CONSULTING AND NON-COMPETITION AGREEMENT
Exhibit 99.1
This CONSULTING AND NON-COMPETITION AGREEMENT (this “Agreement”) dated August 26,
2006, is made by and between Western Refining, Inc., a Delaware corporation (the
“Company”), and Xxxx X. Xxxxxxxx (“Consultant”).
WITNESSETH:
WHEREAS, Consultant is currently employed as the Chairman of the Board and Chief Executive
Officer of Giant Industries, Inc., a Delaware corporation (the “Employer”), pursuant to
that certain Employment Agreement, dated as of December 12, 2003 (the “Employment
Agreement”), between Consultant and the Employer; and
WHEREAS, in connection with that certain Agreement and Plan of Merger, dated as of the date
hereof (the “Merger Agreement”), by and among the Company, New Acquisition Corporation and
the Employer, and upon the effective time of the Merger, the Company desires to be able to call
upon Consultant, over the next five years, to provide counsel, advice, guidance and assistance; and
WHEREAS, effective as of the time of the Merger, Consultant is willing to make himself
available to provide such counsel, advice, guidance and assistance, provided that he is compensated
for doing so;
NOW, THEREFORE, for and in consideration of the mutual promises, covenants and obligations
contained herein, the Company and Consultant agree as follows:
ARTICLE 1 : DEFINITIONS AND INTERPRETATIONS
1.1 Definitions.
(a) “Affiliate” means, with respect to any natural person, firm, partnership,
association, corporation, limited liability company, company, trust, entity, public body or
government (a “Person”), any Person which, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. The term “control”
(including the terms “controlled by” and “under common control with”) as
used in this definition means the possession, directly or indirectly, of the power to direct
or cause the direction of management and policies of a Person, whether through the ownership
of voting securities, by contract or otherwise. With respect to any natural person, the
term “Affiliate” means: (1) the spouse or children (including those by adoption)
and siblings of such Person; and any trust whose primary beneficiary is such Person, such
Person’s spouse, such Person’s siblings and/or one or more of such Person’s lineal
descendants; (2) the legal representative or guardian of such Person or of any such
immediate family member in the event such Person or any such immediate family member becomes
mentally incompetent; and (3) any Person controlled by or under common control with any one
or more of such Person and the Persons described in clauses (1) or (2) preceding.
(b) “Board” means the Board of Directors of the Company.
(c) “Cause” means any of the following occurring during the Term: (i)
Consultant’s conviction by a court of (or plea of guilty of or no contest to) a felony, or
any crime involving theft, fraud, dishonesty or moral turpitude, whether or not committed in
the course of performing services for the Company or any of its Affiliates; (ii) deliberate
dishonesty to the Company or any of its Affiliates; (iii) act(s) or omission(s) by
Consultant which are willful and deliberate act(s) or omission(s) taken with Consultant’s
knowledge that such act(s) or omission(s) are likely to cause material harm or injury to the
Company or any of its Affiliates; or (iv) a material breach by Consultant of this Agreement,
provided that if such breach is capable of remedy, Consultant shall have fifteen (15) days
from notification by the Company of the breach in which to remedy such breach.
(d) “Change in Control” means a transaction with any Person or group of
Persons, pursuant to which such Person or Persons acquire, in any single transaction or
series of related transactions: (i) all or substantially all of the equity securities of
the Company or (ii) all or substantially all of the Company’s assets determined on a
consolidated basis (in any case, whether by merger, consolidation, sale, exchange, issuance,
transfer or redemption of the Company’s equity securities, by sale, exchange or transfer of
the Company’s consolidated assets, or otherwise); provided, this provision shall not apply
to any sale or reallocation of equity securities associated with the dissolution of RHC
Holdings, L.P. except and solely to the extent such dissolution results in the transfer of
equity securities to someone other than Xxxx Xxxxxx, Xxxx Xxxxxxx, Xxxxx Xxxxxx or Xxxxx
Xxxxxxx or any entity under their control.
