-----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, MbEmq9BxthHQEWT4KmJqm+5c80e6NZhrFof/0xZaIr1h2rSpY3+KggDgtWsGh5aE 24Aa0ws+77xGTEGH0RFWLg== 0000856465-03-000002.txt : 20030402 0000856465-03-000002.hdr.sgml : 20030402 20030402125735 ACCESSION NUMBER: 0000856465-03-000002 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20030402 EFFECTIVENESS DATE: 20030402 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: 1933 Act SEC FILE NUMBER: 333-104249 FILM NUMBER: 03636055 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 s8-edgar.txt GIANT INDUSTRIES, INC. FORM S-8 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on April 2, 2003. 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 Registered(1) per Share(2) Price Fee(2) _____________________________________________________________________________ Common Stock, 2,000,000 $4.72 $9,440,000 $764.00 $.01 par value(3) _____________________________________________________________________________ (1) Based upon the Registrant's estimate of the number of shares of Common Stock that will be available for contribution to or 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 March 28, 2003. (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. 1 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, 2002, filed with the Commission on March 28, 2003; 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; and 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, 2001, filed with the Commission on June 28, 2002. 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 2 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, but subject to the exceptions contained in the policy. 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 3 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 4 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. Incorporated by reference to Exhibit 4.9 to the Registrant's Registration Statement on Form S-8 (No. 333-59502), filed with the Commission on April 25, 2001. 4.10 Seventh Amendment of the Giant Industries, Inc. & Affiliated Companies 401(k) Plan, effective January 1, 2001, dated April 18, 2001. Incorporated by reference to Exhibit 4.10 to the Registrant's Registration Statement on Form S-8 (No. 333-59502), filed with the Commission on April 25, 2001. 4.11* Amendment to the Giant Industries, Inc. & Affiliated Companies 401(k) Plan, effective May 4, 2001. 4.12* Amendment to the Giant Industries, Inc. & Affiliated Companies 401(k) Plan, effective January 1, 2002. 4.13* Amendment to the Giant Industries, Inc. & Affiliated Companies 401(k) Plan, effective July 10, 2002. 4.14* Amendment to the Giant Industries, Inc. & Affiliated Companies 401(k) Plan, effective January 1, 2003. 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) _____________ *Filed herewith. Item 9. Undertakings The undersigned 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: 5 (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 7 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. 7 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 2, 2003. GIANT INDUSTRIES, INC. By: /s/ FRED L. HOLLIGER ---------------------------- Fred L. Holliger 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 Fred L. Holliger, Kim H. Bullerdick, Mark B. Cox, and Gary R. Dalke, 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/ FRED L. HOLLIGER Chairman of the Board, April 2, 2003 - -------------------- Chief Executive Officer, Fred L. Holliger Director (Principal Executive Officer) 8 /s/ MARK B. COX Vice President, Treasurer, April 2, 2003 - ------------------------ Chief Financial Officer and Mark B. Cox Assistant Secretary (Principal Financial Officer) /s/ GARY R. DALKE Vice President, Controller, April 2, 2003 - ------------------------ Chief Accounting Officer and Gary R. Dalke Assistant Secretary (Principal Accounting Officer) /s/ GEORGE M. RAPPORT Director April 2, 2003 - ------------------------ George M. Rapport /s/ LARRY L. DEROIN Director April 2, 2003 - ------------------------ Larry L. DeRoin /s/ ANTHONY J. BERNITSKY Director April 2, 2003 - ------------------------ Anthony J. Bernitsky /s/ RICHARD T. KALEN, JR. Director April 2, 2003 - ------------------------ Richard T. Kalen, Jr. /s/ BROOKS J. KLIMLEY Director April 2, 2003 - ------------------------ Brooks J. Klimley /s/ JAMES E. ACRIDGE Director April 2, 2003 - ------------------------ James E. Acridge 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 2, 2003. Giant Industries, Inc. and Affiliated Companies 401(k) Plan By: /s/ NATALIE DOPP By: /s/ GARY R. DALKE - ------------------------------ ------------------------------ Name: Natalie Dopp Name: Gary R. Dalke Title: Member of 401(k) Plan Title: Member of 401(k) Plan Administrative Committee Administrative Committee 9 INDEX TO EXHIBITS Number Exhibit 4.11 Amendment to the Giant Industries, Inc. & Affiliated Companies 401(k) Plan, effective May 4, 2001. 4.12 Amendment to the Giant Industries, Inc. & Affiliated Companies 401(k) Plan, effective January 1, 2002. 4.13 Amendment to the Giant Industries, Inc. & Affiliated Companies 401(k) Plan, effective July 10, 2002. 4.14 Amendment to the Giant Industries, Inc. & Affiliated Companies 401(k) Plan, effective January 1, 2003. 23.1 Consent of Deloitte & Touche LLP EX-4 3 exhibit-411.txt EXHIBIT 4.11 TO GIANT INDUSTRIES, INC. FORM S-8 EXHIBIT 4.11 AMENDMENT TO THE GIANT INDUSTRIES, INC. & AFFILIATED COMPANIES 401(K) PLAN WHEREAS, Giant Industries, Inc. (the "Employer") adopted the Giant Industries, Inc. 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 January 1, 1996; and WHEREAS, the Employer desires to amend the Plan's employer stock investment option. NOW THEREFORE, the Employer amends the Plan as follows effective May 4, 2001. 1. Section 14.04(k) is hereby amended by removing the word "and" from the end thereof. 2. Section 14.04(l) is hereby amended by replacing the period at the end thereof with the following "; and". 3. A new subsection (m) is hereby added to Section 14.04 to read as follows: (m) to borrow funds from a bank or other financial institution not affiliated with the Trustee in order to provide sufficient liquidity to process Plan transactions in a timely fashion, provided that the cost of borrowing shall be allocated in a reasonable fashion to the permissible investments in need of liquidity. 