EXHIBIT 4.1
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
The CORPORATEplan for Retirementsm Non-Std PS Plan
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")
(b) Type of Plan:
(1) [ ] 401(k) Only
(2) [X] 401(k) and Profit Sharing
(3) [ ] Profit Sharing Only
(c) Administrator Name (if not the Employer):
401(k) Administrative Committee
Giant Industries, Inc.
Address: 23733 North Scottsdale Road
Scottsdale, AZ 85255
Telephone Number: (480) 585-8729
The Administrator is the agent for service of legal process for the
Plan.
(d) Plan Year End (month/day): 12/31
(e) Three Digit Plan Number: 002
(f) Limitation Year (check one):
(1) [ ] Calendar Year
(2) [x] Plan Year
(3) [ ] Other: ______________________
(g) Plan Status (check appropriate box(es)):
(1) [ ] New Plan Effective Date:_____________
(2) [x] Amendment Effective Date: 6/24/2003
This is (check one):
(A) [x] an amendment and restatement of a Basic Plan
Document No. 02 Adoption Agreement previously
executed by the Employer; or
(B) [ ] a conversion to a Basic Plan Document No. 02
Adoption Agreement.
The original effective date of the Plan: 7/1/1993
(3) x] This is an amendment and restatement of the Plan and the
Plan was not amended prior to the effective date specified
in Subsection 1.01(g)(2) above to comply with the
requirements of the Acts specified in the Snap Off
Addendum to the Adoption Agreement. The provisions
specified in the Snap Off Addendum are effective as of the
dates specified in the Snap Off Addendum, which dates may
be prior to the Amendment Effective Date. Please read and
complete, if necessary, the Snap Off Addendum to the
Adoption Agreement.
(4) [x] Special Effective Dates - Certain provisions of the Plan
shall be effective as of a date other than the date
specified above. Please complete the Special Effective
Dates Addendum to the Adoption Agreement indicating the
affected provisions and their effective dates.
(5) [ ] Plan Merger Effective Dates. Certain plan(s) were merged
into the Plan and certain provisions of the Plan are
effective with respect to the merged plan(s) as of a date
other than the date specified above. Please complete the
Special Effective Dates Addendum to the Adoption Agreement
indicating the plan(s) that have merged into the Plan and
the effective date(s) of such merger(s).
1.02 EMPLOYER
(a) Employer Name: Giant Industries, Inc.
Address: 23733 North Scottsdale Road
Scottsdale, AZ 85255
Contact's Name: Mr. Delbert Tingey
Telephone Number: (480) 585-8729
(1) Employer's Tax Identification Number: 86-0642718
(2) Employer's fiscal year end: 12/31
(3) Date business commenced: 12/11/1968
(b) The term "Employer" includes the following Related Employer(s) (as
defined in Subsection 2.01(rr)) (list each participating Related
Employer and its Employer Tax Identification Number):
Employer: Tax ID: Designation:
Giant Industries Arizona, Inc.,
an Arizona Company 86-0218157 Related
(controlled group)
Ciniza Production Company,
a New Mexico Corporation 74-2468207 Related
(controlled group)
Giant Stop-N-Go of New Mexico,
Inc., a New Mexico Corporation 85-0389396 Related
(controlled group)
Giant Four Corners, Inc., an
Arizona Corporation 86-0739055 Related
(controlled group)
Giant Mid-Continent, Inc., an
Arizona Corporation 86-0784398 Related
(controlled group)
San Juan Refining Company, a
New Mexico Corporation 74-2759385 Related
(controlled group)
Phoenix Fuel Co., Inc., an
Arizona Corporation 86-0109486 Related
(controlled group)
Giant Pipeline Company, a
New Mexico Corporation 85-0467397 Related
(controlled group)
1.03 TRUSTEE
(a) Trustee Name: Fidelity Management Trust Company
Address: 82 Devonshire Street
Boston, MA 02109
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).
SEE AMENDMENT
(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) [ ] 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) [ ] Deferral Contributions.
(ii) [ ] Matching Employer Contributions.
(B) The special Eligibility Service requirement is:
(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) [ ] 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) [ ] Deferral Contributions.
(B) [ ] Matching Employer Contributions.
(2) The special Entry Date(s) shall be:_____ (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.
1.05 COMPENSATION
Compensation for purposes of determining contributions shall be as defined in
Section 5.02, modified as provided below.
(a) Compensation Exclusions: Compensation shall exclude the item(s) listed
below for purposes of determining Deferral Contributions, Employee
Contributions, if any, and Qualified Nonelective Employer Contributions,
or, if Subsection 1.01(b)(3), Profit Sharing Only, is selected,
Nonelective Employer Contributions. Unless otherwise indicated in
Subsection 1.05(b), these exclusions shall also apply in determining all
other Employer-provided contributions. (Check the appropriate box(es);
Options (2), (3), (4), (5), and (6) may not be elected with respect to
Deferral Contributions if Option 1.10(a)(3), Safe Harbor Matching
Employer Contributions, is checked):
(1) [ ] No exclusions.
(2) [ ] Overtime Pay.
(3) [ ] Bonuses.
(4) [ ] Commissions.
(5) [x] The value of a qualified or a non-qualified stock option granted
to an Employee by the Employer to the extent such value is
includable in the Employee's taxable income.
(6) [x] Severance Pay.
(b) Special Compensation Exclusions for Determining Employer-Provided
Contributions in Article 5 (either (1) or (2) may be selected, but not
both):
(1) [ ] Compensation for purposes of determining Matching, Qualified
Matching, and Nonelective Employer Contributions shall exclude:
____________ (Fill in number(s) for item(s) from Subsection
1.05(a) above that apply.)
(2) [ ] Compensation for purposes of determining Nonelective Employer
Contributions only shall exclude: _________(Fill in number(s)
for item(s) from Subsection 1.05(a) above that apply.)
Note: If the Employer selects Option (2), (3), (4), (5), or (6)
with respect to Nonelective Employer Contributions, Compensation
must be tested to show that it meets the requirements of Code
Section 414(s) or 401(a)(4). These exclusions shall not apply for
purposes of the "Top Heavy" requirements in Section 15.03, for
allocating safe harbor Matching Employer Contributions if
Subsection 1.10(a)(3) is selected, for allocating safe harbor
Nonelective Employer Contributions if Subsection 1.11(a)(3) is
selected, or for allocating non-safe harbor Nonelective Employer
Contributions if the Integrated Formula is elected in Subsection
1.11(b)(2).
(c) Compensation for the First Year of Participation - Contributions for the
Plan Year in which an Employee first becomes a Participant shall be
determined based on the Employee's Compensation (check one):
(1) [ ] for the entire Plan Year.
(2) [x] for the portion of the Plan Year in which the Employee is
eligible to participate in the Plan.
Note: If the initial Plan Year of a new Plan consists of fewer than
12 months from the Effective Date in Subsection 1.01(g)(1) through
the end of the initial Plan Year, Compensation for purposes of
determining the amount of contributions, other than non-safe harbor
Nonelective Employer Contributions, under the Plan shall be the
period from such Effective Date through the end of the initial year.
However, for purposes of determining the amount of non-safe harbor
Nonelective Employer Contributions and for other Plan purposes,
where appropriate, the full 12-consecutive-month period ending on
the last day of the initial Plan Year shall be used.
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) [ ] 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) [x] 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.
(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).
1.07 DEFERRAL CONTRIBUTIONS
(a) [x] Deferral Contributions - Participants may elect to have a portion of
their Compensation contributed to the Plan on a before-tax basis
pursuant to Code Section 401(k).
(1) Regular Contributions - The Employer shall make a Deferral
Contribution in accordance with Section 5.03 on behalf of each
Participant who has an executed salary reduction agreement in
effect with the Employer for the payroll period in question, not
to exceed 60% of Compensation for that period.
Note: For Limitation Years beginning prior to 2002, the
percentage elected above must be less than 25% in order to
satisfy the limitation on annual additions under Code Section
415 if other types of contributions are provided under the Plan.
(A) [ ] Instead of specifying a percentage of Compensation, a
Participant's salary reduction agreement may specify a
dollar amount to be contributed each payroll period,
provided such dollar amount does not exceed the maximum
percentage of Compensation specified in Subsection
1.07(a)(1) above.
(B) A Participant may increase or decrease, on a prospective
basis, his salary reduction agreement percentage (check
one):
(i) [x] as of the beginning of each payroll period.
(ii) [ ] as of the first day of each month.
(iii) [ ] as of the next Entry Date. (Do not select if
immediate entry is elected with respect to
Deferral Contributions in Subsection 1.04(d) or
1.04(e).)
(iv) [ ] other. (Specify, but must be at least once per
Plan Year)
________________________
________________________
Note: Notwithstanding the Employer's election hereunder,
if Option 1.10(a)(3), Safe Harbor Matching Employer
Contributions, or 1.11(a)(3), Safe Harbor Formula, with
respect to Nonelective Employer Contributions is checked,
the Plan provides that an Active Participant may change
his salary reduction agreement percentage for the Plan
Year within a reasonable period (not fewer than 30 days)
of receiving the notice described in Section 6.10.
(C) A Participant may revoke, on a prospective basis, a
salary reduction agreement at any time upon proper notice
to the Administrator but in such case may not file a new
salary reduction agreement until (check one):
(i) [ ] the first day of the next Plan Year.