(e) “Consulting Payment” has the meaning set forth in Section 5.1 of this
Agreement.
(f) “Consulting Period” has the meaning set forth in Section 6.1 of this
Agreement.
(g) “Disability” means that, as a result of Consultant’s incapacity due to
physical or mental illness, as determined in the opinion of a qualified physician selected
by the Board to examine Consultant, Consultant is unable to perform his duties hereunder,
and such inability is expected, in the opinion of such physician, to continue for at least
six (6) months.
(h) “Effective Date” means the Closing Date (as such term is defined in the
Merger Agreement).
(i) “Good Reason” means: (i) the assignment to Consultant of any duties
materially inconsistent in any respect with Consultant’s duties or responsibilities as
contemplated in this Agreement; (ii) any other action by the Company which materially
diminishes Consultant’s position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities or which would cause Consultant’s
position with the Company to become of less dignity, responsibility and importance than
those associated with Consultant’s functions, duties or responsibilities as of the date
of this Agreement; (iii) any material breach by the Company of any of the provisions of this
Agreement; or (iv) any reduction at any time during the Consulting Period, of the Consulting
Payment.
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(j) “Merger” has the meaning set forth therefor in the Merger Agreement.
(k) “Term” has the meaning set forth in Section 6.1 of this Agreement.
(l) “Western” means the Company and its Affiliates, including after the Merger
the Employer and its Affiliates.
1.2 Interpretations. In this Agreement, unless a clear contrary intention appears:
(a) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular Article, Section or other subdivision; (b) reference
to any Article or Section means such Article or Section hereof; (c) the words “including” (and with
correlative meaning “include”) means including, without limiting the generality of any description
preceding such term; and (d) where any provision of this Agreement refers to action to be taken by
either party, or which such party is prohibited from taking an action, such provision shall be
applicable whether such action is taken directly or indirectly by such party.
ARTICLE 2 : SERVICES
2.1 Termination of Employment. Consultant and the Company agree that, effective as of
the Effective Date, Consultant’s employment under the Employment Agreement will be terminated, and
such termination shall be treated as a termination by the Employer without Cause (as defined in the
Employment Agreement) after a Change of Control (as defined in the Employment Agreement). The
Company agrees to cause the Employer, from and after the Effective Date, to comply with its
obligations under the Employment Agreement arising from such termination. Upon payment of all
amounts owed to Consultant under the Employment Agreement, Consultant does hereby forever
irrevocably release and discharge the Employer and each of its Affiliates and each of their
respective officers, directors, employees, agents, representatives, advisors, debtholders, members,
managers and stockholders from any and all claims, demands, debts, actions, causes of action,
obligations, damages and liabilities which Consultant now has, has had or could have arising from
or relating in any way, directly or indirectly, to his employment with or separation from the
Employer. Notwithstanding the foregoing, however, nothing in this Agreement shall release the
Company, the Employer or any of their Affiliates from any indemnification obligations to Consultant
contained in the Company’s, the Employer’s or any of their Affiliates’ Certificate of
Incorporation, Bylaws or other governing documents, or in the Merger Agreement, the Employment
Agreement, or any other agreement operating in favor of Consultant.
2.2 Services.
(a) During the Term, Consultant agrees to provide services (“Services”) to the
Company. The Services shall include: (i) advising the Company with respect to strategic
issues, real estate and operations; (ii) maintaining employee morale; (iii) providing
transitional knowledge and assistance with respect to (A)
the Employer’s previous
operations, employees and customers and (B) competition in the former market area of
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the Employer; and (iv) and such other matters as the Company may from time to time reasonably
request. Specific projects within the foregoing categories shall be mutually agreed upon
and defined by Consultant and the Company’s Chief Executive Officer from time to time during
the Consulting Period.
(b) Consultant shall be available to render the Services to the Company for not more
than sixty (60) hours during any month during the first year of the Consulting Period, not
more than fifty (50) hours during any month during the second year of the Consulting Period,
not more than forty (40) hours during any month during the third year of the Consulting
Period, and not more than twenty (20) hours during any month during the remainder of the
Consulting Period.
