<PAGE>
As filed with the Securities and Exchange Commission on August 25, 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.
AND AFFILIATED COMPANIES
401(k) 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
________________________
<PAGE>
Approximate date of commencement of proposed sales pursuant to the Plan (as
defined below): 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 Registered1 per Share2 Price Fee2
______________________________________________________________________________
Common Stock, 150,000 $11.9375 $1,790,625 $498
$.01 par value
Beneficial
Interests __ __ __ __
in the Plan3
_____________________________________________________________________________
1 Based upon the Registrant's estimate of the number of shares of Common
Stock (as defined below) that will be available for purchase pursuant to
the Giant Industries, Inc. and Affiliated Companies 401(k) Plan (the
"Plan"). 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 Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(h)(1) and (c) based on 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 August 19, 1999.
3 Pursuant to Rule 416(c), this Registration Statement also covers an
indeterminate number of interests to be offered or sold pursuant to the
Plan described herein. This Registration Statement also covers the related
interests in the trust created pursuant to the Plan. The required
information regarding the beneficial interests is subsumed in the
information regarding the Common Stock.
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 participants in the Plan 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 filed with the Commission on March 31, 1999;
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 filed with the Commission on May 17, 1999;
4. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999 filed with the Commission on August 10, 1999; and
5. 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 Incorporation. 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.
4.2 Bylaws. Incorporated by reference to Exhibit 3.2 to the Registrant's
Statement on Form S-1 (No. 33-31584) filed with the Commission on
December 12, 1989.
4.3 Giant Industries, Inc. and Affiliated Companies 401(k) Plan.
Incorporated by reference to Exhibit 10.46 to Amendment No. 2 to the
Registrant's Registration Statement on Form S-3 (No. 33-69252) filed
with the Commission on November 12, 1993.
4.4 First Amendment of the Giant Industries, Inc. and Affiliated Companies
401(k) Plan, dated October 17, 1996. Incorporated by reference to
Exhibit 10.30 to the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996, filed with the Commission on
March 27, 1997.
4.5 Second Amendment to the Giant Industries, Inc. and Affiliated
Companies 401(k) Plan, dated December 31, 1997. Incorporated by
reference to Exhibit 10.30 to the Registrant's Annual Report on Form
10-K for the fiscal year ended December 31, 1997, filed with the
Commission on March 31, 1998.
4.6 Third Amendment to the Giant Industries, Inc. and Affiliated Companies
401(k) Plan, effective July 1, 1998, dated December 10, 1998.
Incorporated by reference to Exhibit 10.20 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31, 1998, filed
with the Commission on March 31, 1999.
4.7 Fourth Amendment to the Giant Industries, Inc. and Affiliated
Companies 401(k) Plan, effective January 1, 1999, dated December 10,
1998. Incorporated by reference to Exhibit 10.21 to the Registrant's
Annual Report on Form 10-K for the fiscal year ended December 31,
1998, filed with the Commission on March 31, 1999.
4.8 Fifth Amendment to the Giant Industries, Inc. and Affiliated Companies
401(k) Plan, effective August 1, 1999, dated August 6, 1999.
5.1 The opinion as to the legality of the securities is not applicable as
the shares of Common Stock in the Plan will not be original issuance
securities.
5.2 The opinion as to ERISA matters and the IRS determination letter are
not applicable as the Registrant hereby undertakes to submit, or has
submitted, the Plan and any amendments thereto to the IRS in a timely
manner and will make, or has made, all changes required by the IRS in
order to qualify the Plan.
23.1 Consent of Deloitte & Touche LLP
24.1 Power of Attorney (see page 8 of this Registration Statement)
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.
<PAGE>
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 August 25,
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, August 25, 1999
________________________ Chief Executive Officer,
James E. Acridge Director (Principal
Executive Officer)
<PAGE>
/s/ MARK B. COX
________________________ Vice President, Treasurer, August 25, 1999
Mark B. Cox Financial Officer and
Assistant Secretary
(Principal Financial
Officer)
/s/ GARY R. DALKE
________________________ Vice President, Controller, August 25, 1999
Gary R. Dalke Accounting Officer and
Assistant Secretary
(Principal Accounting
Officer)
/s/ FREDRIC L. HOLLIGER
________________________ Executive Vice President, August 25, 1999
Frederic L. Holliger Chief Operating Officer,
Director
/s/ HARRY S. HOWARD, JR.
________________________ Director August 25, 1999
Harry S. Howard, Jr.
