EXHIBIT 4.1
SIXTH 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 "Giant 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; and
WHEREAS, Giant Industries, Inc. (the "Corporation") has adopted and
subsequently amended and restated the Giant Yorktown 401(k) Retirement
Savings Plan (the "Yorktown Plan"), in the form of The CORPORATEplan for
RetirementSM Profit Sharing/401(k) Plan Fidelity Basic Plan Document No.
2 (a prototype plan sponsored by Fidelity Management and Research
Corporation), by executing an Adoption Agreement; 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 January 1, 2004, Section 1.06 is amended as shown on
the attachment.
IN WITNESS WHEREOF the Employer has caused this amendment to be
executed this 22nd day of June, 2005 by its duly authorized officer,
effective as stated herein.
GIANT INDUSTRIES, INC.
By: /s/ NATALIE R. DOPP
--------------------------------------
Natalie R. Dopp, V.P., Human Resources
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. 2
Plan Number: 40292 Non-Std PS Plan
The CORPORATEplan for RetirementSM 10/09/2003
(c) 2003 FMR Corp.
All rights reserved.
1.06 TESTING RULES
(a) ADP/ACP Present Testing Method - The testing method for
purposes of applying the "ADP" and "ACP" tests described in
Sections 6.03 and 6.06 of the Plan shall be the (check one):
(1) [X] Current Year Testing Method - The "ADP" or "ACP" of
Highly Compensated Employees for the Plan Year shall
be compared to the "ADP" or "ACP" of Non-Highly
Compensated Employees for the same Plan Year. (Must
choose if Option 1.10(a)(3), Safe Harbor Matching
Employer Contributions, or Option 1.11(a)(3), Safe
Harbor Formula, with respect to Nonelective Employer
Contributions is checked.)
(2) [ ] Prior Year Testing Method - The "ADP" or "ACP" of
Highly Compensated Employees for the Plan Year shall
be compared to the "ADP" or "ACP" of Non-Highly
Compensated Employees for the immediately preceding
Plan Year. (Do not choose if Option 1.10(a)(3), Safe
Harbor Matching Employer Contributions, or Option
1.11(a)(3), Safe Harbor Formula, with respect to
Nonelective Employer Contributions is checked.)
(3) [ ] Not Applicable. (Only if Option 1.01(b)(3), Profit
Sharing Only, is checked or Option 1.04(c)(2)(B),
excluding all Highly Compensated Employees from the
eligible class of Employees, is checked.)
Note: Restrictions apply on elections to change testing
methods that are made after the end of the GUST remedial
amendment period.
(b) First Year Testing Method - If the first Plan Year that the
Plan, other than a successor plan, permits Deferral
Contributions or provides for either Employee or Matching
Employer contributions, occurs on or after the Effective Date
specified in Subsection 1.01(g), the "ADP" and/or "ACP" test
for such first Plan Year shall be applied using the actual
"ADP" and/or "ACP" of Non-Highly Compensated Employees for
such first Plan Year, unless otherwise provided below.
Plan Number: 40292 Non-Std PS Plan
The CORPORATEplan for RetirementSM 10/09/2003
(c) 2003 FMR Corp.
All rights reserved.
(1) [ ] The "ADP" and/or "ACP" test for the first Plan Year
that the Plan permits Deferral Contributions or
provides for either Employee or Matching Employer
Contributions shall be applied assuming a 3% "ADP"
and/or "ACP" for Non-Highly Compensated Employees. (Do
not choose unless Plan uses prior year testing method
described in Subsection 1.06(a)(2).)
(c) HCE Determinations: Look Back Year - The look back year for
purposes of determining which Employees are Highly Compensated
Employees shall be the 12-consecutive-month period preceding
the Plan Year, unless otherwise provided below.
(1) [ ] Calendar Year Determination - The look back year
shall be the calendar year beginning within the
preceding Plan Year. (Do not choose if the Plan Year
is the calendar year.)
(d) HCE Determinations: Top Paid Group Election - All Employees
with Compensation exceeding $80,000 (as indexed) shall be
considered Highly Compensated Employees, unless Top Paid Group
Election below is checked.
(1) [ ] Top Paid Group Election - Employees with Compensation
exceeding $80,000 (as indexed) shall be considered
Highly Compensated Employees only if they are in the
top paid group (the top 20% of Employees ranked by
Compensation).
Note: Effective for determination years beginning on or after
January 1, 1998, if the Employer elects Option 1.06(c)(1)
and/or 1.06(d)(1), such election(s) must apply consistently to
all retirement plans of the Employer for determination years
that begin with or within the same calendar year (except that
Option 1.06(c)(1), Calendar Year Determination, shall not
apply to calendar year plans).
Plan Number: 40292 Non-Std PS Plan
The CORPORATEplan for RetirementSM 10/09/2003
(c) 2003 FMR Corp.
All rights reserved.
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
1.06 01/01/2004
IN WITNESS WHEREOF, the Employer has caused this Amendment to be
executed this 22 day of June, 2005.
Employer: Giant Industries, Inc. Employer:
------------------------- -------------------------
By: /s/ NATALIE R. DOPP By:
------------------------------- -------------------------------
Title: VP, Human Resources Title:
---------------------------- ----------------------------
Accepted by:
Fidelity Management Trust Company, as Trustee
By: /s/ GREGORY M. PERKINS Date: 06/28/2005
------------------------------- -----------------------------
Title: Authorized Signatory
----------------------------
Plan Number: 40292 Non-Std PS Plan
The CORPORATEplan for RetirementSM 10/09/2003
(c) 2003 FMR Corp.
All rights reserved.