-----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, Q4BmO6tyV2lKCNHnlavin8zNi+4zMIXPq/40GCxyteu79T5EhkfCYWJdH9Bok8/h vhc4GfoYglrqG7z7VjKLSA== 0000856465-99-000009.txt : 19990826 0000856465-99-000009.hdr.sgml : 19990826 ACCESSION NUMBER: 0000856465-99-000009 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990825 EFFECTIVENESS DATE: 19990825 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: 333-85857 FILM NUMBER: 99699032 BUSINESS ADDRESS: STREET 1: 23733 N SCOTTSDALE RD CITY: SCOTTSDALE STATE: AZ ZIP: 85255 BUSINESS PHONE: 6025858888 MAIL ADDRESS: STREET 1: 23733 N SCOTTSDALE RD CITY: SCOTTSDALE STATE: AZ ZIP: 85255 S-8 1 As filed with the Securities and Exchange Commission on August 25, 1999. Registration No. 333-________ __________________________________________________________________________ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ________________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ________________________ Giant Industries, Inc. (Exact Name of Registrant as Specified in Its Charter) Delaware 86-0642718 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification Number) 23733 North Scottsdale Road Scottsdale, Arizona 85255 (Address of Principal Executive Offices) (Zip Code) ______________________________ GIANT INDUSTRIES, INC. AND AFFILIATED COMPANIES 401(k) PLAN (Full title of the Plan) _____________________________ KIM H. BULLERDICK Vice President, General Counsel, and Secretary 23733 North Scottsdale Road Scottsdale, Arizona 85255 (Name and Address of Agent for Service) (480) 585-8888 (Telephone Number, Including Area Code, of Agent for Service) With a copy to: Karen C. McConnell W. T. Eggleston, Jr. Fennemore Craig, P.C. 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 (602) 916-5000 ________________________ Approximate date of commencement of proposed sales pursuant to the Plan (as defined below): From time to time after this Registration Statement becomes effective. CALCULATION OF REGISTRATION FEE ______________________________________________________________________________ Proposed Proposed Title of Maximum Maximum Securities Amount Offering Aggregate Amount of to be to be Price Offering Registration Registered Registered1 per Share2 Price Fee2 ______________________________________________________________________________ Common Stock, 150,000 $11.9375 $1,790,625 $498 $.01 par value Beneficial Interests __ __ __ __ in the Plan3 _____________________________________________________________________________ 1 Based upon the Registrant's estimate of the number of shares of Common Stock (as defined below) that will be available for purchase pursuant to the Giant Industries, Inc. and Affiliated Companies 401(k) Plan (the "Plan"). There also is being registered hereunder such additional undetermined number of shares of Common Stock as may be issued from time to time as a result of stock splits, stock dividends or similar transactions. 2 Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(h)(1) and (c) based on the average of the high and low prices of the Registrant's Common Stock reported in the consolidated reporting system of the New York Stock Exchange as of August 19, 1999. 3 Pursuant to Rule 416(c), this Registration Statement also covers an indeterminate number of interests to be offered or sold pursuant to the Plan described herein. This Registration Statement also covers the related interests in the trust created pursuant to the Plan. The required information regarding the beneficial interests is subsumed in the information regarding the Common Stock. PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The document(s) containing the information specified in Items 1 and 2 of Part I of Form S-8 will be sent or given to participants in the Plan as specified in Rule 428(b)(1) and, in accordance with the instructions to Part I, are not filed with the Commission as part of this Registration Statement. PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The following documents previously filed by the Registrant with the Securities and Exchange Commission are incorporated herein by reference and made a part hereof: 1. The Registrant's Annual Report on Form 10-K, as amended, for the year ended December 31, 1998 filed with the Commission on March 31, 1999; 2. The Registrant's Current Report on Form 8-K filed with the Commission on January 29, 1999; 3. The Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 1999 filed with the Commission on May 17, 1999; 4. The Registrant's Quarterly Report on Form 10-Q for the quarter ended June 30, 1999 filed with the Commission on August 10, 1999; and 5. The Registrant's description of its Common Stock contained in its Registration Statement on Form 8-A filed with the Commission on November 29, 1989, pursuant to Section 12 of the Exchange Act. All