AMENDED AND RESTATED VOTING AGREEMENT
Exhibit
(b)
AMENDED
AND RESTATED
This
AMENDED AND RESTATED VOTING AGREEMENT (this “Agreement”), dated as
of March 19, 2009, is by and among those certain stockholders of Western
Refining, Inc., a Delaware corporation (the “Company”) who are
parties hereto as listed on Schedule 1 hereto
(each a “Stockholder,” and
collectively the “Stockholders”). This
Agreement amends and restates, in its entirety, that certain Voting Agreement,
dated as of August 2, 2007, between the Stockholders (the “Original
Agreement”).
RECITALS
WHEREAS,
prior to the Xxxxxxx Distribution and the Partner Distribution (as each is
defined below), RHC Holdings, L.P. (“RHC”) owned
40,568,000 shares of common stock of the Company;
WHEREAS,
pursuant to that certain Written Consent of Partners of RHC Holdings, L.P.,
dated as of May 7, 2007 (the “Xxxxxxx Consent”),
the partners of RHC approved a distribution (the “Xxxxxxx
Distribution”) of 502,029 shares of common stock of the Company,
previously owned by RHC, to Xxxxx X. Xxxxxxx (the “Xxxxxxx Common
Stock”);
WHEREAS,
pursuant to that certain Written Consent of Partners of RHC Holdings, L.P.,
dated as of August 2, 2007 (the “Partner Consent”),
the partners of RHC approved a distribution (the “Partner
Distribution”) of the remaining shares of common stock of the Company
owned by RHC, to the partners of RHC (the “RHC Common
Stock”);
WHEREAS,
as of the date of the Original Agreement, WRC Refining Company (“WRC”) owned 807,302
shares of common stock of the Company (together with the Xxxxxxx Common Stock
and the RHC Common Stock, the “Subject Common
Stock”) that WRC acquired in connection with the Company’s initial public
offering in January of 2006 (the “IPO
Transaction”);
WHEREAS,
each Stockholder was and continues to be a partner of RHC and pursuant to the
Xxxxxxx Consent, the Partner Consent or the IPO Transaction, as applicable,
became the “beneficial owner” (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934) of, and such Stockholder is entitled to vote (or to direct
the voting of), the number of shares of Subject Common Stock as set forth next
to such Stockholder’s name on Schedule 1
hereto;
WHEREAS,
to induce Xxxx X. Xxxxxx (“Xxxxxx”) to consent
to the Partner Distribution, the other Stockholders agreed to enter into the
Original Agreement and xxxxx Xxxxxx the proxy rights described therein and
herein;
WHEREAS,
certain of the Stockholders have, since the date of the Original Agreement,
disposed of shares of the Subject Common Stock; and
WHEREAS,
the Stockholders desire to amend and restate the Original Agreement to amend
certain provisions of the Original Agreement relating to the death or
incapacitation of Xxxxxx and Xxxx X. Xxxxxxx (“Xxxxxxx”) and to
amend Schedule
1 to reflect the disposition of shares of the Subject Common Stock since
the date of the Original Agreement.
NOW
THEREFORE, in consideration of the premises set forth above and for other good
and valuable consideration, receipt of which is hereby acknowledged, the
Stockholders agree as follows:
1. Term of
the Agreement. This Agreement shall terminate, and no
Stockholder shall have any rights or obligations hereunder, and this Agreement
shall become null and void and have no effect at the earliest to occur of (i)
August 2, 2017, (ii) upon the death or incapacitation of both Xxxxxx and
Xxxxxxx, (iii) with respect to each Stockholder individually, the date on which
such Stockholder no longer is a beneficial owner of any shares of Subject Common
Stock or (iv) with respect to each share of Subject Common Stock, the date on
which such share of Subject Common Stock is no longer owned by a Stockholder
(the “Term”);
provided, that termination of this Agreement shall not prevent any party
hereunder from seeking any remedies (at law or in equity) against any other
party hereto for such party’s breach of any of the terms of this
Agreement.
2. Grant of
Irrevocable Proxy. Each Stockholder hereby grants to, and is
deemed to have executed in favor of, Xxxxxx, or if he is deceased or
incapacitated, then Xxxxxxx if he is living and not incapacitated a proxy to
vote, or to give written consent with respect to the power and authority to
vote, the shares of Subject Common Stock owned by such Stockholder. Each
Stockholder also agrees to sign, execute and deliver a separate written proxy or
other instrument as may reasonably be requested in furtherance of this
Agreement. Furthermore, the parties hereto acknowledge and
agree that each proxy granted under this Section 2 is coupled with an interest
and shall be irrevocable for the Term of this Agreement. For the
purposes hereof, “incapacitated” shall mean that one is unable to manage
properly by oneself, with such inability, or the determination that such
inability has been removed, to be determined upon the written certification
thereto by at least two (2) licensed medical physicians, one of whom is the
party’s primary attending physician.