(ii) [ ] any subsequent Entry Date. (Do not select if
immediate entry is elected with respect to
Deferral Contributions in Subsection 1.04(d) or
1.04(e).)
(iii) [x] other. (Specify, but must be at least once per
Plan Year)
the beginning of each payroll period
(2) [ ] Additional Deferral Contributions - The Employer may allow
Participants upon proper notice and approval to enter into a
special salary reduction agreement to make additional
Deferral Contributions in an amount up to 100% of their
Compensation for the payroll period(s) designated by the
Employer.
(3) [ ] Bonus Contributions - The Employer may allow Participants
upon proper notice and approval to enter into a special
salary reduction agreement to make Deferral Contributions in
an amount up to 100% of any Employer paid cash bonuses
designated by the Employer on a uniform and non-
discriminatory basis that are made for such Participants
during the Plan Year. The Compensation definition elected by
the Employer in Subsection 1.05(a) must include bonuses if
bonus contributions are permitted.
Note: A Participant's contributions under Subsection 1.07(a)(2)
and/or (3) may not cause the Participant to exceed the percentage
limit specified by the Employer in Subsection 1.07(a)(1) for the
full Plan Year. If the Administrator anticipates that the Plan
will not satisfy the "ADP" and/or "ACP" test for the year, the
Administrator may reduce the rate of Deferral Contributions of
Participants who are Highly Compensated Employees to an amount
objectively determined by the Administrator to be necessary to
satisfy the "ADP" and/or "ACP" test.
1.08 EMPLOYEE CONTRIBUTIONS (AFTER-TAX CONTRIBUTIONS)
(a) [x] Employee Contributions - Either (1) Participants will be permitted to
contribute amounts to the Plan on an after-tax basis or (2) the
Employer maintains frozen Employee Contributions Accounts (check one):
(1) [x] Future Employee Contributions - Participants may make
voluntary, non-deductible, after-tax Employee Contributions
pursuant to Section 5.04 of the Plan. (Only if Option 1.07(a),
Deferral Contributions, is checked.)
(2) [ ] Frozen Employee Contributions - Participants may not currently
make after-tax Employee Contributions to the Plan, but the
Employer does maintain frozen Employee Contributions Accounts.
1.09 QUALIFIED NONELECTIVE CONTRIBUTIONS
(a) Qualified Nonelective Employer Contributions - If Option 1.07(a),
Deferral Contributions, is checked, the Employer may contribute an
amount which it designates as a Qualified Nonelective Employer
Contribution to be included in the "ADP" or "ACP" test. Unless
otherwise provided below, Qualified Nonelective Employer Contributions
shall be allocated to Participants who were eligible to participate in
the Plan at any time during the Plan Year and are Non-Highly Compensated
Employees either (A) in the ratio which each Participant's "testing
compensation", as defined in Subsection 6.01(t), for the Plan Year bears
to the total of all Participants' "testing compensation" for the Plan
Year or (B) as a flat dollar amount.
(1) [ ] Qualified Nonelective Employer Contributions shall be allocated
to Participants as a percentage of the lowest paid Participant's
"testing compensation", as defined in Subsection 6.01(t), for
the Plan Year up to the lower of (A) the maximum amount
contributable under the Plan or (B) the amount necessary to
satisfy the "ADP" or "ACP" test. If any Qualified Nonelective
Employer Contribution remains, allocation shall continue in the
same manner to the next lowest paid Participants until the
Qualified Nonelective Employer Contribution is exhausted.
1.10 MATCHING EMPLOYER CONTRIBUTIONS (Only if Option 1.07(a), Deferral
Contributions, is checked)
(a) [x] Basic Matching Employer Contributions (check one):
(1) [ ] Non-Discretionary Matching Employer Contributions - The
Employer shall make a basic Matching Employer Contribution
on behalf of each Participant in an amount equal to the
following percentage of a Participant's Deferral
Contributions during the Contribution Period (check (A) or
(B) and, if applicable, (C)):
Note: Effective for Plan Years beginning on or after January
1, 1999, if the Employer elected Option 1.11(a)(3), Safe
Harbor Formula, with respect to Nonelective Employer
Contributions and meets the requirements for deemed
satisfaction of the "ADP" test in Section 6.10 for a Plan
Year, the Plan will also be deemed to satisfy the "ACP" test
for such Plan Year with respect to Matching Employer
Contributions if Matching Employer Contributions hereunder
meet the requirements in Section 6.11.
(A) [ ] Single Percentage Match:_______%
(B) [ ] Tiered Match:
____% of the first ____% of the Active Participant's
Compensation contributed to the Plan,
____% of the next _____% of the Active Participant's
Compensation contributed to the Plan,
____% of the next _____% of the Active Participant's
Compensation contributed to the Plan.
Note: The percentages specified above for basic Matching
Employer Contributions may not increase as the percentage
of Compensation contributed increases.
(C) [ ] Limit on Non-Discretionary Matching Employer
Contributions (check the appropriate box(es)):
(i) [ ] Deferral Contributions in excess of ____% of the
Participant's Compensation for the period in
question shall not be considered for non-
discretionary Matching Employer Contributions.
Note: If the Employer elected a percentage limit in
(i) above and requested the Trustee to account
separately for matched and unmatched Deferral
Contributions made to the Plan, the non-discretionary
Matching Employer Contributions allocated to each
Participant must be computed, and the percentage limit
applied, based upon each payroll period.
(ii) [ ] Matching Employer Contributions for each
Participant for each Plan Year shall be limited
to $_________.
(2) [x] Discretionary Matching Employer Contributions - The
Employer may make a basic Matching Employer Contribution
on behalf of each Participant in an amount equal to the
percentage declared for the Contribution Period, if any,
by a Board of Directors' Resolution (or by a Letter of
Intent for a sole proprietor or partnership) of the
Deferral Contributions made by each Participant during the
Contribution Period. The Board of Directors' Resolution
(or Letter of Intent, if applicable) may limit the
Deferral Contributions matched to a specified percentage
of Compensation or limit the amount of the match to a
specified dollar amount.
(A) [ ] 4% Limitation on Discretionary Matching Employer
Contributions for Deemed Satisfaction of "ACP" Test -
In no event may the dollar amount of the discretionary
Matching Employer Contribution made on a Participant's
behalf for the Plan Year exceed 4% of the
Participant's Compensation for the Plan Year. (Only
if Option 1.11(a)(3), Safe Harbor Formula, with
respect to Nonelective Employer Contributions is
checked.)
(3) [ ] Safe Harbor Matching Employer Contributions -
Effective only for Plan Years beginning on or after
January 1, 1999, if the Employer elects one of the safe
harbor formula Options provided in the Safe Harbor
Matching Employer Contribution Addendum to the Adoption
Agreement and provides written notice each Plan Year to
all Active Participants of their rights and obligations
under the Plan, the Plan shall be deemed to satisfy the
"ADP" test and, under certain circumstances, the "ACP"
test.
(b) [ ] Additional Matching Employer Contributions - The Employer may at Plan
Year end make an additional Matching Employer Contribution equal to a
percentage declared by the Employer, through a Board of Directors'
Resolution (or by a Letter of Intent for a sole proprietor or
partnership), of the Deferral Contributions made by each Participant
during the Plan Year. (Only if Option 1.10(a)(1) or (3) is checked.)
The Board of Directors' Resolution (or Letter of Intent, if
applicable) may limit the Deferral Contributions matched to a
specified percentage of Compensation or limit the amount of the match
to a specified dollar amount.
(1) [ ] 4% Limitation on Additional Matching Employer Contributions
for Deemed Satisfaction of "ACP" Test - In no event may the
dollar amount of the additional Matching Employer Contribution
made on a Participant's behalf for the Plan Year exceed 4% of
the Participant's Compensation for the Plan Year. (Only 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.)
Note: If the Employer elected Option 1.10(a)(3), Safe Harbor
Matching Employer Contributions, above and wants to be deemed to have
satisfied the "ADP" test for Plan Years beginning on or after January
1, 1999, the additional Matching Employer Contribution must meet the
requirements of Section 6.10. In addition to the foregoing
requirements, if the Employer elected either 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,
and wants to be deemed to have satisfied the "ACP" test with respect
to Matching Employer Contributions for the Plan Year, the Deferral
Contributions matched may not exceed the limitations in Section 6.11.
(c) Contribution Period for Matching Employer Contributions - The
Contribution Period for purposes of calculating the amount of basic
Matching Employer Contributions described in Subsection 1.10(a) is:
(1) [ ] each calendar month.
(2) [ ] each Plan Year quarter.
(3) [x] each Plan Year.
(4) [ ] each payroll period.
The Contribution Period for additional Matching Employer Contributions
described in Subsection 1.10(b) is the Plan Year.
(d) Continuing Eligibility Requirement(s) - A Participant who makes Deferral
Contributions during a Contribution Period shall only be entitled to
receive Matching Employer Contributions under Section 1.10 for that
Contribution Period if the Participant satisfies the following
requirement(s) (Check the appropriate box(es). Options (3) and (4) may
not be elected together; Option (5) may not be elected with Option (2),
(3), or (4); Options (2), (3), (4), (5), and (7) may not be elected with
respect to basic Matching Employer Contributions if Option 1.10(a)(3),
Safe Harbor Matching Employer Contributions, is checked):
(1) [ ] No requirements.