4. Section 14.24 is hereby restated in its entirety to read as follows: 14.24 Employer Stock Investment Option. If one of the Permissible Investments is equity securities issued by the Employer or a Related Employer ("Employer Stock"), such Employer Stock must be publicly traded and "qualifying employer securities" within the meaning of Section 407(d)(5) of ERISA. Plan investments in Employer Stock shall be made via the Employer Stock 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 Fund's cash needs for transfers and payments. A target range for the short-term, liquid investments shall be maintained for the Stock Fund. The Named Fiduciary shall, after consultation with the Trustee, establish and communicate to the Trustee in writing such target range and a drift allowance for such short-term, liquid investments. Such target range and drift allowance may be changed by the Named Fiduciary, after consultation with the Trustee, provided any such change is communicated to the Trustee in writing. The Trustee is responsible for ensuring that the actual short-term, liquid investments held in the Stock Fund fall within the agreed-upon target range over time, subject to the Trustee's ability to execute open-market trades in Employer Stock or to otherwise trade with the Employer. Each participant's proportional interest in the Stock Fund shall be measured in units of participation, rather than shares of Employer Stock. Such units shall represent a proportionate interest in all assets of the Stock Fund, which include shares of Employer Stock, short-term, liquid investments, and, at times, receivables and payables (such as receivables and payables arising out of unsettled stock trades). The Trustee shall determine a daily net asset value ("NAV") for each unit outstanding of the Stock Fund. Valuation of the Stock Fund shall be based upon: (a) the New York Stock Exchange closing price of the stock; or (b) if unavailable, the latest available price as reported by the principal national securities exchange on which the Employer Stock is traded (the "Closing Price"); or (c) if neither is available, the price determined in good faith by the Trustee. The NAV shall be adjusted for gains or losses realized on sales of Employer Stock, appreciation or depreciation in the value of those shares owned, dividends paid on Employer Stock to the extent not used to purchase additional units of the Stock Fund for affected participants, and interest on the short-term investments held by the Stock Fund, payables and receivables for pending stock trades, receivables for dividends not yet distributed, and payables for other expenses of the Stock Fund, including principal obligations, if any, and expenses that, pursuant to Employer direction, the Trustee accrues or pays from the Stock Fund. At the direction of the Employer, the NAV may also be adjusted for commissions on purchases and sales 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 2.4 of this Agreement. The Employer shall be responsible for providing specific direction on any acquisition limits required by the Plan or applicable law. (b) Fiduciary Duty of Named Fiduciary. The Named Fiduciary shall continuously monitor the suitability under the fiduciary duty rules of section 404(a)(1) of ERISA (as modified by Section 404(a)(2) of ERISA) 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 Agreement. (c) Purchases and Sales. Purchases and sales of Employer Stock shall be made on the open market in accordance with the Trustee's standard trading guidelines, as they may be amended from time to time, as necessary to honor exchange and withdrawal activity and to maintain the target range and drift allowance for the Employer Stock described in the introductory language to this Section 14.24. Purchases and sales of Employer Stock shall be made on the open market on the 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 (i) if later, in the case of purchases, the date on which the Trustee has received a transfer of the funds necessary to make such purchases, (ii) as otherwise provided in the Service Agreement, or (iii) as provided in Subsection (d) below. Such general rules shall not apply in the following circumstances: (i) If the Trustee is unable to determine the number of shares required to be purchased or sold on such day; (ii) If the Trustee is unable to purchase or sell the total number of shares required to be purchased or sold on such day as a result of market conditions; or (iii) 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 day. In the event of the occurrence of the circumstances described in (i), (ii), or (iii) 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 Section 3(18) of ERISA) 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 such case, the shares of Employer Stock to be transferred to the Trust will be valued at a price that constitutes adequate consideration (within the meaning of ERISA Section 3(18)). (e) Use of Broker to Purchase Employer Stock. The Employer hereby directs the Trustee to use Fidelity Capital Markets, Inc., an affiliate of the Trustee, or any other affiliate or subsidiary of the Trustee (collectively, "Capital Markets"), to provide brokerage services in connection with all market purchases and sales of Employer Stock for the Stock Fund, except in circumstances where the Trustee has determined, in accordance with its standard trading guidelines or pursuant to Employer direction, to seek expedited settlement of the trades. The Trustee shall provide the Employer with the commission schedule for such transactions, a copy of Capital Markets' brokerage placement practices, and an annual report which summarizes all securities transaction-related charges incurred by the Plan. The following shall apply as well: (i) Any successor organization of Capital Markets through reorganization, consolidation, merger, or similar transactions, shall, upon consummation of such transaction, become the successor broker in accordance with the terms of this provision. (ii) The Trustee shall continue to rely on this Employer direction until notified to the contrary. The Employer reserves the right to terminate this authorization upon sixty (60) days' written notice to Capital Markets (or its successor) and the Trustee, and the Employer and the Trustee shall decide on a mutually agreeable alternative procedure for handling brokerage transactions on behalf of the Stock Fund. (f) Execution of Purchases and Sales of Units. Unless otherwise directed in writing pursuant to directions that the Trustee can administratively implement, purchases and sales of units shall be made as follows: (i) Subject to subparagraphs (I) and (II) below, purchases and sales of units in the Stock Fund (other than for exchanges) shall be made on the date on which the Trustee receives from the Administrator in good order all information, documentation, and funds (if applicable), necessary to accurately effect such transactions. Exchanges of units in the Stock Fund shall be made in accordance with the exchange Guidelines provided in paragraph (ii) of this subsection (f). (I) Aggregate sales of units in the Stock Fund on any day shall be limited to the Stock Fund's Available Liquidity for that day. For these purposes, Available Liquidity shall mean the amount of short-term investments held in the fund decreased by any outgoing cash for expenses then due, payables for loan principal, and obligations for pending stock purchases, and increased by incoming cash (such as contributions, exchanges in, loan repayments) and, to the extent credit is available and allocable to the Stock Fund, receivables for pending stock sales. In the event that the requested sales exceed the Available Liquidity, then transactions shall be processed giving precedence to distributions, loans and withdrawals, and otherwise on a first-in first-out (FIFO) basis, as provided in paragraph (iii) of this subsection (f) (the "Specified Hierarchy"). So long as the Stock Fund is open for such transactions, sales of units that are requested but not processed on a given day due to insufficient Available Liquidity shall be suspended until Available Liquidity is sufficient to honor such transactions in accordance with the Specified Hierarchy. (II) The Trustee shall close the Stock Fund to sales or purchases of units, as applicable, on any date on which trading in the