3. Representations
and Warranties of Stockholders. Each Stockholder, severally
and not jointly, hereby represents and warrants to the other Stockholders as
follows:
a. Due Authority. Such
Stockholder has the capacity to execute and deliver this
Agreement and to consummate the transactions contemplated
hereby. Such Stockholder has all necessary power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby by such Stockholder,
constitutes a valid and binding obligation of such Stockholder, enforceable
against such Stockholder in accordance with its terms, except to the extent that
its enforceability may be subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the enforcement of
creditors’ rights generally and by equitable principles.
b. Ownership of
Shares. Such Stockholder legally or beneficially owns (within
the definition of Rule 13d-3 under the Securities Exchange Act of 1934) the
number of
shares of
Subject Common Stock set forth next to such Stockholder’s name on Schedule 1
hereto. The number of shares of Subject Common Stock so set forth are
all of the shares of Subject Common Stock directly legally or beneficially owned
by such Stockholder. Such Stockholder has sole voting power with
respect to all of the shares of Subject Common Stock set forth next to such
Stockholder’s name on Schedule 1 hereto,
with no limitations, qualifications or restrictions on such rights, subject only
to applicable securities laws and the terms of this Agreement.
c. No Conflicts. (i)
No filing with any governmental authority, and no authorization, consent or
approval of any other person is necessary for the execution of this Agreement by
such Stockholder and the consummation by such Stockholder of the transactions
contemplated hereby (it being understood that nothing herein shall prevent a
Stockholder’s compliance with Section 13(d) or Section 16 of the Exchange Act)
and (ii) none of the execution and delivery of this Agreement by such
Stockholder, the consummation by such Stockholder of the transactions
contemplated hereby or compliance by such Stockholder with any of the provisions
hereof shall (A) result in, or give rise to, a violation or breach of or a
default under any of the terms of any material contract, understanding,
agreement or other instrument or obligation to which such Stockholder is a party
or by which such Stockholder or any of such Stockholder’s shares of Subject
Common Stock or assets may be bound, or (B) violate any applicable order, writ,
injunction, decree, judgment, statute, rule or regulation which could reasonably
be expected to adversely affect such Stockholder’s ability to perform its
obligations under this Agreement.
4. Miscellaneous.
a. Notices. All
notices shall be in writing and delivered by (i) personal delivery by hand, (ii)
facsimile, (iii) overnight courier or (iv) email, in each case at the following
addresses, facsimile numbers and email addresses (or to such other address,
facsimile number or email address as a Stockholder may specify by notice given
to the Stockholders pursuant to this provision):
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Xxxx X.
Xxxxxx:
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000
X. Xxxxx Xxxxxx, Xxxxx 000
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Xx
Xxxx, Xxxxx 00000
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Facsimile:
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000-000-0000
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Email:
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xxxx.xxxxxx@xxx.xxx
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Franklin Mountain
Investments
Limited
Partnership:
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c/o
Xxxx X. Xxxxxx
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000
X. Xxxxx Xxxxxx, Xxxxx 000
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Xx
Xxxx, Xxxxx 00000
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Facsimile:
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000-000-0000
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Email:
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xxxx.xxxxxx@xxx.xxx
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Xxxx X.
Xxxxxxx:
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000
X. Xxxxx Xxxxxx, Xxxxx 000
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Xx
Xxxx, Xxxxx 00000
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Facsimile:
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000-000-0000
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Email:
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xxxx.xxxxxxx@xxx.xxx
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Xxxxx X.
Xxxxxxx:
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0000
Xxxxx Xxxxxx Xxxx
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Xxxxxxxxxxx,
Xxxxx 00000
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Facsimile:
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000-000-0000
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Email:
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xxxxx.xxxxxxx@xxx.xxx
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Xxxxx X.
Xxxxxx:
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000
X. Xxxxx Xxxxxx, Xxxxx 000
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Xx
Xxxx, Xxxxx 00000
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Facsimile:
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000-000-0000
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Email:
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xxxxx.xxxxxx@xxx.xxx
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WRC Refining
Company:
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c/o
Xxxx X. Xxxxxx:
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000
X. Xxxxx Xxxxxx, Xxxxx 000
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Xx
Xxxx, Xxxxx 00000
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Facsimile:
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000-000-0000
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Email:
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xxxx.xxxxxx@xxx.xxx
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Notice shall be deemed received on the
business day following the day such notice is sent by one of the foregoing
methods.
b. Stockholder
Capacity. Each Stockholder executes this Agreement solely in
such Stockholder’s capacity as the record holder or direct beneficial owner of
such Stockholder’s shares of Subject Common Stock. Without limiting
the foregoing, nothing in this Agreement shall limit or affect the ability of a
director or officer of the Company to take any action as may be advisable or
necessary in the discharge of his or her fiduciary duties as such director or
officer, and without regard to whether he or she is, without limitation, (i) a
trustee or co-trustee of one or more Stockholders, (ii) an officer, consultant
or other representative of a Stockholder or of a trustee or co-trustee of one or
more Stockholders, or (iii) a beneficiary of one or more
Stockholders.
c. Publication. Each
Stockholder 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 Stockholder’s
identity and ownership of shares of Subject Common Stock and the nature of such
Stockholder’s commitments, arrangements, and understandings pursuant to this
Agreement.