/s/ F. MICHAEL GEDDES
________________________ Director August 25, 1999
F. Michael Geddes
/s/ ANTHONY J. BERNITSKY
________________________ Director August 25, 1999
Anthony J. Bernitsky
/s/ RICHARD T. KALEN, JR.
________________________ Director August 25, 1999
Richard T. Kalen, Jr.
GIANT INDUSTRIES, INC. AND AFFILIATED COMPANIES 401(k) PLAN
Pursuant to the requirements of the Securities Act of 1933, the Giant
Industries, Inc. and Affiliated Companies 401(k) Plan 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 August 25,
1999.
Giant Industries, Inc. and Affiliated Companies 401(k) Plan
By: /s/ CHARLES F. YONKER By: /s/ GARY R. DALKE
____________________________ ____________________________
Name: Charles F. Yonker Name: Gary R. Dalke
Title: Member of 401(k) Plan Title: Member of 401(k) Plan
Administrative Committee Administrative Committee
<PAGE>
INDEX TO EXHIBITS
Number Exhibit
4.8 Fifth Amendment to the Giant Industries, Inc. and
Affiliated Companies 401(k) Plan, effective August 1,
1999, dated August 6, 1999
23.1 Consent of Deloitte & Touche LLP
EXHIBIT 4.8
FIFTH AMENDMENT
OF THE
GIANT INDUSTRIES, INC.
& AFFILIATED COMPANIES
401(K) PLAN
WHEREAS, Giant Industries, Inc. adopted Giant Industries, Inc. &
Affiliated Companies 401(k) Plan(the "Plan") through adoption of the Fidelity
Investments CORPORATEplan for Retirement sm Profit Sharing/401(k) Basic Plan
Document No. 07, effective as of July 1, 1993; and
WHEREAS, the Sponsor desires to amend the Plan to add employer stock as
an investment option:
NOW THEREFORE, the Sponsor amends the Plan as follows effective August
1, 1999.
1. Section 2.01(a)(34) is added to the Basic Plan Document No. 07 as
follows:
"Permissible Investment" means the investments specified by the Employer
as available for investment of assets of the Trust and agreed to by the
Trustee or other investments specified by the Employer as available for
investment of assets of the Trust and agreed to by the Trustee. Unless the
context otherwise requires, any reference to `Fidelity Fund', with respect to
a Participant's account, shall be deemed to include any Permissible
Investment.
2. Section 14.24 is added to the Basic Plan No. 07 as follows:
14.24 Employer Stock Option. If one of the Permissible Investments is equity
securities issued by the Employer or a Related Company which are publicly
traded and which are "qualifying employer securities" within the meaning of
Section 407(d)(5) of ERISA ("Employer stock"), investments in "Employer stock"
shall be made via the "Employer stock" investment fund (the "stock fund")
which shall consist of shares of "Employer stock" and short-term liquid
investments consisting of mutual fund shares or commingled money market pool
units as agreed to by the Employer and the Trustee, necessary to satisfy the
"stock fund's" cash needs for transfers and payments. A cash target range
shall be maintained in the "stock fund". Such target range may be changed as
agreed to in writing by the Employer and the Trustee. The Trustee is
responsible for ensuring that the actual cash held in the "stock fund" falls
within the agreed upon range over time.
Each Participant's interest in the "stock fund" shall be measured either
in actual shares of "Employer stock" that are allocated to the Participant's
Account and a proportionate interest in all other assets of the "stock fund"
or units of participation, as provided in the Service Agreement. If accounting
is by units of participation, such units shall represent a proportionate
interest in all assets of the "stock fund," which includes shares of "Employer
stock", short-term investments and at times, receivables for dividends and/or
"Employer stock" sold and payables for "Employer stock" purchased. A net
asset value per unit shall be determined daily for each unit outstanding of
the "stock fund". The return earned by the "stock fund" shall represent a
combination of the dividends paid on the shares of "Employer stock" held by
the "stock fund", gains or losses realized on sales of "Employer stock",
appreciation or depreciation in the market price of those shares owned, and
interest on the short-term investments held by the "stock fund".
Dividends received by the "stock fund" are reinvested in additional
shares of "Employer Stock".
Investments in "Employer Stock" shall be subject to the following limitations:
(a) Acquisition Limit. Pursuant to the Plan, the Trust may be invested
in "Employer stock" to the extent necessary to comply with investment
directions under Section 6.02 of the Plan. Notwithstanding the
foregoing, effective for deferral contributions made for Plan Years
beginning on or after January 1, 1999, the portion of a Participant's
Deferral Contributions that the Employer may require to be invested
in "Employer stock" for a Plan Year cannot exceed one-percent of such
Participant's Compensation for the Plan Year.
