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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13E-4
ISSUER TENDER OFFER STATEMENT
(PURSUANT TO SECTION 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934)
(AMENDMENT NO. 1)
GIANT INDUSTRIES, INC.
(NAME OF ISSUER)
GIANT INDUSTRIES, INC.
(NAME OF PERSON(S) FILING STATEMENT)
COMMON STOCK, $.01 PAR VALUE
(TITLE OF CLASS OF SECURITIES)
374508 10 9
(CUSIP NUMBER OF CLASS OF SECURITIES)
JAMES E. ACRIDGE
CHIEF EXECUTIVE OFFICER AND PRESIDENT
GIANT INDUSTRIES, INC.
23733 NORTH SCOTTSDALE ROAD
SCOTTSDALE, ARIZONA 85255
(480) 585-8888
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON
AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS ON
BEHALF OF THE PERSON(S) FILING STATEMENT)
COPIES TO:
KAREN C. MCCONNELL, ESQ.
AUDREY V. DORCH, ESQ.
FENNEMORE CRAIG, P.C.
3003 NORTH CENTRAL AVENUE, SUITE 2600
PHOENIX, ARIZONA 85012
(602) 916-5000
DECEMBER 21, 1999
(DATE TENDER OFFER FIRST PUBLISHED, SENT OR GIVEN TO SECURITY HOLDERS)
CALCULATION OF FILING FEE
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TRANSACTION VALUATION AMOUNT OF FILING FEE
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$12,000,000(1) $2,400(2)
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(1) For the purpose of calculating the filing fee only, this amount is based on
the purchase of 1,333,333 shares of common stock of Giant Industries, Inc.
at $9.00 per share.
(2) The amount of the filing fee equals 1/50th of one percent of the value of
the securities to be acquired.
[X] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form or
Schedule and the date of its filing.
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<S> <C> <C> <C>
AMOUNT PREVIOUSLY PAID: $2,400 FILING PARTY: Giant Industries, Inc.
FORM OR REGISTRATION NO.: Schedule 13E-4 DATE FILED: December 21, 1999
</TABLE>
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This Amendment No. 1 amends and supplements the Issuer Tender Offer
Statement on Schedule 13E-4 (the "Statement") dated December 21, 1999 relating
to the tender offer by Giant Industries, Inc., a Delaware corporation (the
"Company"), to purchase up to 1,333,333 shares of the Company's Common Stock,
par value $.01 per share (the "Shares") at a price, net to the seller in cash,
of $9.00 per share, upon the terms and subject to the conditions set forth in
the Offer to Purchase, dated December 21, 1999 (the "Offer to Purchase"), and
the related Letter of Transmittal (which are herein collectively referred to as
the "Offer"). Copies of such documents are filed as Exhibits (a)(1) and (a)(2),
respectively, to the Statement. Capitalized terms used herein but not defined
herein shall have the meaning assigned to such term in the Offer to Purchase.
ITEM 6. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
Item 6 is hereby supplemented, amended and clarified as follows:
Fidelity Management Trust Company acts as the trustee of the Company's
401(k) Plan, will receive instructions from 401(k) Plan participants regarding
the Offer, and may contact participants in such plan by mail, telephone, telex,
telegraph and personal interviews regarding the Offer. Pursuant to its
arrangements with the Company to act as trustee of the Company's 401(k) Plan,
Fidelity Management Trust Company receives reasonable and customary compensation
for its services and is reimbursed for certain out-of-pocket expenses. Under
those arrangements, no separate fee is payable to Fidelity Management Trust
Company in connection with the Offer. Management Information Services will not
be acting as Fidelity Management Trust Company's agent in connection with the
Offer, and all references in the Offer to Management Information Services will
be deemed stricken.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
Item 9 is hereby amended to replace the former Exhibit (a)(9), "Form of
Letter to Participants in the Company's 401(k) Plan whose accounts are invested
in the Company's common stock fund," with an amended form of letter that
eliminates references to Management Information Services. A new Exhibit (a)(9)
is enclosed with this Amendment No. 1 as follows:
(a)(9) Form of Letter to Participants in the Company's 401(k) plan whose
accounts are invested in the Company's common stock fund.
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Statement is true, complete and correct.
GIANT INDUSTRIES, INC.
By: /s/ James E. Acridge
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James E. Acridge
Chief Executive Officer and
President
Date: December 28, 1999
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INDEX TO EXHIBITS
(a)(9) Form of Letter to Participants in the Company's 401(k) plan whose
accounts are invested in the Company's common stock fund.
