-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EoynaNUZ/uCNVGNpE3ienXnBFxiseXZhbuzCycJp3DIb/9Om0nT99WxoQiIa5kIO S7AuV7evI59xgg5BI9GBHg== 0000856465-01-500006.txt : 20010426 0000856465-01-500006.hdr.sgml : 20010426 ACCESSION NUMBER: 0000856465-01-500006 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010425 EFFECTIVENESS DATE: 20010425 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GIANT INDUSTRIES INC CENTRAL INDEX KEY: 0000856465 STANDARD INDUSTRIAL CLASSIFICATION: PETROLEUM REFINING [2911] IRS NUMBER: 860642718 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-59502 FILM NUMBER: 1610483 BUSINESS ADDRESS: STREET 1: 23733 N SCOTTSDALE RD CITY: SCOTTSDALE STATE: AZ ZIP: 85255 BUSINESS PHONE: 4805858888 MAIL ADDRESS: STREET 1: 23733 N SCOTTSDALE RD CITY: SCOTTSDALE STATE: AZ ZIP: 85255 S-8 1 s-8final.txt GIANT INDUSTRIES INC. & AFFILIATED COMPANIES S-8 As filed with the Securities and Exchange Commission on April 25, 2001. 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: W. T. Eggleston, Jr. Fennemore Craig, P.C. 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 (602) 916-5000 ______________________ 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, 250,000 $8.75 $2,187,500 $547 $.01 par value3 ________________________________________________________________________ 1 Based upon the Registrant's estimate of the number of shares of Common Stock 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 April 19, 2001. 3 In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this Registration Statement also covers an indeterminate number of interests to be offered or sold pursuant to the employee benefit plan described herein. 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 for the year ended December 31, 2000 filed with the Commission on March 30, 2001; 2. 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; 3. The Giant Industries, Inc. and Affiliated Companies 401(k) Plan's Annual Report on Form 11-K for the fiscal year ended December 31, 1999 filed with the Commission on June 28, 2000; and 4. The Giant Industries, Inc. and Affiliated Companies Employee Stock Ownership Plan's Annual Report on Form 11-K for the fiscal year ended December 31, 1999 filed with the Commission on May 26, 2000. 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, as amended September 9, 1999. Incorporated by reference to Exhibit 3.2 to the Registrant's Annual Report on Form 10-K for the fiscal year Ended December 31, 1999, File No. 1-10398, filed with the Commission on March 27, 2000. 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. Incorporated by reference to Exhibit 4.8 to the Registrant's Registration Statement on Form S-8 (No. 333-85857), filed with the Commission on August 25, 1999. 4.9 Sixth Amendment of the Giant Industries, Inc. & Affiliated Companies 401(k) Plan, effective January 1, 1999, dated June 30, 2000. 4.10 Seventh Amendment of the Giant Industries, Inc. & Affiliated Companies 401(k) Plan, effective January 1, 2001, dated April 18, 2001. 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. 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 April 25, 2001. GIANT INDUSTRIES, INC. By: /s/ JAMES E. ACRIDGE ---------------------------- James E. Acridge Chairman of the Board, President 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, April 25, 2001 James E. Acridge President, Chief Executive Officer, Director (Principal Executive Officer) /s/ MARK B. COX - ----------------------- Vice President, Treasurer, April 25, 2001 Mark B. Cox Financial Officer and Assistant Secretary (Principal Financial Officer) /s/ GARY R. DALKE - ----------------------- Vice President, Controller, April 25, 2001 Gary R. Dalke Accounting Officer and Assistant Secretary (Principal Accounting Officer) /s/ FREDRIC L. HOLLIGER - ----------------------- Executive Vice President, April 25, 2001 Frederic L. Holliger Chief Operating Officer, Director /s/ MICHAEL GEDDES - ----------------------- Director April 25, 2001 F. Michael Geddes /s/ ANTHONY J. BERNITSKY - ----------------------- Director April 25, 2001 Anthony J. Bernitsky /s/ RICHARD T. KALEN, JR. - ----------------------- Director April 25, 2001 Richard T. Kalen, Jr. /s/ MICHAEL H. K. STARR - ----------------------- Director April 25, 2001 Michael H. K. Starr 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 April 25, 2001. 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 INDEX TO EXHIBITS Number Exhibit 4.9 Sixth Amendment of the Giant Industries, Inc. & Affiliated Companies 401(k) Plan, effective January 1, 1999, dated June 30, 2000 4.10 Seventh Amendment of the Giant Industries, Inc. & Affiliated Companies 401(k) Plan, effective January 1, 2001, Dated April 18, 2001 23.1 Consent of Deloitte & Touche LLP EX-4 2 exhibit4-9.txt EXHIBIT 4.9 EXHIBIT 4.9 SIXTH AMENDMENT OF THE GIANT INDUSTRIES, INC. & AFFILIATED COMPANIES 401(K) PLAN WHEREAS, Giant Industries, Inc. and certain of its affiliates (the "Employer") adopted the Giant Industries, Inc. & Affiliated Companies 401(k) Plan (the "Plan") effective July 1, 1993; and WHEREAS, the Employer amended and restated the Plan, effective July 1, 1993, through an Adoption Agreement dated September 10, 1994; and WHEREAS, the Employer has the authority to amend the Plan. NOW, THEREFORE, the Employer hereby amends the Plan as follows: Effective January 1, 1999, except as otherwise stated in the replacement pages of the attachment, page 16 of the Adoption Agreement and pages 2 and 3 of the Attachment to Adoption Agreement for Giant Industries, Inc. and Affiliated Companies 401(k) Plan are hereby removed and replaced by the attached replacement page 16 of the Adoption Agreement and pages 2 and 3 of the Attachment to Adoption Agreement for Giant Industries, Inc. and Affiliates Companies 401(k) Plan. Pages 13 and 18 of the Adoption Agreement for Giant Industries, Inc. and Affiliated Companies 401(k) Plan are also hereby removed and replaced by the attached replacement pages 13 and 18 of the Adoption Agreement for the Giant Industries, Inc. and Affiliated Companies 401(k) Plan; the Committee shall, in its discretion, determine when Participant loans under Section 1.09 and when Fund 8 under Section 1.14 shall be made available to Participants. GIANT INDUSTRIES, INC. & AFFILIATED COMPANIES 6-30-00 - ------- By: /s/ GARY R. DALKE Date --------------------------- Name: Gary R. Dalke Title: VP, Assistant Secretary (d) In the event that the Plan is treated as Top-Heavy for a Plan Year, the following vesting schedule shall apply instead of the schedule(s) elected in Section 1.07(a) for such Plan Year and each Plan Year thereafter (check one): (1) [ ] 100% vested after _______ (not in excess of 3) Years of Service for Vesting. (2) [ ] Years of Service for Vesting Vesting Percentage Must be at Least 0 ________ 0% 1 ________ 0% 2 ________ 20% 3 ________ 40% 4 ________ 60% 5 ________ 80% 6 ________ 100% Note: If one or both schedules elected in Section 1.07(a) is(are) more favorable in all cases than the schedules elected in (d) above then such schedule(s) will continue to apply even in Plan Years in which the Plan is Top-Heavy. 