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As filed with the Securities and Exchange Commission on June 11, 1999.
Registration No. 333-________
______________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________________
Giant Industries, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 86-0642718
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
23733 North Scottsdale Road Scottsdale, Arizona 85255
(Address of Principal Executive Offices) (Zip Code)
___________________________
GIANT INDUSTRIES, INC.
1998 STOCK INCENTIVE PLAN
(Full title of the Plan)
__________________________
KIM H. BULLERDICK
Vice President, General Counsel, and Secretary
23733 North Scottsdale Road
Scottsdale, Arizona 85255
(Name and Address of Agent for Service)
(480) 585-8888
(Telephone Number, Including Area Code, of Agent for Service)
With a copy to:
Karen C. McConnell
W. T. Eggleston, Jr.
Fennemore Craig, P.C.
3003 North Central Avenue, Suite 2600
Phoenix, Arizona 85012-2913
(602) 916-5000
________________________
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Approximate date of commencement of proposed sales pursuant to the
Plan: From time to time after this Registration Statement becomes
effective.
CALCULATION OF REGISTRATION FEE
___________________________________________________________________
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) Per Share(2) Price Fee(2)
___________________________________________________________________
Common Stock, 2,168,954 $10.75 $23,316,255 $6,482
$.01 par value
___________________________________________________________________
(1) There also is being registered hereunder such additional
undetermined number of shares of Common Stock as may be issued
from time to time as a result of stock splits, stock dividends
or similar transactions.
(2) Computed pursuant to Rules 457(h)(1) and 457(c) for the purpose
of calculation of the registration fee on the basis of the
average of the high and low prices of the Registrant's Common
Stock reported in the consolidated reporting system of the New
York Stock Exchange as of June 7, 1999.
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Items
1 and 2 of Part I of Form S-8 will be sent or given to employees as
specified in Rule 428(b)(1) and, in accordance with the
instructions to Part I, are not filed with the Commission as part
of this Registration Statement.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed by the Registrant
with the Securities and Exchange Commission are incorporated herein
by reference and made a part hereof:
1. The Registrant's Annual Report on Form 10-K, as amended,
for the year ended December 31, 1998;
2. The Registrant's Current Report on Form 8-K filed with
the Commission on January 29, 1999;
3. The Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1999; and
4. The Registrant's description of its Common
Stock contained in its Registration Statement on Form 8-A filed with
the Commission on November 29, 1989, pursuant to Section 12 of the
Exchange Act.
All documents subsequently filed by the Registrant pursuant to
section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934, prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the
date of filing of such documents.
Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that
a statement contained herein or in any subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant has purchased insurance on behalf of its
directors and officers against certain liabilities that may be
asserted against such persons in connection with any actual or alleged
Wrongful Act (as defined in the policy) in their capacities as
directors and officers of the Registrant, including certain
liabilities under the federal and state securities laws, except to the
extent that the Registrant has indemnified the directors and officers.
The following contains summaries of certain circumstances in
which indemnification is provided pursuant to the Registrant's
Restated Certificate of Incorporation (the "Certificate") and Bylaws
(the "Bylaws"). Such summaries are qualified in their entirety by
reference to such Certificate and Bylaws.
As permitted by the Delaware General Corporation law (the
"DGCL"), the Registrant's Certificate provides that a director of the
Registrant shall not be liable to the Registrant or its stockholders
for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for breach of the duty of loyalty to the
Registrant or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the DGCL (governing distributions
to stockholders), or (iv) for any transaction for which a director
derives an improper personal benefit. In addition, Section 145 of the
DGCL, the Certificate and the Bylaws, under certain circumstances,
provide for the indemnification of the Registrant's officers,
directors, employees, and agents against liabilities which they may
incur in such capacities.
In general, any officer, director, employee or agent may be
indemnified against expenses including attorneys' fees, fines,
settlements or judgments which were actually and reasonably incurred
in connection with a legal proceeding, other than one brought by or
on behalf of the Registrant, to which he was a party as a result of
such relationship, if he acted in good faith, and in the manner he
believed to be in the Registrant's best interest and not unlawful.
If the action is brought by or on behalf of the Registrant, the person
to be indemnified must have acted in good faith in a manner he
believed to have been in the Registrant's best interest and generally
must not have been adjudged liable to the Registrant. No person
seeking indemnification may be denied indemnification unless the Board
of Directors or the stockholders of the Registrant determine in good
faith, or independent legal counsel for the Registrant opines in
writing, that the standards for indemnification have not been met.
A successful defense is deemed conclusive evidence of a person's right
to be indemnified against expenses. The Registrant may advance funds
to pay the expenses of any person involved in such action provided
that the Registrant receives an undertaking that the person will repay
the advanced funds unless it is ultimately determined that he is not
entitled to indemnification.
Indemnification also may be granted pursuant to provisions of
bylaws which may be adopted in the future, pursuant to the terms of
agreements which may be entered into in the future or pursuant to a
vote of stockholders or disinterested directors.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
ITEM 8. EXHIBITS
EXHIBIT
NUMBER
- -------
4.1 Restated Certificate of Incorporation1
4.2 Bylaws2
4.3 Giant Industries, Inc. 1998 Stock Incentive Plan3
5.1 Opinion of Fennemore Craig, P.C.
23.1 Consent of Deloitte & Touche LLP
23.3 Consent of Fennemore Craig, P.C. (included in
Exhibit 5.1)
24.1 Power of Attorney (see page 7 of this Registration
Statement)
______________________
(1) Incorporated by reference to Exhibit 3.1 to Amendment No. 3 to
the Registrant's Registration Statement on Form S-1 (No. 33-
31584) filed with the Commission on December 12, 1989.
