-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TFZ9G2k4s/egZsNTRtzOALMrwXPBfltBoypnKnkvV1RJH7tq7jcwDv1VUITgsk5Z bri9TPf6fUvgYXLJKi/djw== 0000950103-10-003695.txt : 20101210 0000950103-10-003695.hdr.sgml : 20101210 20101210172351 ACCESSION NUMBER: 0000950103-10-003695 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20101210 DATE AS OF CHANGE: 20101210 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Schmidt Ralph A CENTRAL INDEX KEY: 0001349643 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: 101245916 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 dp20310_sc13da-schmidt.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. 3)*

Western Refining, Inc.

(Name of Issuer)

Common Stock, $0.01 par value

(Title of Class of Securities)

959319 10 4

(CUSIP Number)

Ralph A. Schmidt

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 10, 2010

(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 6 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 6 Pages

1	NAME OF REPORTING PERSONS Ralph A. Schmidt 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)	o
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 1,513,965
	8	SHARED VOTING POWER 3,927
	9	SOLE DISPOSITIVE POWER 1,462,950
	10	SHARED DISPOSITIVE POWER 3,927

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,517,892(1)
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) 1.7%
14	TYPE OF REPORTING PERSON (see instructions) IN

_______________________

(1)

Of the shares indicated as beneficially owned by Mr. Schmidt, 3,927 shares are beneficially owned by WRC Refining Company (“WRCRC”), in which Mr. Schmidt holds a 0.5% interest and 51,015 shares are restricted shares that will vest over three years from the date of grant and over which shares Mr. Schmidt has sole voting power. Mr. Schmidt has sole voting and sole dispositive power over the remaining 1,462,950 shares.

This Amendment No. 3 (the “Amendment”) constitutes the third amendment to the Schedule 13D originally filed by Ralph A. Schmidt (the “Reporting Person”), with the Securities and Exchange Commission on August 3, 2007 as amended by Amendment No. 1 to such Schedule 13D filed on August 27, 2007 and Amendment No. 2 to such Schedule 13D filed on March 23, 2009 (as so amended, the “Schedule 13D”), with respect to the common stock, $0.01 par value (“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 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) Paul L. Foster, Franklin Mountain Investments Limited Partnership (“FMILP”), the Reporting Person, Jeff A. Stevens 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 Paul L. Foster. 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.

Between August 13 and August 17, 2007, the Reporting Person sold 500,000 shares of Common Stock beneficially owned by the Reporting Person in unsolicited brokerage transactions pursuant to a 10b5-1 plan entered into on August 13, 2007, as further described in Item 6 hereof. On August 21, 2007, the Reporting Person donated 60,000 shares of Common Stock beneficially owned by the Reporting Person to a charitable foundation, which shares were subsequently sold by that foundation.

On several occasions the Issuer granted 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.

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) The Reporting Person is the beneficial owner of 1,517,892 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 90,821,416 shares of Common Stock issued (including restricted shares but excluding treasury shares) as of December 3, 2010, constitutes 1.7% of the outstanding shares of Common Stock. Of the shares indicated as beneficially owned by the Reporting Person, 3,927 shares are beneficially owned by WRCRC, in which the Reporting Person holds a 0.5% interest and 51,015 shares are restricted shares that will vest over three years from the date of grant and over which shares the Reporting Person has sole voting power. The Reporting Person has sole voting and sole dispositive power over the rema ining 1,462,950 shares.

(b) Of the shares indicated as beneficially owned by the Reporting Person in Item 5(a) above, the Reporting Person has shared voting and shared dispositive power for 3,927 of the shares which are beneficially owned by WRCRC, in which the Reporting Person holds a 0.5% interest and 51,015 shares are restricted shares that will vest over three years from the date of grant and over which shares the Reporting Person has sole voting power. WRCRC is a Texas corporation, and its business address is 123 W. Mills Avenue, Suite 200, El Paso, Texas 79901.

During the past five years, WRCRC has not (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 1,462,950 shares.

(c) Except as described in Item 4 of this Schedule 13D or elsewhere in this Schedule 13D, the Reporting Person 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) On December 10, 2010, the Reporting Person ceased to be part of a group beneficially holding more than five percent of the outstanding Common Stock.”

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 August 13, 2007, the Reporting Person entered into a 10b5-1 plan (the “Plan”) authorizing Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill Lynch”) to sell up to an aggregate of 600,000 shares of Common Stock pursuant to the Plan. All sales of Common Stock under the Plan will be made in Merrill Lynch’s discretion. As of the date hereof, 500,000 shares under the Plan have already been sold. This description of the Plan is qualified in its entirety by reference to the terms of the Plan which is filed as Exhibit (c) to this Schedule 13D.