documents subsequently filed by the Registrant pursuant to section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Securities Not Applicable Item 5. Interests of Named Experts and Counsel Not Applicable Item 6. Indemnification of Directors and Officers The Registrant has purchased insurance on behalf of its directors and officers against certain liabilities that may be asserted against such persons in connection with any actual or alleged Wrongful Act (as defined in the policy) in their capacities as directors and officers of the Registrant, including certain liabilities under the federal and state securities laws, except to the extent that the Registrant has indemnified the directors and officers. The following contains summaries of certain circumstances in which indemnification is provided pursuant to the Registrant's Restated Certificate of Incorporation (the "Certificate") and Bylaws (the "Bylaws"). Such summaries are qualified in their entirety by reference to such Certificate and Bylaws. As permitted by the Delaware General Corporation law (the "DGCL"), the Registrant's Certificate provides that a director of the Registrant shall not be liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for breach of the duty of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL (governing distributions to stockholders), or (iv) for any transaction for which a director derives an improper personal benefit. In addition, Section 145 of the DGCL, the Certificate and the Bylaws, under certain circumstances, provide for the indemnification of the Registrant's officers, directors, employees, and agents against liabilities which they may incur in such capacities. In general, any officer, director, employee or agent may be indemnified against expenses including attorneys' fees, fines, settlements or judgments which were actually and reasonably incurred in connection with a legal proceeding, other than one brought by or on behalf of the Registrant, to which he was a party as a result of such relationship, if he acted in good faith, and in the manner he believed to be in the Registrant's best interest and not unlawful. If the action is brought by or on behalf of the Registrant, the person to be indemnified must have acted in good faith in a manner he believed to have been in the Registrant's best interest and generally must not have been adjudged liable to the Registrant. No person seeking indemnification may be denied indemnification unless the Board of Directors or the stockholders of the Registrant determine in good faith, or independent legal counsel for the Registrant opines in writing, that the standards for indemnification have not been met. A successful defense is deemed conclusive evidence of a person's right to be indemnified against expenses. The Registrant may advance funds to pay the expenses of any person involved in such action provided that the Registrant receives an undertaking that the person will repay the advanced funds unless it is ultimately determined that he is not entitled to indemnification. Indemnification also may be granted pursuant to provisions of bylaws which may be adopted in the future, pursuant to the terms of agreements which may be entered into in the future or pursuant to a vote of stockholders or disinterested directors. Insofar as indemnification for liabilities arising under the Securities Act of 1933 (the "Act") may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. Item 7. Exemption from Registration Claimed Not Applicable Item 8. Exhibits Exhibit Number 4.1 Restated Certificate of Incorporation. Incorporated by reference to Exhibit 3.1 to Amendment No. 3 to the Registrant's Registration Statement on Form S-1 (No. 33-31584) filed with the Commission on December 12, 1989. 4.2 Bylaws. Incorporated by reference to Exhibit 3.2 to the Registrant's Statement on Form S-1 (No. 33-31584) filed with the Commission on December 12, 1989. 4.3 Giant Industries, Inc. and Affiliated Companies 401(k) Plan. Incorporated by reference to Exhibit 10.46 to Amendment No. 2 to the Registrant's Registration Statement on Form S-3 (No. 33-69252) filed with the Commission on November 12, 1993. 4.4 First Amendment of the Giant Industries, Inc. and Affiliated Companies 401(k) Plan, dated October 17, 1996. Incorporated by reference to Exhibit 10.30 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1996, filed with the Commission on March 27, 1997. 4.5 Second Amendment to the Giant Industries, Inc. and Affiliated Companies 401(k) Plan, dated December 31, 1997. Incorporated by reference to Exhibit 10.30 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1997, filed with the Commission on March 31, 1998. 4.6 Third Amendment to the Giant Industries, Inc. and Affiliated Companies 401(k) Plan, effective July 1, 1998, dated December 10, 1998. Incorporated by reference to Exhibit 10.20 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1998, filed with the Commission on March 31, 1999. 