1.13 TWO OR MORE PLANS - Code Section 415 limitation on annual additions If the Employer maintains or ever maintained another qualified plan in which any Participant in this Plan is (or was) a participant or could become a participant, the Employer must complete this section. The Employer must also complete this section if it maintains a welfare benefit fund, as defined in Section 419(e) of the Code, or an individual medical account, as defined in Section 415(l)(2) of the Code, under which amounts are treated as annual additions with respect to any Participant in this Plan. (a) If the Employer maintains, or had maintained, any other defined contribution plan or plans which are not Master or Prototype Plans, Annual Additions for any Limitation Year to this Plan will be limited (check one): (1) [ ] in accordance with Section 5.03 of this Plan. (2) [X] in accordance with another method set forth on the attached separate sheet. (3) [ ] Not Applicable. (Replacement Page, Sixth Amendment) 16 INSTRUCTIONS - PAGE 17 (b) (Select one option.) Completion of Option (b) is required by the Internal Revenue Service unless this is the only plan ever maintained by the Employer or the Employer never had or maintained a defined benefit plan. (b)(1) If an Employer maintains or has ever maintained a defined benefit plan in addition to this defined contribution plan then there are certain Internal Revenue Code fractions that must be computed annually. An Employer must compute each Participant's defined benefit fraction under the defined benefit plan and defined contribution fraction under the defined contribution plan. The sum of these two fractions for each Participant may not exceed 1.0. (b)(2) An Employer not electing (b)(1) may reduce excess annual additions for an affected Participant participating at one time or another in both a defined benefit plan and a defined contribution plan maintained by the Employer by attaching a separate schedule. (b)(3) Check this option if the Employer does not currently or has never maintained a defined benefit plan. 1.14. ESTABLISHMENT OF TRUST AND INVESTMENT DECISIONS: This section establishes the Trust under the Plan and permits the Employer to designate who directs the investments (Employer, Participants or both) and the Fidelity Mutual Funds available for investment under the Plan. (Select one option from (a) and complete Option (b).) (a)(1) An Employer may direct all Participant account balances between/ among the available Fidelity Funds offered under the Plan by electing Option (1). The Employer is responsible for sending Fidelity written direction for any exchanges between/among available Funds based upon procedures established by Fidelity. (a)(2) An Employer may allow each Participant to direct his/her account balance between/among the available Fidelity Funds offered under the Plan by selection Option (2). (A Participant's spouse or a third party may not direct Participant account balances.) Each Participant should receive a prospectus in accordance with Securities and Exchange Commission requirements before investing money in any Fidelity Mutual Fund. Participant exchanges will be based upon instructions given by Participants to Fidelity Telephone Representatives during predetermined business hours. An Employer electing this Option may also elect to comply with Section 404(c) of the Employee Retirement Income Security Act of 1974 (ERISA). If the requirements of ERISA 404(c) are satisfied by the Plan then each Participant is responsible for any investment gains/losses in his/her Accounts. However, election of ERISA 404(c) by an Employer does not fully relieve it of all fiduciary liability. The Employer is still responsible for the selection and monitoring of Plan investment options. (a)(3) An Employer may direct certain sources of Participant account balances and allow a Participant to direct his/her remaining account balances between/among the available Fidelity Funds by selecting Option (3). The Employer may direct Participant Fixed and/or Discretionary Employer Contributions by selecting Option (A) or only direct Employer Matching Contributions by selecting Option (B). All remaining sources will be directed by each Participant. An Employer may not elect ERISA 404(c) protection for the portion of Participant's Account it directs. The Employer and Participant must select from the available Funds listed in Option (b). The Employer must provide Fidelity with written instructions for the investment of Participant accounts that it will direct between/among Fidelity Funds. and become Employees of the Employer on October 4, 1995, in connection with the sale of assets of Bloomfield Refining Company to the Employer. (b) Effective as of January 1, 1996, Meridian Oil Inc., Meridian Oil Gathering Inc., and Meridian Oil Trading Inc. (collectively "Meridian"), and any affiliate or predecessor employer of Meridian, but only to the extent service was credited under the Burlington Resources Retirement Savings Plan on August 18, 1995 with respect to such employer, and only for employees who were employed by Meridian on August 17, 1995, and became Employees of the Employer on August 18, 1995, in connection with the sale of assets of Meridian to the Employer. (c) Effective as of January 1, 1996, Texaco Refining and Marketing Inc. ("Texaco"), and any affiliate or predecessor employer of Texaco, but only to the extent service was credited under any plan Sponsored by Texaco that qualified under Section 401(a)(4) of the Code, and only for an employee who was employed by Texaco on July 24, 1993, and became an Employee of the Employer on July 25, 1995 in connection with the sale of assets