On December 10, 2010, WRCRC, FMILP, Paul L. Foster, Jeff A. Stevens, Sharon Stevens, the Reporting Person, Linda Schmidt and Scott D. Weaver entered into a Termination Agreement (the “Termination Agreement”). By entering into the Termination Agreement, the parties thereto terminated the Voting Agreement and their respective rights and obligations under the Voting Agreement, which included the termination of a voting proxy granted to Mr. Foster and a voting proxy conditionally granted to Mr. Stevens. This description of the Termination Agreement is qualified in its entirety by reference to the terms of the Termination Agreement which is filed as Exhibit (d) to this Schedule 13D.”

Item 7. Material to Be Filed as Exhibits

The following exhibit is added as Exhibit (d) to the Schedule 13D:

(d) Termination Agreement dated as of December 10, 2010, by and among WRCRC, FMILP, Paul L. Foster, Jeff A. Stevens, Sharon Stevens, the Reporting Person, Linda Schmidt and Scott D. Weaver.

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: December 10, 2010

/s/ Ralph A. Schmidt
Ralph A. Schmidt

EXHIBIT INDEX

Termination Agreement dated as of December 10, 2010, by and among WRCRC, FMILP, Paul L. Foster, Jeff A. Stevens, Sharon Stevens, the Reporting Person, Linda Schmidt and Scott D. Weaver.

EX-99.D 2 dp20310_exd.htm EXHIBIT D

Exhibit D

TERMINATION AGREEMENT

This TERMINATION AGREEMENT (this “Termination Agreement”) is made as of December 10, 2010, by and among WRC Refining Company, Franklin Mountain Investments Limited Partnership, Paul L. Foster, Jeff A. Stevens, Sharon Stevens, Ralph A. Schmidt, Linda Schmidt and Scott D. Weaver (the “Parties”).

WHEREAS, the Parties entered into a Voting Agreement dated as of August 2, 2007, as amended and restated by the Amended and Restated Voting Agreement dated as of March 19, 2009 (as amended, the “Voting Agreement”), pursuant to which the Parties granted a proxy to Paul L. Foster, or if he should become deceased or incapacitated, to Jeff A. Stevens, to vote, or to give written consent with respect to the power and authority to vote, certain shares of common stock (the “Subject Common Stock”) issued by Western Refining, Inc. (the “Company”) and owned by the Parties.

WHEREAS, each Party has determined that it is in its best interest that all Parties shall have the power to vote their respective shares of the Subject Common Stock, and all Parties desire to terminate the Voting Agreement.

NOW, THEREFORE, in consideration of the mutual promises made herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:

1. Termination of mutual rights and obligations under the Voting Agreement. Each Party hereby agrees to terminate, effective immediately, the Voting Agreement and all of its respective rights and obligations thereunder, including without limitation, the voting proxy granted to Paul L. Foster and the voting proxy conditionally granted to Jeff A. Stevens.

2. Miscellaneous.

(a) Publication. Each Party hereby permits the Company to publish and disclose in any proxy statement or information statement (including all documents and schedules filed with the Securities and Exchange Commission) relating to the Party’s identity and ownership of shares of Subject Common Stock and the nature of this Termination Agreement.

(b) Severability. Whenever possible, each provision of this Termination Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Termination Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Termination Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.

(c) Complete Agreement. This Termination Agreement embodies the complete agreement and understanding among the Parties and supersedes and preempts any prior understandings, agreements or representations by or among the Parties with respect to the subject matter hereof.

(d) Counterparts. This Termination Agreement may be executed in separate counterparts (including by means of telecopied signature pages), each of which is deemed to be an original and all of which taken together constitute one and the same agreement.

(e) Successors and Assigns. Except as otherwise provided herein, this Termination Agreement shall bind and inure to the benefit of and be enforceable by each of the Parties, and their respective successors and assigns.

(f) Choice of Law. This Termination Agreement shall be governed and construed in accordance with the laws of the State of Texas, without regard to the laws that might be applicable under conflicts of laws principles.

(g) Amendment and Waiver. The provisions of this Termination Agreement may be amended and waived only with the prior written consent of each of the Parties.

* * * * *

IN WITNESS WHEREOF, the Parties have executed this Termination Agreement as of the day and year first above written.

	WRC REFINING COMPANY, a Texas corporation
	By:	/s/ Paul L. Foster
		Paul L. Foster, President
	FRANKLIN MOUNTAIN INVESTMENTS LIMITED PARTNERSHIP
	By:	Franklin Mountain GP, L.L.C., General Partner

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

	/s/ Paul L. Foster
	Paul L. Foster

	/s/ Jeff A. Stevens
	Jeff A. Stevens

	/s/ Sharon Stevens
	Sharon Stevens, Spouse

	/s/ Ralph A. Schmidt
	Ralph A. Schmidt

	/s/ Linda Schmidt
	Linda Schmidt, Spouse

	/s/ Scott D. Weaver
	Scott D. Weaver

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