Employer Stock has been suspended or substantial purchase or sale orders are outstanding and cannot be executed. (ii) Exchange Guidelines. Provided that the Stock Fund is open for purchases and sales of units, the following rules will govern exchanges: (I) Participants may contact Fidelity Investments Institutional Operations Company, Inc. ("Fidelity") on any day to exchange from mutual funds, or any GIC fund or managed income portfolio into the Stock Fund. If the request is confirmed before the close of the market (generally, 4:00 p.m. ET) on a business day, it will receive that day's trade date. Requests confirmed after the close of the market on a business day (or on any day other than a business day) will be processed on a next business day basis. (II) Participants may contact Fidelity on any day to exchange the Stock Fund to a mutual fund or any GIC fund or managed income portfolio. If Fidelity accepts the request conditionally before the close of the market (generally 4:00 p.m. ET) on any business day and Available Liquidity is sufficient to honor the trade after Specified Hierarchy rules are applied, it will receive that day's trade date. Requests accepted conditionally after the close of the market on any business day (or on any day other than a business day) will be processed on a next business day basis, subject to Available Liquidity for such day after application of Specified Hierarchy rules. If Available Liquidity on any day is insufficient to honor the trade after application of Specified Hierarchy rules, it will be suspended until Available Liquidity is sufficient, after application of Specified Hierarchy rules, to honor such trade, and it will receive the trade date and Closing Price of the date on which it was processed. (iii) Specified Hierarchy. The following procedures shall govern sales of the Stock Fund requested for a day on which Available Liquidity is insufficient: (I) Loans, withdrawals and distributions will be aggregated and placed first in the hierarchy. If Available Liquidity is sufficient for the aggregate of such transactions, all such loans, withdrawals and distributions will be honored. If Available Liquidity is insufficient for the aggregate of such transactions, then no such loans, withdrawals or distributions will be honored. (II) If Available Liquidity has not bee exhausted by the aggregate of loans, withdrawals and distributions, then all remaining transactions involving a sale of units in the Stock Fund shall be grouped on the basis of when such requests were received, in accordance with standard procedures maintained by the Trustee for such grouping as they may be amended from time to time. To the extent of Available Liquidity, all transactions in a group will be honored, on a FIFO basis. If Available Liquidity is insufficient to honor all transactions within a group, then none of such transactions in the group will be honored. Transactions not honored on a particular day due to insufficient Available Liquidity shall be honored, using the hierarchy specified above, on the next business day on which there is Available Liquidity. (g) 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. (h) Voting and Tender Offers. Notwithstanding any other provision of this Agreement, the provisions of this Section shall govern the voting and tendering of Employer Stock. Each Participant shall be designated a named fiduciary under ERISA with respect to shares of Employer Stock attributable to units in the Employer Stock fund credited to the Participant's Separate Account not required at the direction of the Participant in accordance with Section 404(c) of ERISA. 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. The Trustee, after consultation with the Employer, shall prepare the necessary documents associated with the voting and tendering of Employer Stock, unless the Employer directs the Trustee not to do so. (i) Voting. (I) 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. If requested by the Trustee, the Employer shall certify to the Trustee that the aforementioned materials represent the same information that is distributed to shareholders of Employer Stock. 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. (II) 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 reflecting 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, 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. Upon its receipt of the directions, the Trustee shall vote the shares of Employer Stock reflecting the Participant's proportional interest in the Stock Fund as directed by the Participant. The Trustee shall not vote shares of Employer Stock reflecting a Participant's proportional interest in the Stock Fund for which it has received no direction from the Participant, except as required by law. (ii) Tender Offers. (I) Upon commencement of a tender offer for any securities held in the Trust that are Employer Stock, the Employer shall timely notify the Trustee in advance of the intended tender date and shall cause a copy of all materials to be sent to the Trustee. The Employer shall certify to the Trustee that the aforementioned materials represent the same information distributed to shareholders of Employer Stock. Based on these materials, and after consultation with the Employer, the trustee shall prepare a tender instruction form and shall provide a copy of all tender materials to be sent to each Participant with an interest in the Stock Fund, together with the foregoing tender instruction form, to be returned to the Trustee or its designee. The tender instruction form shall show the number of full and fractional shares of Employer Stock that reflects the Participant's proportional interest in the Stock Fund (both vested and unvested). 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 tender materials and the tender instruction form described herein. The Employer shall provide the Trustee with a copy of any materials provided to Participants and shall (if the mailing is not handled by the Trustee) notify the Trustee that the materials have been mailed or otherwise sent to Participants. (II) Each Participant with an interest in the Stock Fund shall have the right to direct the Trustee to tender or not to tender some or all of the shares of Employer Stock reflecting 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 or 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 reflecting a Participant's proportional interest in the Stock Fund for which it has received no direction from the Participant, except as required by law. (III) A Participant who has directed the Trustee to tender some or all of the shares of Employer Stock reflecting 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 the tendered shares reflecting the Participant's proportional interest, 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. (IV) A direction by a Participant to the Trustee to tender shares of Employer Stock reflecting 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. 