(c) During the Term, Consultant shall be a special advisor to the Board of Directors.
2.3 Reporting to the Company’s Facilities. Consultant is not required to report to
work at any facility of the Company or during any particular work hours. Rather, Consultant is
free to report or not report to any of the Company’s facilities as he sees fit and as necessary to
provide the Services to the Company. The Company shall make available to Consultant his current
office for so long as the Company maintains office facilities at the location in which such office
is located. If the Company ceases to maintain such office facilities, the Company shall provide
comparable alternative office space to Consultant, at a location reasonably acceptable to
Consultant, until December 31, 2008.
2.4 Administrative Support and Supplies. Until at least December 31, 2008, the
Company will provide Consultant with an administrative assistant (as determined by Consultant in
his sole discretion); provided, however, that in no event shall the annual salary for such
administrative assistant exceed $100,000. Such administrative assistant shall be an employee of
the Company and shall be allowed to participate in all health, dental, vision and retirement
benefits, plans and programs, including improvements or modifications of the same, which are now,
or may hereafter be, available to other employees of the Company. In addition, the Company will
provide Consultant with suitable administrative support (as reasonably determined by Consultant and
the Company) during the Consulting Period, including secretarial support, photocopying and
facsimile services, voice mail access, remote e-mail access (including provision of a Blackberry or
equivalent equipment), message taking services, mail receipt, office furniture, utilities, office
equipment and office supplies.
2.5 Aircraft Allowance. For each twelve-month period during the Consulting Period,
Company will pay on behalf of Consultant up to $500,000 for Consultant to travel via private jet on
a private jet leasing company of Consultant’s choice. Company will arrange for the leasing
company to xxxx Company directly and will make such payments directly to the leasing company
when due.
ARTICLE 3 : NON-COMPETE
3.1 Acknowledgments. Consultant acknowledges that: (a) Western has engaged, and that
Western will continue to engage, in the business of refining, transporting and/or marketing
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(either
wholesale or retail) petroleum products by pipeline, truck or other methods (the “Western
Business”) in (i) that portion of Texas which is West of U.S. Interstate Highway 35 (as it may
be renamed or redesignated in the future), (ii) New Mexico, (iii) Arizona and (iv) Juarez, Mexico
(collectively, the “Western Territory”); and (b) the Employer has engaged, and that after
the Merger, Western will continue to engage, in the business of refining, transporting and/or
marketing (either wholesale or retail) petroleum products by pipeline, truck or other methods and
owning and/or operating convenience stores (collectively with the Western Business, the
“Business”) in (i) Arizona, (ii) Virginia, (iii) Maryland and (iv) North Carolina (the
“Employer Territory”, and collectively with the Western Territory, the
“Territory”).
3.2 Restriction. Employee covenants and agrees that, in consideration for the Company
engaging Consultant as a consultant as described herein, Consultant covenants and agrees during the
term of this Agreement and for a period of twenty-four (24) months following the termination of
this Agreement (the “Restricted Period”), for any reason, Consultant will not:
(a) directly or indirectly (whether as principal, agent, independent contractor,
partner or otherwise) own, manage, operate, control, participate in, perform services for or
otherwise carry on a business similar to or competitive with the Business anywhere in the
Territory or in any other state in the United States or any foreign country in which Western
has refined or sold petroleum products or owned or operated convenience stores within the
period of twelve (12) months prior to the termination of this Agreement; or
(b) induce or attempt to persuade any employee, agent, customer or supplier of Western
to terminate such employment, agency or business relationship in order to enter into any
such relationship on behalf of any other business organization.
3.3 Stock Ownership. Notwithstanding anything in this Article 3 to the contrary,
Consultant shall not be prohibited from owning less than 5% in the aggregate of any class of
capital stock of any corporation if such stock is publicly traded and listed on any national or
regional stock exchange or on the NASDAQ National Market.