4.7 Fourth Amendment to the Giant Industries, Inc. and Affiliated Companies 401(k) Plan, effective January 1, 1999, dated December 10, 1998. Incorporated by reference to Exhibit 10.21 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1998, filed with the Commission on March 31, 1999. 4.8 Fifth Amendment to the Giant Industries, Inc. and Affiliated Companies 401(k) Plan, effective August 1, 1999, dated August 6, 1999. 5.1 The opinion as to the legality of the securities is not applicable as the shares of Common Stock in the Plan will not be original issuance securities. 5.2 The opinion as to ERISA matters and the IRS determination letter are not applicable as the Registrant hereby undertakes to submit, or has submitted, the Plan and any amendments thereto to the IRS in a timely manner and will make, or has made, all changes required by the IRS in order to qualify the Plan. 23.1 Consent of Deloitte & Touche LLP 24.1 Power of Attorney (see page 8 of this Registration Statement) Item 9. Undertakings The Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; Provided, however, that paragraphs 1(i) and 1(ii) do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purposes of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (5) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Scottsdale, State of Arizona on August 25, 1999. GIANT INDUSTRIES, INC. By: /s/ JAMES E. ACRIDGE _______________________________ James E. Acridge Chairman of the Board and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears on this Form S-8 Registration Statement hereby constitutes and appoints James E. Acridge, Kim H. Bullerdick, and Fredric L. Holliger, or any of them, with full power to act without the other, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (unless revoked in writing) to sign any or all amendments (including post-effective amendments thereto) to this Form S-8 Registration Statement to which this power of attorney is attached, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. SIGNATURE TITLE DATE /s/ JAMES E. ACRIDGE Chairman of the Board, August 25, 1999 ________________________ Chief Executive Officer, James E. Acridge Director (Principal Executive Officer) /s/ MARK B. COX ________________________ Vice President, Treasurer, August 25, 1999 Mark B. Cox Financial Officer and Assistant Secretary (Principal Financial Officer) /s/ GARY R. DALKE ________________________ Vice President, Controller, August 25, 1999 Gary R. Dalke Accounting Officer and Assistant Secretary (Principal Accounting Officer) /s/ FREDRIC L. HOLLIGER ________________________ Executive Vice President, August 25, 1999 Frederic L. Holliger Chief Operating Officer, Director /s/ HARRY S. HOWARD, JR. ________________________ Director August 25, 1999 Harry S. Howard, Jr. /s/ F. MICHAEL GEDDES ________________________ Director August 25, 1999 F. Michael Geddes /s/ ANTHONY J. BERNITSKY ________________________ Director August 25, 1999 Anthony J. Bernitsky /s/ RICHARD T. KALEN, JR. ________________________ Director August 25, 1999 Richard T. Kalen, Jr. GIANT INDUSTRIES, INC. AND AFFILIATED COMPANIES 401(k) PLAN Pursuant to the requirements of the Securities Act of 1933, the Giant Industries, Inc. and Affiliated Companies 401(k) Plan has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Scottsdale, State of Arizona on August 25, 1999. Giant Industries, Inc. and Affiliated Companies 401(k) Plan By: /s/ CHARLES F. YONKER By: /s/ GARY R. DALKE ____________________________ ____________________________ Name: Charles F. Yonker Name: Gary R. Dalke Title: Member of 401(k) Plan Title: Member of 401(k) Plan Administrative Committee Administrative Committee INDEX TO EXHIBITS Number Exhibit 4.8 Fifth Amendment to the Giant Industries, Inc. and Affiliated Companies 401(k) Plan, effective August 1, 1999, dated August 6, 1999 23.1 Consent of Deloitte & Touche LLP EX-4.8 2 EXHIBIT 4.8 FIFTH AMENDMENT OF THE GIANT INDUSTRIES, INC. & AFFILIATED COMPANIES 401(K) PLAN WHEREAS, Giant Industries, Inc. adopted Giant Industries, Inc. & Affiliated Companies 401(k) Plan(the "Plan") through adoption of the Fidelity Investments CORPORATEplan for Retirement sm Profit Sharing/401(k) Basic Plan Document No. 07, effective as of July 1, 1993; and WHEREAS, the Sponsor desires to amend the Plan to add employer stock as an investment option: NOW THEREFORE, the Sponsor amends the Plan as follows effective August 1, 1999. 1. Section 2.01(a)(34) is added to the Basic Plan Document No. 07 as follows: "Permissible Investment" means the investments specified by the Employer as available for investment of assets of the Trust and agreed to by the Trustee or other investments specified by the Employer as available for investment of assets of the Trust and agreed to by the Trustee. Unless the context otherwise requires, any reference to `Fidelity Fund', with respect to a Participant's account, shall be deemed to include any Permissible Investment. 