of Texaco to the Employer. (d) Effective as of July 1, 1997, Thriftway Marketing Corporation ("Thriftway") for service before May 28, 1997 but only for Pat Curtis, a human resource generalist, and for employees employed by Thriftway on May 27, 1997 who were employed or hired into the transportation division on or about May 28, 1997 and who became Employees of the Employer on May 28, 1997 in connection with the sale of assets of Thriftway and certain related entities to the Employer. (e) Effective as of July 1, 1998, Kaibab Industries, Inc. ("Kaibab") and any affiliate or predecessor employer of Kaibab, but only to the extent Service was granted under the Kaibab 401(k) Plan and only for an employee who was employed by Kaibab immediately before becoming an Employee of the Employer and became an Employee of the Employer on or after May 21, 1998 and on or before December 31, 1998, in connection with the sale of certain assets of Kaibab to the Employer. Section 1.13(a)(2) In the event a Participant, covered under both this Plan and the Employee Stock Ownership Plan and Trust Agreement of Giant Industries, Inc. and Affiliated (Replacement Page, Sixth Amendment) -2- Companies (the "ESOP"), has an Excess Amount for a Limitation Year, such Excess Amount shall first be disposed as provided in Section 5.03(a)(4)(A) of this Plan. Section 5.03(a)(4)(A) of this Plan directs a return of any Elective Deferrals (including gains attributable thereto) to reduce the Excess Amount. In the event a Participant still has an Excess Amount after application of Section 5.03(a)(4)(A) of this Plan, such remaining Excess Amount shall, in accordance with the terms of the ESOP, be reduced by reallocating contributions under the ESOP among the Accounts of the remaining Participants of the ESOP for whom such limitations are not exceeded on the same basis as ESOP Employer contributions and forfeitures are allocated. To the extent the reallocation would exceed the limitations for all ESOP Participants, such remaining Excess Amount shall be reduced as provided in Section 5.03(a)(4)(B), (C), and (D) of this Plan. Section 5.03(a)(4)(B) reapplies the Excess Amount to reduce future Employer contributions. Section 5.03(a)(4)(C) and (D) set up a suspense account to hold the unallocated Excess Amount if the Participant is no longer in the service of the Employer at the end of a Limitation Year. The suspense account is applied to reduce future Employer contributions for all remaining Participants. AMENDMENT TO BASIC PLAN DOCUMENT (a) By way of clarification and emphasis, Section 13.01 is amended by inserting the words "Discretionary authority" at the beginning of each of clauses (b)-(f), and in each such clause, revising "To" to read "to". (b) The second sentence of Section 4.10(a)(1) is amended by adding the following at the conclusion thereof: "; provided, that in the case of a direct rollover of an eligible rollover distribution from the Kaibab 401(k) Plan and the Kaibab Industries, Inc. Employee Stock Ownership Plan (the 'Kaibab plans'), the transfer may include a participant note for a plan loan from one of the Kaibab plans." (c) By way of clarification and emphasis, Section 4.10(a)(2) is amended by inserting the phrase "any or all" between the words "accept" and "rollover" in both places they occur. (Replacement Page, Sixth Amendment) -3- 1.08 PREDECESSOR EMPLOYER SERVICE [X] Service for purposes of eligibility in Section 1.03(a)(1) and vesting in Section 1.07(a) of this Plan shall include service with the following employer(s): (a) See attachment. (b) See attachment. (c) See attachment. (d) See attachment. (e) See attachment. 1.09 PARTICIPANT LOANS Participant loans (check (a) or (b)): (a) [x] will be allowed in accordance with Section 7.09, subject to a $1,000 minimum amount and will be granted (check (1) or (2)): (1) [X] for any purpose. (2) [ ] for hardship withdrawal (as defined in Section 7.10) purposes only. (b) [ ] will not be allowed. 1.10 HARDSHIP WITHDRAWALS Participant withdrawals for hardship prior to termination of employment (check one): (a) [X] will be allowed in accordance with Section 7.10, subject to a $1,000 minimum amount. (b) [ ] will not be allowed. (Replacement Page, Sixth Amendment) 13 (b) Plan Investment Options The Employer hereby establishes a Trust under the plan in Accordance with the provisions of Article 14, and the Trustee signifies acceptance of its duties under Article 14 by its signature below. Participant Accounts under the Trust will be invested among the Fidelity Funds listed below pursuant to Participant and/or Employer directions. FUND NAME FUND NUMBER (1) Retirement Government Money Market 0631 (2) Government Income 0054 (3) Contrafund 0022 (4) Fidelity Asset Manager 0314 (5) Fidelity Asset Manager; Growth 0321 (6) Diversified International 0325 (7) Aggressive Growth Fund 0324 (8) Freedom Funds (9) Spartan U.S. Equity Index 0650 (10) Giant Industries Inc. Stock Fund TCKZ NOTE: An additional annual recordkeeping fee will be charged for each Fund in excess of five funds. To the extent that the Employer selects as an investment option the Managed Income Portfolio of the Fidelity Group Trust for Employee Benefit Plans (the "Group Trust"), the Employer hereby (A) agrees to the terms of the Group Trust and adopts said terms as a part of this Agreement and (B) acknowledges that it has received from the Trustee a copy of the Group Trust, the Declaration of Separate Fund for the Managed Income Portfolio of the Group Trust, and the Circular for the Managed Income Portfolio. NOTE: The method and frequency for change of investments will be determined under the rules applicable to the selected funds or, if applicable, the rules of the Employer adopted in accordance with Section 6.03. Information will be provided regarding expenses, if any, for changes in investment options. Funds 6 & 7 added effective October 1, 1996 /s/ A. WAYNE DAVENPORT - ---------------------- A. Wayne Davenport September 11, 1996 Fund 8 approved. To be offered when Trustee is directed by Administrative Committee: - ---------------------- By: Title: Date: Fund 9 added effective January 1, 1998 Fund 10 added effective August 1, 1999 - ----------------------- (Replacement Page, Sixth Amendment) 18 EX-4 3 exhibit4-10.txt EXHIBIT 4.10 EXHIBIT 4.10 SEVENTH AMENDMENT OF THE GIANT INDUSTRIES, INC. & AFFILIATED COMPANIES 401(K) PLAN WHEREAS, Giant