EXHIBIT 10.15
ELEVENTH AMENDMENT
OF THE
EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST AGREEMENT
OF GIANT INDUSTRIES, INC.
AND AFFILIATED COMPANIES
Effective as of July 1, 1987, Giant Industries, Inc., an Arizona
corporation, and Ciniza Pipe Line, Inc., a New Mexico Corporation,
amended and restated the Joint Profit Sharing Plan and Trust Agreement
of Giant Industries, Inc., Giant Western Service Stations, Inc., and
Ciniza Pipe Line Inc., as the Employee Stock Ownership Plan and Trust
Agreement of Giant Industries, Inc. and Affiliated Companies (the
"Plan"). Effective as of July 1, 1987, the Plan was adopted by Ciniza
Production Company, a New Mexico corporation ("Ciniza"), and by J.E.A.
Company, Inc., an Arizona corporation.
Effective as of September 28, 1989, Ciniza Pipe Line Inc. was
merged into Giant Industries, Inc., an Arizona corporation. Effective
as of October 12, 1989, J.E.A. Company, Inc. was merged into Giant
Industries, Inc. and Giant Industries, Inc. changed its name to Giant
Industries Arizona, Inc. ("Giant Arizona").
On October 15, 1989, Giant Arizona entered into an Agreement and
Plan of Reorganization with Xxxxx Development Company, a Texas
corporation, ("Xxxxx") contemplating a merger whereby Giant Arizona and
Xxxxx would become wholly owned subsidiaries of Giant Industries,
Inc., a Delaware corporation ("Giant"). The stock of Giant became
publicly traded on December 15, 1989, and the merger was consummated on
December 21, 1989.
Effective as of December 21, 1989, the Plan was adopted by Giant
and by Xxxxx. The name of Xxxxx was changed to Giant Exploration &
Production Company, a Texas corporation ("E&P"), effective June 12,
1990. Giant, Giant Arizona, E&P, Ciniza, Giant Stop-N-Go of New
Mexico, a New Mexico corporation, and Giant Four Corners, Inc., an
Arizona corporation, and such other entities described in section 1.14
of the Plan are hereinafter collectively referred to as the "Employer".
Under Section 11.1 of the Plan, Giant has been granted the right to
amend the Plan in whole or in part at any time and from time to time,
subject to certain restrictions set forth in the Plan, on behalf of the
Employer.
NOW THEREFORE, Giant deems it advisable to amend the Plan in the
manner hereinafter set forth and hereby adopts this tenth amendment.
Pages 1.11 - 1.23 of Article I of the existing Plan is removed and
replaced by the attached Pages 1.11 - 1.23 of Article I which is
incorporated herein by this reference.
The terms used in this Eleventh Amendment which are defined in the
Plan shall have the same meaning given to such terms in the Plan.
Except as modified by this Eleventh Amendment, the Plan shall
continue in full force and effect and the Plan and all amendments
thereto shall be read, taken and construed as one and the same
document.
Executed on the 24 day of March, 1998, to be effective as of
July 1, 1999, unless otherwise specified on the relevant replacement
page.
FOR THE EMPLOYER: ADMINISTRATIVE COMMITTEE:
/s/ Xxx X. Xxxxxxxxxx
GIANT INDUSTRIES, INC. --------------------------------
A Delaware Corporation Xxx X. Xxxxxxxxxx
By /s/ Xxxxx X. Xxxxxxx /s/ Xxxx X. Xxxxx
-------------------------- --------------------------------
Xxxxx X. Xxxxxxx Xxxx X. Xxxxx
By /s/ Xxxxxxx X. Xxxxxx
-------------------------- --------------------------------
Xxxxxxx X. Xxxxxx
TRUSTEE:
XXXXX FARGO BANK, N.A.
By:
------------------------------
Its: Vice President
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Thriftway before May 28, 1997, but only if such employee was
employed by Thriftway on May 27, 1997 and became an Employee of the
Employer on or about May 28, 1997 in connection with the sale of
assets of Thriftway and certain related entities to the Employer,
(vii) effective as of January 1, 1998, all service by an employee of
Phoenix Fuel Co., Inc. ("Phoenix Fuel") for service with Phoenix
Fuel or an affiliate or predecessor employer of Phoenix Fuel to the
extent service was credited to such employee on June 3, 1997 under
the Phoenix Fuel Co., Inc. Section 401(k) Savings Plan as of June 3,
1997, but only if such employee was employed by Phoenix Fuel on June
2, 1997, and became an Employee of the Employer on June 3, 1997, in
connection with the sale of the stock of Phoenix Fuel to the
Employer, and (viii) effective as of July 1, 1999, all service by an
employee of Kaibab Industries, Inc. ("Kaibab") for services with
Kaibab or an affiliate or predecessor employer of Kaibab to the
extent service was credited to such employee on the day he became an
Employee of the Employer, and only if such employee was employed by
Kaibab immediately before becoming an Employee of the Employer and
became an Employee of the Employer on or after May 21, 1998, and on
or before December 31, 1998, in connection with the sale of certain
assets of Kaibab to the Employer.
