Defined Contribution Plan Document

ARTICLE XI
TOP HEAVY PROVISIONS

Section 1. Definitions.

  1. "Accrued Benefit" means, for any Top Heavy Plan Year, the pension benefit determined in accordance with Section 2 herein.

  2. "Aggregate Account" means, for each Participant, the total value of his accounts, including Employer and Employee accounts, which are used to determine Top Heavy Plan status under the provisions of a defined contribution plan included in any Aggregation Group.

  3. An Aggregation Group shall be either a Required Aggregation Group or a Permissive Aggregation Group as hereinafter determined. Only those plans of the Employer in which the Determination Dates fall within the same calendar year shall be aggregated to determine whether such plans are Top Heavy Plans.
    1. A "Required Aggregation Group" shall consist of each plan of the Employer in which a Key Employee is a Participant, and each other plan of the Employer which enables any plan in which a Key Employee is a Participant to meet the requirements of Sections 401(a)(4) or 410 of the Internal Revenue Code.

      Each plan in a Required Aggregation Group shall be considered a Top Heavy Plan if the Required Aggregation Group is a Top Heavy Group. No plan in a Required Aggregation Group shall be considered a Top Heavy Plan if the Required Aggregation Group is not a Top Heavy Group.

    2. A "Permissive Aggregation Group" shall consist of the Required Aggregation Group in addition to any plan not required to be included in an Aggregation Group which the Employer decides to treat as being part of such group, providing the resulting group, taken as a whole, would continue to meet the requirements of Sections 401(a)(4) and 410 of the Internal Revenue Code.Only a plan that is part of the Required Aggregation Group shall be considered a Top Heavy Plan if the Permissive Aggregation Group is a Top Heavy Group. No plan in a Permissive Aggregation Group shall be considered a Top Heavy Plan if the Permissive Aggregation Group is not a Top Heavy Group.

  4. "Average Compensation" means the amount determined by averaging the Participant's Annual Earnings over a period of five (5) consecutive years preceding the Determination Date which produces the highest average. For any Top Heavy Plan Year, compensation in excess of $200,000 in any year, whether or not such year was a Top Heavy Plan Year, shall be disregarded in accordance with Internal Revenue Code Section 416. Such $200,000 limit shall be automatically adjusted as provided in Internal Revenue Code Section 416(d)(2) to take into account increases in cost of living in accordance with the regulations prescribed by the Secretary of Treasury.

  5. "Determination Date" means the last day of the preceding Plan Year.

  6. "Key Employee" means any employee or former employee (including any deceased employee) who at any time during the Plan Year that includes the determination date was an officer of the Employer having annual compensation greater than $130,000 (as adjusted under Section 416(i)(1) of the Internal Revenue Code for Plan Years beginning after December 31, 2002), a 5% owner of the Employer, or a 1% owner of the Employer having annual compensation of more than $150,000. For this purpose, annual compensation means compensation within the meaning of Section 415(c)(3) of the Internal Revenue Code. The determination of who is a key employee will be made in accordance with Section 416(i)(1) of the Internal Revenue Code and the applicable regulations and other guidance of general applicability issued thereunder.
    1. A "five percent owner" of the Employer. "Five percent owner" means any person who owns (or is considered as owning within the meaning of Section 318 of the Internal Revenue Code) more than five percent (5%) of the outstanding stock of the Employer or stock possessing more than five percent (5%) of the total combined voting power of all stock of the Employer, or, in case of an unincorporated business, any person who owns more than five percent (5%) of the capital or profits interest in the Employer. In determining percentage ownership hereunder, employers that would otherwise be aggregated under Section 414(b), (c), and (m) of the Internal Revenue Code shall be treated as separate employers; or
    2. A "one percent owner" of the Employer having an annual Compensation (as defined in Treas. Reg. 1.415–2(d)) from the Employer of more than $150,000. "One percent owner" means any person who owns (or is considered as owning within the meaning of Section 318 of the Internal Revenue Code) more than one percent (1%) of the outstanding stock of the Employer or stock possessing more than one percent (1%) of the total combined voting power of all stock of the Company, or, in case of an unincorporated business, any person who owns more than one percent (1%) of the capital or profits interest in the Employer. In determining percentage ownership hereunder, employers that would otherwise be aggregated under Sections 414(b), (c), and (m) of the Internal Revenue Code shall be treated as separate employers. However, in determining whether an individual has Compensation of more than $150,000, Compensation from each employer required to be aggregated under Sections 414(b), (c), and (m) of the Internal Revenue Code shall be taken into account.

  7. "Non-Key Employee" means any Employee who is not a Key Employee.

  8. "Top Heavy Plan Year". The Plan shall be considered a Top Heavy Plan for any Plan Year in which (1) the Present Value of Accrued Benefits of Key Employees under this Plan and (2) the sum of the Aggregate Accounts of Key Employees in any plan of an Aggregation Group, exceeds sixty percent (60%) of the Present Value of Accrued Benefits under this Plan plus the Aggregate Accounts of all Participants in any plan of an Aggregation Group. The amounts above shall be determined as of the Determination Date.