Industries, Inc. and certain of its affiliates (the "Employer") adopted the Giant Industries, Inc. & Affiliated Companies 401(k) Plan (the "Plan") effective July 1, 1993; and WHEREAS, the Employer amended and restated the Plan, effective July 1, 1993, through an Adoption Agreement dated September 10, 1994; WHEREAS, the Employee Stock Ownership Plan And Trust Agreement has been merged into the Plan, effective January 1, 2001; and WHEREAS, the Employer has the authority to amend the Plan. NOW THEREFORE, the Employer hereby amends the Plan as follows: Effective January 1, 2001, except as otherwise stated in the replacement pages of the attachment, pages 3, 6, 7,12, 14, and 17 of the Adoption Agreement and the Attachment to Adoption Agreement for Giant Industries, Inc. and Affiliated Companies 401(k) Plan are hereby removed and replaced by the attached replacement pages 3, 6, 7, 12, 14, and 17 of the Adoption Agreement and the Attachment to Adoption Agreement for Giant Industries, Inc. and Affiliated Companies 401(k) Plan. GIANT INDUSTRIES, INC. & AFFILIATED COMPANIES 4/18/01 By:/s/ GARY R. DALKE - ------- -------------------------- Date Name: Gary R. Dalke Title: Vice President (b) The term "Employer" includes the following Related Employer(s) (as defined in Section 2.01(a)(26)): See attached sheet. 1.03 COVERAGE (a) All Employees who meet the conditions specified below will be eligible to participate in the Plan: (1) Service requirement (check one): (A) [ ] no service requirement. (B) [ ] three consecutive months of service (no minimum number Hours of Service can be required). (C) [ ] six consecutive months of service (no minimum number Hours of Service can be required). (D) [X] one Year of Service (1,000 Hours of Service is required during the Eligibility Computation Period.) See Attachment. (2) Age requirement (check one): (A) [X] no age requirement. (B) [ ] must have attained age _____ (not to exceed 21). (Replacement Page, Seventh Amendment) 3 (b) Compensation for the First Year of Participation Contributions for the Plan Year in which an Employee first becomes a Participant shall be determined based on the Employee's Compensation (check one): (1) [ ] For the entire Plan Year. (2) [X] For the portion of the Plan Year in which the Employee is eligible to participate in the Plan. 1.05 CONTRIBUTIONS (a) [X] Employer Contributions: (1) [ ] Fixed Formula - Nonintegrated Formula (check (A) or (B)): (A) [ ] Fixed Percentage Employer Contribution: For each Plan Year, the Employer will contribute for each eligible Participant an amount equal to _____% (not to exceed 15%) of such Participant's Compensation. (B) [ ] Fixed Flat Dollar Employer Contribution: For each Plan year, the Employer will contribute for each eligible Participant an amount equal to $_______. (2) [X] Discretionary Formula The Employer may decide each Plan year whether to make a Discretionary Employer Contribution on behalf of eligible Participants in accordance with Section 4.06. Such contributions may only be funded by the Employer after the Plan year ends and shall be allocated to eligible Participants based upon the following (check (A) or (B)): (A) [X] Nonintegrated Allocation Formula: In the ratio that each eligible Participant's Compensation bears to the total Compensation paid to all eligible Participants for the Plan Year. (B) [ ] Integrated Allocation Formula: In accordance with Section 4.06. Note: An Employer who maintains any other plan that provides for Social Security Integration (permitted disparity) may not elect (2)(B). (Replacement Page, Seventh Amendment) 6 (3) Eligibility Requirement(s) A Participant shall be entitled to Employer Contributions for a Plan Year under this Subsection (a) if the Participant satisfies the following requirement(s) (Check the appropriate box(es) - Options (B) and (C) may not be elected together): (A) [X] is employed by the Employer on the last day of the Plan Year. (B) [ ] earns at least 500 Hours of Service during the Plan Year. (C) [ ] earns at least 1,000 Hours of Service during the Plan Year. (D) [ ] no requirements. Note: If option (A), (B) or (C) above is selected then Employer Contributions can only be funded by the Employer after Plan Year end. (b) [X] Deferral Contributions (1) Regular Contributions The Employer shall make a Deferral Contribution in accordance with Section 4.01 on behalf of each Participant who has an executed salary reduction agreement in effect with the Employer for the payroll period in question, not to exceed 15%* (no more than 15%) of Compensation for that period. *Effective 01/01/99 /s/ Charles F. Yonker ----------------------- Name: Charles F. Yonker Title: Dir. Human Resources (A) A Participant may increase or decrease, on a prospective basis, his salary reduction agreement percentage (check one): (i) [ ] As of the beginning of each payroll period. (ii) [ ] As of the first day of each month. (iii) [X] As of the next Entry Date. (iv) [ ] (Specify, but must be at least once per Plan Year) (B) A Participant may revoke, on a prospective basis, a salary reduction agreement at any time upon proper notice to the Administrator but in such case may not file a new salary Reduction agreement until (check one): (i) [ ] The first day of the next Plan Year. (ii) [X] Any subsequent Plan Entry Date. (iii) [ ] (Specify, but must be at least once per Plan Year) (Replacement Page, Seventh Amendment) 7 1.07 VESTING SCHEDULE See attachment. (a) The Participant's vested percentage in Employer Contributions (Fixed or Discretionary) elected in Section 1.05(a) and/or Matching Contributions elected in Section 1.05(c) shall be based upon the schedule(s) selected below, except with respect to any Plan Year during which the Plan is Top-Heavy. The schedule elected in Section 1.12(d) shall automatically apply for a Top-Heavy Plan and all Plan years thereafter unless the Employer has already elected a more favorable vesting schedule below. (1) Employer Contributions (2) Matching Contributions (check one): (check one): (A) [ ]N/A-No Employer Contributions (A) [ ]N/A-No Matching Contributions (B) [X]100% Vesting immediately (B) [X]100% Vesting immediately (C) [ ]3 year cliff (see C below) (C) [ ]3 year cliff (see C below) (D) [ ]5 year cliff (see D below) (D) [ ]5 year cliff (see D below) (E) [ ]6 year graduated (see E below) (E) [ ]6 year graduated (see E below) (F) [ ]7 year graduated (see F below) (F) [ ]7 