) 902-1511). Broker shall resume effecting Sales in accordance with this Sales Plan as soon as practicable after the cessation or termination of a Blackout or Issuer Restriction. Any Unfilled Sales, and any Sales that would have been executed in accordance with the terms of Annex A but are not executed due to the existence of a Blackout or Issuer Restriction, shall be deemed to be cancelled, and shall not be effected pursuant to this Sales Plan.

11. This Sales Plan and its enforcement, and each transaction entered into hereunder and all matters arising in connection with this Sales Plan and transactions hereunder shall be governed by, and construed in accordance with, the laws of the State of New York, without reference to its choice of law doctrine. The Sales Plan may be modified or amended only by a writing signed by the parties hereto, which the Issuer has reviewed and not objected to, and provided that any such modification or amendment shall only be permitted at a time (i) when the Sellers are otherwise permitted to effect sales under the Issuer’s trading policies and (ii) when the Sellers are not aware of material nonpublic information concerning the Issuer or its securities. Notwithstanding the foregoing, Seller may terminate this Sales Plan at any time and without Broker's consent by delivery to the Broker in accordance with the notification requirements set forth in paragraph 10 above of a written notice in the form attached as Annex C hereto. In the event of a modification or amendment to this Sales Plan, or in the event any Seller establishes a new plan after termination of the Sales Plan, no sales shall be effected during the thirty days immediately following such modification, amendment or termination.

12. Each Seller agrees that Broker and its affiliates and their directors, officers, employees, and agents (collectively, “Broker Persons”) shall not have any liability whatsoever to Sellers for any action taken or omitted to be taken in connection with the Sales Plan, the making of any Sale, or any amendment, modification or termination of this Sales Plan, unless such liability is determined in a non-appealable order of a court of competent jurisdiction to have resulted solely from the gross negligence, willful misconduct or bad faith of the Broker Person. Each Seller further agrees to hold each Broker Person free and harmless from any and all losses, damages, liabilities or expenses (including reasonable attorneys’ fees and costs) incurred or sustained by such Broker Person in connection with or arising out of any suit, action or proceeding relating to this Sales Plan, any Sale, or any amendment, modification or termination of this Sales Plan (each an “Action”) and to reimburse each Broker Person for its expenses, as they are incurred, in connection with any Action, unless such loss, damage, liability or expense is determined in a non-appealable order of a court of competent jurisdiction to be solely the result of such Broker Person’s gross negligence, willful misconduct or bad faith. This paragraph 12 shall survive termination of this Sales Plan.

IN WITNESS WHEREOF, the undersigned have signed this Sales Plan as of the date below.

/s/ Paul L. Foster
Paul L. Foster		Goldman, Sachs & Co.

		By:	/s/ Jeff Mullen
Date:	12-7-11	Name:	Jeff Mullen
		Title:	Managing Director


Franklin Mountain Investments Limited Partnership

By:	/s/ Paul L. Foster
Name:	Paul L. Foster
Title:	President
Date:	12-7-11


Acknowledged: Western Refining, Inc.

By:	/s/ Lowry Barfield
Name:	Lowry Barfield
Title:	Senior Vice-President-Legal
Date:	12-7-11

Annex A

Paul L. Foster

Franklin Mountain Investments Limited Partnership

Western Refining, Inc.

Broker shall enter market orders to sell up to 300,000* shares on a day or days to be chosen by Broker during each of the periods listed below (each a “Sales Period”). No more than 3,000,000* shares shall be sold in aggregate during the term of this Sales Plan.

Sales Period
Start Date	End Date
2/13/2012	2/17/2012
2/27/2012	3/2/2012
3/12/2012	3/16/2012
3/26/2012	3/30/2012
4/9/2012	4/13/2012
4/23/2012	4/27/2012
5/7/2012	5/11/2012
5/21/2012	5/25/2012
6/4/2012	6/8/2012
6/18/2012	6/22/2012

* Share amounts shall be increased or decreased to reflect stock splits should they occur

Sales of Shares on each trading day shall be allocated among the Sellers’ accounts as follows (with any fractional share amount rounded up to the nearest whole number and allocated to the Paul L. Foster account):

Account	Percentage Allocation	Sales Plan Maximum

Franklin Mountain Investments
Limited Partnership	33.3%	1,000,000

Paul L. Foster	66.6%	2,000,000

/s/ Paul L. Foster
Paul L. Foster		Goldman, Sachs & Co.

		By:	/s/ Jeff Mullen
Date:	12-7-11	Name:	Jeff Mullen
		Title:	Managing Director


Franklin Mountain Investments Limited Partnership

By:	/s/ Paul L. Foster
Name:	Paul L. Foster
Title:	President
Date:	12-7-11


Acknowledged: Western Refining, Inc.

By:	/s/ Lowry Barfield
Name:	Lowry Barfield
Title:	Senior Vice-President-Legal
Date:	12-7-11

Annex B

Termination Agreement, dated as of _________, 2012 (the “Termination Date”), of the Sales Plan, dated December ___, 2011 (the “Sales Plan”), between Paul L. Foster and Franklin Mountain Investments Limited Partnership (“Sellers”) and Goldman, Sachs & Co. (“Broker”).

WHEREAS, Seller and Broker have previously entered into the Sales Plan;

WHEREAS, Seller desires to terminate the Sales Plan by delivering this notice pursuant to paragraph 10 of the Sales Plan; and

WHEREAS, all capitalized and undefined terms have the meanings assigned to them in the Sales Plan;

NOW THEREFORE, the Seller and Broker hereby agree as follows:

1. Any Sales set forth under Annex A to the Sales Plan that have not been executed as of the time Broker promptly confirms to Seller Broker’s receipt of this Notice shall be cancelled.

2. Seller represents and warrants that Seller is terminating the Sales Plan in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 and such termination shall not cause the affirmative defense under Rule 10b5-1 to be unavailable with respect to Sales previously effected by Broker hereunder.

3. This Termination shall be governed by and construed in accordance with the laws of the State of New York without reference to its choice of law doctrine.

IN WITNESS WHEREOF, the undersigned have signed this Termination as of the date first written above.


Paul L. Foster


Date:



Franklin Mountain Investments Limited Partnership

By:
Name:
Title:
Date: