EXHIBIT 4.3
SECOND AMENDMENT TO THE
Giant Industries, Inc. & Affiliated Companies 401(k) Plan
WHEREAS, Giant Industries, Inc. (the "Corporation") has adopted and
subsequently amended and restated the Giant Industries, Inc. & Affiliated
Companies 401(k) Plan (the "Plan"), in the form of The CORPORATEplan for
RetirementSM Profit Sharing/401(k) Plan Fidelity Basic Plan Document No. 02
(a prototype plan sponsored by Fidelity Management and Research Corporation),
by executing an Adoption Agreement, effective June 24, 2003; and
WHEREAS, Section 16.02 of The CORPORATEplan for RetirementSM Profit
Sharing/401(k) Plan Fidelity Basic Plan Document No. 02 provides for the
amendment of the Plan by the Employer, and
NOW THEREFORE,
1. Effective July 1, 2003 Section 1.04(b)(2) of the Adoption Agreement is
amended, by deleting the following at its conclusion:
"Full-Time Employees shall become eligible to make Deferral
Contributions beginning on the first Entry Date on or after they
complete sixty days or more of service. For this purpose, "Full-
Time Employee" means an Employee who is regularly schedule to work
thirty (30) or more hours per week.
2. Effective July 1, 2003 Sections 1.04(b)(2)(A) and (B) are amended as
shown on page 2 of the attachment.
3. Effective July 1, 2003 Sections 1.04(e)(1) and (2) are amended as shown
on page 3 of the attachment.
IN WITNESS WHEREOF the Employer has caused this amendment to be executed
this 27th day of June, 2003, by its duly authorized officer, effective July
1, 2003.
GIANT INDUSTRIES, INC.
By: /s/ NATALIE R. DOPP
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Title: VP, Human Resources
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Attachment to Second Amendment
THE CORPORATEPLAN
FOR RETIREMENTSM
(Profit Sharing/401(k) Plan)
A Fidelity Prototype Plan
Non-Standardized Adoption Agreement No. 001
For use With
Fidelity Basic Plan Document No. 02
Plan Number: 40292 Non-Std PS Plan
The CORPORATEplan for RetirementSM 12/05/2001
2001 FMR Corp.
All rights reserved.
ADOPTION AGREEMENT
ARTICLE 1
NON-STANDARDIZED PROFIT SHARING/401(K) PLAN
1.01 PLAN INFORMATION
(a) Name of Plan:
This is the Giant Industries, Inc. & Affiliated Companies 401(k)
Plan (the "Plan")
1.04 COVERAGE
All Employees who meet the conditions specified below shall be eligible to
participate in the Plan:
(a) Age Requirement (check one):
(1) [x] no age requirement.
(2) [ ] must have attained age:_____ (not to exceed 21).
(b) Eligibility Service Requirement
(1) Eligibility to Participate in Plan (check one):
(A) [ ] no Eligibility Service requirement.
(B) [ ] _____(not to exceed 11) months of Eligibility Service
requirement (no minimum number Hours of Service can be
required).
(C) [X] one year of Eligibility Service requirement (at least
1,000 Hours of Service are required during the
Eligibility Computation Period).
(D) [ ] two years of Eligibility Service requirement (at least
1,000 Hours of Service are required during each
Eligibility Computation Period). (Do not select if
Option 1.01(b)(1), 401(k) Only, is checked, unless a
different Eligibility Service requirement applies to
Deferral Contributions under Option 1.04(b)(2).)
Note: If the Employer selects the two year Eligibility
Service requirement, then contributions subject to such
Eligibility Service requirement must be 100% vested when made.
(2) [x] Special Eligibility Service requirement for Deferral
Contributions and/or Matching Employer Contributions:
(A) The special Eligibility Service requirement applies to (check
the appropriate box(es)):
(i) [x] Deferral Contributions.
(ii) [ ] Matching Employer Contributions.
(B) The special Eligibility Service requirement is: (A) (Fill
in (A), (B), or (C) from Subsection 1.04(b)(1) above).