(2) [x] Is employed by the Employer or a Related Employer on the last
day of the Contribution Period.
(3) [ ] Earns at least 501 Hours of Service during the Plan Year. (Only
if the Contribution Period is the Plan Year.)
(4) [ ] Earns at least 1,000 Hours of Service during the Plan Year.
(Only if the Contribution Period is the Plan Year.)
(5) [ ] Either earns at least 501 Hours of Service during the Plan Year
or is employed by the Employer or a Related Employer on the last
day of the Plan Year. (Only if the Contribution Period is the
Plan Year.)
(6) [ ] Is not a Highly Compensated Employee for the Plan Year.
(7) [ ] Is not a partner or a member of the Employer, if the Employer is
a partnership or an entity taxed as a partnership.
(8) [ ] Special continuing eligibility requirement(s) for additional
Matching Employer Contributions. (Only if Option 1.10(b),
Additional Matching Employer Contributions, is checked.)
(A) The continuing eligibility requirement(s) for additional
Matching Employer Contributions is/are: (Fill in number of
applicable eligibility requirement(s) from above.)
Note: If Option (2), (3), (4), or (5) above is selected, then Matching
Employer Contributions can only be funded by the Employer after the
Contribution Period or Plan Year ends. Matching Employer Contributions
funded during the Contribution Period or Plan Year shall not be subject
to the eligibility requirements of Option (2), (3), (4), or (5). If
Option (2), (3), (4), or (5) is adopted during a Contribution Period or
Plan Year, as applicable, such Option shall not become effective until
the first day of the next Contribution Period or Plan Year.
(e) [x] Qualified Matching Employer Contributions - Prior to making any
Matching Employer Contribution hereunder (other than a safe harbor
Matching Employer Contribution), the Employer may designate all or a
portion of such Matching Employer Contribution as a Qualified Matching
Employer Contribution that may be used to satisfy the "ADP" test on
Deferral Contributions and excluded in applying the "ACP" test on
Employee and Matching Employer Contributions. Unless the additional
eligibility requirement is selected below, Qualified Matching Employer
Contributions shall be allocated to all Participants who meet the
continuing eligibility requirement(s) described in Subsection 1.10(d)
above for the type of Matching Employer Contribution being
characterized as a Qualified Matching Employer Contribution.
(1) [ ] To receive an allocation of Qualified Matching Employer
Contributions a Participant must also be a Non-Highly
Compensated Employee for the Plan Year.
Note: Qualified Matching Employer Contributions may not be excluded
in applying the "ACP" test for a Plan Year if the Employer elected
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, and the "ADP" test is deemed satisfied under
Section 6.10 for such Plan Year.
1.11 NONELECTIVE EMPLOYER CONTRIBUTIONS
Note: An Employer may elect both a fixed formula and a discretionary
formula. If both are selected, the discretionary formula shall be
treated as an additional Nonelective Employer Contribution and
allocated separately in accordance with the allocation formula selected
by the Employer.
(a) [ ] Fixed Formula (An Employer may elect both the Safe Harbor
Formula and one of the other fixed formulas. Otherwise, the
Employer may only select one of the following.)
(1) [ ] Fixed Percentage Employer Contribution - For each Plan
Year, the Employer shall contribute for each eligible
Active Participant an amount equal to ____% (not to exceed
15% for Plan Years beginning prior to 2002 and 25% for Plan
Years beginning on or after January 1, 2002) of such Active
Participant's Compensation.
(2) [ ] Fixed Flat Dollar Employer Contribution - The Employer
shall contribute for each eligible Active Participant an
amount equal to $_______.
The contribution amount is based on an Active Participant's
service for the following period:
(A) [ ] Each paid hour.
(B) [ ] Each payroll period.
(C) [ ] Each Plan Year.
(D) [ ] Other: _______________________
(3) [ ] Safe Harbor Formula - Effective only with respect to Plan
Years that begin on or after January 1, 1999, the
Nonelective Employer Contribution specified in the Safe
Harbor Nonelective Employer Contribution Addendum is
intended to satisfy the safe harbor contribution
requirements under the Code such that the "ADP" test (and,
under certain circumstances, the "ACP" test) is deemed
satisfied. Please complete the Safe Harbor Nonelective
Employer Contribution Addendum to the Adoption Agreement.
(Choose only if Option 1.07(a), Deferral Contributions, is
checked.)
(b) [x] Discretionary Formula - The Employer may decide each Plan Year whether
to make a discretionary Nonelective Employer Contribution on behalf of
eligible Active Participants in accordance with Section 5.10. Such
contributions shall be allocated to eligible Active Participants based
upon the following (check (1) or (2)):
(1) [x] Non-Integrated Allocation Formula - In the ratio that each
eligible Active Participant's Compensation bears to the total
Compensation paid to all eligible Active Participants for the
Plan Year.
(2) [ ] Integrated Allocation Formula - As (A) a percentage of each
eligible Active Participant's Compensation plus (B) a
percentage of each eligible Active Participant's Compensation
in excess of the "integration level" as defined below. The
percentage of Compensation in excess of the "integration
level" shall be equal to the lesser of the percentage of the
Active Participant's Compensation allocated under (A) above or
the "permitted disparity limit" as defined below.
Note: An Employer that has elected the Safe Harbor formula in
Subsection 1.11(a)(3) above may not take Nonelective Employer
Contributions made to satisfy the safe harbor into account in
applying the integrated allocation formula described above.
"Integration level" means the Social Security taxable wage base for
the Plan Year, unless the Employer elects a lesser amount in (A) or
(B) below.
(A) _____% (not to exceed 100%) of the Social Security taxable wage
base for the Plan Year, or
(B) $____ (not to exceed the Social Security taxable wage base).
"Permitted disparity limit" means the percentage provided by the
following table:
If the "Integration Level" is at But Less Than The "Permitted
least ___% of the Taxable ___% of the Disparity
Wage Base Taxable Wage Base Limit" is
0% 20% 5.7%
20% 80% 4.3%
80% 100% 5.4%
100% N/A 5.7%
Note: An Employer who maintains any other plan that provides for Social
Security Integration (permitted disparity) may not elect Option 1.11(b)(2).
(c) Continuing Eligibility Requirement(s) - A Participant shall only be
entitled to receive Nonelective Employer Contributions for a Plan Year
under this Section 1.11 if the Participant satisfies the following
requirement(s) (Check the appropriate box(es) - Options (3) and (4) may
not be elected together; Option (5) may not be elected with Option (2),
(3), or (4); Options (2), (3), (4), (5), and (7) may not be elected with
respect to Nonelective Employer Contributions under the fixed formula if
Option 1.11(a)(3), Safe Harbor Formula, is checked):
(1) [ ] No requirements.
(2) [x] Is employed by the Employer or a Related Employer on the last
day of the Plan Year.
(3) [ ] Earns at least 501 Hours of Service during the Plan Year.
(4) [ ] Earns at least 1,000 Hours of Service during the Plan Year.
(5) [ ] Either earns at least 501 Hours of Service during the Plan Year
or is employed by the Employer or a Related Employer on the last
day of the Plan Year.
(6) [ ] Is not a Highly Compensated Employee for the Plan Year.
(7) [ ] Is not a partner or a member of the Employer, if the Employer is
a partnership or an entity taxed as a partnership.
(8) [ ] Special continuing eligibility requirement(s) for discretionary
Nonelective Employer Contributions. (Only if both Options
1.11(a) and (b) are checked.)
(A) The continuing eligibility requirement(s) for
discretionary Nonelective Employer Contributions is/are:
____ (Fill in number of applicable eligibility
requirement(s) from above.)
Note: If Option (2), (3), (4), or (5) above is selected then
Nonelective Employer Contributions can only be funded by the Employer
after the Plan Year ends. Nonelective Employer Contributions funded
during the Plan Year shall not be subject to the eligibility
requirements of Option (2), (3), (4), or (5). If Option (2), (3), (4),
or (5) is adopted during a Plan Year, such Option shall not become
effective until the first day of the next Plan Year.
1.12 EXCEPTIONS TO CONTINUING ELIGIBILITY REQUIREMENTS
[ ] Death, Disability, and Retirement Exception to Eligibility
Requirements - Active Participants who do not meet any last day or
Hours of Service requirement under Subsection 1.10(d) or 1.11(c)
because they become disabled, as defined in Section 1.14, retire, as
provided in Subsection 1.13(a), (b), or (c), or die shall
nevertheless receive an allocation of Nonelective Employer and/or
Matching Employer Contributions. No Compensation shall be imputed
to Active Participants who become disabled for the period following
their disability.
1.13 RETIREMENT
(a) The Normal Retirement Age under the Plan is (check one):
(1) [x] age 65.
(2) [ ] age ______(specify between 55 and 64).
(3) [ ] later of age _____ (not to exceed 65) or the fifth
anniversary of the Participant's Employment Commencement
Date.
(b) [ ] The Early Retirement Age is the first day of the month after the
Participant attains age _____ (specify 55 or greater) and
Completes ____ years of Vesting Service.
Note: If this Option is elected, Participants who are employed by
the Employer or a Related Employer on the date they reach Early
Retirement Age shall be 100% vested in their Accounts under the
Plan.
(c) [x] A Participant who becomes disabled, as defined in Section 1.14,
is eligible for disability retirement.
Note: If this Option is elected, Participants who are employed by
the Employer or a Related Employer on the date they become disabled
shall be 100% vested in their Accounts under the Plan.