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 Investment Funds the proceeds should be invested in, the Trustee shall invest the proceeds in the Mutual Fund set forth for such purposes in the Service Agreement. (i) Shares Credited. For all purposes of this Section, 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. (j) 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 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. (k) Conversion. All provisions in this Section 14.24 shall also apply to any securities received as a result of a conversion to Employer Stock. In witness whereof, the undersigned have executed this instrument this 25 day of May, 2001. GIANT INDUSTRIES, INC. By: /s/ CHARLEY YONKER --------------------------------- Title: Vice President H.R. ------------------------------ Accepted by Trustee: FIDELITY MANAGEMENT TRUST COMPANY By: --------------------------------- Title: ------------------------------ EX-4 4 exhibit-412.txt EXHIBIT 4.12 TO GIANT INDUSTRIES, INC. FORM S-8 EXHIBIT 4.12 The CORPORATEplan for Retirement(sm) (PROFIT SHARING/401(K) PLAN) A FIDELITY PROTOTYPE PLAN Non-Standardized Adoption Agreement 002 Basic Plan No. 07 ADOPTION AGREEMENT ARTICLE 1 NON-STANDARDIZED PROFIT SHARING PLAN 1.01 PLAN INFORMATION (a) Name of Plan: This is the Giant Industries, Inc. & Affiliated Companies 401(k) Plan (the "Plan"). (b) Type of Plan: (1) [ ] 401(k) and Profit Sharing (2) [ ] Profit Sharing Only (3) [X] 401(k) Only (c) Name of Plan Administrator, if not the Employer: Name:__________________________________ Address:_______________________________ Phone Number:__________________________ The Plan Administrator is the agent for service of legal process for the Plan. (d) Limitation Year (check one): (1) [X] Calendar Year (2) [ ] Plan Year (3) [ ] Other (e) Three Digit Plan Number: 002 (f) Plan Year End (month/day): December 31 (g) Plan Status (check one): (1) [ ] Effective Date of new Plan:____________ (2) [X] Amendment Effective Date: 01/01/2002. This is (check one): (A) [X] an amendment of The CORPORATEplan for Retirement(sm) Adoption Agreement previously executed by the Employer; or (B) [ ] conversion from another plan document into The CORPORATEplan for Retirement(sm). The original effective date of the Plan: 07/01/1993 The substantive provisions of the Plan shall apply prior to the Effective Date to the extent required by the Tax Reform Act of 1986 or other applicable laws. 1.02 EMPLOYER (a) The Employer is: Giant Industries, Inc. Address: 23733 North Scottsdale Road Scottsdale, AZ 85255 Contact's Name: Mr. Delbert Tingey Telephone Number: (480) 585-8726 (1) Employer's Tax Identification Number: 86-0642718 (2) Business form of Employer (check one): (A) [X] Corporate (B) [ ] Sole proprietor or partnership (C) [ ] Subchapter S Corporation (D) [ ] Governmental (E) [ ] Tax exempt organization (F) [ ] Rural Electric Cooperative (3) Employer's fiscal year end: 12/31 (4) Date business commenced: December 1, 1968 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) [X] 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) [ ] 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) [ ] 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. (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 Fund Name Number 1 Giant Stock Fund TCKZ 2 Fidelity Retirement Government Money Market Portfolio 0631 3 Fidelity Government Income Fund 0054 4 Spartan(R) U.S. Equity Index Fund 0650 5 Fidelity Aggressive Growth Fund 0324 6 Fidelity Contrafund 0022 7 Fidelity Diversified International Fund 0325 8 Fidelity Asset Manager(R) 0314 9 Fidelity Asset Manager: Growth (SM) 0321 10 Fidelity Freedom Income Fund (SM) 0369 11 Fidelity Freedom 2000 Fund (SM) 0370 12 Fidelity Freedom 2010 Fund (SM) 0371 13 Fidelity Freedom 2020 Fund (SM) 0372 14 Fidelity Freedom 2030 Fund (SM) 0373 15 Fidelity Freedom 2040 Fund (SM) 0718 16 Fidelity Mid-Cap Stock Fund 0337 17 Fidelity Low-Priced Stock Fund 0316 18 Fidelity Equity-Income II Fund 0319 19 Fidelity Dividend Growth Fund 0330 Note: An additional annual recordkeeping fee will be charged for each fund in excess of seven 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. 1.15 RELIANCE ON OPINION LETTER An adopting Employer may not rely on the opinion letter issued by the National Office of the Internal Revenue Service as evidence that this Plan is qualified under Section 401 of the Code. If the Employer wishes to obtain reliance that his or her Plan(s) are qualified, application for a determination letter should be made to the appropriate Key District Director of the Internal Revenue Service. Failure to fill out the Adoption Agreement properly may result in disqualification of the Plan. This Adoption Agreement may be used only in conjunction with Fidelity Prototype Plan Basic Plan Document No. 07. The Prototype Sponsor shall inform the adopting Employer of any amendments made to the Plan or of the discontinuance or abandonment of the prototype plan document. 1.16 PROTOTYPE INFORMATION: Name of Prototype Sponsor: Fidelity Management & Research Co. Address of Prototype Sponsor: 82 Devonshire Street Boston, MA 02109 Questions regarding this prototype document may be directed to the following telephone number: 1-(800) 343-9184. EXECUTION PAGE (Fidelity's Copy) IN WITNESS WHEREOF, the Employer has caused this Adoption Agreement to be executed this 10th day of December, 2001. Employer GIANT INDUSTRIES, INC. By /s/ Charles Yonker ------------------------------ Title Vice President Human Resources ------------------------------ Employer GIANT INDUSTRIES, INC. By /s/ Charles Yonker ------------------------------ Title Vice President Human Resources ------------------------------ Accepted by Fidelity Management Trust Company, as Trustee By___________________________ Date________________ Title________________________ EXECUTION PAGE (Employer's Copy) IN WITNESS WHEREOF, the Employer has caused this Adoption Agreement to be executed this 10th day of December, 2001. Employer GIANT INDUSTRIES, INC. By /s/ Charles Yonker ------------------------------ Title Vice President Human Resources ------------------------------ Employer GIANT INDUSTRIES, INC. By /s/ Charles Yonker ------------------------------ Title Vice President Human Resources ------------------------------ Accepted by Fidelity Management Trust Company, as Trustee By___________________________ Date________________ Title________________________ Please do not complete this Election Form if the vesting schedule in your plan is at least as rapid as Three-Year Cliff Vesting or Six-Year Graded Vesting, and you choose to follow Fidelity's approach with respect to the remainder of the EGTRRA provisions described in the EGTRRA enclosures. EGTRRA ELECTION FROM for Plan Name: Giant Industries, Inc. and Fidelity 5 Digit Plan Number: 40292 Affiliated Companies 401(k) Plan The Economic Growth and Tax Relief Reconciliation Act of 2001, or EGTRRA, contains many provisions that become effective either on January 1, 2002 or on the first day of the plan year beginning in 2002. As described in the enclosures, Fidelity will adopt the provisions of EGTRRA in its CorporatePlan(sm) for Retirement (CPR) prototype document, based on sample language issued by the IRS. Several provisions added to CPR due to EGTRRA will permit an Employer to elect to decline to follow Fidelity's general approach. An Employer that so declines, must use this EGTRRA Election Form to make the appropriate elections. Fidelity will not accept Employer elections with respect to EGTRRA provisions applicable under the CPR document in any form other than this EGTRRA Election Form. The definitions of the terms in this Election Form are as provided in the CPR document