(c) Eligible Class of Employees (check one):
Note: The Plan may not cover employees who are residents of Puerto
Rico. These employees are automatically excluded from the eligible
class, regardless of the Employer's selection under this Subsection
1.04(c).
(1) [ ] includes all Employees of the Employer.
(2) [x] includes all Employees of the Employer except for (check the
appropriate box(es)):
(A) [x] employees covered by a collective bargaining
agreement.
(B) [ ] Highly Compensated Employees as defined in Code
Section 414(q).
(C) [x] Leased Employees as defined in Subsection 2.01(cc).
(D) [x] nonresident aliens who do not receive any earned
income from the Employer which constitutes United
States source income.
(E) [x] other: An employee who is classified by the Employer
as an employee of Giant Yorktown, Inc.
Note: The Employer should exercise caution when excluding
employees from participation in the Plan. Exclusion of
employees may adversely affect the Plan's satisfaction of
the minimum coverage requirements, as provided in Code
Section 410(b).
(d) The Entry Dates shall be (check one):
(1) [ ] immediate upon meeting the eligibility requirements specified
in Subsections 1.04(a), (b), and (c).
(2) [x] the first day of each Plan Year and the first day of the
seventh month of each Plan Year.
(3) [ ] the first day of each Plan Year and the first day of the
fourth, seventh, and tenth months of each Plan Year.
(4) [ ] the first day of each month.
(5) [ ] the first day of each Plan Year. (Do not select if there is
an Eligibility Service requirement of more than six months in
Subsection 1.04(b) or if there is an age requirement of more
than 20 1/2 in Subsection 1.04(a).)
(e) [x] Special Entry Date(s) - In addition to the Entry Dates specified in
Subsection 1.04(d) above, the following special Entry Date(s) apply
for Deferral and/or Matching Employer Contributions. (Special Entry
Dates may only be selected if Option 1.04(b)(2), special
Eligibility Service requirement, is checked. The same Entry Dates
must be selected for contributions that are subject to the same
Eligibility Service requirements.)
(1) The special Entry Date(s) shall apply to (check the appropriate
box(es)):
(A) [x] Deferral Contributions.
(B) [ ] Matching Employer Contributions.
(2) The special Entry Date(s) shall be: (1) (Fill in (1), (2), (3),
(4), or (5) from Subsection 1.04(d) above).
(f) Date of Initial Participation - An Employee shall become a Participant
unless excluded by Subsection 1.04(c) above on the Entry Date
immediately following the date the Employee completes the service and
age requirement(s) in Subsections 1.04(a) and (b), if any, except
(check one):
(1) [x] no exceptions.
(2) [ ] Employees employed on the Effective Date in Subsection
1.01(g)(1) or (2) shall become Participants on that date.
(3) [ ] Employees who meet the age and service requirement(s) of
Subsections 1.04(a) and (b) on the Effective Date in
Subsection 1.01(g)(1) or (2) shall become Participants on that
date.
AMENDMENT EXECUTION PAGE
This page is to be completed in the event the Employer modifies any prior
election(s) or makes a new election(s) in this Adoption Agreement. Attach
the amended page(s) of the Adoption Agreement to this execution page.
The following section(s) of the Plan are hereby amended effective as of the
date(s) set forth below:
Section Amended Page Effective Date
1.04(b)(2)(A) 4 7/1/03
1.04(b)(2)(B) 4 7/1/03
1.04(e)(1) and 1.04(e)(2) 5 7/1/03
1.04(b)(2) 4 (see attached amendment) 7/1/03
IN WITNESS WHEREOF, the Employer has caused this Amendment to be executed
this 27th day of June, 2003.
