EX-4 5 exhibit-413.txt EXHIBIT 4.13 TO GIANT INDUSTRIES, INC. FORM S-8 EXHIBIT 4.13 AMENDMENT TO THE CORPORATEPLAN FOR RETIREMENT SERVICE AGREEMENT - MUTUAL FUND WINDOWS WHEREAS, Giant Industries, Inc. (the "Employer") and Fidelity Management Trust Company as the trustee ("Trustee") executed the Fidelity CORPORATEplan for Retirement(sm) Service Agreement ("CPR Service Agreement") for the Giant Industries, Inc. and Affiliated Companies 401(k) Plan (Fidelity Plan #40292), and WHEREAS, Article VII, Section 12, of the CPR Service Agreement provides that it may be amended by a written agreement signed by the Employer and the Trustee; and NOW THEREFORE, the Employer and Trustee hereby agree to the following: 1. Notwithstanding anything else in the CPR Service Agreement to the contrary in the CPR Service Agreement, investments made available to the Plan for investment of assets of the Trust (herein called "Permissible Investments") shall be listed in the CPR Service Agreement. 2. Notwithstanding anything else in the CPR Service Agreement to the contrary in the CPR Service Agreement, Fidelity shall also be entitled to any fees relating to Permissible Investments stated in Article VII of the CPR Service Agreement or any amendment thereto. 3. The following shall be added as a separate section following the last section of Article VII: Mutual Funds Available: The Employer has selected certain mutual funds as Permissible Investments for investments of Participant Accounts under the Trust. Unless specifically indicated otherwise within this Agreement or an amendment to this Agreement, purchases, sales and exchanges of each Permissible Investment option are controlled by that Permissible Investment's prospectus or other governing document(s). The Employer and Fidelity have agreed that the following constraints, limitations, fees and operating procedures shall apply in reference to the listed Permissible Investments: Fidelity Funds (Core) Fund Name Fund Number Fidelity Retirement Government Money Market Portfolio 0631 Fidelity Government Income Fund 0054 Fidelity Equity Income II Fund 0319 Spartan U.S. Equity Index Fund 0650 Fidelity Aggressive Growth Fund 0324 Fidelity Contrafund 0022 Fidelity Dividend Growth Fund 0330 Fidelity Low Priced Stock Fund 0316 Fidelity Mid-Cap Stock Fund 0337 Fidelity Diversified International 0325 Fidelity Asset Manager 0314 Fidelity Asset Manager: Growth 0321 Fidelity Freedom Income Fund 0369 Fidelity Freedom 2000 Fund 0370 Fidelity Freedom 2010 Fund 0371 Fidelity Freedom 2020 Fund 0372 Fidelity Freedom 2030 Fund 0373 Fidelity Freedom 2040 Fund 0718 Giant Stock Fund TCKZ Annual Fee for Excess Core Permissible Investment Options The fees stated in this Service Agreement take into consideration the Permissible Investment options selected by the Employer in this Service Agreement and include up to 26 Core Permissible Investment options with no additional annual fee. The annual fee for each Core Permissible Investment option in excess of 26 is $500 per option and such fee is in addition to any fees specified elsewhere in this Service Agreement, including any Appendices and amendments thereto. The annual fee for excess Core Permissible Investment options shall be billed or charged quarterly in arrears and paid by the Employer. The Fidelity Freedom funds collectively shall count as one Core Permissible Investment option. Any change to the Permissible Investment options selected by the Employer after the effective date of this Service Agreement shall require an amendment to this Service Agreement and may result in an amended or additional fees. Mutual Fund Window Participants may invest through a Mutual Fund Window arrangement under the Plan, hereinafter referred to as "MFW". Fidelity shall provide recordkeeping services for MFW in accordance with the terms and conditions this Section. Additional Fees: Set Up Fee per Plan: $0 Fee Paid By: N/A Annual Fee per Plan: $0 Fee Paid By: N/A Quarterly Fee per Participant: $0 Fee Paid By: N/A Terms: a. This MFW allows a participant to invest in any of the Fidelity Funds listed below. b. The quarterly per participant fee will be assessed for every participant having a balance at the end of the billing period in any fund available only through this MFW. Participants may invest in any of the Permissible Investments described outside this MFW paragraph (hereinafter "Core Funds") without being subject to these MFW fees. The annual fee for excess permissible investment options listed in this Agreement shall only apply to those selected Core Funds. c. The following is a list of all the funds in which a Plan Participant may invest through MFW (some Core Funds may appear in this list as well, but those will not be treated as available only through this MFW): Fidelity Funds (in alphabetical order): Fidelity Fund Name Fund