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EXHIBIT (A)(9)
IMMEDIATE ATTENTION REQUIRED
December 28, 1999
RE: GIANT INDUSTRIES, INC. AND AFFILIATED COMPANIES 401(k) PLAN
Dear Plan Participant:
Our records reflect that, as a participant in the above plan (the "Plan"),
all or a portion of your individual account is invested in the Giant Industries
Stock Fund (the "Stock Fund"). Giant Industries, Inc. (the "Company") has
initiated an offer to purchase up to 1,333,333 shares of its common stock.
Enclosed are tender offer materials and a Direction Form that require your
immediate attention. These materials describe an offer to purchase up to
1,333,333 shares of Company common stock, at a price of $9.00 per share. As
described below, you have the right to instruct Fidelity Management Trust
Company ("Fidelity"), as trustee of the Plan, concerning whether to "tender"
(offer to sell) all or a portion of the shares of Company common stock credited
to your individual account under the Plan.
You will need to complete the enclosed Direction Form and return it to
Fidelity in the enclosed return envelope so that it is RECEIVED by 12:00
Midnight, Eastern time, on January 31, 2000, unless the tender offer is
extended. Please complete and return the enclosed Direction Form even if you
decide not to participate in the tender offer described below. NO FACSIMILE
TRANSMITTALS OF THE TRUSTEE DIRECTION FORM WILL BE ACCEPTED.
The remainder of this letter summarizes the transaction, your rights under
the Plan and the procedures for completing the Direction Form. You should also
review the more detailed explanation provided in the other materials enclosed
with this letter, including the Offer to Purchase and the related Letter of
Transmittal.
BACKGROUND
The Company has made a tender offer to purchase up to 1,333,333 shares of
Company common stock, $.01 par value (the "Shares"), at a price of $9.00 per
Share. The enclosed Offer to Purchase, dated December 21, 1999 (the "Offer to
Purchase"), and the related Letter of Transmittal (together with the Offer to
Purchase, the "Offer"), set forth the objectives, terms and conditions of the
Offer and are being provided to all of the Company's shareholders.
The Company's Offer to Purchase extends to the Shares held by the Plan. As
of December 20, 1999, the Plan held approximately 23,742 Shares. Only Fidelity,
as trustee of the Plan, can tender these Shares in the Offer. Nonetheless, as a
participant under the Plan, you have the right to direct Fidelity whether or not
to tender some or all of the Shares credited to your individual account in the
Plan. Unless otherwise required by applicable law, Fidelity will tender Shares
credited to participant accounts in accordance with participant instructions and
Fidelity will not tender Shares credited to participant accounts for which it
does not receive timely instructions. IF YOU DO NOT COMPLETE THE ENCLOSED
DIRECTION FORM AND RETURN IT TO FIDELITY ON A TIMELY BASIS, YOU WILL BE DEEMED
TO HAVE ELECTED NOT TO PARTICIPATE IN THE OFFER AND NO SHARES CREDITED TO YOUR
PLAN ACCOUNT WILL BE TENDERED IN THE OFFER.
Please note that the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and the trust agreement between the Company and Fidelity,
prohibit the sale of Shares to the Company for less than "adequate
consideration," which Fidelity will determine based on the prevailing or closing
market price of the Shares on or about the date the Shares are tendered by
Fidelity pursuant to the Offer (the "prevailing or closing market price").
Accordingly, depending on the prevailing or closing market price of the Shares
on or about such date, Fidelity may be unable to tender Shares in accordance
with participant directions. If the prevailing or closing market price of the
Shares is greater than the tender price offered by the Company ($9.00 per
Share), notwithstanding participant direction to tender Shares in the Offer, no
Shares will be tendered.
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A tender of Shares credited to your individual account under the Plan can
be made only by Fidelity as the holder of record. DO NOT COMPLETE THE LETTER OF
TRANSMITTAL; IT IS FURNISHED TO YOU FOR YOUR INFORMATION ONLY AND CANNOT BE USED
BY YOU TO TENDER DIRECTLY SHARES CREDITED TO YOUR INDIVIDUAL ACCOUNT UNDER THE
PLAN. IF YOU WISH TO DIRECT FIDELITY CONCERNING THE TENDER OF YOUR SHARES IN THE
PLAN, YOU MUST COMPLETE AND RETURN THE ENCLOSED DIRECTION FORM.
NONE OF THE COMPANY, ITS BOARD OF DIRECTORS OR FIDELITY MAKES ANY
RECOMMENDATION AS TO WHETHER TO DIRECT THE TENDER OF SHARES OR WHETHER TO
REFRAIN FROM DIRECTING THE TENDER OF SHARES. EACH PARTICIPANT MUST MAKE HIS OR
HER OWN DECISION ON THESE MATTERS.
CONFIDENTIALITY
TO ASSURE THE CONFIDENTIALITY OF YOUR DECISION, FIDELITY AND ITS AFFILIATES
OR AGENTS WILL TABULATE THE DIRECTION FORMS. NEITHER FIDELITY NOR ITS AFFILIATES
OR AGENTS WILL MAKE THE RESULTS OF YOUR INDIVIDUAL DIRECTION AVAILABLE TO THE
COMPANY.