and in the enclosure entitled "Overview of EGTRRA." ____________________________________________________________________________ Section 1. Vesting of Employer Matching Contributions. Complete this Section only if the current vesting schedule applicable to Employer Matching Contributions under the Plan is not at least as rapid as Three-Year Cliff Vesting or Six-Year Graded Vesting. (a) Vesting Schedule Applicable to Employer Matching Contributions: Vesting Schedule for Employer Matching Contributions: ___ Option 1. A Participant's account balance derived from Employer Matching Contributions shall be fully and immediately vested. ___ Option 2. A Participant's account balance derived from Employer Matching Contributions shall be nonforfeitable upon the Participant's completion of three years of Vesting Service. ___ Option 3. A Participant's account balance derived from Employer Matching Contributions shall vest according to the following schedule. (You must check A or B below. If you select B, the percentages you select must be at least as great as those under A for each corresponding number of years of Vesting Service(1)): Years of ___ A. Nonforfeitable ___ B. Nonforfeitable Vesting Service Percentage Percentage 0 0 ___ 1 0 ___ 2 20 ___ (must be at least 20(2)) 3 40 ___ (must be at least 40) 4 60 ___ (must be at least 60) 5 80 ___ (must be at least 80) 6 100 ___ (must be 100) (b) Grandfathered application of Prior Vesting Schedule to Account Balance Derived from Employer Matching Contributions for Plan Years Beginning Prior to 2002: The CPR document will provide that the vesting schedule you selected under Section 1(a) of this Form will apply to an affected Participant's entire Employer Matching Contribution account balance, unless the Employer elects to grandfather the prior vesting schedule. Therefore, mark the blank below only if you want the election under Section 1(a) of this Form to apply only to the portion of a Participant's account balance derived from Employer Matching Contributions for Plan Years beginning after December 31, 2001. [ ] The Option elected under Section 1(a) above shall apply to only the portion of a Participant's account balance derived from Employer Matching Contributions for Plan Years beginning after December 31, 2001. Section 2. Catch-up Contributions. The CPR document will provide that an otherwise eligible Participant in a plan with a 401(k) feature will be permitted to make Catch-Up Contributions commencing with the 2002 calendar year, unless the Employer otherwise elects. Mark the blank below only if your plan has a 401(k) feature, and you do not want to permit Catch-Up Contributions. You should not permit Catch-Up Contributions unless all affected plans of all Related Employers will permit all eligible participants to make Catch-Up Contributions. [ ] Catch-up Contributions shall not be available under the Plan. Section 3. Matching Employer Contributions on Catch-up Contributions. The CPR document will provide that a Participant will not receive any Matching Employer Contributions on Catch-Up Contributions, unless the Employer otherwise elects. Mark the blank below only if your plan will permit Catch-Up Contributions and you would like to provide Matching Employer Contributions on those Catch-Up Contributions. [X] Matching Employer Contributions shall apply to Catch-up Contributions, and the same rules that apply to Matching Employer Contributions on Deferral Contributions other than Catch-up Contributions will apply to the Matching Employer Contributions on Catch-up Contributions. Section 4. Receipt of Direct Rollovers of After-Tax Contributions. The CPR document will provide that a plan that accepts rollover contributions will accept rollover contributions that include after-tax employee contributions beginning with distributions made after December 31, 2001, unless the Employer otherwise elects. Mark the blank below only if your plan accepts rollover contributions, and you do not want your plan to accept rollover contributions that include after-tax employee contributions. [X] The Plan will not accept any rollover of after-tax employee contributions. ____________________________________________________________________________ Employer: Giant Industries, Inc. By signing below, I hereby make the following representations on behalf of the Employer and by which the Employer shall be bound: 1. I have been duly authorized by the Employer to execute this EGTRRA Election Form on behalf of the Employer. 2. The Employer understands that the elections contained herein are binding on the Employer and that Fidelity will operate the Plan in accordance with such elections. 3. The Employer will adopt amendments to the Plan reflecting the elections contained herein at a time and in a form compliant with any and all legal requirements applicable to a plan qualified under Code Section 401(a), including those requirements set out in IRS Notice 2001-57 and IRS Notice 2001-42. 4. The Employer understands that it should consult its legal counsel with respect to the elections contained herein. Signature of the Duly Authorized Individual: Date: /s/ Charles F. Yonker 12/17/01 - ----------------------------------------- ------------- Title: Vice President Human Resources - ----------------------------------------- Printed Name: Charles F. Yonker NOTE: RETURN THE COMPLETED ELECTION FORM TO YOUR FIDELITY REPRESENTATIVE NO LATER THAN NOVEMBER 1, 2001. _________ (1) However, if you elect B, you may elect a nonforfeitable percentage less than 20 at 2 years of Vesting Service as long as you elect 100 as the nonforfeitable percentage at 3 years of Vesting Service. (2) See note 1, above. EX-4 5 exhibit-413.txt EXHIBIT 4.13 TO GIANT INDUSTRIES, INC. FORM S-8 EXHIBIT 4.13 AMENDMENT TO THE CORPORATEPLAN FOR RETIREMENT SERVICE AGREEMENT - MUTUAL FUND WINDOWS WHEREAS, Giant Industries, Inc. (the "Employer") and Fidelity Management Trust Company as the trustee ("Trustee") executed the Fidelity CORPORATEplan for Retirement(sm) Service Agreement ("CPR Service Agreement") for the Giant Industries, Inc. and Affiliated Companies 401(k) Plan (Fidelity Plan #40292), and WHEREAS, Article VII, Section 12, of the CPR Service Agreement provides that it may be amended by a written agreement signed by the Employer and the Trustee; and NOW THEREFORE, the Employer and Trustee hereby agree to the following: 1. Notwithstanding anything else in the CPR Service Agreement to the contrary in the CPR Service Agreement, investments made available to the Plan for investment of assets of the Trust (herein called "Permissible Investments") shall be listed in the CPR Service Agreement. 2. Notwithstanding anything else in the CPR Service Agreement to the contrary in the CPR Service Agreement, Fidelity shall also be entitled to any fees relating to Permissible Investments stated in Article VII of the CPR Service Agreement or any amendment thereto. 