1.14 DEFINITION OF DISABLED
A Participant is disabled if he/she (check the appropriate box(es)):
(a) [ ] satisfies the requirements for benefits under the Employer's long-term
disability plan.
(b) [x] satisfies the requirements for Social Security disability benefits.
(c) [ ] is determined to be disabled by a physician approved by the Employer.
1.15 VESTING
A Participant's vested interest in Matching Employer Contributions and/or
Nonelective Employer Contributions, other than Safe Harbor Matching Employer
and/or Nonelective Employer Contributions elected in Subsection 1.10(a)(3) or
1.11(a)(3), shall be based upon his years of Vesting Service and the
schedule(s) selected below, except as provided in Subsection 1.21(d) or in the
Vesting Schedule Addendum to the Adoption Agreement.
(a) [ ] Years of Vesting Service shall exclude:
(1) [ ] for new plans, service prior to the Effective Date as defined
in Subsection 1.01(g)(1).
(2) [ ] for existing plans converting from another plan document,
service prior to the original Effective Date as defined in
Subsection 1.01(g)(2).
(b) Vesting Schedule(s)
Note: The vesting schedule selected below applies only to Nonelective
Employer Contributions and Matching Employer Contributions other than
safe harbor contributions under Option 1.11(a)(3) or Option 1.10(a)(3).
Safe harbor contributions under Options 1.11(a)(3) and 1.10(a)(3) are
always 100% vested immediately.
(1) Nonelective Employer (2) Matching Employer
Contributions Contributions
(check one): (check one):
(A) [ ] N/A - No Nonelective (A) [ ] N/A - No Matching
Employer Contributions Employer Contributions
(B) [x] 100% Vesting immediately (B) [x] 100%Vesting immediately
(C) [ ] 3 year cliff (see C below) (C) [ ] 3 year cliff (see C below)
(D) [ ] 5 year cliff (see D below) (D) [ ] 5 year cliff (see D below)
(E) [ ] 6 year graduated (E) [ ] 6 year graduated
(see E below) (see E below)
(F) [ ] 7 year graduated (F) [ ] 7 year graduated
(see F below) (see F below)
(G) [ ] Other vesting (G) [ ] Other vesting
(complete G1 below) (complete G2 below)
Years of
Vesting Service Applicable Vesting Schedule(s)
C D E F G1 G2
0 0% 0% 0% 0% ____% ____%
1 0% 0% 0% 0% ____% ____%
2 0% 0% 20% 0% ____% ____%
3 100% 0% 40% 20% ____% ____%
4 100% 0% 60% 40% ____% ____%
5 100% 100% 80% 60% ____% ____%
6 100% 100% 100% 80% ____% ____%
7 or more 100% 100% 100% 100% 100% 100%
Note: A schedule elected under G1 or G2 above must be at least as favorable
as one of the schedules in C, D, E or F above.
Note: If the Plan is being amended to provide a more restrictive vesting
schedule, the more favorable vesting schedule shall continue to apply to
Participants who are Active Participants immediately prior to the later of
(1) the effective date of the amendment or (2) the date the amendment is
adopted.
(c) [ ] A vesting schedule more favorable than the vesting schedule(s)
selected above applies to certain Participants. Please complete the
Vesting Schedule Addendum to the Adoption Agreement.
(d) Application of Forfeitures - If a Participant forfeits any portion of
his non-vested Account balance as provided in Section 6.02, 6.04,
6.07, or 11.08, such forfeitures shall be (check one):
(1) [ ] N/A - Either (A) no Matching Employer Contributions are made
with respect to Deferral Contributions under the Plan and all
other Employer Contributions are 100% vested when made or (B)
there are no Employer Contributions under the Plan.
(2) [x] applied to reduce Employer contributions.
(3) [ ] allocated among the Accounts of eligible Participants in the
manner provided in Section 1.11. (Only if Option 1.11(a) or
(b) is checked.)
1.16 PREDECESSOR EMPLOYER SERVICE
[x] Service for purposes of eligibility in Subsection 1.04(b) and vesting in
Subsection 1.15(b) of this Plan shall include service with the following
predecessor employer(s):
See Attachment
1.17 PARTICIPANT LOANS
Participant loans (check one):
(a) [x] are allowed in accordance with Article 9 and loan procedures outlined
in the Service Agreement.
(b) [ ] are not allowed.
1.18 IN-SERVICE WITHDRAWALS
Participants may make withdrawals prior to termination of employment under the
following circumstances (check the appropriate box(es)):
(a) [x] Hardship Withdrawals - Hardship withdrawals from a Participant's
Deferral Contributions Account shall be allowed in accordance with
Section 10.05, subject to a $500 minimum amount.
(b) [x] Age 59 1/2 - Participants shall be entitled to receive a distribution
of all or any portion of the following Accounts upon attainment of age
59 1/2 (check one):
(1) [ ] Deferral Contributions Account.
(2) [x] All vested account balances.
(c) Withdrawal of Employee Contributions and Rollover Contributions -
(1) Unless otherwise provided below, Employee Contributions may be
withdrawn in accordance with Section 10.02 at any time.
(A) [x] Employees may not make withdrawals of Employee
Contributions more frequently than:
Once per year.
(2) Rollover Contributions may be withdrawn in accordance with
Section 10.03 at any time.
(d) [x] Protected In-Service Withdrawal Provisions - Check if the Plan was
converted by plan amendment or received transfer contributions from
another defined contribution plan, and benefits under the other
defined contribution plan were payable as (check the appropriate
box(es)):
(1) [ ] an in-service withdrawal of vested employer contributions
maintained in a Participant's Account (check (A) and/or (B)):
(A) [ ] for at least _____(24 or more) months.
(i) [ ] Special restrictions applied to such in-service
withdrawals under the prior plan that the Employer
wishes to continue under the Plan as restated
hereunder. Please complete the Protected In-
Service Withdrawals Addendum to the Adoption
Agreement identifying the restrictions.
(B) [ ] after the Participant has at least 60 months of
participation.
(i) [ ] Special restrictions applied to such in-service
withdrawals under the prior plan that the
Employer wishes to continue under the Plan as
restated hereunder. Please complete the
Protected In-Service Withdrawals Addendum to the
Adoption Agreement identifying the restrictions.
(2) [x] another in-service withdrawal option that is a "protected
benefit" under Code Section 411(d)(6) or an in-service
hardship withdrawal option not otherwise described in Section
1.18(a). Please complete the Protected In-Service
Withdrawals Addendum to the Adoption Agreement identifying
the in-service withdrawal option(s).
1.19 FORM OF DISTRIBUTIONS
Subject to Section 13.01, 13.02 and Article 14, distributions under the Plan
shall be paid as provided below. (Check the appropriate box(es) and, if any
forms of payment selected in (b), (c) and/or (d) apply only to a specific
class of Participants, complete Subsection (b) of the Forms of Payment
Addendum.)
(a) Lump Sum Payments - Lump sum payments are always available under the
Plan.
(b) [ ] Installment Payments - Participants may elect distribution under a
systematic withdrawal plan (installments).
(c) [ ] Annuities (Check if the Plan is retaining any annuity form(s) of
payment.)
(1) An annuity form of payment is available under the Plan for the
following reason(s) (check (A) and/or (B), as applicable):
(A) [ ] As a result of the Plan's receipt of a transfer of
assets from another defined contribution plan or
pursuant to the Plan terms prior to the Amendment
Effective Date specified in Section 1.01(g)(2), benefits
were previously payable in the form of an annuity that
the Employer elects to continue to be offered as a form
of payment under the Plan.
(B) [ ] The Plan received a transfer of assets from a defined
benefit plan or another defined contribution plan that
was subject to the minimum funding requirements of Code
Section 412 and therefore an annuity form of payment is
a protected benefit under the Plan in accordance with
Code Section 411(d)(6).
(2) The normal form of payment under the Plan is (check (A) or
(B)):
(A) [ ] A lump sum payment.
(i) Optional annuity forms of payment (check (I) and/or
(II), as applicable). (Must check and complete (I)
if a life annuity is one of the optional annuity
forms of payment under the Plan.)
(I) [ ] A married Participant who elects an annuity
form of payment shall receive a qualified
joint and ____% (at least 50%) survivor
annuity. An unmarried Participant shall
receive a single life annuity, unless a
different form of payment is specified below:
____________________________
(II)[ ] Other annuity form(s) of payment. Please
complete Subsection (a) of the Forms of
Payment Addendum describing the other annuity
form(s) of payment available under the Plan.
(B) [ ] A life annuity (complete (i) and (ii) and check (iii)
if applicable).
(i) The normal form for married Participants is a
qualified joint and ____% (at least 50%)
survivor annuity. The normal form for unmarried
Participants is a single life annuity, unless a
different annuity form is specified below:
_________________________________
(ii) The qualified preretirement survivor annuity
provided to a Participant's spouse is purchased
with _______% (at least 50%) of the
Participant's Account.
(iii) [ ] Other annuity form(s) of payment. Please
complete Subsection (a) of the Forms of Payment
Addendum describing the other annuity form(s) of
payment available under the Plan.