1.15 "EMPLOYER REAL PROPERTY" shall mean real property (and
related personal property) which is leased to an Employer or to an
affiliate of such Employer as defined under Section 407(d)(7)
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of ERISA. Employer Real Property shall be deemed to be acquired by
the Plan on the date on which the Plan acquires the property or on
the date on which a lease from the Plan to the Employer (or
affiliate) is entered into, whichever is later.
1.16 "EMPLOYER STOCK" prior to December 21, 1989, shall
mean shares of common stock of Giant Industries Arizona, Inc., an
Arizona corporation, having a combination of voting power and
dividend rights equal to or in excess of that class of common stock
having the greatest voting power and that class of stock having the
greatest dividend rights, and on or after December 21, 1989 shall
mean shares of common stock issued by Giant Industries, Inc., a
Delaware corporation. Any valuation of Employer Stock prior to
December 21, 1989, and any valuation in the event shares of common
stock of Giant Industries, Inc. cease to be readily tradable on an
established securities market after December 21, 1989, shall be
performed by an independent appraiser who meets the requirements of
Code Section 410(a)(28)(c).
1.17 "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time.
1.18 "EXEMPT LOAN" shall mean an exempt loan within the
meaning of Code Section 4975(d)(3) and Treasury Regulations Section
54.4975-7(b)(iii), the requirements of which are more fully set
forth in Section 9.2.
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1.19 "FIDUCIARY" shall mean, in accordance with Section
3(21) of ERISA, any person who exercises any discretionary authority
or discretionary control respecting management of the Plan or any
authority or control respecting management or disposition of Plan
assets, who renders investment advice for a fee or other
compensation (direct or indirect) with respect to Plan assets or
who has any authority or responsibility to do so, and any person who
has any discretionary authority or discretionary responsibility in
the administration of the Plan. The term Fiduciary shall be
construed as including the term "Named Fiduciary" as defined in
Section 402(a)(2) of ERISA with respect to those Fiduciaries who are
identified in the Plan as "Named Fiduciaries".
1.20 "FISCAL YEAR" shall mean the year beginning on
January 1 and ending on December 31, and such Fiscal Year shall be
the plan year for all purposes under ERISA and the Code.
1.21 "FORMER PARTICIPANT" shall mean a Participant whose
employment with the Employer has terminated but who has vested
Accounts under the Plan which have not been paid in full and which
continue to participate in the increase or decrease in Plan assets
including, for any Former Participant on or after December 21, 1989,
any increase or decrease in Employer Stock.
1.22 "GIANT" means Giant Industries, Inc., a Delaware
corporation.
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1.23 "GIANT ARIZONA" means Giant Industries Arizona,
Inc., an Arizona corporation.
1.24 "HIGHLY COMPENSATED EMPLOYEE" means, effective for
any Fiscal Year beginning on or after January 1, 1987, any Employee
who is a highly compensated employee as defined in Code Section
414(q) and the applicable Treasury regulations. Generally, any
Employee is considered a Highly Compensated Employee if during the
Determination Year or the Look-Back Year such Employee:
(a) was a "5% owner" as defined in Code Section
416(i)(B)(i) (i.e. who owns (or is treated as
owning) more than five percent (5%) of the
outstanding stock of the Employer or stock
possessing more than five percent (5%) of the total
combined voting power of all stock of the Employer
or, in the case of an unincorporated business, any
person who owns more than five percent (5%) of the
capital or profits interest in the Employer.) In
determining percentage ownership hereunder,
employers that would otherwise be aggregated under
Code Sections 414(b), (c) and (m) shall be treated
as separate employers;
(b) received Section 415 Compensation from the Employer
in excess of $75,000;
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(c) received Section 415 Compensation from the Employer
in excess of $50,000 and was in the "Top-Paid
Group." An Employee is in the Top-Paid Group if
such Employee is in the group consisting of the top
twenty percent (20%) of Employees when ranked on the
basis of Section 415 Compensation (as adjusted
below); or
(d) was an officer of the Employer whose Section 415
Compensation (as adjusted below) is greater than
$45,000 (or such other amount which is equal to
fifty percent (50%) of the amount specified in Code
Section 415(b)(1)(A) for the calendar year in which
the Determination Year or the Look-Back Year begins.