year graduated (see F below) (G) [ ]Other vesting (complete G1 below) (G) [ ]Other vesting (complete G2 below) Years of Service for Vesting C D E F G1 G2 0 0% 0% 0% 0% ___ ___ 1 0% 0% 0% 0% ___ ___ 2 0% 0% 20% 0% ___ ___ 3 100% 0% 40% 20% ___ ___ 4 100% 0% 60% 40% ___ ___ 5 100% 100% 80% 60% ___ ___ 6 100% 100% 100% 80% ___ ___ 7 100% 100% 100% 100% 100% 100% Note: A schedule elected under G1 or G2 above must be at least as Favorable as one of the schedules in C, D, E or F above. (b) [ ] Years of Service for Vesting shall exclude (check one): (1) [ ] for new plans, service prior to the Effective Date as defined in Section 1.01(g)(1). (2) [ ] for existing plans converting from another plan document, service prior to the original Effective Date as defined in Section 1.01(g)(2). (Replacement Page, Seventh Amendment) 12 1.11 DISTRIBUTIONS (a) Subject to Articles 7 and 8 and (b) below, distributions under the Plan will be paid (check the appropriate box(es)): (1) [X] as a lump sum. (2) [ ] under a systematic withdrawal plan (installments). (b) [X] Check if a Participant will be entitled to receive a distribution of all or any portion of the following Accounts without terminating employment upon attainment of age 59 1/2 (check one): (1) [ ] Deferral Contribution Account (2) [X] All Accounts (c) [X] Check if the Plan was converted (by plan amendment) from another defined contribution plan, and the benefits were payable as (check the appropriate box(es)): (1) [ ] a form of single or joint and survivor life annuity. (2) [ ] an in-service withdrawal of vested Employer Contributions maintained in a Participant's Account (check (A) and/or (B)): (A) [ ] for at least _____ (24 or more) months. (B) [ ] after the Participant has at least 60 months of participation. (3) [X] another distribution option that is a "protected benefit" under Section 411(d)(6) of the Internal Revenue Code. Please attach a separate page identifying the distribution option(s). These additional forms of benefit may be provided for such plans under Articles 7 or 8. Note: Under Federal Law, distributions to Participants must generally begin no later than April 1 following the year in which the Participant attains age 70 1/2. (Replacement Page, Seventh Amendment) 14 (b) If the Employer maintains, or had maintained, a defined benefit plan or plans, the sum of the Defined Contribution Fraction and Defined Benefit Fraction for a Limitation Year may not exceed the limitation specified in Code Section 415(e), modified by section 416(h)(1) of the Code. This combined plan limit will be met as follows (check one): (1) [ ] Annual Additions to this Plan are limited so that the sum of the Defined Contribution Fraction and the Defined Benefit Fraction does not exceed 1.0. (2) [ ] another method of limiting Annual Additions or reducing projected annual benefits is set forth on an attached schedule. (3) [X] Not Applicable. 1.14 ESTABLISHMENT OF TRUST AND INVESTMENT DECISIONS (a) Investment Directions Participant Accounts will be invested (check one): (1) [ ] in accordance with investment directions provided to the Trustee by the Employer for allocating all Participant Accounts among the options listed in (b) below. (2) [ ] in accordance with investment directions provided to the Trustee by each Participant for allocating his entire Account among the options listed in (b) below. (3) [X] in accordance with investment directions provided to the Trustee by each Participant for all contribution sources in a Participant's Account except the following sources shall be invested as directed by the Employer (check (A) and/or (B)): (A) [X] Fixed or Discretionary Employer Contributions (B) [ ] Employer Matching Contributions The Employer must direct the applicable sources among the same investment options made available for Participant directed sources listed in (b) below. See attachment. (Replacement Page, Seventh Amendment) 17 Attachment to Adoption Agreement for Giant Industries, Inc. and Affiliated Companies 401(k) Plan Section 1.03(a)(1)(D). Effective January 1, 2001, Full-Time Employees shall become eligible to make Salary Deferrals beginning on the first Entry Date on or after they complete sixty days or more of service. For this purpose, "Full-Time Employee" means an Employee who is regularly scheduled to work thirty (30) or more hours per week. Section 1.03(b). The Entry Date(s) shall include the first day of each month between June 25, 1998 and December 31, 1998, but only for an employee who was employed by Kaibab and was eligible to contribute to the Kaibab Industries, Inc. 401(k) Employee Savings Plan for Employees Not Covered under a Collective Bargaining Agreement ("the Kaibab 401(k) Plan") immediately before becoming an Employee of the Employer and who became an Employee of the Employer on or after May 21, 1998 and on or before December 31, 1998, in connection with the sale of certain assets of Kaibab to the Employer. Section 1.04(a)(4). Effective January 1, 1997, Compensation shall exclude (1) the value of a qualified or a nonqualified stock option granted to an Employee by the Employer to the extent such value is includable in the Employee's taxable income, (2) the amount realized from the exercise of a qualified or nonqualified stock option and (3) severance benefits. Section 1.05(c)(4)(A). An Employee of Giant Exploration & Production Company ("E&P") who is employed by E&P on July 16, 1996, and who is not thereafter transferred from E&P to another affiliate or division that is part of the Employer, shall be deemed to satisfy the requirements of this Section 1.05(c)(4)(A) for the Plan Year ending December 31, 1996. Section 1.07(a). Effective January 1, 2001, a Participant shall be 100% vested in the portion of his Account attributable to the amount transferred (Replacement Page, Seventh Amendment) -1- from the Employee Stock Ownership Plan And Trust Agreement of Giant Industries Inc. and Affiliated Companies ("ESOP") only if he would otherwise be 100% vested under the vesting schedule in the ESOP as that plan existed on December 31, 2000, or if he was an active Employee of the Employer on or after January 1, 2001. Section 1.08 (a) Effective as of January 1, 1996, Bloomfield Refining Company ("Bloomfield"), The Gary-Williams Company ("Gary-Williams"), and any affiliate or predecessor employer of either, but only to the extent service was credited under The Gary