d. Further
Actions. Each of the parties hereto agrees that it will use
its reasonable best efforts to do all things necessary to effectuate this
Agreement.
e. Entire
Agreement. This Agreement contains the entire understanding of
the parties hereto with respect to the subject matter contained herein and
supersedes all prior agreements and understandings, oral and written, with
respect thereto.
f. Assignment. Neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any of the parties hereto. Nothing in this Agreement,
expressed or implied, is intended to confer on any person, other than the
parties hereto, any rights or remedies.
g. Amendments, Waivers,
etc. This Agreement may not be amended, changed, supplemented,
waived or otherwise modified or terminated, except upon the execution and
delivery of a written agreement executed by all of the relevant parties
hereto.
h. Specific
Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. Accordingly, the parties shall be entitled to an injunction
or injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement, this being in addition to any other
remedy to which they are entitled at law or in equity.
i. Remedies
Cumulative. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
j. No
Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof shall not constitute a waiver by such party of
its right to exercise any such or other right, power or remedy or to demand such
compliance.
k. Governing Law; Waiver of
Jury Trial; Attorney’s Fees. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. THE PREVAILING
PARTY IN ANY DISPUTE SHALL BE ENTITLED TO RECEIVE ATTORNEY’S FEES AND EXPENSES
ASSOCIATED WITH THE DISPUTE FROM THE NON-PREVAILING PARTY.
l. Arbitration. Any
controversy or claim arising out of or relating to this Agreement, or the breach
thereof, shall be settled by arbitration in Houston, Texas, in accordance with
the rules, then obtaining, of the American Arbitration
Association. Judgment upon the award rendered may be entered in any
court having jurisdiction thereof.
m. Headings. The
descriptive headings of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
n. Counterparts;
Facsimiles. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, and all of which
together shall
be deemed
to be one and the same instrument. A signature transmitted by
facsimile shall be treated for all purposes by the parties hereto as an
original, shall be binding upon the party transmitting such signature without
limitation.
o. No Ownership
Interest. Nothing contained in this Agreement shall otherwise
be deemed to vest in any Stockholder any direct or indirect ownership interest
in or with respect to any shares of Subject Common Stock of any other
Stockholder, nor shall anything in this Agreement be deemed to restrict the
ability of any Stockholder to sell, pledge or otherwise transfer any shares of
Subject Common Stock owned by such Stockholder. Except as otherwise
provided in this Agreement, all other rights, ownership and economic benefits of
and relating to any shares of Subject Common Stock shall remain with and belong
to the owner of such Subject Common Stock, and no other Stockholder shall have
the authority to manage, direct, superintend, restrict, regulate, govern or
administer any of the policies or operations of the Company or exercise any
power or authority to direct any other Stockholder in the voting of such
Stockholder’s shares of Subject Common Stock.
p. Subject Common
Stock. Solely for the avoidance of doubt and notwithstanding
anything to the contrary contained herein, this Agreement shall only apply to
the Subject Common Stock and shall not apply to any other previously- or
after-acquired shares of common stock of the Company, currently or hereafter,
directly or indirectly owned by any party hereto.
q. Legend. For
the avoidance of doubt, the legend previously included on the certificates
representing the Subject Common Stock pursuant to the Original Agreement shall
remain in full force and effect for purposes of this Agreement.
[Signature
Page Follows]
IN
WITNESS WHEREOF, this Agreement is executed as of the date first stated
above.
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WRC
REFINING COMPANY, a Texas corporation
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By:
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/s/ Xxxx X. Xxxxxx
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Xxxx
X. Xxxxxx, President
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/s/ Xxxx X. Xxxxxx
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Xxxx
X. Xxxxxx
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XXXXXXXX
MOUNTAIN INVESTMENTS LIMITED PARTNERSHIP
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By:
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Franklin
Mountain GP, L.L.C.
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General
Partner
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By:
/s/ Xxxx X. Xxxxxx
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Name: Xxxx
X. Xxxxxx
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Title:
President
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/s/ Xxxx X. Xxxxxxx
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Xxxx
X. Xxxxxxx
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/s/ Xxxxxx Xxxxxxx
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Xxxxxx
Xxxxxxx, Spouse
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/s/ Xxxxx X. Xxxxxxx
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Xxxxx
X. Xxxxxxx
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/s/ Xxxxx Xxxxxxx
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Xxxxx
Xxxxxxx, Spouse
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/s/ Xxxxx X. Xxxxxx
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Xxxxx
X. Xxxxxx
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Schedule
1
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Stockholder
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Subject Common
Stock
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As
of the date of the Original Agreement
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As
of the date of this Agreement
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WRC
Refining Company
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807,302
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807,302
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Xxxx
X. Xxxxxx
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9,237,334
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8,237,334
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Franklin
Mountain Investments Limited Partnership
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19,277,914
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19,277,914
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Xxxx
X. Xxxxxxx
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7,229,218
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5,084,818
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Xxxxx
X. Xxxxxxx
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2,008,116
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1,448,116
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Xxxxx
X. Xxxxxx
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2,008,116
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1,508,116
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