For purposes of this Section, the Determination Year
shall be the Plan Year in which testing is being performed. The
Employer has elected to treat the calendar year ending with or
within the Determination Year as the Look-Back Year as provided for
in Treasury regulations. Solely for purposes of identifying Highly
Compensated Employees under the terms of this Section and Code
Section 414(q), Section 415 Compensation means Section 415
Compensation as defined in Section 3.1(b) plus amounts described
under Code Sections 125, 402(e)(3) (formerly 402(a)(8)) or
402(h)(1)(B) that are otherwise excluded from Section 415
Compensation; and the dollar threshold amount specified in
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subsections (b) and (c) of this Section shall be adjusted at such
time and in such manner as is provided in the Code.
The term "Highly Compensated Employee" also includes a
former Employee who separated from service (or has a deemed
separation from service as determined under Treasury regulations)
prior to the Determination Year, performs no services for the
Employer during the Determination Year, and was a Highly Compensated
Employee either for the Look-Back Year or any Determination Year
ending on or after his 55th birthday.
The Committee shall make the determination of who is a
Highly Compensated Employee, including the determination of the
number and identity of the Top-Paid Group, the number of officers
includible in subsection (d), the number and identity of former
Employees considered to be Highly Compensated Employees, the
identity of "Excluded Employees," and Section 415 Compensation, in a
manner consistent with Code Section 414(q).
For purposes of this Section, an "Excluded Employee" is
defined under Code Section 414(q)(8) and generally includes (i)
Employees who have not completed six (6) months of service; (ii)
Employees who normally work less than 17 1/2 hours per week; (iii)
Employees who normally work during not more than six (6) months
during any Determination Year; (iv) Employees who have not attained
age 21; and (v) employees who are included in a unit of employees
covered by a collective bargaining agreement. The number of
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officers taken into account under subsection (d) will not exceed the
greater of 3 or 10% of the total number of Employees (after
subtracting Excluded Employees) but will not exceed 50 officers. If
no Employee satisfies the dollar threshold amount in subsection (d)
for the relevant Fiscal Year, the Committee will treat the highest
paid officer as satisfying subsection (d) for that Fiscal Year.
For purposes of applying any nondiscrimination test in a
manner consistent with the applicable Treasury regulations, the
Committee will treat as a single Highly Compensated Employee any
Highly Compensated Employee, who is a 5% owner or is one of the 10
Highly Compensated Employees with the greatest Section 415
Compensation for the Determination Year, and his spouse, lineal
ascendants or descendants or spouses of lineal ascendants or
descendants even if such family members are Highly Compensated
Employees in their own right.
1.25 "XXXXX" shall mean Xxxxx Development Company, a
Texas corporation.
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1.26 "HOUR OF SERVICE" shall mean each hour for which
the Employee is directly or indirectly paid or entitled to payment
by the Employer for performance of duties for the Employer including
each hour for which back pay, irrespective of mitigation of damages,
has been either awarded or agreed to by the Employer, and including
each hour for which payment is made or payable to the Employee for
periods during which the Employee is on an Employer approved leave
of absence for vacation, jury, sick, or disability leave, or
military service. Hours of Service shall also include hours during
such additional periods of service as may be required pursuant to
Department of Labor regulations. Hours for nonperformance of duties
shall be credited in accordance with DOL Regulations Section
2530.200b-2(b). Hours shall be credited to the applicable
computation period in accordance with DOL Regulations Section
2530.200b-2(c).
1.27 "INELIGIBLE PARTICIPANT" shall mean, for purposes
of allocating Section 1042 Employer Stock, (a) a Participant who is
a more than twenty-five percent (25%) owner (or a Participant who is
treated under Code Section 409(n) as a more than twenty-five
percent (25%) owner) of any class of outstanding stock of Giant
Industries, Inc. (or prior to December 21, 1989, of Giant
Industries Arizona, Inc.) or of the total value of any class of
outstanding stock of Giant Industries, Inc. (or prior to December
21, 1989, of Giant Industries Arizona, Inc.) whether he has elected
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nonrecognition of gain under Section 1042 of the Code or not, or
(b) a Participant (or a Participant who is related within the
meaning of Code Section 409(n) to a Participant) who has elected
nonrecognition of gain under Section 1042 of the Code in connection
with the sale of Employer Stock to the Plan. A Participant who is
described in Section 1.27(b) but not in Section 1.27(a) shall be an
"Ineligible Participant" only for the period beginning on the date
on which the Employee Stock for which he elected Code Section 1042
treatment was sold to the Plan and ending on the later of (1) the
date which is ten (10) years after the date of such sale or (2) the
date on which any allocation under the Plan is made which is
attributable to the final payment of any indebtedness incurred by
the Plan in connection with such sale.