Tax Advantaged Savings Program and Profit-Sharing Plan on October 4, 1995 with respect to such employer, and only for employees who were employed by Bloomfield or Gary-Williams on October 3, 1995, and became Employees of the Employer on October 4, 1995, in connection with the sale of assets of Bloomfield Refining Company to the Employer. (b) Effective as of January 1, 1996, Meridian Oil Inc., Meridian Oil Gathering Inc., and Meridian Oil Trading Inc. (collectively "Meridian"), and any affiliate or predecessor employer of Meridian, but only to the extent service was credited under the Burlington Resources Retirement Savings Plan on August 18, 1995 with respect to such employer, and only for employees who were employed by Meridian on August 17, 1995, and became Employees of the Employer on August 18, 1995, in connection with the sale of assets of Meridian to the Employer. (c) Effective as of January 1, 1996, Texaco Refining and Marketing Inc. ("Texaco"), and any affiliate or predecessor employer of Texaco, but only to the extent service was credited under any plan sponsored by Texaco that qualified under Section 401(a)(4) of the Code, and only for an employee who was employed by Texaco on July 24, 1993, and became an Employee of the Employer on July 25, 1995 in connection with the sale of assets of Texaco to the Employer. (d) Effective as of July 1, 1997, Thriftway Marketing Corporation ("Thriftway") for service before May 28, 1997 but only for Pat Curtis, a human resource generalist, and for employees employed by Thriftway on May 27, 1997 who were employed or hired into the transportation division on or about May 28, 1997 and who became Employees of the Employer on May 28, 1997 in (Replacement Page, Seventh Amendment) -2- connection with the sale of assets of Thriftway and certain related entities to the Employer. (e) Effective as of July 1, 1998, Kaibab Industries, Inc. ("Kaibab") and any affiliate or predecessor employer of Kaibab, but only to the extent Service was granted under the Kaibab 401(k) Plan and only for an employee who was employed by Kaibab immediately before becoming an Employee of the Employer and became an Employee of the Employer on or after May 21, 1998 and on or before December 31, 1998, in connection with the sale of certain assets of Kaibab to the Employer. Section 1.11(c)(3). 1. Form of Distribution of Amounts from Former ESOP (a) Distribution in Cash or in Stock. Effective January 1, 2001, each Participant, alternate payee, or Beneficiary ("Distributee") who has an amount in an Account attributable to an amount transferred from the ESOP (the "Transfer Account") shall have the right to receive distribution of his Transfer Account in whole shares of Employer stock, or in cash, or in cash and Employer stock. A Distributee who is entitled to receive a distribution of his Transfer Account in installments may elect as to each such installment whether to receive a distribution in Employer Stock or in cash, but not in Employer Stock and cash. Any elections under this subsection 1(a) shall be made in writing on a form approved by the Committee. The Committee is expressly authorized and shall have full discretion to adopt any written procedures necessary to implement the elections and the forms of distribution under this section, including (but not limited to) procedures providing for the timing of distributions within the parameters of subsection, the deduction from the Account of the Distributee of any distribution of any brokerage fees or expenses incurred in making the distribution, and for any cash adjustments required by fractional shares of Employer stock. Such procedures shall be binding upon all parties. (b) Lifetime Distributions. (1) General Rule. If the value of the Transfer Account of a former Participant or alternate payee exceeds $5,000, then a former Participant or (Replacement Page, Seventh Amendment) -3- alternate payee may elect to receive distribution in a single lump sum or in substantially equal annual installments over a period not longer than the greater of five (5) years or, in the case of a former Participant or alternate payee whose Transfer Account exceeds $500,000, five (5) years, plus one (1) additional year (not to exceed an additional five (5) years) for each $100,000 or fraction thereof by which the value of the Transfer Account immediately prior to the commencement of distributions exceeds $500,000; provided that the $100,000 and $500,000 shall be subject to cost-of-living adjustments under Code Section 409(o) and further provided that a former Participant or alternate payee receiving installment distributions under this subsection may elect at any time to receive the balance of his vested Accounts in a single lump sum. (2) Additional Lifetime Installments Distribution. A former Participant who has reached Normal Retirement Age before commencing distributions whose Transfer Account exceeds $5,000, and a participant who is required to begin distributions while still employed, may elect to receive distributions in annual installments calculated in accordance with Code Section 401(a)(9), and any regulations promulgated thereunder, payable over the former participant's or participant's life expectancy, without recalculation, as determined in accordance with Table V under U.S. Treasury Regulation Section 1.72-9. A former Participant or Participant receiving annual installment distributions under this subsection may elect at any time to receive the balance of his Transfer Account in a single lump sum. The installment distribution option provided under this subsection is not available to any alternate payee. (c) If a Participant elects a distribution in stock, he shall receive a distribution of the number of whole shares of Employer stock that may be purchased by the amount in his Transfer Account, and shall receive the remainder in cash. (d) If a Participant elects a distribution in cash and in stock, he shall receive a distribution of the number of whole shares of Employer stock that may be purchased by the amount in his Transfer Account that is invested in the Employer stock fund (the "Transfer Account (Stock)") plus the remainder, in cash, of his Transfer Account (Stock), as well as, in cash, the amount of his Transfer Account that is not invested in the Employer Stock Fund (the "Transfer Account (Non- Stock)"). (Replacement Page, Seventh Amendment) -4- (e) Unless a