ARTICLE 4 : PROTECTION OF CONFIDENTIAL INFORMATION
4.1 Disclosure to and Property of the Company. All information, designs, ideas, concepts, improvements, product developments, discoveries
and inventions, whether patentable or not, that are conceived, made, developed or acquired by
Consultant, individually or in conjunction with others, during the Term (whether during business
hours or otherwise and whether on the Company’s premises or otherwise) that relate to Western’s
business, trade secrets, products or services (including all such information relating to corporate
opportunities, product specification, compositions, manufacturing and distribution methods and
processes, research, financial and sales data, pricing terms, evaluations, opinions,
interpretations, acquisition prospects, the identity of customers or their requirements, the
identity of key contacts within a customer’s organizations or within the organization of
acquisition prospects, marketing and merchandising techniques, business plans, computer software or
programs, computer software and database technologies, prospective names and marks) (collectively,
the “Confidential Information”) shall be disclosed to Western and are and shall be the sole
and exclusive property of Western. Moreover, all documents, videotapes, written presentations,
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brochures, drawings, memoranda, notes, records, files, correspondence, manuals, models,
specifications, computer programs, e-mail, voice mail, electronic databases, maps, drawings,
architectural renditions, models and all other writings or materials of any type embodying any of
such information, ideas, concepts, improvements, discoveries, inventions and other similar forms of
expression that relate to Western’s business, trade secrets, products or services (collectively,
“Work Product”) are and shall be the sole and exclusive property of Western. Upon
termination of this Agreement for any reason, Consultant shall promptly deliver such Confidential
Information and Work Product, and all copies thereof, to the Company.
4.2 Disclosure to Consultant. Western has and will disclose to Consultant, or place
Consultant in a position to have access to or develop, Confidential Information and Work Product of
Western; and/or has and will entrust Consultant with business opportunities of Western; and/or has
and will place Consultant in a position to develop business goodwill on behalf of Western.
Consultant agrees to preserve and protect the confidentiality of all Confidential Information or
Work Product of Western.
4.3 No Unauthorized Use or Disclosure. Consultant agrees that he will not, at any
time during the Term or thereafter, make any unauthorized disclosure of Confidential Information or
Work Product of Western, or make any use thereof, except in the carrying out of Consultant’s
responsibilities during the course of providing Services to the Company. Consultant shall have no
obligation under this Agreement to keep confidential any Confidential Information if and to the
extent that: (a) disclosure thereof is specifically required by law or regulation; provided,
however, that in the event disclosure is required by applicable law or regulation, Consultant shall
provide the Company with prompt notice of such requirement prior to making any such disclosure so
that the Company may seek an appropriate protective order; (b) such Confidential Information is or
becomes available to the general public other than as a result of a disclosure by Consultant; or
(c) such Confidential Information becomes available to Consultant on a nonconfidential basis from a
source (other than Western or any of its Affiliates) which is not known by Consultant to be in
breach of any non-disclosure obligations. At the request of the Company at any time, Consultant
agrees to deliver to the Company all Confidential Information that he may possess or control.
Consultant
agrees that all Confidential Information of Western (whether now or hereafter existing)
conceived, discovered or made by him during the Term exclusively belongs to Western (and not to
Consultant), and Consultant will promptly disclose such Confidential Information to Western and
perform (at Western’s expense) all actions reasonably requested by Western to establish and confirm
such exclusive ownership. Affiliates of the Company shall be third-party beneficiaries of
Consultant’s obligations under this Article 4. As a result of this Agreement, Consultant may also
from time to time have access to, or knowledge of, Confidential Information or Work Product of
third parties, such as customers, suppliers, partners, joint venturers and the like, of Western.
Consultant also agrees to preserve and protect the confidentiality of such third-party Confidential
Information and Work Product to the same extent, and on the same basis, as Western’s Confidential
Information and Work Product.