3. The following shall be added as a separate section following the last section of Article VII: Mutual Funds Available: The Employer has selected certain mutual funds as Permissible Investments for investments of Participant Accounts under the Trust. Unless specifically indicated otherwise within this Agreement or an amendment to this Agreement, purchases, sales and exchanges of each Permissible Investment option are controlled by that Permissible Investment's prospectus or other governing document(s). The Employer and Fidelity have agreed that the following constraints, limitations, fees and operating procedures shall apply in reference to the listed Permissible Investments: Fidelity Funds (Core) Fund Name Fund Number Fidelity Retirement Government Money Market Portfolio 0631 Fidelity Government Income Fund 0054 Fidelity Equity Income II Fund 0319 Spartan U.S. Equity Index Fund 0650 Fidelity Aggressive Growth Fund 0324 Fidelity Contrafund 0022 Fidelity Dividend Growth Fund 0330 Fidelity Low Priced Stock Fund 0316 Fidelity Mid-Cap Stock Fund 0337 Fidelity Diversified International 0325 Fidelity Asset Manager 0314 Fidelity Asset Manager: Growth 0321 Fidelity Freedom Income Fund 0369 Fidelity Freedom 2000 Fund 0370 Fidelity Freedom 2010 Fund 0371 Fidelity Freedom 2020 Fund 0372 Fidelity Freedom 2030 Fund 0373 Fidelity Freedom 2040 Fund 0718 Giant Stock Fund TCKZ Annual Fee for Excess Core Permissible Investment Options The fees stated in this Service Agreement take into consideration the Permissible Investment options selected by the Employer in this Service Agreement and include up to 26 Core Permissible Investment options with no additional annual fee. The annual fee for each Core Permissible Investment option in excess of 26 is $500 per option and such fee is in addition to any fees specified elsewhere in this Service Agreement, including any Appendices and amendments thereto. The annual fee for excess Core Permissible Investment options shall be billed or charged quarterly in arrears and paid by the Employer. The Fidelity Freedom funds collectively shall count as one Core Permissible Investment option. Any change to the Permissible Investment options selected by the Employer after the effective date of this Service Agreement shall require an amendment to this Service Agreement and may result in an amended or additional fees. Mutual Fund Window Participants may invest through a Mutual Fund Window arrangement under the Plan, hereinafter referred to as "MFW". Fidelity shall provide recordkeeping services for MFW in accordance with the terms and conditions this Section. Additional Fees: Set Up Fee per Plan: $0 Fee Paid By: N/A Annual Fee per Plan: $0 Fee Paid By: N/A Quarterly Fee per Participant: $0 Fee Paid By: N/A Terms: a. This MFW allows a participant to invest in any of the Fidelity Funds listed below. b. The quarterly per participant fee will be assessed for every participant having a balance at the end of the billing period in any fund available only through this MFW. Participants may invest in any of the Permissible Investments described outside this MFW paragraph (hereinafter "Core Funds") without being subject to these MFW fees. The annual fee for excess permissible investment options listed in this Agreement shall only apply to those selected Core Funds. c. The following is a list of all the funds in which a Plan Participant may invest through MFW (some Core Funds may appear in this list as well, but those will not be treated as available only through this MFW): Fidelity Funds (in alphabetical order): Fidelity Fund Name Fund Number Fidelity Aggressive Growth Fund 0324 Fidelity Aggressive International Fund 0335 Fidelity Asset Manager: Aggressive 0347 Fidelity Asset Manager: Growth (SM) 0321 Fidelity Asset Manager: Income (SM) 0328 Fidelity Asset Manager (R) 0314 Fidelity Balanced Fund 0304 Fidelity Blue Chip Growth Fund 0312 Fidelity Canada Fund 0309 Fidelity Capital & Income Fund 0038 Fidelity Capital Appreciation Fund 0307 Fidelity Convertible Securities Fund 0308 Fidelity Disciplined Equity Fund 0315 Fidelity Diversified International Fund 0325 Fidelity Dividend Growth Fund 0330 Fidelity Emerging Markets Fund 0322 Fidelity Equity-Income Fund 0023 Fidelity Equity-Income II Fund 0319 Fidelity Europe Capital Appreciation Fund 0341 Fidelity Europe Fund 0301 Fidelity Export and Multinational Fund 0332 Fidelity Fifty 0500 Fidelity Freedom 2000 Fund (SM) 0370 Fidelity Freedom 2010 Fund (SM) 0371 Fidelity Freedom 2020 Fund (SM) 0372 Fidelity Freedom 2030 Fund (SM) 0373 Fidelity Freedom 2040 Fund (SM) 0718 Fidelity Freedom Income Fund (SM) 0369 Fidelity Fund 0003 Fidelity Ginnie Mae Fund 0015 Fidelity Global Balanced Fund 0334 Fidelity Government Income Fund 0054 Fidelity Growth Company Fund 0025 Fidelity Institutional Short-Intermediate Government Fund 0662 Fidelity Intermediate Bond Fund 0032 Fidelity International Growth & Income Fund 0305 Fidelity Investment Grade Bond Fund 0026 Fidelity Japan Fund 0350 Fidelity Large Cap Stock Fund 0338 Fidelity Latin America Fund 0349 Fidelity Low-Priced Stock Fund 0316 Fidelity Managed Income Portfolio 0632 Fidelity Mid-Cap Stock Fund 0337 Fidelity New Markets Income Fund 0331 Fidelity OTC Portfolio 0093 Fidelity Overseas Fund 0094 Fidelity Pacific Basin Fund 0302 Fidelity Puritan (R) Fund 0004 Fidelity Real Estate Investment Portfolio 0303 Fidelity Retirement Government Money Market Portfolio 0631 Fidelity Independence Fund 0073 Fidelity Retirement Money Market Portfolio 0630 Fidelity Short-Term Bond Fund 0450 Fidelity Small Cap Retirement Fund 0384 Fidelity Small Cap Independence 0336 Fidelity Southeast Asia Fund 0351 Fidelity Stock Selector 0320 Fidelity Structured Large Cap Growth Fund 0763 Fidelity Structured Large Cap Value Fund 0708 Fidelity Structured Mid Cap Growth Fund 0793 Fidelity Structured Mid Cap Value Fund 0762 Fidelity Trend Fund 0005 Fidelity U.S. Bond Index Fund 0651 Fidelity Utilities Fund 0311 Fidelity Value Fund 0039 Fidelity Worldwide Fund 0318 Spartan (R) Total Market Index Fund 0397 Spartan (R) U.S. Equity Index Fund 0650 The Employer may not add, delete, or replace any investment option identified in this Service Agreement within 90 days of the Plan's adding the MFW. The Employer understands that this MFW service is an investment selection of a certain group of funds currently available for the Plan and that the funds present in this MFW service change over time. The Employer understands that a choice can be made at any time to change from the MFW service to another investment platform (another window or a platform without a window investment) offered by Fidelity and available to the Plan. The Employer will always have the option to move to an investment platform of 15 Fidelity Funds (not Select Funds) chosen from among those available to the Plan. The Employer agrees that any change of investment platform will be effective as soon as administratively feasible for Fidelity (after the Employer and Fidelity have amended this agreement to reflect such change) and that the Employer will communicate to participants the date and consequences of such change. The Employer hereby directs Fidelity to add new funds to the Permissible Investments for the Plan as those funds are added to MFW service. Fidelity shall always give the Employer at least 90 days notice of the date that new fund(s) will become available through the MFW service an the Employer has until 20 days before such date to direct Fidelity not to make any such new fund or funds available for the Plan. The Employer understands that, since this service is a package service and Fidelity is unable to customize this package, the Employer's decision not to add certain fund(s) may mean that the Plan is unable to remain on its current MFW service. If the