PROCEDURE FOR DIRECTING TRUSTEE
A Direction Form for making your direction is enclosed. Please note that on
the reverse side of the Direction Form the number of Shares credited to your
individual account as of December 20, 1999 is indicated to the right of your
address. For purposes of the final tabulation, Fidelity will apply your
instructions to the number of Shares credited to your account as of January 31,
2000 or as of a later date if the Offer is extended.
Shares will be considered NOT TENDERED if you do not properly complete the
Direction Form. Furthermore, unless the Offer is extended, Shares will be
considered NOT TENDERED if you do not return a properly completed Direction Form
by the deadline specified.
To properly complete your Direction Form, you must do the following:
(1) On the face of the Direction Form, check Box 1, 2 or 3. CHECK ONLY
ONE BOX:
- CHECK BOX 1 if you want ALL of the Shares credited to your
individual account tendered for sale in accordance with the terms
of the Offer.
- CHECK BOX 2 if you want to TENDER A PORTION of the Shares credited
to your individual account. SPECIFY THE PERCENTAGE (in whole
numbers) of Shares credited to your individual account that you
want to tender for sale in accordance with the terms of this
Offer. IF THIS AMOUNT IS LESS THAN 100%, YOU WILL BE DEEMED TO
HAVE INSTRUCTED FIDELITY NOT TO TENDER THE BALANCE OF THE SHARES
CREDITED TO YOUR INDIVIDUAL ACCOUNT UNDER THE PLAN.
- CHECK BOX 3 if you do not want the Shares credited to your
individual account tendered for sale in accordance with the terms
of the Offer and simply want the Plan to continue holding such
Shares.
(2) Date and sign the Direction Form in the space provided.
(3) Return the Direction Form in the enclosed return envelope so that
it is received by Fidelity at the address on the return envelope (Fidelity
Institutional Retirement Services Co., 300 Puritan Way, MailZone MM3H,
Marlborough MA 01752, att. Tabulation Department) not later than 12:00
Midnight, Eastern time, on Monday, January 31, 2000, unless the Offer is
extended. NO FACSIMILE TRANSMITTALS OF THE TRUSTEE DIRECTION FORM WILL BE
ACCEPTED.
Your direction will be deemed irrevocable unless withdrawn by 12:00
Midnight, Eastern time, on Monday, January 31, 2000, unless the Offer is
extended. In order to make an effective withdrawal, you must submit a new
Direction Form which may be obtained by calling Fidelity at 1-800-835-5097. Your
new Direction Form must include your name, address and Social Security number.
Upon receipt of a new, completed and signed Direction Form, your previous
direction will be deemed canceled. You may direct the re-tendering of any Shares
credited to your individual account by obtaining an additional Direction Form
from Fidelity and repeating the previous instructions for directing tenders as
set forth in this letter.
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After the deadline above for returning the Direction Form to Fidelity,
Fidelity and its affiliates or agents will complete the tabulation of all
directions and Fidelity, as trustee, will tender the appropriate number of
Shares. Unless the Offer is terminated or amended in accordance with its terms,
the Company will then buy all Shares, up to 1,333,333, that were tendered. If
there is an excess of Shares tendered over the exact number desired by the
Company, Shares tendered pursuant to the Offer may be subject to proration, as
set forth in Section 1 of the Offer to Purchase. In the event of proration,
those Shares not purchased in the Offer will remain allocated to your individual
account under the Plan.
The preferential treatment of holders of fewer than 100 Shares (the "odd
lot" tender preference), as described in Section 1 of the Offer to Purchase,
will not be afforded to participants in the Plan, regardless of the number of
Shares held within their individual accounts.
EFFECT OF TENDER ON YOUR ACCOUNT
IF YOU DIRECT FIDELITY TO TENDER SOME OR ALL OF THE SHARES ATTRIBUTABLE TO
YOUR ACCOUNT UNDER THE PLAN, YOUR STOCK FUND ACCOUNT WILL BE TEMPORARILY FROZEN,
AND WILL REMAIN FROZEN UNTIL ALL TENDER OFFER PROCESSING HAS BEEN COMPLETED. As
of 4:00 p.m., Eastern Time, on Monday, January 31, 2000, you will NOT be able to
make exchanges out of the Stock Fund until all tender offer processing has been
completed. Further, all distributions, loans and withdrawals from balances in
the Stock Fund in the Plan will be frozen on and after that time. Balances in
the Stock Fund will, however, be utilized to calculate amounts eligible for
distributions, loans and withdrawals from other investment options throughout
the freeze. Fidelity will complete processing as soon as administratively
possible. Fidelity anticipates that the processing will be completed five to
seven business days after receipt of proceeds from the Company. Please call
Fidelity at 1-800-835-5097 for up-to-date information regarding the freeze time
period.