(d) [x] Other Non-Annuity Form(s) of Payment - As a result of the Plan's
receipt of a transfer of assets from another plan or pursuant to the
Plan terms prior to the Amendment Effective Date specified in
1.01(g)(2), benefits were previously payable in the following form(s)
of payment not described in (a), (b) or (c) above and the Plan will
continue to offer these form(s) of payment:
Company stock may be taken in-kind. Distribution of Account in whole
shares of Employer stock, or in cash, or in cash and Employer stock.
(e) [ ] Eliminated Forms of Payment Not Protected Under Code
Section 411(d)(6). Check if either (1) under the Plan terms prior to
the Amendment Effective Date or (2) under the terms of another plan
from which assets were transferred, benefits were payable in a form of
payment that will cease to be offered after a specified date. Please
complete Subsection (c) of the Forms of Payment Addendum describing
the forms of payment previously available and the effective date of
the elimination of the form(s) of payment.
1.20 TIMING OF DISTRIBUTIONS
Except as provided in Subsection 1.20(a) or (b) and the Postponed Distribution
Addendum to the Adoption Agreement, distribution shall be made to an eligible
Participant from his vested interest in his Account as soon as reasonably
practicable following the date the Participant's application for distribution
is received by the Administrator.
(a) Required Commencement of Distribution - If a Participant does not elect
to receive benefits as of an earlier date, as permitted under the Plan,
distribution of a Participant's Account shall begin as of the
Participant's Required Beginning Date.
(b) [ ] Postponed Distributions - Check if the Plan was converted by plan
amendment from another defined contribution plan that provided for the
postponement of certain distributions from the Plan to eligible
Participants and the Employer wants to continue to administer the Plan
using the postponed distribution provisions. Please complete the
Postponed Distribution Addendum to the Adoption Agreement indicating
the types of distributions that are subject to postponement and the
period of postponement.
Note: An Employer may not provide for postponement of distribution to
a Participant beyond the 60th day following the close of the Plan Year
in which (1) the Participant attains Normal Retirement Age under the
Plan, (2) the Participant's 10th anniversary of participation in the
Plan occurs, or (3) the Participant's employment terminates, whichever
is latest.
1.21 TOP HEAVY STATUS
(a) The Plan shall be subject to the Top-Heavy Plan requirements of Article
15 (check one):
(1) [ ] for each Plan Year, whether or not the Plan is a "top-heavy
plan" as defined in Subsection 15.01(f).
(2) [x] for each Plan Year, if any, for which the Plan is a "top-heavy
plan" as defined in Subsection 15.01(f).
(3) [ ] Not applicable. (Choose only if Plan covers only employees
subject to a collective bargaining agreement.)
(b) In determining whether the Plan is a "top-heavy plan" for an Employer
with at least one defined benefit plan, the following assumptions shall
apply:
(1) [x] Interest rate: 7% per annum.
(2) [x] Mortality table: 1994 Uninsured Pensioner (UP-94), sex distinct.
(3) [ ] Not applicable. (Choose only if either (A) Plan covers only
employees subject to a collective bargaining agreement or
(B) Employer does not maintain and has not maintained any
defined benefit plan during the five-year period ending on the
applicable "determination date", as defined in Subsection
15.01(a).)
(c) If the Plan is or is treated as a "top-heavy plan" for a Plan Year, each
non-key Employee shall receive an Employer Contribution of at least 3.0
(3, 4, 5, or 7 1/2)% of Compensation for the Plan Year in accordance
with Section 15.03. The minimum Employer Contribution provided in this
Subsection 1.21(c) shall be made under this Plan only if the Participant
is not entitled to such contribution under another qualified plan of the
Employer, unless the Employer elects otherwise below:
(1) [ ] The minimum Employer Contribution shall be paid under this Plan
in any event.
(2) [ ] Another method of satisfying the requirements of Code Section
416. Please complete the 416 Contribution Addendum to the
Adoption Agreement describing the way in which the minimum
contribution requirements will be satisfied in the event the
Plan is or is treated as a "top-heavy plan".
(3) [ ] Not applicable. (Choose only if Plan covers only employees
subject to a collective bargaining agreement.)
Note: The minimum Employer contribution may be less than the percentage
indicated in Subsection 1.21(c) above to the extent provided in Section
15.03.
(d) If the Plan is or is treated as a "top-heavy plan" for a Plan Year, the
following vesting schedule shall apply instead of the schedule(s)
elected in Subsection 1.15(b) for such Plan Year and each Plan Year
thereafter (check one):
(1) [ ] Not applicable. (Choose only if either (A) Plan provides for
Nonelective Employer Contributions and the schedule elected in
Subsection 1.15(b)(1) is at least as favorable in all cases as
the schedules available below or (B) Plan covers only employees
subject to a collective bargaining agreement.)
(2) [X] 100% vested after 0 (not in excess of 3) years of Vesting
Service.
(3) [ ] Graded vesting:
Years of Vesting Service Vesting Percentage Must be at Least
0 0%
1 0%
2 20%
3 40%
4 60%
5 80%
6 or more 100%
Note: If the Plan provides for Nonelective Employer Contributions and
the schedule elected in Subsection 1.15(b)(1) is more favorable in all
cases than the schedule elected in Subsection 1.21(d) above, then the
schedule in Subsection 1.15(b)(1) shall continue to apply even in Plan
Years in which the Plan is a "top-heavy plan".
1.22 CORRECTION TO MEET 415 REQUIREMENTS UNDER MULTIPLE DEFINED CONTRIBUTION
PLANS
If the Employer maintains other defined contribution plans, annual additions
to a Participant's Account shall be limited as provided in Section 6.12 of the
Plan to meet the requirements of Code Section 415, unless the Employer elects
otherwise below and completes the 415 Correction Addendum describing the order
in which annual additions shall be limited among the plans.
(a) [ ] Other Order for Limiting Annual Additions
1.23 INVESTMENT DIRECTION
Investment Directions - Participant Accounts shall be invested (check one):
(a) [ ] in accordance with the investment directions provided to the Trustee
by the Employer for allocating all Participant Accounts among the
Options listed in the Service Agreement.
(b) [ ] in accordance with the investment directions provided to the Trustee
by each Participant for allocating his entire Account among the
Options listed in the Service Agreement.
(c) [x] in accordance with the investment directions provided to the Trustee
by each Participant for all contribution sources in his Account,
except that the following sources shall be invested in accordance with
the investment directions provided by the Employer (check (1) and/or
(2)):
(1) [x] Nonelective Employer Contributions
(2) [ ] Matching Employer Contributions
The Employer must direct the applicable sources among the same
investment options made available for Participant directed sources
listed in the Service Agreement.
1.24 RELIANCE ON OPINION LETTER
An adopting Employer may rely on the opinion letter issued by the Internal
Revenue Service as evidence that this Plan is qualified under Code Section 401
only to the extent provided in Announcement 2001-77, 2001-30 I.R.B. The
Employer may not rely on the opinion letter in certain other circumstances or
with respect to certain qualification requirements, which are specified in the
opinion letter issued with respect to this Plan and in Announcement 2001-77.
In order to have reliance in such circumstances or with respect to such
qualification requirements, application for a determination letter must be
made to Employee Plans Determinations of the Internal Revenue Service.
Failure to fill out the Adoption Agreement properly may result in
disqualification of the Plan.
This Adoption Agreement may be used only in conjunction with Fidelity Basic
Plan Document No. 02. The Prototype Sponsor shall inform the adopting
Employer of any amendments made to the Plan or of the discontinuance or
abandonment of the prototype plan document.
1.25 PROTOTYPE INFORMATION:
Name of Prototype Sponsor: Fidelity Management & Research Company
Address of Prototype Sponsor: 82 Devonshire Street
Boston, MA 02109
Questions regarding this prototype document may be directed to the following
telephone number: 1-800-343-9184.
EXECUTION PAGE
(Fidelity's Copy)
IN WITNESS WHEREOF, the Employer has caused this Adoption Agreement to be
executed this _____ day of _________________, ______.
Employer:_____________________________
By:___________________________________
Title:________________________________
Employer:_____________________________
By:___________________________________
Title:________________________________
Accepted by:
Fidelity Management Trust Company, as Trustee
By:___________________________________ Date:________________
Title:________________________________
EXECUTION PAGE
(Employer's Copy)
IN WITNESS WHEREOF, the Employer has caused this Adoption Agreement to be
executed this _____ day of _________________, ______.