former Participant or alternate payee is permitted to delay the distribution, the distribution of the Transfer Account of a Participant who has terminated employment shall begin no later than as soon as practicable after the end of the calendar year in which he terminates employment, and the distribution of the Account of an alternate payee shall begin as soon as practicable after the establishment of the alternate payee's Account, but in no event later than the earliest of (1) sixty (60) days following the close of the later of the Calendar Year in which the Participant attains Normal Retirement Age, in which the tenth anniversary of the date the Participant commenced participation in the Plan occurs or in which the Participant terminates employment for any reason, (2) one year after the close of the Calendar Year in which the Participant terminates employment after attaining Normal Retirement Age, becomes disabled, or dies, or (3) five (5) years after the close of the calendar year in which a Participant terminates employment for any other reason, so long as he is not reemployed. (f) The time of any distribution of any benefit in cash from the Transfer Account shall also be subject to the following guidelines: (1) If a distribution in cash would cause a liquidation or distribution of greater than fifteen percent (15%) of the fair market value of the total Transfer Accounts (Non-Stock), then the distribution shall be delayed for up to three (3) years in order to permit sufficient liquidation of assets. (2) Even if a distribution in cash would not cause a liquidation or distribution of greater than fifteen percent (15%) of the fair market value of the Transfer Accounts (Non-Stock), if the distribution is in excess of One Hundred Thousand Dollars ($100,000.00), then the distribution shall be delayed until thirty (30) days after the next annual Employer contribution; and (3) Notwithstanding (1) and (2) to the contrary, if a distribution in cash, when aggregated with all other distributions prior to such distribution for the Fiscal Year, exceeds fifteen percent (15%) of the fair market value of the Transfer Accounts (Non-Stock), then the distribution shall be delayed for up to three years in order to permit sufficient liquidation of assets. (g) For purposes of this section 1.11(c)(3), the Discretionary Employer Contributions Account shall be considered as if it were part of the (Replacement Page, Seventh Amendment) -5- Transfer Account. Section 1.13(a)(2) In the event a Participant, covered under both this Plan and the Employee Stock Ownership Plan and Trust Agreement of Giant Industries, Inc. and Affiliated Companies (the "ESOP"), has an Excess Amount for a Limitation Year, such Excess Amount shall first be disposed as provided in Section 5.03(a)(4)(A) of this Plan. Section 5.03(a)(4)(A) of this Plan directs a return of any Elective Deferrals (including gains attributable thereto) to reduce the Excess Amount. In the event a Participant still has an Excess Amount after application of Section 5.03(a)(4)(A) of this Plan, such remaining Excess Amount shall, in accordance with the terms of the ESOP, be reduced by reallocating contributions under the ESOP among the Accounts of the remaining Participants of the ESOP for whom such limitations are not exceeded on the same basis as ESOP Employer contributions and forfeitures are allocated. To the extent the reallocation would exceed the limitations for all ESOP Participants, such remaining Excess Amount shall be reduced as provided in Section 5.03(a)(4)(B), (C), and (D) of this Plan. Section 5.03(a)(4)(B) reapplies the Excess Amount to reduce future Employer contributions. Section 5.03(a)(4)(C) and (D) set up a suspense account to hold the unallocated Excess Amount if the Participant is no longer in the service of the Employer at the end of a Limitation Year. The suspense account is applied to reduce future Employer contributions for all remaining Participants. Section 1.14(a)(3) The Employer may direct the Trustee to invest any or all of any Discretionary Employer Contributions in the Employer stock fund. With respect to the remainder of the Discretionary Employer Contribution, if any, the Participant shall direct the Trustee regarding its investment. The Employer may direct the Trustee to invest in the Employer stock fund a portion of amounts transferred from the ESOP, and the Participant shall direct the Trustee regarding the investment of the remainder of his Transfer Account. AMENDMENT TO BASIC PLAN DOCUMENT (a) By way of clarification and emphasis, Section 13.01 is amended by inserting the words "Discretionary authority" at the beginning of each of clauses (b)-(f), and in each such clause, revising "To" to read "to". (b) The second sentence of Section 4.10(a)(1) is amended by adding the (Replacement Page, Seventh Amendment) -6- following at the conclusion thereof: "; provided, that in the case of a direct rollover of an eligible rollover distribution from the Kaibab 401(k) Plan and the Kaibab Industries, Inc. Employee Stock Ownership Plan (the 'Kaibab plans'), the transfer may include a participant note for a plan loan from one of the Kaibab plans." (c) By way of clarification and emphasis, Section 4.10(a)(2) is amended by inserting the phrase "any or all" between the words "accept" and "rollover" in both places they occur. (d) Merger of Employee Stock Ownership Plan (1) Transferred Accounts from ESOP. The account balances of participants in the Employee Stock Ownership Plan And Trust Agreement of Giant Industries, Inc. and Affiliated Companies (the "ESOP") are transferred to this Plan, effective January 1, 2001, in connection with the merger of the ESOP into the Plan. (2) Transfer Account Forfeitures and Restoration. The following rules shall apply with respect to former participants in the ESOP who previously incurred a forfeiture of all or part of their ESOP account: (A) If any former participant in the ESOP shall be reemployed by the Employer before incurring six (6) consecutive one (1) year Breaks in Service, and such former participant had received, or was deemed to have received, a distribution of his entire vested interest prior to his reemployment, his forfeited account shall be reinstated only (i) if he repays the full amount distributed to him before the earlier of five (5) years after the first date on which the participant is subsequently reemployed by