(b) Fiduciary Duty of "Named Fiduciary". The Administrator or any person
designated by the Administrator as a named fiduciary under Section
13.01 (the "named fiduciary") shall continuously monitor the
suitability under the fiduciary duty rules of ERISA Section 404(a)(1)
(as modified by ERISA Section 404(a)(2) and 404(c) of acquiring and
holding "Employer stock". The Trustee shall not be liable for any
loss, or by reason of any breach, which arises from the directions of
the "named fiduciary" with respect to the acquisition and holding of
"Employer stock", unless it is clear on their face that the actions
to be taken under those directions would be prohibited by the
foregoing fiduciary duty rules or would be contrary to the terms of
the Plan or this Trust Agreement.
(c) Execution of Purchases and Sales. Purchases and sales of "Employer
stock" (other than for exchanges) shall be made on the open market on
the business date on which the Trustee receives from the Employer in
good order all information and documentation necessary to accurately
effect such purchases and sales (or, in the case of purchases, the
subsequent date on which the Trustee has received a wire transfer of
the funds necessary to make such purchases). Such general rules
shall not apply in the following circumstances:
(1) If the Trustee is unable to determine the number of shares
required to be purchased or sold on such business day;
(2) If the Trustee is unable to purchase or sell the total number
of shares required to be purchased or sold on such business day
as a result of market conditions; or
(3) If the Trustee is prohibited by the Securities and Exchange
Commission, the New York Stock Exchange, or any other regulatory
body from purchasing or selling any or all of the shares required
to be purchased or sold on such business day.
In the event of the occurrence of the circumstances described in
(1), (2), or (3) above, the Trustee shall purchase or sell such
shares as soon as possible thereafter and shall determine the
price of such purchases or sales to be the average purchase or
sales price of all such shares purchased or sold, respectively.
The Trustee may follow directions from the "named fiduciary" to
deviate from the above purchase and sale procedures provided that
such direction is made in writing by the "named fiduciary".
(d) Purchases and Sales from or to Employer. If directed by the Employer
in writing prior to the trading date, the Trustee may purchase or
sell "Employer stock" from or to the Employer if the purchase or sale
is for adequate consideration (within the meaning of ERISA Section
3(18))
(e) and no commission is charged. If Employer contributions or
contributions made by the Employer on behalf of the Participants
under the Plan are to be invested in "Employer stock", the Employer
may transfer "Employer stock" in lieu of cash to the Trust. In either
case, the number of shares to be transferred shall be determined by
dividing the total amount of "Employer stock" to be purchased or sold
by the closing price of the "Employer stock" on any national
securities exchange on the trading date.
(e) Use of "Affiliated Broker" to Purchase "Employer Stock". The Employer
hereby directs the Trustee to use the "affiliated broker" designated
below to provide brokerage services in connection with any purchase
or sale of "Employer stock" in accordance with investment directions
from Participants and/or the Employer if and to the extent that each
has authority to direct investments under Section 1.14 of the
Adoption Agreement. The provision of brokerage services hereunder by
the "affiliated broker" shall be subject to the provisions discussed
in this Subsection.
The Employer hereby directs the Trustee to use Fidelity Brokerage
Services, Inc. ("affiliated broker") to purchase or sell
individual securities for Participant Accounts in accordance with
investment directions provided by such Participants. In accordance
with the requirements of Department of Labor Prohibited
Transaction Class Exception ("PTCE") 86-128, the ("affiliated
broker") may not be a trustee (other than a non-discretionary
trustee), the Administrator, or an Employer, unless otherwise
permitted under Section IV of PTCE 86-128. The provision of
brokerage services by the ("affiliated broker") shall be subject
to the following:
1. In accordance with the procedures set forth in PTCE 86-128,
the Trustee shall provide the Employer with the following
documents: (i) a description of the "affiliated brokers" brokerage
placement practices; (ii) a copy of PTCE 86-128; (iii) an annual
report which summarizes all securities transaction-related charges
incurred by the Plan; and (iv) a form by which the Employer may
terminate this authorization to use a broker affiliated with the
Trustee. The Trustee shall provide the Employer with the
termination form described above annually.
2. Any successor organization of the ("affiliated broker")
through reorganization, consolidation, merger, or similar
transactions, shall, upon consummation of such transaction, become
the successor broker in accordance with the terms of this
authorization provision.
3. The Trustee and the ("affiliated broker") shall continue to
rely on this authorization provision until notified to the
contrary. The Employer reserves the right to terminate this
authorization upon a sixty (60) days written notice to the
("affiliated broker") (or its successor) and the Trustee, and in
accordance with Section 14.24 of this Agreement.