Employer:_____________________________
By:___________________________________
Title:________________________________
Employer:_____________________________
By:___________________________________
Title:________________________________
Accepted by:
Fidelity Management Trust Company, as Trustee
By:___________________________________ Date:________________
Title:________________________________
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
___________________________ _________ ______________
___________________________ _________ ______________
___________________________ _________ ______________
___________________________ _________ ______________
IN WITNESS WHEREOF, the Employer has caused this Amendment to be executed this
_____ day of _____________, ________.
Employer:____________________________ Employer:_________________________
By:__________________________________ By:_______________________________
Title:_______________________________ Title:____________________________
Accepted by:
Fidelity Management Trust Company, as Trustee
By:___________________________________ Date:________________
Title:________________________________
ADDENDUM
Re: SPECIAL EFFECTIVE DATES
for
Plan Name: Giant Industries, Inc. & Affiliated Companies 401(k) Plan
(a) [x] Special Effective Dates for Other Provisions - The following
provisions (e.g., new eligibility requirements, new contribution
formula, etc.) shall be effective as of the dates specified herein:
Section 1.07(a)(1) is effective on 06/24/2003. Prior to this date,
the Deferral Contribution was limited to 25% of Compensation. -
Effective: 06/24/2003
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
(b) [ ] Plan Merger Effective Dates - The following plan(s) were merged into
the Plan after the Effective Date indicated in Subsection 1.01(g)(1)
or (2), as applicable. The provisions of the Plan are effective with
respect to the merged plan(s) as of the date(s) indicated below:
1. Name of merged plan:________________________________________
________________________________________________________________
________________________________________________________________
Effective date:_________________________________________________
2. Name of merged plan:________________________________________
________________________________________________________________
________________________________________________________________
Effective date:_________________________________________________
3. Name of merged plan:________________________________________
________________________________________________________________
________________________________________________________________
Effective date:_________________________________________________
4. Name of merged plan:________________________________________
________________________________________________________________
________________________________________________________________
Effective date:_________________________________________________
5. Name of merged plan:________________________________________
________________________________________________________________
________________________________________________________________
Effective date:_________________________________________________
ADDENDUM
Re: SAFE HARBOR MATCHING EMPLOYER CONTRIBUTION
for
Plan Name: Giant Industries, Inc. & Affiliated Companies 401(k) Plan
(a) Safe Harbor Matching Employer Contribution Formula
Note: Matching Employer Contributions made under this Option must be
100% vested when made and may only be distributed because of death,
disability, separation from service, age 59 1/2, or termination of the
Plan without the establishment of a successor plan. In addition, each
Plan Year, the Employer must provide written notice to all Active
Participants of their rights and obligations under the Plan.
(1) [ ] 100% of the first 3% of the Active Participant's Compensation
contributed to the Plan and 50% of the next 2% of the Active
Participant's Compensation contributed to the Plan.
(A) [ ] Safe harbor Matching Employer Contributions shall not be
made on behalf of Highly Compensated Employees.
Note: If the Employer selects this formula and does not elect
Option 1.10(b), Additional Matching Employer Contributions, Matching
Employer Contributions will automatically meet the safe harbor
contribution requirements for deemed satisfaction of the "ACP" test.
(Employee Contributions must still be tested.)
(2) [ ] Other Enhanced Match:
____% of the first ____% of the Active Participant's
Compensation contributed to the plan,
____% of the next ____% of the Active Participant's
Compensation contributed to the plan,
____% of the next ____% of the Active Participant's
Compensation contributed to the plan.
Note: To satisfy the safe harbor contribution requirement for the
"ADP" test, the percentages specified above for Matching Employer
Contributions may not increase as the percentage of Compensation
contributed increases, and the aggregate amount of Matching Employer
Contributions at such rates must at least equal the aggregate amount of
Matching Employer Contributions which would be made under the
percentages described in (a)(1) of this Addendum.
(A) [ ] Safe harbor Matching Employer Contributions shall not be made
on behalf of Highly Compensated Employees.
(B) [ ] The formula specified above is also intended to satisfy the
safe harbor contribution requirement for deemed satisfaction of
the "ACP" test with respect to Matching Employer Contributions.
(Employee Contributions must still be tested.)
Note: To satisfy the safe harbor contribution requirement for the
"ACP" test, the Deferral Contributions and/or Employee Contributions
matched cannot exceed 6% of a Participant's Compensation.
ADDENDUM
Re: SAFE HARBOR NONELECTIVE EMPLOYER CONTRIBUTION
for
Plan Name: Giant Industries, Inc. & Affiliated Companies 401(k) Plan
(a) Safe Harbor Nonelective Employer Contribution Election
(1) [ ] For each Plan Year, the Employer shall contribute for each
eligible Active Participant an amount equal to _____% (not less
than 3% nor more than 15%) of such Active Participant's
Compensation.
(2) [ ] The Employer may decide each Plan Year whether to amend the Plan
by electing and completing (A) below to provide for a
contribution on behalf of each eligible Active Participant in an
amount equal to at least 3% of such Active Participant's
Compensation.
Note: An Employer that has selected Subsection (a)(2) above must
amend the Plan by electing (A) below and completing the Amendment
Execution Page no later than 30 days prior to the end of each Plan
Year for which safe harbor Nonelective Employer Contributions are
being made.
(A) [ ] For the Plan Year beginning __________, the Employer shall
contribute for each eligible Active Participant an amount
equal to % (not less than 3% nor more than 15%) of such
Active Participant's Compensation.
Note: Safe harbor Nonelective Employer Contributions must be 100%
vested when made and may only be distributed because of death,
disability, separation from service, age 59 1/2, or termination of
the Plan without the establishment of a successor plan. In
addition, each Plan Year, the Employer must provide written notice
to all Active Participants of their rights and obligations under
the Plan.
(b) [ ] Safe harbor Nonelective Employer Contributions shall not be made on
behalf of Highly Compensated Employees.
(c) [ ] In conjunction with its election of the safe harbor described above,
the Employer has elected to make Matching Employer Contributions under
Subsection 1.10 that are intended to meet the requirements for deemed
satisfaction of the "ACP" test with respect to Matching Employer
Contributions.
ADDENDUM
Re: PROTECTED IN-SERVICE WITHDRAWALS
for
Plan Name: Giant Industries, Inc. & Affiliated Companies 401(k) Plan
(a) Restrictions on In-Service Withdrawals of Amounts Held for Specified
Period - The following restrictions apply to in-service withdrawals made
in accordance with Subsection 1.18(d)(1)(A) (cannot include any
mandatory suspension of contributions restriction):
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
(b) Restrictions on In-Service Withdrawals Because of Participation in Plan
for 60 or More Months - The following restrictions apply to in-service
withdrawals made in accordance with Subsection 1.18(d)(1)(B) (cannot
include any mandatory suspension of contributions restriction):
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
(c) [ ] Other In-Service Hardship Withdrawal Provisions - In-service
hardship withdrawals are permitted from a Participant's Deferral
Contributions Account and the other sub-accounts specified below,
subject to the conditions otherwise applicable to hardship withdrawals
from a Participant's Deferral Contributions Account:
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
(d) [X] Other In-Service Withdrawal Provisions - In-service withdrawals from
a Participant's Accounts specified below shall be available to
Participants who satisfy the requirements also specified below:
In-service withdrawal available at age 55 with 10 or more years of
active participation in the 401(k) plan after 1/1/2001 (including the
active participation in the ESOP prior to 1/1/2001). In-service
withdrawal includes assets transferred from the ESOP (Fidelity source
07- Transfer Assets Cash and Fidelity source 08 - Transfer Assets Stock)
and Discretionary Profit Sharing Contributions ( Fidelity source 05 -
Employer Contribution Cash and Fidelity source 06 - Employer
Contribution Stock).
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
(1) [ ] The following restrictions apply to a Participant's Account
following an in-service withdrawal made pursuant to (d) above
(cannot include any mandatory suspension of contributions
restriction):
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
ADDENDUM
Re: FORMS OF PAYMENT
for
Plan Name: Giant Industries, Inc. & Affiliated Companies 401(k) Plan
(a) The following optional forms of annuity will continue to be offered
under the Plan:
___________________________________________________
(b) The forms of payment described in Section 1.19(b), (c) and/or (d) apply
to the following class(es) of Participants:
___________________________________________________
Note: Please indicate if different classes of Participants are subject
to different forms of payment.
(c) The following forms of payment were previously available under the Plan
but will be eliminated as of the date specified in subsection (4) below
(check the applicable (box(es) and complete (4)):
(1) [ ] Installment Payments.
(2) [ ] Annuities.
(A) [ ] The normal form of payment under the Plan was a lump sum and
all optional annuity forms of payment not listed under
Section 1.19(c)(2)(A)(i) are eliminated. The eliminated
forms of payment include the following:
(B) [ ] The normal form of payment under the Plan was a life annuity
and all annuity forms of payment not listed under
Section 1.19(c)(2)(B) are eliminated. (Complete (i) and
(ii) and, if applicable, (iii).)
(i) The normal form for married Participants was a
qualified joint and _____% (at least 50%) survivor
annuity. The normal form for unmarried Participants
was a single life annuity, unless a different form is
specified below:
________________________________________
(ii) The qualified preretirement survivor annuity provided
to a Participant's spouse was purchased with ____% (at
least 50%) of the Participant's Account.
(iii) The other annuity form(s) of payment previously
available under the Plan included the following:
________________________________________
(3) [ ] Other Non-Annuity Forms of Payment. All other non-annuity forms
of payment that are not listed in Section 1.19(d) but that were
previously available under the Plan are eliminated. The
eliminated non-annuity forms of payment include the following:
________________________________________
(4) The form(s) of payment described in this Subsection (c) will not be
offered to Participants who have an Annuity Starting Date which
occurs on or after _________(cannot be earlier than September 6,
2000). Notwithstanding the date entered above, the forms of payment
described in this Subsection (c) will continue to be offered to
Participants who have an Annuity Starting Date that occurs
(1) within 90 days following the date the Employer provides affected
Participants with a summary that satisfies the requirements of
29 CFR 2520.104b-3 and that notifies them of the elimination of the
applicable form(s) of payment, but (2) no later than the first day
of the second Plan Year following the Plan Year in which the
amendment eliminating the applicable form(s) of payment is adopted.