Employer's decisions make the Plan unable to remain on its current MFW service, the Employer agrees to choose an entirely different investment platform (another MFW service or a platform without a MFW service) for the Plan at least 10 business days before such new funds are to be added to the current MFW service. The Employer hereby directs Fidelity to remove from the Permissible Investments for the Plan any funds being removed as a fund available under the MFW service ("Non-MFW Funds"). Fidelity shall always give the Employer at least 90 days notice of the date that a fund or funds will become Non-MFW Funds. If the Employer decides to change any of the Core Permissible Investments for the Plan, the Employer agrees that Fidelity may reassess the Plan's fee structure and charge additional fees based upon the Core Permissible Investments for the Plan resulting from the Employer's decision. The Employer hereby directs Fidelity to exchange all balances present in the any such Non-MFW funds, on the date such a Non-MFW Fund ceases to be a Permissible Investment for the Plan, into the default investment for the Plan. The Employer agrees that any closure of a fund that is part of the MFW service will be treated as a fund being removed from the MFW service pursuant to the paragraph immediately preceding, except that Fidelity may adjust notice timeframes as circumstances dictate. The Employer further agrees that anytime a fund within the MFW service merges completely (thus ceasing to exist) into a fund that is not currently a Permissible Investment under the Plan, that such fund will be treated as if it was closing pursuant to the previous sentence. Fidelity agrees that anytime two funds that are Permissible Investments under the Plan merge, Fidelity will assist the Employer with communicating in advance the consequences of the merger to its Plan participants. The Employer agrees that when two Permissible Investments merge Plan participants who do not act before the date of the merger will have their account balances in each such fund combined in the resulting fund. If a merger of two Permissible Investments will result in the Plan having one less Core Permissible Investment, Fidelity agrees to give the Employer the opportunity to remove the resulting fund from the MFW service and assign it as a Core Permissible Investment. The Employer understands that the timing of the merger of funds it outside of the control of the Trustee and that all assistance to be provided the Employer will always be on a fest efforts basis. The Plan is intended to constitute a plan described in ERISA Section 404(c) and regulations issued thereunder. The Employer shall not be relieved of fiduciary responsibility for the selection and monitoring of all Permissible Investments under the Plan, including any constituting part of the MFW. AND FURTHER AGREE, that this Amendment shall be effective upon the date indicated below and that the changes made by this Amendment are incorporated into the Service Agreement and control over conflicting provisions of any previously executed Service Agreement, or any amendment or addendum thereto. This Amendment shall be effective July 10, 2002. EMPLOYER FIDELITY MANAGEMENT TRUST COMPANY, TRUSTEE By: /s/ Charles F. Yonker By: /s/ GLEN J. KINDNESS - -------------------------------- ---------------------------------- Name: Charles F. Yonker Name: Glen J. Kindness - -------------------------------- ---------------------------------- Title: V.P. Human Resources Title: Authorized Signature - -------------------------------- ---------------------------------- Date: 6/12/02 Date: June 28, 2002 - -------------------------------- ---------------------------------- AMENDMENT TO THE Giant Industries, Inc. and Affiliated Companies 401(k) Plan WHEREAS: The Giant Industries, Inc. (the "Employer") adopted the Giant Industries, Inc. and Affiliated Companies 401(k) Plan (the "Plan") through adoption of the Fidelity Investments CORPORATEplan(sm) for Retirement Profit Sharing 401(k) Basic Plan Document No. 07, effective as of July 1, 1993; and WHEREAS: The employer desires to amend the Plan to remove the choice of investment options from the Adoption Agreement: NOW THEREFORE, The Employer amends the Plan as follows effective July 10, 2002. 1. Section 1.14(b) is amended to replace all language between the first sentence and the first "Note" with the following sentence: Participant Accounts under the Trust will be invested among the Permissible Investments designated in the Service Agreement. 2. 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. 3. Section 2.01(a)(35) is added to the Basic Plan Document No. 07 as follows: "Service Agreement" means the agreement between the Employer and the Prototype Sponsor (or an agent or affiliate of the Prototype Sponsor) relating to the provision of investment and other services to the Plan and shall include any addendum to the agreement and any other separate written agreement between the Employer and the Prototype Sponsor (or an agent or affiliate of the Prototype Sponsor) relating to the provision of services to the Plan. 4. All occurrences of "Section 1.14(b)" in the Basic Plan Document No. 07 will be replaced with "the Service Agreement". In witness whereof, the Employer has signed this instrument this 21, day of June 2002. Giant Industries, Inc. By: /s/ Charles F. Yonker - ---------------------------------- Title: VP Human Resources - ---------------------------------- EX-4 6 exhibit-414.txt EXHIBIT 4.14 TO GIANT INDUSTRIES, INC. FORM S-8 EXHIBIT 4.14 The CORPORATEplan for Retirement(sm) (PROFIT SHARING/401(K) PLAN) A FIDELITY PROTOTYPE PLAN Non-Standardized Adoption Agreement 002 Basic Plan No. 07 ADOPTION AGREEMENT ARTICLE 1 NON-STANDARDIZED PROFIT SHARING PLAN 1.01 PLAN INFORMATION (g) Plan status (check one): (1) [ ] Effective Date of new Plan: (2) [X] Amendment Effective Date: 1/1/2003. This is (check one): (A) [X] an amendment of The CORPORATEplan for Retirement(sm) Adoption Agreement previously executed by the Employer; or (B) [ ] conversion from another plan document into The CORPORATEplan for Retirement(sm). The original effective date of the Plan: 7/1/1993 The substantive provisions of the Plan shall apply prior to the Effective Date to the extent required by the Tax Reform Act of 1986 or other applicable laws. 1.05 CONTRIBUTIONS (a) [ ] 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 155) 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) [ ] 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 shall be allocated to eligible Participants based upon the following (check (A) or (B)): (A) [ ] 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). (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) [ ] 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. Employer contributions funded during the Plan Year shall not be subject to the eligibility requirements of this Section 1.05(a)(3). (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 60% (no more than 15%) of Compensation for that period. (A) A Participant may increase or decrease, on a prospective basis, his salary reduction agreement percentage (check one): (i) [X] As of the beginning of each payroll period. (ii) [ ] As of the first day of each month. (iii) [ ] 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) [ ] Any subsequent Plan