========================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
Form 8-K
----------------------------------
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): August 26, 2006
GIANT INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 1-10398 86-0642718
(State of jurisdiction of (Commission File) (IRS Employer
incorporation) Number) Identification No.
23733 North Scottsdale Road
Scottsdale, Arizona 85255
(Address of principal executive offices) (Zip Code)
(480) 585-8888
Registrant's telephone number, including area code
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any
of the following provisions (see General Instruction A.2. to Form 8-K):
[ ] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[X] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
========================================================================
Item 1.01. Entry into a Material Definitive Agreement
Merger Agreement
On August 26, 2006, Giant Industries, Inc., a Delaware corporation
("Giant"), Western Refining, Inc., a Delaware corporation ("Western"), and
New Acquisition Corporation, a Delaware corporation ("Merger Sub"), entered
into an Agreement and Plan of Merger (the "Merger Agreement"), pursuant to
which Merger Sub will be merged into Giant, with Giant continuing after the
merger as the surviving corporation and a wholly-owned, direct subsidiary
of Western (the "Merger"). At the effective time of the Merger (the
"Effective Time"), each issued and outstanding share of common stock, par
value $0.01 per share, of Giant, other than shares owned by any
stockholders who are entitled to and properly exercise dissenters' rights
under Delaware law, will be cancelled and converted automatically into the
right to receive $83.00, without interest, in cash. In addition, all
outstanding Giant stock options will be cashed out for the excess of $83.00
over the exercise price of the applicable option.
The Merger Agreement has been approved by the Boards of Directors of
Giant and Western. The Merger is subject to customary conditions,
including compliance with the pre-merger notification requirements of the
Hart-Scott-Rodino Act and approval by Giant's stockholders. It is also a
condition to Western's obligation to complete the Merger that, if Western
so requests, Giant will conduct a tender offer for its 11% Senior
Subordinated Notes due 2012 and/or its 8% Senior Subordinated Notes due
2014, and that at least a majority of the aggregate principal amount of
such notes are tendered. The Merger Agreement contains customary
representations, warranties and covenants with respect to Giant and
Western.
In connection with the Merger, Western has deposited $12,500,000 into
an escrow account, which amount will be increased to $25,000,000 if the
closing of the Merger has not occurred by November 30, 2006. The deposit
will be payable to Giant in the event the waiting period applicable to the
consummation of the Merger under the Hart-Scott-Rodino Act has not expired
or been terminated prior to March 31, 2007, or if Western breaches its
representations, warranties, covenants or agreements contained in the
Merger Agreement. The Merger Agreement also contains termination rights in
favor of both Giant and Western upon the occurrence of certain events,
including the right of either party to terminate the Merger Agreement after
March 31, 2007 if the Merger has not been consummated by such date and such
failure is not caused by a breach of the Merger Agreement by the
terminating party. Giant's or Western's termination of the Merger Agreement
under certain circumstances also triggers an obligation that Giant pay
Western a termination fee of $37,500,000. The foregoing description of the
Merger does not purport to be complete and is qualified in its entirety by
reference to the complete text of the Merger Agreement, which is filed as
Exhibit 2.1 hereto and is incorporated herein by reference.
Consulting Agreement
Concurrently with, and as a Western condition to, the execution of the
Merger Agreement, Fred L. Holliger, Giant's Chairman and Chief Executive
Officer, entered into a Consulting and Non-competition Agreement with
Western, which will take effect at the Effective Time. The Consulting and
Non-competition Agreement is filed as Exhibit 10.1 hereto.
Press Release
On August 28, 2006, Giant and Western issued a joint press release
regarding the Merger. The press release is filed as Exhibit 99.1 hereto.
Caution Required by Certain Securities and Exchange Commission Rules
This current report on Form 8-K may be deemed to be soliciting
material relating to the proposed Merger transaction between Western and
Giant. In connection with the proposed Merger, Giant plans to file a proxy
statement with the Securities and Exchange Commission (the "SEC").
Investors and security holders of Giant are advised to read the proxy
statement and any other relevant documents filed with the SEC when they
become available because those documents will contain important information
about the proposed Merger. The final proxy statement will be mailed to
stockholders of Giant. Investors and security holders may obtain a free
copy of the proxy statement when it becomes available, and other documents
filed by Giant with the SEC, at the SEC's website at http://www.sec.gov.
Copies of the proxy statement, when it becomes available, and Giant's other
filings with the SEC also may be obtained free of charge from Giant
Industries, Inc., 23733 North Scottsdale Road, Scottsdale, Arizona 85255,
Attention: Investor Relations.
Giant, Western and their respective directors, executive officers,
other members of their management and employees may be deemed, under SEC
rules, to be soliciting proxies from Giant's stockholders in favor of the
proposed Merger. Information regarding Giant's directors and executive
officers is available in Giant's proxy statement for its 2006 annual
meeting of stockholders, which was filed with the SEC on March 1, 2006.
Information regarding Western's directors and executive officers is
available in Western's proxy statement for its 2006 annual meeting of
stockholders, which was filed with the SEC on April 25, 2006. Additional
information regarding the interests of such potential participants will be
included in the proxy statement and the other relevant documents filed with
the SEC when they become available.
Forward-Looking Information
The matters discussed in this current report on Form 8-K that are not
historical or current facts may be forward looking information, including
whether and when the transactions contemplated by the Merger Agreement may
be completed. Such forward looking statements are subject to inherent
risks and uncertainties, including the result of the review of the proposed
Merger by various regulatory agencies, and any condition imposed in
connection with the consummation of the Merger, the approval of the Merger
by Giant's stockholders, satisfaction of the other closing conditions
described in this report and the Merger Agreement, and other risks and
uncertainties described from time to time in Giant's reports filed with the
SEC, including its annual report on Form 10-K for the year ended December
31, 2005. This current report on Form 8-K speaks only as of its date, and
Giant disclaims any duty to update this information.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits
2.1 Agreement and Plan of Merger, dated August 26, 2006,
among Giant Industries, Inc., Western Refining, Inc.
and New Acquisition Corporation.*
10.1 Consulting and Non-Competition Agreement, dated August
26, 2006, between Fred L. Holliger and Western
Refining, Inc.
99.1 Press Release, dated August 28, 2006, issued by
Western Refining, Inc. and Giant Industries, Inc.
*The Disclosure Letter and related schedules have been omitted from this
filing, but will be furnished supplementally by Giant to the SEC upon its
request.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
GIANT INDUSTRIES, INC.
(Registrant)
By: /s/ Mark B. Cox
--------------------------------
Date: August 30, 2006 Mark B Cox
Executive Vice President and
Chief Financial Officer
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
2.1 Agreement and Plan of Merger, dated August 26, 2006, among
Giant Industries, Inc., Western Refining, Inc. and New
Acquisition Corporation.*
10.1 Consulting and Non-competition Agreement, dated August 26,
2006, between Fred L. Holliger and Western Refining, Inc.
99.1 Press Release, dated August 28, 2006, issued by Western
Refining, Inc. and Giant Industries, Inc.
*The Disclosure Letter and related schedules have been omitted from this
filing, but will be furnished supplementally by Giant to the SEC upon its
request.