ADDENDUM
Re: VESTING SCHEDULE
for
Plan Name: Giant Industries, Inc. & Affiliated Companies 401(k) Plan
(a) More Favorable Vesting Schedule
(1) The following vesting schedule applies to the class of
Participants described in (a)(2) below:
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
(2) The vesting schedule specified in (a)(1) above applies to the
following class of Participants:
___________________________________________________
(b) [ ] Additional Vesting Schedule
(1) The following vesting schedule applies to the class of
Participants described in (b)(2) below:
___________________________________________________
___________________________________________________
___________________________________________________
(2) The vesting schedule specified in (b)(1) above applies to the
following class of Participants:
___________________________________________________
ADDENDUM
Re: POSTPONED DISTRIBUTIONS
for
Plan Name: Giant Industries, Inc. & Affiliated Companies 401(k) Plan
Postponement of Certain Distributions to Eligible Participants - The types of
distributions specified below to eligible Participants of their vested
interests in their Accounts shall be postponed for the period also specified
below:
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
Notwithstanding the foregoing, if the Employer selected an Early Retirement
Age in Subsection 1.14(b) that is the later of an attained age or completion
of a specified number of years of Vesting Service, any Participant who
terminates employment on or after completing the required number of years of
Vesting Service, but before attaining the required age shall be eligible to
commence distribution of his vested interest in his Account upon attaining the
required age.
ADDENDUM
Re: 415 CORRECTION
for
Plan Name: Giant Industries, Inc. & Affiliated Companies 401(k) Plan
(a) Other Formula for Limiting Annual Additions to Meet 415 - If the
Employer, or any employer required to be aggregated with the Employer
under Code Section 415, maintains any other qualified defined
contribution plans or any "welfare benefit fund", "individual medical
account", or "simplified medical account", annual additions to such
plans shall be limited as follows to meet the requirements of Code
Section 415:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
ADDENDUM
Re: 416 CONTRIBUTION
for
Plan Name: Giant Industries, Inc. & Affiliated Companies 401(k) Plan
(a) Other Method of Satisfying the Requirements of 416 - If the Employer, or
any employer required to be aggregated with the Employer under Code
Section 416, maintains any other qualified defined contribution or
defined benefit plans, the minimum benefit requirements of Code Section
416 shall be satisfied as follows:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
SNAP OFF ADDENDUM
Re: EFFECTIVE DATES FOR GUST COMPLIANCE
for
Plan Name: Giant Industries, Inc. & Affiliated Companies 401(k) Plan
Notwithstanding any other provision of the Plan to the contrary, to comply
with changes required by the Retirement Protection Act of 1994 ("GATT"), the
Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"),
the Small Business Job Protection Act of 1996 ("SBJPA"), the Taxpayer Relief
Act of 1997 ("TRA '97") and the Internal Revenue Service Restructuring and
Reform Act of 1998 (collectively, "GUST"), the following provisions shall
apply effective as of the dates set forth below:
(a) The following elections were in effect for Plan Years beginning on or
after January 1, 1997 and ending before the date specified in Subsection
1.01(g)(2):
(1) HCE Determinations History - The Plan was operated in accordance
with the provisions of Subsections 1.06(a) and 1.06(b), unless
otherwise provided below.
(A) [ ] HCE Determinations: Look Back Year Elections - For the
following Plan Year(s), the Plan was operated in
accordance with a different look back year election as
provided below:
(B) [ ] HCE Determinations: Top Paid Group Elections - For the
following Plan Year(s), the Plan was operated in
accordance with a different top paid group election as
provided below:
(2) ADP/ACP Testing Methods History - The Plan was operated using the
testing method shown in Subsection 1.06(a), unless otherwise
provided below.
(A) [ ] For the following Plan Years, the Plan was operated in
accordance with a different method as provided below:
_________________________________________________
_________________________________________________
(3) First Year Testing Method - If the first Plan Year that the Plan,
other than a successor plan, permitted Deferral Contributions or
provided for either Employee or Matching Employer Contributions,
occurred on or after January 1, 1997 but prior to the Effective
Date specified in Subsection 1.01(g)(2), the "ADP" and/or "ACP"
test for such first Plan Year was applied using the actual "ADP"
and/or "ACP" of Non-Highly Compensated Employees for such first
Plan Year, unless otherwise provided below.
(A) [ ] The "ADP" and/or "ACP" test for the first Plan Year that
the Plan permitted Deferral Contributions or provided for
either Employee or Matching Employer Contributions was
applied assuming a 3% "ADP" and/or "ACP" for Non-Highly
Compensated Employees.
(b) The following provisions are effective as of the following dates, except
as otherwise provided in the applicable Subsection(s) (A):
(1) The definition of "Required Beginning Date" in Subsection 2.01(ss)
is effective January 1, 1997.
(A) [ ] Later effective date applicable to the definition of
Required Beginning Date in Subsection 2.01(ss):
____________ (Cannot be later than the January 1 following
the date specified in Subsection 1.01(g)(2)).
(2) The elimination of all family aggregation rules is effective for
Plan Years beginning on or after January 1, 1997.
(A) [ ] Later effective date applicable to elimination of family
aggregation rules: ___________ (Cannot be later than the
first day of the Plan Year in which the date specified in
Subsection 1.01(g)(2) occurs).
(3) The inclusion in Compensation for purposes of Code Section 415 of
amounts excluded from gross income under a salary reduction
agreement by reason of the application of Code Sections 125,
402(e)(3), 402(h), or 403(b), as provided in Subsection 6.12(d),
is effective for Limitation Years beginning on or after January 1,
1998.
(A) [ ] Later effective date applies to modification of definition
of Compensation for Code Section 415 purposes:______
(Cannot be later than the first day of the Limitation Year
in which the date specified in Subsection 1.01(g)(2)
occurs).
(4) The increase in the cash out limitation from $3,500 to $5,000 is
effective the first day of the first Plan Year beginning after
August 5, 1997.
(A) [ ] Later effective date applies to increase in cash out
limitation: __________ (Cannot be later than the date
specified in Subsection 1.01(g)(2)).
(5) The elimination of the "look back" requirement for mandatory
cashouts with respect to Participants whose Accounts are not
subject to the requirements of Section 14.04 shall be effective
with respect to distributions made on or after March 22, 1999.
(A) [ ] Later effective date applies to elimination of look back
requirement for mandatory cashouts: ________ (Cannot be
later than the date specified in Subsection 1.01(g)(2)).
(6) The exclusion from the definition of "eligible rollover
distribution" in Subsection 13.04(c) of hardship withdrawals of
Deferral Contributions made in accordance with the provisions of
Section 10.05 or the Protected In-Service Withdrawal Addendum to
the Adoption Agreement is effective for distributions made on or
after January 1, 1999.
(A) [ ] Later effective date applies to rollover treatment of
hardship withdrawals of Deferral Contributions: _______
(Cannot be later than the earlier of January 1, 2000 or
the date specified in Subsection 1.01(g)(2)).
(c) The following provisions are effective as of the following dates:
(1) The inclusion in Compensation of amounts excluded from gross
income under a salary reduction agreement by reason of the
application of Code Sections 132(f)(4) (the "132(f) Amendment"),
as provided in Subsections 2.01(s) and 2.01(z) and Sections 5.02
and 15.03 is effective for Plan Years beginning on or after
January 1, 2001, or, if earlier, the first day of the Plan Year in
which the Plan has been operated in accordance with the 132(f)
Amendment, but, in no case earlier than the first Plan Year
beginning on or after January 1, 1998.
The 132(f) Amendment, as provided in Subsection 6.12(d) is
effective for Limitation Years beginning on or after January 1,
2001, or, if earlier, the first day of the Limitation Year in
which the Plan has been operated in accordance with the 132(f)
Amendment, but, in no case earlier than the first Limitation Year
beginning on or after January 1, 1998.
(2) The definition of "Highly Compensated Employee" in Subsection
2.01(z) is effective for Plan Years beginning on or after January
1, 1997.
(3) The definition of "Leased Employee" in Subsection 2.01(cc) is
effective for Plan Years beginning on or after January 1, 1997.
(4) The change in the "maximum permissible amount", as defined in
Subsection 6.01(r), to $30,000 adjusted for cost of living
increases, is effective for Limitation Years beginning on or after
January 1, 1995.
(5) The rules for applying the "ADP" test, described in Section 6.03,
and the "ACP" test, described in Section 6.06 are effective for
Plan Years beginning on or after January 1, 1997.
(6) The rules for allocating and distributing "excess contributions",
as provided in Section 6.04, and the rules for allocation,
distribution and forfeiture of "excess aggregate contributions",
as provided in Section 6.07 are effective for Plan Years beginning
on or after January 1, 1997.
(7) The 4% limitation on discretionary matching employer contributions
in the event the Plan is intended to satisfy the safe harbor
contribution requirements under the Code such that the "ADP" test
(and, if applicable, the "ACP" test) is deemed satisfied is
effective only for Plan Years beginning on or after January 1,
2000.
(8) The provisions of Section 18.03, regarding the Code Section
401(a)(13)(C) and (D) exceptions to the nonalienability of
benefits rules, apply to judgments, orders, and decrees issued and
settlement agreements entered into on or after August 5, 1997.
(9) The provisions of Section 18.07, regarding veterans reemployment
rights, are effective December 12, 1994.