4.4 Ownership by the Company. If, during the Term, Consultant creates any work of
authorship fixed in any tangible medium of expression that is the subject matter of copyright (such
as videotapes, written presentations, computer programs, e-mail, voice mail, electronic databases,
drawings, maps, architectural renditions, models, manuals, brochures or the like)
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relating to
Western’s business, products or services, whether such work is created solely by Consultant or
jointly with others (whether during business hours or otherwise and whether on Western’s premises
or otherwise), including any Work Product, Western shall be deemed the author of such work if the
work is prepared by Consultant in the scope of providing Services. If the work is not prepared by
Consultant within the scope of providing Services but is specially ordered by Western as a
contribution to a collective work, as a part of an audiovisual work, as a translation, as a
supplementary work, as a compilation, or as an instructional text, then the work shall be
considered to be work made-for-hire, and Western shall be the author of the work. If such work is
neither prepared by Consultant within the scope of Consultant’s providing Services nor a work
specially ordered that is deemed to be a work made-for-hire, then Consultant hereby agrees to
assign, and by these presents does assign, to the Company all of Consultant’s worldwide right,
title and interest in and to such work and all rights of copyright therein.
4.5 Assistance By Consultant. During the Term and thereafter, Consultant shall
reasonably assist the Company and its nominee, at any time and at the Company’s expense, in (a) the
protection of Western’s worldwide right, title and interest in and to Work Product, (b) the
execution of all formal assignment documents requested by the Company or its nominee and (c) the
execution of all lawful oaths and applications for patents and registration of copyright in the
United States and foreign countries.
4.6 Remedies. Consultant acknowledges that money damages would not be a sufficient
remedy for any breach of this Article 4 by Consultant, and the Company shall be entitled to enforce
the provisions of this Article 4 by specific performance and injunctive relief as remedies for such
breach or any threatened breach. Such remedies shall not be deemed to be the exclusive
remedies for a breach of this Article 4 but shall be in addition to all remedies available at
law or in equity, including the recovery of damages from Consultant and his agents.
ARTICLE 5 : COMPENSATION AND BENEFITS
5.1 Annual Compensation. Consultant will receive compensation at a rate equal to
$730,000 per each twelve-month period during the Consulting Period (less withholding taxes) (the
“Consulting Payment”). Consultant’s compensation shall be paid in equal installments in
accordance with the Company’s standard policy regarding payment of compensation to consultants but
no less frequently than monthly.
5.2 Expenses. Subject to the Company’s standard policies and procedures with respect
to expense reimbursement as applied to its executive employees generally, the Company shall no less
frequently than monthly reimburse Consultant for, or pay on behalf of Consultant, reasonable and
appropriate expenses incurred by Consultant for business-related purposes.
5.3 Medical Benefits. Consultant and Consultant’s spouse and dependents shall be
allowed to participate in all health, dental and vision benefits, plans and programs, including
improvements or modifications of the same, which are now, or may hereafter be, available to other
executives or employees of the Company. Consultant agrees to pay his proportionate share of the
costs of such benefits consistent with Company policy and procedure for executive employees of the
Company. Consultant’s portion of the cost of such benefits may be deducted from the Consulting
Payment. Consultant shall not be entitled to receive benefits under any
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employee benefit plan of
the Company (including vacation pay, sick pay, personal leave benefits, severance pay benefits,
401(k) plan or any similar benefits) except as expressly specified in this Section 5.3. The
Company shall not by reason of this Section 5.3 be obligated to institute, maintain or refrain from
changing, amending or discontinuing any such benefit plan or program, as long as such changes are
similarly applicable to executive employees of the Company generally.
5.4 Withholding of Taxes. The Company may withhold from any benefits and payments
made pursuant to this Agreement all federal, state, city and other taxes as may be required
pursuant to any law or governmental regulation or ruling.