(2) Incorporated by reference to Exhibit 3.2 to the Registrant's
Registration Statement on Form S-1 (No. 33-31584) filed with the
Commission on December 12, 1989.
(3) Incorporated by reference to Appendix H to the Joint Proxy
Statement/Prospectus included in the Company's Registration
Statement on Form S-4 (File No. 333-51785) under the Securities
Act of 1933 filed with the Commission on May 4, 1998.
ITEM 9. UNDERTAKINGS
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
Provided, however, that paragraphs 1(i) and 1(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement.
(2) That, for the purposes of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection
with the securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed
in the Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Scottsdale, State
of Arizona on June 11, 1999.
GIANT INDUSTRIES, INC.
By: /s/ JAMES E. ACRIDGE
---------------------------
James E. Acridge
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears on this Form S-8 Registration Statement hereby constitutes and
appoints James E. Acridge, Kim H. Bullerdick, and Fredric L. Holliger, or
any of them, with full power to act without the other, his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities (unless revoked in writing) to sign any or all amendments
(including post-effective amendments thereto) to this Form S-8
Registration Statement to which this power of attorney is attached, and
to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission,
granting to said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to
all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, or their or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ JAMES E. ACRIDGE Chairman of the Board, Chief June 11, 1999
- -------------------- Executive Officer, Director
James E. Acridge (Principal Executive Officer)
/s/ MARK B. COX Vice President, Treasurer, June 11, 1999
- -------------------- Financial Officer
Mark B. Cox and Assistant Secretary
(Principal Financial Officer)
/s/ GARY R. DALKE Vice President, Controller, June 11, 1999
- -------------------- Accounting Officer and
Gary R. Dalke Assistant Secretary
(Principal Accounting Officer)
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/s/ FREDRIC L. HOLLIGER Executive Vice President, June 11, 1999
- ------------------------ Chief Operating Officer,
Frederic L. Holliger Director
/s/ HARRY S. HOWARD, JR. Director June 11, 1999
- ------------------------
Harry S. Howard, Jr.
/s/ F. MICHAEL GEDDES Director June 11, 1999
- ------------------------
F. Michael Geddes
/s/ ANTHONY J. BERNITSKY Director June 11, 1999
- ------------------------
Anthony J. Bernitsky
/s/ RICHARD T. KALEN, JR. Director June 11, 1999
- -------------------------
Richard T. Kalen, Jr.
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INDEX TO EXHIBITS
NUMBER EXHIBIT
5.1 Opinion of Fennemore Craig, P.C.
23.1 Consent of Deloitte & Touche LLP
23.3 Consent of Fennemore Craig, P.C.
(included in Exhibit 5.1)
EXHIBIT 5.1
June 11, 1999
Giant Industries, Inc.
23733 North Scottsdale Road
Scottsdale, Arizona 85255
Re: Giant Industries, Inc. Registration Statement of
Form S-8 for the 1998 Stock Incentive Plan
Ladies and Gentlemen:
We have acted as special counsel to Giant Industries, Inc., a
Delaware corporation (the "Company"), in connection with the Registration
Statement on Form S-8 (the "Registration Statement"), to be filed by the
Company with the Securities and Exchange Commission (the "Commission").
The Registration Statement relates to the registration under the
Securities Act of 1933, as amended (the "Act"), of 2,168,954 shares of
Common Stock, $.01 par value (the "Shares"), of the Company to be
offered pursuant to awards granted under the Company's 1998 Stock
Incentive Plan (the "Plan").
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of (i) the
Plan, (ii) the Restated Certificate of Incorporation and the Bylaws of
the Company, (iii) certain resolutions of the Board of Directors of the
Company relating to the Plan, (iv) the form of Registration Statement
proposed to be filed with the Commission, and (v) such other documents as
we have deemed necessary or appropriate as a basis for the opinions set
forth below. In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents.
As to any facts material to this opinion which we did not independently
establish or verify, we have relied upon statements and representations
of officers and other representatives of the Company and others.
Based upon and subject to the foregoing and the limitations set
forth below, we are of the opinion that the Shares have been duly
authorized and, after the Registration Statement becomes effective and
when the Shares are issued and granted in accordance with the Plan and
the Form S-8 prospectus to be delivered to the Plan participants, for
consideration having a value at least equal to the par value thereof, the
Shares will be duly issued, fully paid and nonassessable.
We are opining herein as to the effect on the subject transaction
only of United States federal law and the Delaware General Corporation
Law, and we assume no responsibility as to the applicability thereto, or
the effect thereon, of the laws of any other jurisdiction.
This opinion is furnished to you solely for your benefit in connection
with the filing of the Registration Statement and is not to be used,
circulated, quoted or otherwise referred to for any other purpose without
our prior written consent. Notwithstanding the foregoing, we hereby
consent to the filing of this opinion with the Commission as Exhibit 5.1
to the Registration Statement. In giving this consent, we do not thereby
admit that we are included in the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Commission.
Very truly yours,
Fennemore Craig, a
Professional
Corporation
KCM/WTE/SMW
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Giant Industries, Inc. on Form S-8 of our reports dated
March 4, 1999 and March 30, 1999 appearing in the Annual Report on Form
10-K of Giant Industries, Inc. for the year ended December 31, 1998 and
in the Annual Report on Form 11-K of the Employee Stock Ownership Plan of
Giant Industries, Inc. and Affiliated Companies for the year ended
December 31, 1998, respectively.
DELOITTE & TOUCHE LLP
Phoenix, Arizona
June 11, 1999