Entry Date. (iii) [X] (Specify, but must be at least once per Plan Year) As of the beginning of each payroll period. (2) [ ] Catch-Up Contributions The Employer may allow Participants upon proper notice and approval to enter into a special salary reduction agreement to make additional Deferral Contributions in an amount up to 100% of their Compensation for the payroll period(s) in the final month of the Plan Year. (3) [ ] Bonus Contributions The Employer may allow Participants upon proper notice and approval to enter into a special salary reduction agreement to make Deferral Contributions in an amount up to 100% of any Employer paid cash bonuses made for such Participants during the Plan year. The Compensation definition elected by the Employer in Section 1.04(a) must include bonuses if bonus contributions are permitted. Note: A Participant's contributions under (2) and/or (3) may not cause the Participant to exceed the percentage limit specified by the Employer in (1) after the Plan Year. The Employer has the right to restrict a Participant's right to make Deferral Contributions if they will adversely affect the Plan's ability to pass the actual deferral percentage and/or the actual contribution percentage test. (4) [X] Qualified Discretionary Contributions The Employer may contribute an amount which it designates as a Qualified Discretionary Contribution to be included in the actual deferral percentage or actual contribution percentage test. Qualified Discretionary Contributions shall be allocated to Non-highly Compensated Employees (check one): (A) [X] in the ratio which each such Participant's Compensation for the Plan Year bears to the total of all such Participants' Compensation for the Plan Year. (B) [ ] as a flat dollar amount for each such Participant for the Plan Year. (c) [X] Matching Contributions (only if Section 1.05(b) is checked) (1) The Employer shall make a Matching Contribution on behalf of each Participant in an amount equal to the following percentage of a Participant's Deferral Contributions during the Plan Year (check One): (A) [ ] 50% (B) [ ] 100% (C) [ ] ___% (D) [ ] (Tiered Match) ___% of the first ________% of the Participant's Compensation contributed to the Plan, ___% of the next _________% of the Participant's Compensation contributed to the Plan, ___% of the next _________% of the Participant's Compensation contributed to the Plan. Note: The percentages specified above for Matching Contributions may not increase as the percentage Of Compensation contributed increases. (E) [X] The percentage declared for the year, if any, by a Board of Directors' Resolution (or by a Letter of Intent for a sole Proprietary or Partnership). (2) [ ] The Employer may at Plan Year end make an additional Matching Contribution equal to a percentage declared by the Employer, through a Board of Directors' Resolution (or by a Letter of Intent for a Sole Proprietor or Partnership), of the Deferral Contributions made by each Participant during the Plan Year (only if an option is checked under Section 1.05(c)(1)). (3) [ ] Matching Contribution Limits (check the appropriate box): (A) [ ] Deferral Contributions in excess of __% of the Participant's Compensation for the period in question shall not be considered for Matching Contributions. Note: If the Employer elects a percentage limit in (A) above and requests the Trustee to account separately for matched and unmatched Deferral Contributions, the Matching Contributions allocated to each Participant must be computed, and the percentage limit applied, based upon each payroll period. (B) [ ] Matching Contributions for each Participant for each Plan year shall be limited to $_________. (4) Eligibility Requirement(s) A Participant who makes Deferral Contributions during the Plan Year under Section 1.05(b) shall be entitled to Matching Contributions for that Plan Year 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) [ ] Is not a Highly Compensated Employee for the Plan Year. (E) [ ] Is not a Partner of the Employer, if the Employer is a Partnership. (F) [ ] No requirements. Note: If option (A), (B) or (C) above is selected then Matching Contributions can only be funded by the Employer after the Plan Year ends. Any Matching Contribution funded before Plan Year end shall not be subject to the eligibility requirements of this Section 1.05(c)(4)). If option (A), (B), or (C) is adopted during a Plan Year, such option shall not become effective until the first day of the next Plan Year. (d) [X] Employee After-Tax Contributions (check one): (1) [X] Future Contributions Participants may make voluntary non-deductible Employee Contributions pursuant to Section 4.09 of the Plan. This option may only be elected if the Employer has elected to permit Deferral Contributions under Section 1.05(b). Matching Contributions by the Employer are not allowed on any voluntary non-deductible Employee Contributions. Withdrawals are limited to one per year unless Employee contributions were allowed under a previous plan document which authorized more frequent withdrawals. (2) [ ] Frozen Contributions Participants may not make voluntary non-deductible Employee Contributions, but the Employer does maintain frozen Participant voluntary non-deductible Employee Contribution Accounts. EXECUTION PAGE (Fidelity's Copy) IN WITNESS WHEREOF, the Employer has caused this Adoption Agreement to be executed this 10th day of December, 2002. Employer GIANT INDUSTRIES, INC. By /s/ Natalie R. Dopp ------------------------------- Title Vice President, Human Resources ------------------------------- Employer By ------------------------------- Title ------------------------------- Accepted by Fidelity Management Trust Company, as Trustee By___________________________ Date________________ Title________________________ EXECUTION PAGE (Employer's Copy) IN WITNESS WHEREOF, the Employer has caused this Adoption Agreement to be executed this 10th day of December, 2002. Employer GIANT INDUSTRIES, INC. By /s/ Natalie R. Dopp ------------------------------- Title Vice President, Human Resources ------------------------------- Employer By ------------------------------- Title ------------------------------- Accepted by Fidelity Management Trust Company, as Trustee By___________________________ Date________________ Title________________________ EX-23 7 exhibit-231.txt EXHIBIT 23.1 TO GIANT INDUSTRIES, INC. FORM S-8 EXHIBIT 23.1 INDEPENDENT AUDITOR'S 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 5, 2003 (which expresses an unqualified opinion and includes explanatory paragraphs relating to changes in accounting methods for the adoption of Statements of Financial Accounting Standards Nos. 142 and 144) and June 14, 2002, appearing in the annual report on Form 10-K of Giant Industries Inc. and subsidiaries for the year ended December 31, 2002 and in the Annual Report on Form 11-K of Giant Industries, Inc. and Affiliated Companies 401(k) Plan for the year ended December 31, 2001, respectfully. We also consent to the incorporation by reference in this Registration Statement of our report dated March 5, 2003 relating to the financial statement schedules appearing on the Annual Report on Form 10-K of Giant Industries Inc. for year ended December 31, 2002. /s/ DELOITTE & TOUCHE LLP Phoenix, Arizona March 31, 2003 -----END PRIVACY-ENHANCED MESSAGE-----