(d) For Plan Years ending before the date specified in Subsection
1.01(g)(2), the provisions of this amendment and restatement that are
related to GUST shall apply in accordance with the provisions of this
amendment and restatement, except as otherwise provided below:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(e) For Plan Years ending before the date specified in Subsection
1.01(g)(2), the provisions of this amendment and restatement that are
related to GUST shall apply to all plans merged into the Plan during the
period covered by this Addendum except to the extent any such merged
plan is amended to provide otherwise or as provided below:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
THE CORPORATEPLAN FOR RETIREMENTSM (PROFIT SHARING/401(K) PLAN)
ADDENDUM TO ADOPTION AGREEMENT
FIDELITY BASIC PLAN DOCUMENT No. 02
RE: ECONOMIC GROWTH AND TAX RELIEF RECONCILIATION ACT OF 2001 ("EGTRRA")
AMENDMENTS for
Plan Name: Giant Industries, Inc. & Affiliated Companies 401(k) Plan
PREAMBLE
Adoption and Effective Date of Amendment. This amendment of the Plan is
adopted to reflect certain provisions of the Economic Growth and Tax Relief
Reconciliation Act of 2001 ("EGTRRA"). This amendment is intended as good
faith compliance with the requirements of EGTRRA and is to be construed in
accordance with EGTRRA and guidance issued thereunder. Except as otherwise
provided below, this amendment shall be effective as of the first day of the
first plan year beginning after December 31, 2001.
Supersession of Inconsistent Provisions. This amendment shall supersede the
provisions of the Plan to the extent those provisions are inconsistent with
the provisions of this amendment.
(a) Catch-up Contributions. The Employer must select either (1) or (2) below
to indicate whether eligible Participants age 50 or older by the end of
a calendar year will be permitted to make catch-up contributions to the
Plan, as described in Section 5.03(b)(1):
(1) [X] Catch-up contributions shall apply effective January 1, 2002,
unless a later effective date is specified herein, _________.
(2) [ ] Catch-up contributions shall not apply.
Note: The Employer must not select (a)(1) above unless all plans of all
employers treated, with the Employer, as a single employer under
subsections (b), (c), (m), or (o) of Code Section 414 also permit catch
up contributions (except a plan maintained by the Employer that is
qualified under Puerto Rico law), as provided in Code Section 414(v)(4)
and IRS guidance issued thereunder. The effective date applicable to
catch-up contributions must likewise be consistent among all plans
described immediately above, to the extent required in Code Section
414(v)(4) and IRS guidance issued thereunder.
(b) Plan Limit on Elective Deferral for Plans Permitting Catch-up
Contributions. This Section (b) is inapplicable if the Plan converted
to this Fidelity document from any other document effective after April
1, 2002.
For Plans that permit catch-up contributions beginning on or before
April 1, 2002, pursuant to (a)(1) above, the 60% Plan Limit described in
Section 5.03(b)(2) shall apply beginning April 1, 2002, unless (b)(1) or
(b)(2) is selected below. For Plans that permit catch up contributions
beginning after April 1, 2002, pursuant to (a)(1) above, the Plan Limit
set out in Section 1.07(a)(1) shall continue to apply unless and until
the Employer's election in (b)(2) below, if any, provides for a change
in the Plan Limit.
(1) [ ] The Plan Limit set out in Section 1.07(a)(1) shall continue to
apply on and after April 1, 2002.
(2) [ ] The Plan Limit set out in Section 1.07(a)(1) shall continue to
apply until ________________ (cannot be before April 1, 2002),
and the Plan Limit after that date shall be ____% of
Compensation each payroll period.
(c) Matching Employer Contributions on Catch-up Contributions. The
Employer must select the box below only if the Employer selected (a)(1)
above, and the Employer wants to provide Matching Employer
Contributions on catch-up contributions. In that event, the same rules
that apply to Matching Employer Contributions on Deferral Contributions
other than catch-up contributions will apply to Matching Employer
Contributions on catch-up contributions.
[X] Notwithstanding anything in 2.01(l) to the contrary, Matching
Employer Contributions under Section 1.10 shall apply to catch-up
contributions described in Section 5.03(b)(1).
(d) Vesting of Matching Employer Contributions. Complete this section (d)
only if the vesting schedule for Matching Employer Contributions under
the Plan must be amended to comply with EGTRRA. This is the case if,
in the absence of an amendment, the vesting schedule for Matching
Employer Contributions would not be at least as rapid as Three-Year
Cliff or Six-Year Graded Vesting, effective for Participants with at
least one Hour of Service on or after the first Plan Year beginning
after December 31, 2001, subject to the rule described in (2) below.
Complete (d)(1) to specify the new vesting schedule; any vesting
schedule changes must conform to the requirements of Section 16.04 of
the Plan. Only complete (d)(2) if your Plan is maintained pursuant to a
collective bargaining agreement ratified by June 7, 2001. Complete
(d)(3) if the Employer wants to apply the vesting schedule selected in
(d)(1) to only the portion of a Participant's accrued benefits derived
from Matching Employer Contributions for Plan Years beginning after
December 31, 2001.
(1) Vesting Schedule for Matching Employer Contributions. Unless the
Employer checks the box in (d)(3) of this EGTRRA Amendments
Addendum, the Vesting Schedule set forth below shall apply to all
accrued benefits derived from Matching Employer Contributions for
Participants who complete an Hour of Service under the Plan in a
Plan Year beginning after December 31, 2001, regardless of the
Plan Year for which such contributions are made, subject to the
Employer's election of a later effective date as indicated in
(d)(2) below:
[ ] 100% Vesting immediately
[ ] 3-Year Cliff (see C below)
[ ] 6-Year Graded (see E below)
[ ] Other Vesting Schedule (complete G3 below, but must be at
least as favorable as either C or E)
Applicable Vesting Schedule
Years of
Vesting Service C E G3
0 0% 0% __%
1 0% 0% __%
2 0% 20% __%
3 100% 40% __%
4 100% 60% __%
5 100% 80% __%
6 or more 100% 100% 100%
(2) Delayed Effective Date for Plans Subject to Collective Bargaining. If
the plan is maintained pursuant to one or more collective bargaining
agreements ratified by June 7, 2001, the effective date for faster
vesting of Matching Employer Contributions for Participants covered by
such a collective bargaining agreement can be delayed by checking the
box below and inserting the effective date, which is the first day of
the first Plan Year beginning on or after the earlier of (i) January 1,
2006, or (ii) the later of the date on which the last of the collective
bargaining agreements described above terminates (without regard to any
extension on or after June 7, 2001), or January 1, 2002.
[ ] The vesting schedule elected by the Employer in (d)(1) above shall
apply to those Participants covered by a collective bargaining
agreement(s) ratified by June 7, 2001, who have at least one Hour of
Service on or after ___________. Unless the Employer selects the box
in (d)(3) below, the vesting schedule selected in (d)(1) above shall
apply to the entire accrued benefit derived from Matching Employer
Contributions of such Participants with an Hour of Service in a Plan
Year beginning on or after the date specified herein. For all other
Participants, the vesting schedule shall apply as of the date and in
the manner described in (d)(1) and, where applicable, (d)(3).
(3) Grandfathered Application of Prior Vesting Schedule. The Employer must
check the box below only if the Employer wants to grandfather an
existing vesting schedule and apply the vesting schedule that the
Employer selected in (d)(1) above to only that portion of a
Participant's accrued benefit derived from Matching Employer
Contributions for Plan Years beginning after December 31, 2001, (and/or
for Plan Years beginning on or after the date specified in (d)(2), for
any Participants subject to (d)(2), if selected by the Employer).
[ ] The Vesting Schedule in (d)(1) above shall apply only to the
portion of a Participant's accrued benefits derived from Matching
Employer Contributions under the Plan in a Plan Year beginning
after December 31, 2001, or such later date applicable to the
Participant if specified in (d)(2) above.
(e) Rollovers of After-Tax Employee Contributions to the Plan. The Employer
must mark the box below only if the Employer does not want the Plan to
accept Participant Rollover Contributions of qualified plan after-tax
employee contributions, as described in Section 5.06, which would
otherwise be effective for distributions after December 31, 2001:
[ ] Participant Rollover Contributions or direct rollovers of qualified
plan after-tax employee contributions shall not be accepted by the
Plan at any time.
(f) Application of the Same Desk Rule. The Employer must mark the box below
only if the Employer wants to discontinue the application of the same desk
rule set forth in Section 12.01(a).
[x] Effective for distributions from the Plan after December 31, 2001, or
such later date as specified herein 01/01/2002, a Participant's
elective deferrals, qualified nonelective contributions and qualified
matching contributions, if applicable, and earnings attributable to
such amounts shall be distributable, upon a severance from employment
as described in Section 12.01(b), effective only for severances
occurring after ______ (or, if no date is entered, regardless of when
the severance occurred).
Amendment Execution
(Fidelity's Copy)
IN WITNESS WHEREOF, the Employer has caused this Amendment to be executed this
_____ day of ________________, ______.
Employer:____________________________ Employer:_________________________
By:__________________________________ By:_______________________________
Title:_______________________________ Title:____________________________
Accepted by: Fidelity Management Trust Company, as Trustee
By:___________________________________ Date:________________
Title:________________________________
Amendment Execution
(Employer's Copy)
IN WITNESS WHEREOF, the Employer has caused this Amendment to be executed this
19th day of June, 2003.
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/ ROBERT Q. BUCKLES Date: June 23, 2003
---------------------------------- -----------------------------
Title: Authorized Signatory
-------------------------------