Number Fidelity Aggressive Growth Fund 0324 Fidelity Aggressive International Fund 0335 Fidelity Asset Manager: Aggressive 0347 Fidelity Asset Manager: Growth (SM) 0321 Fidelity Asset Manager: Income (SM) 0328 Fidelity Asset Manager (R) 0314 Fidelity Balanced Fund 0304 Fidelity Blue Chip Growth Fund 0312 Fidelity Canada Fund 0309 Fidelity Capital & Income Fund 0038 Fidelity Capital Appreciation Fund 0307 Fidelity Convertible Securities Fund 0308 Fidelity Disciplined Equity Fund 0315 Fidelity Diversified International Fund 0325 Fidelity Dividend Growth Fund 0330 Fidelity Emerging Markets Fund 0322 Fidelity Equity-Income Fund 0023 Fidelity Equity-Income II Fund 0319 Fidelity Europe Capital Appreciation Fund 0341 Fidelity Europe Fund 0301 Fidelity Export and Multinational Fund 0332 Fidelity Fifty 0500 Fidelity Freedom 2000 Fund (SM) 0370 Fidelity Freedom 2010 Fund (SM) 0371 Fidelity Freedom 2020 Fund (SM) 0372 Fidelity Freedom 2030 Fund (SM) 0373 Fidelity Freedom 2040 Fund (SM) 0718 Fidelity Freedom Income Fund (SM) 0369 Fidelity Fund 0003 Fidelity Ginnie Mae Fund 0015 Fidelity Global Balanced Fund 0334 Fidelity Government Income Fund 0054 Fidelity Growth Company Fund 0025 Fidelity Institutional Short-Intermediate Government Fund 0662 Fidelity Intermediate Bond Fund 0032 Fidelity International Growth & Income Fund 0305 Fidelity Investment Grade Bond Fund 0026 Fidelity Japan Fund 0350 Fidelity Large Cap Stock Fund 0338 Fidelity Latin America Fund 0349 Fidelity Low-Priced Stock Fund 0316 Fidelity Managed Income Portfolio 0632 Fidelity Mid-Cap Stock Fund 0337 Fidelity New Markets Income Fund 0331 Fidelity OTC Portfolio 0093 Fidelity Overseas Fund 0094 Fidelity Pacific Basin Fund 0302 Fidelity Puritan (R) Fund 0004 Fidelity Real Estate Investment Portfolio 0303 Fidelity Retirement Government Money Market Portfolio 0631 Fidelity Independence Fund 0073 Fidelity Retirement Money Market Portfolio 0630 Fidelity Short-Term Bond Fund 0450 Fidelity Small Cap Retirement Fund 0384 Fidelity Small Cap Independence 0336 Fidelity Southeast Asia Fund 0351 Fidelity Stock Selector 0320 Fidelity Structured Large Cap Growth Fund 0763 Fidelity Structured Large Cap Value Fund 0708 Fidelity Structured Mid Cap Growth Fund 0793 Fidelity Structured Mid Cap Value Fund 0762 Fidelity Trend Fund 0005 Fidelity U.S. Bond Index Fund 0651 Fidelity Utilities Fund 0311 Fidelity Value Fund 0039 Fidelity Worldwide Fund 0318 Spartan (R) Total Market Index Fund 0397 Spartan (R) U.S. Equity Index Fund 0650 The Employer may not add, delete, or replace any investment option identified in this Service Agreement within 90 days of the Plan's adding the MFW. The Employer understands that this MFW service is an investment selection of a certain group of funds currently available for the Plan and that the funds present in this MFW service change over time. The Employer understands that a choice can be made at any time to change from the MFW service to another investment platform (another window or a platform without a window investment) offered by Fidelity and available to the Plan. The Employer will always have the option to move to an investment platform of 15 Fidelity Funds (not Select Funds) chosen from among those available to the Plan. The Employer agrees that any change of investment platform will be effective as soon as administratively feasible for Fidelity (after the Employer and Fidelity have amended this agreement to reflect such change) and that the Employer will communicate to participants the date and consequences of such change. The Employer hereby directs Fidelity to add new funds to the Permissible Investments for the Plan as those funds are added to MFW service. Fidelity shall always give the Employer at least 90 days notice of the date that new fund(s) will become available through the MFW service an the Employer has until 20 days before such date to direct Fidelity not to make any such new fund or funds available for the Plan. The Employer understands that, since this service is a package service and Fidelity is unable to customize this package, the Employer's decision not to add certain fund(s) may mean that the Plan is unable to remain on its current MFW service. If the Employer's decisions make the Plan unable to remain on its current MFW service, the Employer agrees to choose an entirely different investment platform (another MFW service or a platform without a MFW service) for the Plan at least 10 business days before such new funds are to be added to the current MFW service. The Employer hereby directs Fidelity to remove from the Permissible Investments for the Plan any funds being removed as a fund available under the MFW service ("Non-MFW Funds"). Fidelity shall always give the Employer at least 90 days notice of the date that a fund or funds will become Non-MFW Funds. If the Employer