(f) Securities Law Reports. The "named fiduciary" shall be responsible
for filing all reports required under Federal or state securities
laws with respect to the Trust's ownership of "Employer stock";
including, without limitation, any reports required under Section 13
or 16 of the Securities Exchange Act of 1934 and shall immediately
notify the Trustee in writing of any requirement to stop purchases or
sales of "Employer stock" pending the filing of any report. The
Trustee shall provide to the "named fiduciary" such information on
the Trust's ownership of "Employer stock" as the "named fiduciary"
may reasonably request in order to comply with Federal or state
securities laws.
(g) Voting and Tender Offers. Notwithstanding any other provision of the
Trust Agreement the provisions of this Subsection shall govern the
voting and tendering of "Employer stock". If the Plan uses share
accounting with respect to the "stock fund", each Participant shall
be designated as a named fiduciary under ERISA with respect to shares
of "Employer stock" credited to the Participant's Account that were
not acquired at the direction of the Participant in accordance with
ERISA Section 404(c). If accounting with respect to the "stock fund"
is by units of participation, each Participant shall be designated a
named fiduciary under ERISA with respect to shares of "Employer
stock" attributable to units in the "stock fund" credited to the
Participant's Account not acquired at the direction of the
Participant in accordance with ERISA Section 404(c).
The Employer, after consultation with the Trustee, shall
provide and pay for all printing, mailing, tabulation and other
costs associated with the voting and tendering of "Employer
stock", except as required by law.
(1) Voting.
(A) When the issuer of the "Employer stock" prepares for
any annual or special meeting, the Employer shall notify the
Trustee thirty (30) days in advance of the intended record
date and shall cause a copy of all materials to be sent to
the Trustee. Based on these materials the Trustee shall
prepare a voting instruction form. At the time of mailing
of notice of each annual or special stockholders' meeting of
the issuer of the "Employer stock", the Employer shall cause
a copy of the notice and all proxy solicitation materials to
be sent to each Participant with an interest in "Employer
stock" held in the Trust, together with the foregoing voting
instruction form to be returned to the Trustee or its
designee. The form shall show the proportional interest in
the number of full and fractional shares of "Employer stock"
credited to the Participant's Sub-Accounts held in the
"stock fund". The Employer shall provide the Trustee with a
copy of any materials provided to the Participants and shall
(if the mailing is not handled by the Trustee) certify that
the materials have been mailed or otherwise sent to
Participants.
(B) Each Participant with an interest in the "stock fund"
shall have the right to direct the Trustee as to the manner
in which the Trustee is to vote (including not to vote) that
number of shares of "Employer stock" that is credited to his
Account, if the Plan uses share accounting, or, if
accounting is by units of participation, that reflects such
Participant's proportional interest in the "stock fund"
(both vested and unvested). Directions from a Participant
to the Trustee concerning the voting of "Employer stock"
shall be communicated in writing, or by mailgram or similar
means. These directions shall be held in confidence by the
Trustee and shall not be divulged to the Employer, or any
officer or employee thereof, or any other person. Upon its
receipt of the directions, the Trustee shall vote the shares
of "Employer stock" that are credited to a Participant's
Account, if the Plan uses share accounting, or, if
accounting is by units of participation, that reflect the
Participant's proportional interest in the "stock fund" as
directed by the Participant. The Trustee shall not vote
shares of "Employer stock" that are credited to a
Participant's Account, if the Plan uses share accounting,
or, if accounting is by units of participation, that reflect
a Participant's proportional interest in the "stock fund"
for which the Trustee has received no direction from the
Participant, except as required by law.
(2) Tender Offers.
(A) Upon commencement of a tender offer for any securities
held in the Trust that are "Employer stock", the Employer
shall notify each Participant with an interest in such
"Employer stock" of the tender offer and utilize its best
efforts to timely distribute or cause to be distributed to
the Participant the same information that is distributed to
shareholders of the issuer of "Employer stock" in
connection with the tender offer, and, after consulting
with the Trustee, shall provide and pay for a means by
which the Participant may direct the Trustee whether or not
to tender the "Employer stock" that is credited to a
Participant's Account, if the Plan uses share accounting,
or, if accounting is by units of participation, that
reflects such Participant's proportional interest in the
"stock fund" (both vested and unvested). The Employer
shall provide the Trustee with a copy of any material
provided to the Participants and shall (if the mailing is
not handled by the Trustee) certify to the Trustee that the
materials have been mailed or otherwise sent to
Participants.