For any Shares in the Plan that are tendered and purchased by the Company,
the Company will pay cash to the Plan. INDIVIDUAL PARTICIPANTS IN THE PLAN WILL
NOT RECEIVE ANY CASH PROCEEDS DIRECTLY. ALL SUCH PROCEEDS WILL REMAIN IN THE
PLAN AND MAY BE WITHDRAWN AND DISTRIBUTED AFTER THE FREEZE ONLY IN ACCORDANCE
WITH THE NORMAL LOAN, WITHDRAWAL AND DISTRIBUTION TERMS OF THE PLAN.
The proceeds received with respect to Shares credited to your individual
account will be invested by Fidelity in the Fidelity Money Market Trust:
Retirement Government Money Market Portfolio as soon as administratively
possible after receipt of proceeds. You may call Fidelity at 1-800-835-5097
after the processing is complete to learn the effect of the tender on your
individual account or to have the proceeds from the sale of Shares which were
invested in the Fidelity Money Market Trust: Retirement Government Money Market
Portfolio invested in other investment options offered under the Plan.
SHARES OUTSIDE THE PLAN
If you hold Shares directly, you will receive, under separate cover, tender
offer materials directly from the Company which can be used to direct the tender
of such Shares to the Company. THOSE TENDER OFFER MATERIALS MAY NOT BE USED TO
DIRECT FIDELITY TO TENDER OR NOT TENDER THE SHARES CREDITED TO YOUR INDIVIDUAL
ACCOUNT UNDER THE PLAN. The direction to tender or not tender Shares credited to
your individual account under the Plan may only be made in accordance with the
procedures in this letter. Similarly, the enclosed Direction Form may not be
used to tender non-Plan Shares.
FURTHER INFORMATION
If you require additional information concerning the procedure to tender
Shares credited to your individual account under the Plan, please contact
Fidelity at 1-800-835-5097. If you require additional information concerning the
terms and conditions of the Offer, please call Corporate Investor
Communications, Inc., the Information Agent, at 1-877-393-4959.
Sincerely,
Fidelity Management Trust Company
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-- Please fold and detach card at perforation before mailing --
GIANT INDUSTRIES, INC. TENDER OFFER
TRUSTEE DIRECTION FORM
PLEASE CAREFULLY READ THE ACCOMPANYING OFFER TO PURCHASE
AND ALL OTHER ENCLOSED MATERIALS BEFORE COMPLETING THIS FORM
In connection with the Offer to Purchase made by Giant Industries, Inc., dated
December 21, 1999, as it may be amended (the "Offer"), I hereby instruct
Fidelity Management Trust Company ("Fidelity"), as trustee of the Giant
Industries, Inc. and Affiliated Companies 401(k) Plan (the "Plan"), to tender
the shares of Giant Industries, Inc. (the "Shares") credited to my account under
the Plan as of January 31, 2000, unless a later deadline is announced, as
follows (check only one box and complete):
<TABLE>
<S> <C> <C>
Box 1 [ ] I direct Fidelity to tender ALL of the Shares credited to my
account in the Plan, in accordance with the terms of the
Offer.
Box 2 [ ] I direct Fidelity to tender ____ percent (insert a
percentage in whole numbers less than 100%) of the Shares
credited to my account in the Plan, in accordance with the
terms of the Offer.
Box 3 [ ] I direct Fidelity NOT to tender any of the Shares credited
to my account in the Plan, in accordance with the terms of
the Offer.
</TABLE>
-- Please fold and detach card at perforation before mailing --
The number of Shares credited to your account in the Plan as of December 20,
1999 is shown to the right of your address.
PLEASE NOTE THAT IF YOU DO NOT SEND IN A PROPERLY COMPLETED, SIGNED FORM, OR IF
IT IS NOT RECEIVED BY 12:00 MIDNIGHT EASTERN TIME AT FIDELITY INSTITUTIONAL
RETIREMENT SERVICES CO., 300 PURITAN WAY, MAILZONE MM3H, MARLBOROUGH, MA 01752,
ATT. TABULATION DEPARTMENT, ON JANUARY 31, 2000, FIDELITY WILL NOT TENDER ANY OF
THE SHARES CREDITED TO YOUR ACCOUNT IN THE PLAN, IN ACCORDANCE WITH THE OFFER,
UNLESS OTHERWISE REQUIRED BY LAW.
None of the Company, its Board of Directors or Fidelity makes any recommendation
to any Plan participant as to whether to tender all or any Shares. Your
instructions to Fidelity will be kept confidential.
This Trustee Direction Form, if properly signed, completed and received by
Fidelity in a timely manner will supersede any previous Trustee Direction Form.
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