1.28 "INVESTMENT MANAGER" shall mean a fiduciary (other
than a Trustee or Named Fiduciary) designated by the Committee under
this Plan to whom has been delegated the power to manage, acquire or
dispose of all or any of the assets of the Plan, who is registered
as an investment advisor under the Investment Advisers Act of 1940,
is a bank as defined under the Investment Advisers Act of 1940 or is
an insurance company qualified to manage, acquire, or dispose of
assets under the laws of more than one State, and who has
acknowledged in writing that he is a fiduciary with respect to the
management, acquisition and control of Plan assets.
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1.29 "PARTICIPANT" shall mean any Employee of the
Employer who becomes eligible for participation in accordance with
the provisions of this Plan.
1.30 "PLAN" shall mean the qualified stock bonus plan
and trust set forth in this Agreement, which is intended to be a
qualified employee stock ownership plan and trust.
1.31 "QUALIFYING EMPLOYER REAL PROPERTY" shall mean
Employer Real Property:
(a) if a substantial number of the parcels are
dispersed geographically;
(b) if each parcel of real property and the
improvements thereon are suitable (or adaptable without excessive
cost) for more than one use;
(c) even if all such real property is leased to
one lessee (which may be an employer, or an affiliate of an
employer); and
(d) if the acquisition and retention of such
property comply with the provisions of this part of ERISA (other
than section 404(a)(1)(B) to the extent it requires diversification,
and sections 404(a)(1)(C), 406, and subsection (a) of this section).
1.32 "SECTION 1042 EMPLOYER STOCK" shall mean Employer
Stock acquired by the Plan prior to December 21, 1989 in a
transaction which qualified for nonrecognition of gain under Code
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Section 1042.
1.33 "SECTION 1042 EMPLOYER STOCK ACCOUNT" shall mean
the account used to reflect an interest in Section 1042 Employer
Stock.
1.34 "SUSPENSE ACCOUNT" shall mean the account used to
hold Employer Stock purchased pursuant to Article IX of the Plan
with the proceeds of an Exempt Loan, prior to allocation of such
stock to the Accounts of Participants under the Plan.
1.35 "TEMPORARY STOCK ACCOUNT" shall mean the interim
account used to hold Employer Stock purchased by the Trustee, other
than Employer Stock purchased pursuant to Article IX of the Plan
with the proceeds of an Exempt Loan, and to hold Employer Stock
contributed to the Plan by the Employer, prior to the allocation of
such stock to the Accounts of Participants each Fiscal Year in
accordance with Sections 4.4(a), 4.7(a) and 4.7(c).
1.36 "TRUST" or "TRUST FUND" shall mean the trust which
is established herein to hold and invest contributions made under
this Plan.
1.37 "TRUSTEE" shall mean the one or more individuals,
banks, trust companies or other financial institutions, which are
appointed in accordance with Article VIII to hold and manage the
assets of the Trust.
1.38 "UNION EMPLOYEE" shall mean any person employed by
Employer who is a member of a unit of employees covered by any
collective bargaining agreement between employee representatives
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and the Employer, wherein retirement benefits were the subject of
good faith bargaining between the parties thereto, unless said
agreement provides for participation in this Plan.
1.39 "UNRESTRICTED EMPLOYER STOCK" shall mean Employer
Stock which was not acquired in a transaction qualifying for
nonrecognition of gain under Section 1042 of the Code.
1.40 "UNRESTRICTED EMPLOYER STOCK ACCOUNT" shall mean
the account used to reflect an interest in Unrestricted Employer
Stock.
1.41 "VALUATION DATE" shall mean the last day of each
Fiscal Year unless otherwise specifically indicated.
1.42 "YEAR OF SERVICE" shall mean, for purposes of
eligibility under the Plan, the twelve (12) consecutive month period
commencing on
(a) the first day the Employee completes an Hour
of Service, or
(b) if the Employee incurs a Break in Service, the
first day the Employee completes an Hour of Service after such Break
in Service, and, each succeeding twelve (12) consecutive month
period beginning on anniversaries of that date during which the
Employee completes at least one thousand (1,000) Hours of Service.
The twelve (12) consecutive month period determined under this
Section for the calculation of a Year of Service for eligibility
shall be the Eligibility Computation Period.
1.43 "YEAR OF SERVICE" shall mean, for purposes of vesting
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under the Plan, the Fiscal Year
(a) during which a Participant first completed an Hour
of Service either as an Employee or as a Union Employee; or
(b) if an Employee or a Union Employee incurs a Break
in Service, the Fiscal Year during which the Employee or Union
Employee completes an Hour of Service after such Break in Service,
and each succeeding Fiscal Year during which an Employee or a Union
Employee completes at least one thousand (1,000) Hours of Service;
provided, however, that any Employee or a Union Employee hired on or
before June 30, 1993 who becomes a Participant under the terms of
Section 2.1 prior to the Seventh Amendment shall be credited in all
events with one Year of Service for the Fiscal Year in which such
Employee or Union Employee becomes a Participant. The Fiscal Year
shall be the Vesting Computation Period.
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