2. Section 14.24 is added to the Basic Plan No. 07 as follows: 14.24 Employer Stock Option. If one of the Permissible Investments is equity securities issued by the Employer or a Related Company which are publicly traded and which are "qualifying employer securities" within the meaning of Section 407(d)(5) of ERISA ("Employer stock"), investments in "Employer stock" shall be made via the "Employer stock" investment fund (the "stock fund") which shall consist of shares of "Employer stock" and short-term liquid investments consisting of mutual fund shares or commingled money market pool units as agreed to by the Employer and the Trustee, necessary to satisfy the "stock fund's" cash needs for transfers and payments. A cash target range shall be maintained in the "stock fund". Such target range may be changed as agreed to in writing by the Employer and the Trustee. The Trustee is responsible for ensuring that the actual cash held in the "stock fund" falls within the agreed upon range over time. Each Participant's interest in the "stock fund" shall be measured either in actual shares of "Employer stock" that are allocated to the Participant's Account and a proportionate interest in all other assets of the "stock fund" or units of participation, as provided in the Service Agreement. If accounting is by units of participation, such units shall represent a proportionate interest in all assets of the "stock fund," which includes shares of "Employer stock", short-term investments and at times, receivables for dividends and/or "Employer stock" sold and payables for "Employer stock" purchased. A net asset value per unit shall be determined daily for each unit outstanding of the "stock fund". The return earned by the "stock fund" shall represent a combination of the dividends paid on the shares of "Employer stock" held by the "stock fund", gains or losses realized on sales of "Employer stock", appreciation or depreciation in the market price of those shares owned, and interest on the short-term investments held by the "stock fund". Dividends received by the "stock fund" are reinvested in additional shares of "Employer Stock". Investments in "Employer Stock" shall be subject to the following limitations: (a) Acquisition Limit. Pursuant to the Plan, the Trust may be invested in "Employer stock" to the extent necessary to comply with investment directions under Section 6.02 of the Plan. Notwithstanding the foregoing, effective for deferral contributions made for Plan Years beginning on or after January 1, 1999, the portion of a Participant's Deferral Contributions that the Employer may require to be invested in "Employer stock" for a Plan Year cannot exceed one-percent of such Participant's Compensation for the Plan Year. (b) Fiduciary Duty of "Named Fiduciary". The Administrator or any person designated by the Administrator as a named fiduciary under Section 13.01 (the "named fiduciary") shall continuously monitor the suitability under the fiduciary duty rules of ERISA Section 404(a)(1) (as modified by ERISA Section 404(a)(2) and 404(c) of acquiring and holding "Employer stock". The Trustee shall not be liable for any loss, or by reason of any breach, which arises from the directions of the "named fiduciary" with respect to the acquisition and holding of "Employer stock", unless it is clear on their face that the actions to be taken under those directions would be prohibited by the foregoing fiduciary duty rules or would be contrary to the terms of the Plan or this Trust Agreement. (c) Execution of Purchases and Sales. Purchases and sales of "Employer stock" (other than for exchanges) shall be made on the open market on the business date on which the Trustee receives from the Employer in good order all information and documentation necessary to accurately effect such purchases and sales (or, in the case of purchases, the subsequent date on which the Trustee has received a wire transfer of the funds necessary to make such purchases). Such general rules shall not apply in the following circumstances: (1) If the Trustee is unable to determine the number of shares required to be purchased or sold on such business day; (2) If the Trustee is unable to purchase or sell the total number of shares required to be purchased or sold on such business day as a result of market conditions; or (3) If the Trustee is prohibited by the Securities and Exchange Commission, the New York Stock Exchange, or any other regulatory body from purchasing or selling any or all of the shares required to be purchased or sold on such business day. In the