5.5 Certain Additional Payments by the Company. The Internal Revenue Code of 1986, as
amended (the “Code”), imposes significant tax burdens on Consultant if the total amounts
received by Consultant due to the Merger exceed prescribed limits. These tax burdens include a
requirement that Consultant pay a 20% excise tax on certain amounts received in excess of the
prescribed limits. If, as a result of these Code provisions Consultant is required to pay such
excise tax on the Consulting Payment, then upon written notice from Consultant to the
Company, the Company shall pay Consultant an amount equal to the total excise tax imposed on
the Consulting Payment (including the excise taxes on any excise tax reimbursements due pursuant to
this sentence and the excise taxes on any income tax reimbursements due pursuant to the next
sentence). If the Company is obligated to pay Consultant pursuant to the preceding sentence, the
Company also shall pay Consultant an amount equal to the “total presumed federal and state taxes”
that could be imposed on the Consulting Payment with respect to the excise tax reimbursements due
to Consultant pursuant to the preceding sentence and the income tax reimbursements due to
Consultant pursuant to this sentence. For purposes of the preceding sentence, the “total presumed
federal and state taxes” that could be imposed on the Consulting Payment shall be conclusively
calculated using a combined tax rate equal to the sum of the then prevailing maximum marginal
federal and state income tax rates and the hospital insurance portion of FICA. No adjustments will
be made in this combined rate for the deduction of state taxes on the federal return, the loss of
itemized deductions or exemptions, or for any other purpose. Consultant shall be responsible for
paying the actual taxes. The amounts payable to Consultant pursuant to this or any other agreement
or arrangement with the Company shall not be limited in any way by the amount that may be paid
pursuant to the Code without the imposition of an excise tax or the loss of Western deductions.
ARTICLE 6 : TERM AND TERMINATION OF AGREEMENT
6.1 Term. Unless sooner terminated pursuant to other provisions hereof, the Company
agrees to retain Consultant for the period beginning on the Effective Date and ending on the fifth
anniversary of the Effective Date (the “Consulting Period”), unless terminated earlier
pursuant to Section 6.2 or 6.3 (the period beginning on the Effective Date and ending on the
earlier of the expiration of the Consulting Period and the termination of this Agreement being
referred to herein as the “Term”).
6.2 The Company’s Right To Terminate. Notwithstanding the provisions of Section 6.1,
the Company shall have the right to terminate this Agreement at any time for any of the following
reasons:
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(a) upon Consultant’s death;
(b) upon Consultant’s Disability; or
(c) for Cause.
6.3 Consultant’s Right To Terminate. Notwithstanding the provisions of Section 6.1,
Consultant shall have the right to terminate this Agreement at any time for any of the following
reasons:
(a) at any time prior to the end of the Consulting Period by giving thirty (30) days
written notice of termination, which may be given at any time for any reason, with or
without cause;
(b) for Good Reason; or
(c) upon a Change in Control.
6.4 Payments Upon Termination. In the event that this Agreement is
terminated:
(a) by the Company pursuant to Section 6.2(a) or (b), the Company shall continue to pay
the compensation set forth in Sections 5.1, 5.2, 5.3 and 5.5 during the Consulting Period to
Consultant’s estate or to Consultant, respectively;
(b) by the Company pursuant to Section 6.2(c) or by Consultant pursuant to Section
6.3(a), the Company shall have no further compensation obligations under this Agreement with
respect to periods after the date of termination, and Consultant shall be entitled to
receive all amounts accrued but not paid with respect to periods before the date of
termination and to retain all amounts paid prior thereto by the Company to Consultant under
Section 5.1; or
(c) by Consultant pursuant to Section 6.3(b) or 6.3(c), the Company shall continue to
pay the compensation set forth in Sections 5.2, 5.3 and 5.5 during the Consulting Period to
Consultant and shall immediately pay Consultant a lump sum amount equal to the total of the
amounts that would have been payable to Consultant under Section 5.1 had the Agreement
remained in effect for the entire remaining Consulting Period.
6.5 Survival. Notwithstanding any termination of this Agreement, Section 2.1, Article
3, Article 4, Section 6.4 and Article 8, and the rights and obligations created thereunder, shall
survive without limitation.