Employer: Giant Industries, Inc. Employer:
---------------------------- -------------------------
By: /s/ NATALIE R. DOPP By:
---------------------------------- -------------------------------
Title: VP, Human Resources Title:
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Accepted by:
Fidelity Management Trust Company, as Trustee
By: /s/ JOAN M. BERNING Date: 7/1/03
---------------------------------- -----------------------------
Title: Authorized Signatory
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EXECUTION PAGE (FIDELITY'S COPY)
This Agreement shall be effective upon execution by both parties. By
executing this Agreement, the parties agree to terms and conditions contained
in the Agreement and the following attached Appendices:
Original
Service Agreement Effective Date Revision Date(s)
Articles I and II 01/01/1996
Appendix A - Investment Schedule
and Services
Appendix B - Enrollment and
Education Services
Appendix C - Contribution Processing
Services
Appendix D - Loan and Withdrawal
Services
Appendix E - Compliance Services
Appendix F - Miscellaneous Additional
Services 07/01/2003
In witness whereof, the parties hereto have caused this Agreement to be
executed by their duly authorized officers.
Employer: Employer:
/s/ NATALIE R. DOPP
- ------------------------------- -------------------------------
(Signature) (Signature)
Natalie R. Dopp
- ------------------------------- -------------------------------
(Print Name) (Print Name)
VP, Human Resources
- ------------------------------- -------------------------------
(Title) (Title)
6/27/03
- ------------------------------- -------------------------------
(Date) (Date)
Note: Only one authorized signature is required to execute this Agreement
unless the Employer's corporate policy mandates two authorized signatures.
Fidelity Management Trust Company:
/s/ JOAN M. BERNING
- -------------------------------
(Signature)
Joan M. Berning
- -------------------------------
(Print Name)
Authorized Signatory
- -------------------------------
(Title)
7/1/03
- -------------------------------
(Date)
EXECUTION PAGE (EMPLOYER'S COPY)
This Agreement shall be effective upon execution by both parties. By
executing this Agreement, the parties agree to terms and conditions contained
in the Agreement and the following attached Appendices:
Original
Service Agreement Effective Date Revision Date(s)
Articles I and II 01/01/1996
Appendix A - Investment Schedule
and Services
Appendix B - Enrollment and
Education Services
Appendix C - Contribution Processing
Services
Appendix D - Loan and Withdrawal
Services
Appendix E - Compliance Services
Appendix F - Miscellaneous Additional
Services 07/01/2003
In witness whereof, the parties hereto have caused this Agreement to be
executed by their duly authorized officers.
Employer: Employer:
/s/ NATALIE R. DOPP
- ------------------------------- -------------------------------
(Signature) (Signature)
Natalie R. Dopp
- ------------------------------- -------------------------------
(Print Name) (Print Name)
VP, Human Resources
- ------------------------------- -------------------------------
(Title) (Title)
6/27/03
- ------------------------------- -------------------------------
(Date) (Date)
Note: Only one authorized signature is required to execute this Agreement
unless the Employer's corporate policy mandates two authorized signatures.
Fidelity Management Trust Company:
/s/ JOAN M. BERNING
- -------------------------------
(Signature)
Joan M. Berning
- -------------------------------
(Print Name)
Authorized Signatory
- -------------------------------
(Title)
7/1/03
- -------------------------------
(Date)
APPENDIX F - MISCELLANEOUS
The provision(s) as identified in this Appendix F shall supercede the
referenced provision(s) of this Agreement, subject to the terms and
conditions contained herein. For provision(s) below identified as exceptions
to the Plan (requiring an amendment to the CORPORATEplan for RetirementSM),
the Employer hereby agrees to obtain a favorable determination letter on the
Plan from the Internal Revenue Service.
Title: Amendment to Compensation
Description: The Employer will provide an amendment that excludes any
amount realized from the exercise of qualified or
nonqualified stock options and any Compensation for the
portion of the Plan Year during which the employee is
classified by the Employer as an employee of Giant Yorktown,
Inc. from the definition of Compensation.
Exception Fee: Fee Waived
Fidelity hereby agrees to allow an amendment to the CORPORATEplan for
RetirementSM to incorporate a Plan provision to accomplish the above stated
purpose. Amending the Plan to add such a provision will make the Plan
individually designed and the Employer hereby agrees to accept all
consequences of such a designation (see attached).