event of the occurrence of the circumstances described in (1), (2), or (3) above, the Trustee shall purchase or sell such shares as soon as possible thereafter and shall determine the price of such purchases or sales to be the average purchase or sales price of all such shares purchased or sold, respectively. The Trustee may follow directions from the "named fiduciary" to deviate from the above purchase and sale procedures provided that such direction is made in writing by the "named fiduciary". (d) Purchases and Sales from or to Employer. If directed by the Employer in writing prior to the trading date, the Trustee may purchase or sell "Employer stock" from or to the Employer if the purchase or sale is for adequate consideration (within the meaning of ERISA Section 3(18)) (e) and no commission is charged. If Employer contributions or contributions made by the Employer on behalf of the Participants under the Plan are to be invested in "Employer stock", the Employer may transfer "Employer stock" in lieu of cash to the Trust. In either case, the number of shares to be transferred shall be determined by dividing the total amount of "Employer stock" to be purchased or sold by the closing price of the "Employer stock" on any national securities exchange on the trading date. (e) Use of "Affiliated Broker" to Purchase "Employer Stock". The Employer hereby directs the Trustee to use the "affiliated broker" designated below to provide brokerage services in connection with any purchase or sale of "Employer stock" in accordance with investment directions from Participants and/or the Employer if and to the extent that each has authority to direct investments under Section 1.14 of the Adoption Agreement. The provision of brokerage services hereunder by the "affiliated broker" shall be subject to the provisions discussed in this Subsection. The Employer hereby directs the Trustee to use Fidelity Brokerage Services, Inc. ("affiliated broker") to purchase or sell individual securities for Participant Accounts in accordance with investment directions provided by such Participants. In accordance with the requirements of Department of Labor Prohibited Transaction Class Exception ("PTCE") 86-128, the ("affiliated broker") may not be a trustee (other than a non-discretionary trustee), the Administrator, or an Employer, unless otherwise permitted under Section IV of PTCE 86-128. The provision of brokerage services by the ("affiliated broker") shall be subject to the following: 1. In accordance with the procedures set forth in PTCE 86-128, the Trustee shall provide the Employer with the following documents: (i) a description of the "affiliated brokers" brokerage placement practices; (ii) a copy of PTCE 86-128; (iii) an annual report which summarizes all securities transaction-related charges incurred by the Plan; and (iv) a form by which the Employer may terminate this authorization to use a broker affiliated with the Trustee. The Trustee shall provide the Employer with the termination form described above annually. 2. Any successor organization of the ("affiliated broker") through reorganization, consolidation, merger, or similar transactions, shall, upon consummation of such transaction, become the successor broker in accordance with the terms of this authorization provision. 3. The Trustee and the ("affiliated broker") shall continue to rely on this authorization provision until notified to the contrary. The Employer reserves the right to terminate this authorization upon a sixty (60) days written notice to the ("affiliated broker") (or its successor) and the Trustee, and in accordance with Section 14.24 of this Agreement. (f) Securities Law Reports. The "named fiduciary" shall be responsible for filing all reports required under Federal or state securities laws with respect to the Trust's ownership of "Employer stock"; including, without limitation, any reports required under Section 13 or 16 of the Securities Exchange Act of 1934 and shall immediately notify the Trustee in writing of any requirement to stop purchases or sales of "Employer stock" pending the filing of any report. The Trustee shall provide to the "named fiduciary" such information on the Trust's ownership of "Employer stock" as the "named fiduciary" may reasonably request in order to comply with Federal or state securities laws. (g) Voting and Tender Offers. Notwithstanding any other provision of the Trust Agreement the provisions of this Subsection shall govern the voting and tendering of "Employer stock". If the Plan uses share accounting with respect to the "stock fund", each Participant shall be designated as a named fiduciary under ERISA with respect to shares of "Employer stock" credited to the Participant's Account that were not acquired at the direction of the Participant in accordance with ERISA