(B) Each Participant shall have the right to direct the
Trustee to tender or not to tender some or all of the shares
of "Employer stock" that are credited to his Account, if the
Plan uses share accounting, or, if accounting is by units of
participation, that reflect such Participant's proportional
interest in the "stock fund" (both vested and unvested).
Directions from a Participant to the Trustee concerning the
tender of "Employer stock" shall be communicated in writing,
or by mailgram or such similar means as is agreed upon by
the Trustee and the Employer under the preceding paragraph.
These directions shall be held in confidence by the Trustee
and shall not be divulged to the Employer, or any officer of
employee thereof, or any other person, except to the extent
that the consequences of such directions are reflected in
reports regularly communicated to any such persons in the
ordinary course of the performance of the Trustee's services
hereunder. The Trustee shall tender or not tender shares of
"Employer stock" as directed by the Participant. The Trustee
shall not tender shares of "Employer stock" that are
credited to a Participant's Account, if the Plan uses share
accounting, or, if accounting is by units of participation,
that reflect a Participant's proportional interest in the
"stock fund" for which the Trustee has received no direction
from the Participant.
(C) A Participant who has directed the Trustee to tender
some or all of the shares of "Employer stock" that are
credited to his Account, if the Plan uses share accounting,
or, if accounting is by units of participation, that reflect
the Participant's proportional interest in the "stock fund"
may, at any time prior to the tender offer withdrawal date,
direct the Trustee to withdraw some or all of such tendered
shares, and the Trustee shall withdraw the directed number
of shares from the tender offer prior to the tender offer
withdrawal deadline. A Participant shall not be limited as
to the number of directions to tender or withdraw that the
Participant may give to the Trustee.
(D) A direction by a Participant to the Trustee to tender
shares of "Employer stock" that are credited to the
Participant's Account, if the Plan uses share accounting,
or, if accounting is by units of participation, that reflect
the Participant's proportional interest in the "stock fund"
shall not be considered a written election under the Plan by
the Participant to withdraw, or have distributed, any or all
of his withdrawable shares. If the Plan uses share
accounting, the Trustee shall credit to the Participant's
Account the proceeds received by the Trustee in exchange for
the shares of "Employer stock" tendered from the
Participant's Account. If accounting is by units of
participation, the Trustee shall credit to each proportional
interest of the Participant from which the tendered shares
were taken the proceeds received by the Trustee in exchange
for the shares of "Employer stock" tendered from that
interest. Pending receipt of direction (through the
Administrator) from the Participant or the "named
fiduciary", as provided in the plan, as to which of the
remaining permissible investments the proceeds should be
invested in, the Trustee shall invest the proceeds in the
Permissible Investment specified for such purposes in the
Service Agreement or, if no such Permissible Investment has
been specified, the most conservative Permissible Investment
designated by the Employer in the Service Agreement.
(h) Shares Credited. If accounting with respect to the "stock fund" is
by units of participation, then for all purposes of this Section
14.24, the number of shares of "Employer stock" deemed "credited" or
"reflected" to a Participant's proportional interest shall be
determined as of the last preceding valuation date. The trade date is
the date the transaction is valued.
(i) General. With respect to all rights other than the right to vote,
the right to tender, and the right to withdraw shares previously
tendered, in the case of "Employer stock" credited to a Participant's
Account or proportional interest in the "stock fund", the Trustee
shall follow the directions of the Participant and if no such
directions are received, the directions of the "named fiduciary".
The Trustee shall have no duty to solicit directions from
Participants.
(j) Conversion. All provisions in this Section 14.24 shall also apply to
any securities received as a result of a conversion to "Employer
stock".
GIANT INDUSTRIES, INC. &
AFFILIATED COMPANIES
Signature: /s/ GARY R. DALKE
__________________________________
Date: 8-4-99 Name: Gary R. Dalke
_____________ _______________________________________
(Please Print)
Title: VP, Corporate Controller
_______________________________________
ACCEPTED BY:
FIDELITY MANAGEMENT
TRUST COMPANY,
As Trustee
Signature: /s/ ERIC L. WHICHMANN
__________________________________
Date: 8-6-99 Name: Eric L. Wichmann
_____________ _______________________________________
(Please Print)
Title:
_______________________________________
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Giant Industries, Inc. and Affiliated Companies on Form S-8 of our report
dated March 4, 1999, appearing in the Annual Report on Form 10-K of Giant
Industries, Inc. and Affiliated Companies for the year ended December 31,
1998.
DELOITTE & TOUCHE LLP
Phoenix, Arizona
August 23, 1999