Title: Change to Loan Policy in Appendix D
Description: Participant will be permitted to initiate up to two loans in
a given plan year. While Fidelity will produce Participant
communication materials and forms for use by the Employer,
the Employer must provide any necessary language summarizing
this provision as well as identify which materials and forms
would use this language.
Exception Fee: Fee Waived
Title: Change to Loan Policy in Appendix D
Description: Loan availability is to be computed based on the entire
account balance except for the Non-Elective Employer
Contribution Stock (EMPLOYER CONTRIB STOCK SOURCE) and the
ESOP Transfer Stock (TRANSFER ASSETS STOCK SOURCE) accounts
and is to be withdrawn from those same accounts. While
Fidelity will produce Participant communication materials
and forms for use by the Employer, the Employer must provide
any necessary language summarizing this provision as well as
identify which materials and forms would use this language.
Exception Fee: Fee Waived
Title: Amendment to Investment Direction
Description: The Employer will provide an amendment that allows for
Employer investment direction for one of the Non-Elective
Employer Contribution account and Employee Investment
direction from the other Non-Elective Employer Contribution
account.
Exception Fee: Fee Waived
Fidelity hereby agrees to allow an amendment to the CORPORATEplan for
RetirementSM to incorporate a Plan provision to accomplish the above stated
purpose. Amending the Plan to add such a provision will make the Plan
individually designed and the Employer hereby agrees to accept all
consequences of such a designation (see attached).
Title: Amendment to Non-Elective Employer Contribution
Description: The Employer will provide an amendment that allows it to
decide upon funding of each contribution if the Employer or
Employee will direct investment.
Exception Fee: Fee Waived
Fidelity hereby agrees to allow an amendment to the CORPORATEplan for
RetirementSM to incorporate a Plan provision to accomplish the above stated
purpose. Amending the Plan to add such a provision will make the Plan
individually designed and the Employer hereby agrees to accept all
consequences of such a designation (see attached).
Title: Amendment to Investment Direction
Description: The Employer will provide an amendment that allows for
employee investment direction in all restricted accounts
upon attaining either age 55 and 10 years of service, or
age 59.5.
Exception Fee: Fee Waived
Fidelity hereby agrees to allow an amendment to the CORPORATEplan for
RetirementSM to incorporate a Plan provision to accomplish the above stated
purpose. Amending the Plan to add such a provision will make the Plan
individually designed and the Employer hereby agrees to accept all
consequences of such a designation (see attached).
Attachment to Appendix F
of the
CORPORATEplan for RetirementSM Service Agreement
Article II, Section 2 of the CORPORATEplan for RetirementSM Service Agreement
provides that the Employer may not add, delete, or modify the CORPORATEplan
for RetirementSM prototype documents in any way without the written consent
of Fidelity. In Appendix F of the CORPORATEplan for RetirementSM Service
Agreement, Fidelity gave its written consent that this provision be waived
solely for the purpose of allowing the company to make a certain amendment to
the prototype plan. The Employer will be responsible for drafting the
amendment to which reference is made in Appendix F. As a result of this
amendment, the Employer's Plan will not be able to rely on the opinion letter
Fidelity received from the IRS for the CORPORATEplan for RetirementSM with
respect to the Employer's Plan. The Employer's Plan will be individually
designed, and the Employer will incur the 'user' fee for an individually
designed plan instead of the fee for a prototype plan in filing for an IRS
determination letter. The Employer will be responsible for the continuing
qualification of the plan, including amending it to comply with the required
Internal Revenue Service guidelines. Fidelity will provide the Employer with
a copy of any model amendments or updates to the Fidelity Prototype plan. The
Employer shall be responsible for retaining the provision allowed by Appendix
F (if so desired) in any restated version of the Fidelity Prototype Plan
adopted by the Employer. While Fidelity will generate a Summary Plan
Description for the Employer's Plan, the Employer must provide any necessary
language summarizing the amendment. Finally, the Employer must give Fidelity
the opportunity to review any other amendment that the Employer proposes to
the Plan, allowing Fidelity to approve or reject the amendment based upon its
impact on the operation of the Plan.