Section 404(c). If accounting with respect to the "stock fund" is by units of participation, each Participant shall be designated a named fiduciary under ERISA with respect to shares of "Employer stock" attributable to units in the "stock fund" credited to the Participant's Account not acquired at the direction of the Participant in accordance with ERISA Section 404(c). The Employer, after consultation with the Trustee, shall provide and pay for all printing, mailing, tabulation and other costs associated with the voting and tendering of "Employer stock", except as required by law. (1) Voting. (A) When the issuer of the "Employer stock" prepares for any annual or special meeting, the Employer shall notify the Trustee thirty (30) days in advance of the intended record date and shall cause a copy of all materials to be sent to the Trustee. Based on these materials the Trustee shall prepare a voting instruction form. At the time of mailing of notice of each annual or special stockholders' meeting of the issuer of the "Employer stock", the Employer shall cause a copy of the notice and all proxy solicitation materials to be sent to each Participant with an interest in "Employer stock" held in the Trust, together with the foregoing voting instruction form to be returned to the Trustee or its designee. The form shall show the proportional interest in the number of full and fractional shares of "Employer stock" credited to the Participant's Sub-Accounts held in the "stock fund". The Employer shall provide the Trustee with a copy of any materials provided to the Participants and shall (if the mailing is not handled by the Trustee) certify that the materials have been mailed or otherwise sent to Participants. (B) Each Participant with an interest in the "stock fund" shall have the right to direct the Trustee as to the manner in which the Trustee is to vote (including not to vote) that number of shares of "Employer stock" that is credited to his Account, if the Plan uses share accounting, or, if accounting is by units of participation, that reflects such Participant's proportional interest in the "stock fund" (both vested and unvested). Directions from a Participant to the Trustee concerning the voting of "Employer stock" shall be communicated in writing, or by mailgram or similar means. These directions shall be held in confidence by the Trustee and shall not be divulged to the Employer, or any officer or employee thereof, or any other person. Upon its receipt of the directions, the Trustee shall vote the shares of "Employer stock" that are credited to a Participant's Account, if the Plan uses share accounting, or, if accounting is by units of participation, that reflect the Participant's proportional interest in the "stock fund" as directed by the Participant. The Trustee shall not vote shares of "Employer stock" that are credited to a Participant's Account, if the Plan uses share accounting, or, if accounting is by units of participation, that reflect a Participant's proportional interest in the "stock fund" for which the Trustee has received no direction from the Participant, except as required by law. (2) Tender Offers. (A) Upon commencement of a tender offer for any securities held in the Trust that are "Employer stock", the Employer shall notify each Participant with an interest in such "Employer stock" of the tender offer and utilize its best efforts to timely distribute or cause to be distributed to the Participant the same information that is distributed to shareholders of the issuer of "Employer stock" in connection with the tender offer, and, after consulting with the Trustee, shall provide and pay for a means by which the Participant may direct the Trustee whether or not to tender the "Employer stock" that is credited to a Participant's Account, if the Plan uses share accounting, or, if accounting is by units of participation, that reflects such Participant's proportional interest in the "stock fund" (both vested and unvested). The Employer shall provide the Trustee with a copy of any material provided to the Participants and shall (if the mailing is not handled by the Trustee) certify to the Trustee that the materials have been mailed or otherwise sent to Participants. (B) Each Participant shall have the right to direct the Trustee to tender or not to tender some or all of the shares of "Employer stock" that are credited to his Account, if the Plan uses share accounting, or, if accounting is by units of participation, that reflect such Participant's proportional interest in the "stock fund" (both vested and unvested). Directions from a Participant to the Trustee concerning the tender of "Employer stock" shall be communicated in writing, or by mailgram or such similar means as is agreed upon by the Trustee and the Employer under the preceding