ARTICLE 7 : INDEPENDENT CONTRACTOR
7.1 Independent Contractor Status. It is the express intention of the parties that
Consultant is an independent contractor, and is not an employee, agent, joint venturer or partner
of the Company. Nothing in this
Agreement shall be interpreted or construed as creating or establishing an employment
relationship between the Company and Consultant. The parties to this Agreement agree that
Consultant will have no authority to bind Western without the Company’s prior written consent.
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ARTICLE 8 : MISCELLANEOUS
8.1 Notices. For purposes of this Agreement, notices and all other communications
provided in this Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by United States registered or certified mail, return receipt
requested, postage prepaid, or when sent by recognized overnight delivery service, addressed as
follows:
If to the Company:
Western Refining, Inc.
0000 Xxxxxxxxxx Xxxxx
Xx Xxxx, Xxxxx 00000
Attention: Chief Executive Officer
0000 Xxxxxxxxxx Xxxxx
Xx Xxxx, Xxxxx 00000
Attention: Chief Executive Officer
If to Consultant:
Xxxx X. Xxxxxxxx
00000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
00000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
or to such other address as either party may furnish to the other in writing in accordance
herewith, except that notices or changes of address shall be effective only upon receipt.
8.2 Applicable Law; Jurisdiction. This Agreement is entered into under, and shall be
governed for all purposes by, the laws of the State of Arizona, without reference to its choice of
law provisions. The parties agree that any disputes arising out of or related in any way to this
Agreement, including a breach of this Agreement, shall be filed exclusively in the state or federal
courts in Maricopa County, Arizona. The parties consent and agree to the jurisdiction of the
Arizona courts. Neither party will argue or contend that it is not subject to the jurisdiction of
the Arizona courts or that venue in Maricopa County, Arizona, is improper. The parties understand
that they are giving up valuable legal rights under this provision, and that they voluntarily and
knowingly waive those rights.
8.3 No Waiver. No failure by either party hereto at any time to give notice of any
breach by the other party of, or to require compliance with, any condition or provision of this
Agreement shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or
at any prior or subsequent time.
8.4 Severability. Any provision in this Agreement which is prohibited or
unenforceable in any jurisdiction by reason of applicable law shall, as to such jurisdiction, be
ineffective only to the extent of such prohibition or unenforceability without invalidating or
affecting the remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
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8.5 Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together will constitute one and the same
agreement.
8.6 Headings. The paragraph headings have been inserted for purposes of convenience
and shall not be used for interpretive purposes.
8.7 Gender and Plurals. Wherever the context so requires, the masculine gender
includes the feminine or neuter, and the singular number includes the plural and conversely.
8.8 Assignment. This Agreement shall be binding upon and inure to the benefit of the
Company and any successor of the Company, by merger or otherwise. This Agreement shall also be
binding upon and inure to the benefit of Consultant and his estate. The Company may assign this
Agreement to a successor business or an Affiliate of the Company upon written notice to Consultant;
provided, however, that the Company shall in no event be released from its obligations under this
Agreement by virtue of any such assignment. Consultant shall not have any right to pledge,
hypothecate, anticipate or assign this Agreement or the rights hereunder, except by will or the
laws of descent and distribution and except that Consultant shall have the right, upon written
notice to the Company, to assign his rights to receive cash payments under this Agreement.
8.9 Entire Agreement. This Agreement constitutes the entire agreement of the parties
with regard to the subject matter hereof and contains all of the covenants, promises,
representations, warranties and agreements between the parties with respect to such subject matter.
Any modification of this Agreement will be effective only if it is in writing and signed by the
party to be charged.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective as of the
date set forth above.
| THE COMPANY: | ||||||
| Western Refining, Inc. | ||||||
| By: | /s/ Xxxx X. Xxxxxx
|
|||||
| Name: Xxxx X. Xxxxxx | ||||||
| Title: President and Chief Executive Officer | ||||||
| CONSULTANT | ||||||
| /s/ Xxxx X. Xxxxxxxxx | ||||||
| Xxxx X. Xxxxxxxx | ||||||
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