the Employer or the close of the six (6) consecutive one (1) year Breaks in Service, or (ii) in the event of a deemed distribution, upon the reemployment of such former participant. In the event the former participant does repay the full amount distributed to him, or in the event of a deemed distribution followed by reemployment, the amount forfeited from the participant's account shall be restored in full, unadjusted for any increase or decrease following the valuation date on which the forfeiture accrued. (B) For purposes of this subsection (d): (i) "Break in Service" shall mean a calendar year during which an Employee or a participant fails to complete at least five hundred (500) Hours of Service. (ii) "Hour of Service" shall mean each hour for which the Employee or a participant is directly or indirectly paid or entitled to payment by the (Replacement Page, Seventh Amendment) -7- Employer for performance of duties for the Employer including each hour for which back pay, irrespective of mitigation of damages, has been either awarded or agreed to by the Employer, and including each hour for which payment is made or payable to the Employee for periods during which the Employee is on an Employer approved leave of absence for vacation, jury, sick, or disability leave, or military service. Hours of Service shall also include hours during such additional periods of service as may be required pursuant to Department of Labor regulations. Hours for nonperformance of duties shall be credited in accordance with DOL Regulations Section 2530.200b- 2(b). Hours shall be credited to the applicable computation period in accordance with DOL Regulations Section 2530.200b-2(c). (C) A forfeiture of that portion of a participant's ESOP account that is not fully vested occurs on the earlier of: (i) the valuation date on or immediately following the date of the distribution of the entire vested portion of a terminated participant's account, or (ii) the last day of the year in which the participant incurs six (6) consecutive one (1) year Breaks in Service. Furthermore, for purposes of paragraph (i) above, in the case of a terminated participant whose vested benefit is zero, such terminated participant shall be deemed to have received a distribution of his vested benefit upon his or her termination of employment. Restoration of such amounts shall occur pursuant to subsection (A). Forfeitures pursuant to this subsection (C) or any other provision of the Plan shall be used first, to reinstate any previously forfeited account balances pursuant to subsection (A), then to reduce the Plan's administrative expenses and then to reduce the Employer contributions for the Plan Year in which the forfeiture occurs. (3) Any Participant or former Participant who has attained age 55 and completed 10 years of participation in the Plan (including, before 2001, participation in the ESOP) shall have the right to make an election to direct the investment of amounts allocated to his Transfer Account or his Discretionary Employer Contribution Account (collectively, the "Diversification Accounts") as provided in this section (3). Such a Participant or former Participant may elect within ninety (90) days after the close of each calendar year to diversify up to 25% of all amounts allocated to his Diversification Accounts, less the amount over which such Participant or former Participant has previously had an election under this section or under Section 9.5 of the ESOP rounded to the nearest whole integer, by directing the Committee to distribute the portion of his (Replacement Page, Seventh Amendment) -8- Diversification Accounts covered by the election to him (treating the Participant or former Participant as eligible for installment distributions) within one hundred and eighty (180) days after the end of such calendar year. In the case of any Participant or former Participant who attains age 59", 100% shall be substituted for 25% and the Participant or former Participant may make the election to diversify his Diversification Accounts at any time administratively feasible. No alternate payee or Beneficiary shall be permitted to make the elections provided under this paragraph. (4) At the time the Participant's, Alternate Payee's or Beneficiary's (the Distributee's) benefit becomes distributable under the Plan, the Committee, by certified or registered mail addressed to his last known address of record with the Committee or the Employer, shall notify the Distributee, that he is entitled to a distribution under the Plan, and summarize the provisions of this paragraph. If the Distributee fails to claim his distributive share or make his whereabouts in writing to the Committee within six (6) months from the date of mailing of the notice, the Committee may treat the Distributee's unclaimed payable accrued benefit as forfeited and will reallocate the amount as a forfeiture. A forfeiture under this paragraph will occur at the end of the notice period or, if later, the earliest date applicable Treasury regulations would permit the forfeiture. Pending forfeiture, the Committee, following the expiration of the notice period, may direct the Trustee to segregate the Account in a segregated account and to invest that segregated Account in federally insured interest bearing savings accounts or time deposits (or in a combination of both), or in other fixed income investments. If a Distributee who has incurred a forfeiture of his Account under the provisions of the first paragraph of this section makes a claim, at any time, for his forfeited Account, the Committee shall restore the Distributee's forfeited Account to the same dollar amount as the dollar amount of the Account forfeited, unadjusted for any gains or losses occurring subsequent to the date of the forfeiture. (Replacement Page, Seventh Amendment) -9- EX-23 4 exhibit23-1.txt EXHIBIT 23.1 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 21, 2001, June 13, 2000, and April 26, 2000, appearing in the Annual Report on Form 10-K of Giant Industries, Inc. for the year ended December 31, 2000 and in the Annual Reports on Form 11-K of Giant Industries, Inc. and Affiliated Companies 401(k) Plan and Giant Industries, Inc. and Affiliated Companies Employee Stock Ownership Plan for the years ended December 31, 1999, respectively. DELOITTE & TOUCHE LLP Phoenix, Arizona April 24, 2001 -----END PRIVACY-ENHANCED MESSAGE-----