paragraph. These directions shall be held in confidence by the Trustee and shall not be divulged to the Employer, or any officer of employee thereof, or any other person, except to the extent that the consequences of such directions are reflected in reports regularly communicated to any such persons in the ordinary course of the performance of the Trustee's services hereunder. The Trustee shall tender or not tender shares of "Employer stock" as directed by the Participant. The Trustee shall not tender shares of "Employer stock" that are credited to a Participant's Account, if the Plan uses share accounting, or, if accounting is by units of participation, that reflect a Participant's proportional interest in the "stock fund" for which the Trustee has received no direction from the Participant. (C) A Participant who has directed the Trustee to tender some or all of the shares of "Employer stock" that are credited to his Account, if the Plan uses share accounting, or, if accounting is by units of participation, that reflect the Participant's proportional interest in the "stock fund" may, at any time prior to the tender offer withdrawal date, direct the Trustee to withdraw some or all of such tendered shares, and the Trustee shall withdraw the directed number of shares from the tender offer prior to the tender offer withdrawal deadline. A Participant shall not be limited as to the number of directions to tender or withdraw that the Participant may give to the Trustee. (D) A direction by a Participant to the Trustee to tender shares of "Employer stock" that are credited to the Participant's Account, if the Plan uses share accounting, or, if accounting is by units of participation, that reflect the Participant's proportional interest in the "stock fund" shall not be considered a written election under the Plan by the Participant to withdraw, or have distributed, any or all of his withdrawable shares. If the Plan uses share accounting, the Trustee shall credit to the Participant's Account the proceeds received by the Trustee in exchange for the shares of "Employer stock" tendered from the Participant's Account. If accounting is by units of participation, the Trustee shall credit to each proportional interest of the Participant from which the tendered shares were taken the proceeds received by the Trustee in exchange for the shares of "Employer stock" tendered from that interest. Pending receipt of direction (through the Administrator) from the Participant or the "named fiduciary", as provided in the plan, as to which of the remaining permissible investments the proceeds should be invested in, the Trustee shall invest the proceeds in the Permissible Investment specified for such purposes in the Service Agreement or, if no such Permissible Investment has been specified, the most conservative Permissible Investment designated by the Employer in the Service Agreement. (h) Shares Credited. If accounting with respect to the "stock fund" is by units of participation, then for all purposes of this Section 14.24, the number of shares of "Employer stock" deemed "credited" or "reflected" to a Participant's proportional interest shall be determined as of the last preceding valuation date. The trade date is the date the transaction is valued. (i) General. With respect to all rights other than the right to vote, the right to tender, and the right to withdraw shares previously tendered, in the case of "Employer stock" credited to a Participant's Account or proportional interest in the "stock fund", the Trustee shall follow the directions of the Participant and if no such directions are received, the directions of the "named fiduciary". The Trustee shall have no duty to solicit directions from Participants. (j) Conversion. All provisions in this Section 14.24 shall also apply to any securities received as a result of a conversion to "Employer stock". GIANT INDUSTRIES, INC. & AFFILIATED COMPANIES Signature: /s/ GARY R. DALKE __________________________________ Date: 8-4-99 Name: Gary R. Dalke _____________ _______________________________________ (Please Print) Title: VP, Corporate Controller _______________________________________ ACCEPTED BY: FIDELITY MANAGEMENT TRUST COMPANY, As Trustee Signature: /s/ ERIC L. WHICHMANN __________________________________ Date: 8-6-99 Name: Eric L. Wichmann _____________ _______________________________________ (Please Print) Title: _______________________________________ EX-23.1 3 EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Giant Industries, Inc. and Affiliated Companies on Form S-8 of our report dated March 4, 1999, appearing in the Annual Report on Form 10-K of Giant Industries, Inc. and Affiliated Companies for the year ended December 31, 1998. DELOITTE & TOUCHE LLP Phoenix, Arizona August 23, 1999 -----END PRIVACY-ENHANCED MESSAGE-----