decides to change any of the Core Permissible Investments for the Plan, the Employer agrees that Fidelity may reassess the Plan's fee structure and charge additional fees based upon the Core Permissible Investments for the Plan resulting from the Employer's decision. The Employer hereby directs Fidelity to exchange all balances present in the any such Non-MFW funds, on the date such a Non-MFW Fund ceases to be a Permissible Investment for the Plan, into the default investment for the Plan. The Employer agrees that any closure of a fund that is part of the MFW service will be treated as a fund being removed from the MFW service pursuant to the paragraph immediately preceding, except that Fidelity may adjust notice timeframes as circumstances dictate. The Employer further agrees that anytime a fund within the MFW service merges completely (thus ceasing to exist) into a fund that is not currently a Permissible Investment under the Plan, that such fund will be treated as if it was closing pursuant to the previous sentence. Fidelity agrees that anytime two funds that are Permissible Investments under the Plan merge, Fidelity will assist the Employer with communicating in advance the consequences of the merger to its Plan participants. The Employer agrees that when two Permissible Investments merge Plan participants who do not act before the date of the merger will have their account balances in each such fund combined in the resulting fund. If a merger of two Permissible Investments will result in the Plan having one less Core Permissible Investment, Fidelity agrees to give the Employer the opportunity to remove the resulting fund from the MFW service and assign it as a Core Permissible Investment. The Employer understands that the timing of the merger of funds it outside of the control of the Trustee and that all assistance to be provided the Employer will always be on a fest efforts basis. The Plan is intended to constitute a plan described in ERISA Section 404(c) and regulations issued thereunder. The Employer shall not be relieved of fiduciary responsibility for the selection and monitoring of all Permissible Investments under the Plan, including any constituting part of the MFW. AND FURTHER AGREE, that this Amendment shall be effective upon the date indicated below and that the changes made by this Amendment are incorporated into the Service Agreement and control over conflicting provisions of any previously executed Service Agreement, or any amendment or addendum thereto. This Amendment shall be effective July 10, 2002. EMPLOYER FIDELITY MANAGEMENT TRUST COMPANY, TRUSTEE By: /s/ Charles F. Yonker By: /s/ GLEN J. KINDNESS -------------------------------- ---------------------------------- Name: Charles F. Yonker Name: Glen J. Kindness -------------------------------- ---------------------------------- Title: V.P. Human Resources Title: Authorized Signature -------------------------------- ---------------------------------- Date: 6/12/02 Date: June 28, 2002 -------------------------------- ---------------------------------- AMENDMENT TO THE Giant Industries, Inc. and Affiliated Companies 401(k) Plan WHEREAS: The Giant Industries, Inc. (the "Employer") adopted the Giant Industries, Inc. and Affiliated Companies 401(k) Plan (the "Plan") through adoption of the Fidelity Investments CORPORATEplan(sm) for Retirement Profit Sharing 401(k) Basic Plan Document No. 07, effective as of July 1, 1993; and WHEREAS: The employer desires to amend the Plan to remove the choice of investment options from the Adoption Agreement: NOW THEREFORE, The Employer amends the Plan as follows effective July 10, 2002. 1. Section 1.14(b) is amended to replace all language between the first sentence and the first "Note" with the following sentence: Participant Accounts under the Trust will be invested among the Permissible Investments designated in the Service Agreement. 2. 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. 3. Section 2.01(a)(35) is added to the Basic Plan Document No. 07 as follows: "Service Agreement" means the agreement between the Employer and the Prototype Sponsor (or an agent or affiliate of the Prototype Sponsor) relating to the provision of investment and other services to the Plan and shall include any addendum to the agreement and any other separate written agreement between the Employer and the Prototype Sponsor (or an agent or affiliate of the Prototype Sponsor) relating to the provision of services to the Plan. 4. All occurrences of "Section 1.14(b)" in the Basic Plan Document No. 07 will be replaced with "the Service Agreement". In witness whereof, the Employer has signed this instrument this 21, day of June 2002. Giant Industries, Inc. By: /s/ Charles F. Yonker ---------------------------------- Title: VP Human Resources ----------------------------------