Top-Heavy Provisions
Section 11.01.     Application of Top Heavy Provisions.

The Trustees will determine whether the Plan as a whole is Top Heavy, as defined in Section 416(g) of the Internal Revenue Code and the regulations promulgated thereunder as of each Determination Year. In the event that the Plan as a whole is found to be Top Heavy, the provisions of this Article will apply to the Plan during the following Calendar Year, to the exclusion of all other inconsistent provisions contained elsewhere in this Plan.

Each individual Employer will be responsible to determine if the portion of this Plan attributable to service with that Employer is part of a Top Heavy Group and to notify the Trustees of that determination. In the event that the Plan as a whole is not Top Heavy, but a portion of this Plan attributable to service with an individual Employer is part of a Top Heavy Group, the provisions of this Article apply to the portion of this Plan that is part of the Top Heavy Group of the individual Employer during the following Calendar Year, to the exclusion of all other inconsistent provisions contained elsewhere in this Plan.

The Trustees will notify Employers of the notification requirements of this section. The Trustees may rely on representations of Employers to the extent it is reasonable to do so.

Section 11.02.     Definitions.

For purposes of this Article, the following definitions apply:

  1. "Key Employee" means each Employee or former Employee who is, at any time during the Calendar Year ending on the "Determination Date," or was, during any one (1) of the four (4) Calendar Years preceding the Calendar Year ending on the Determination Date, any one or more of the following:


    1. An Officer of the Employer whose annual compensation for the Calendar Year exceeds 50% of the dollar limit in Section 415(b)(1)(A) of the Code for such Calendar Year; or


    2. One of the ten (10) employees owning (by attribution or otherwise) the largest interests in the Employer and who have annual compensation from the Employer for the Calendar Year of more than the dollar limitation in Section 415(c)(1)(A) of the Code for such Calendar Year; or


    3. A five (5) percent owner of the Employer; or


    4. A one (1) percent owner of the Employer who has annual compensation from the Employer for the Calendar Year of more than $150,000.


    For purposes of determining whether a person is an Officer in paragraph (1) above, no more than fifty (50) Employees (or, if less, the greater of three (3) or 10% of employees) will treated as Officers. In addition, persons who are merely nominal Officers will not be treated as Key Employees solely by reason of their titles as officers.

    For purposes paragraph (2) above, if two (2) employees have the same interest in the Employer, the employee with the greater annual compensation from the Employer will be treated as having the larger interest.

  2. "Non-Key Employee" means any person who is employed by an Employer in any Calendar Year, but who is not a Key Employee for that Calendar Year.


  3. "Determination Date" means the last day of the immediately preceding Calendar Year.


  4. "Required Aggregation Group" means a group of plans consisting of each Plan of an Employer in which a Key Employee is a Participant, including this Plan, and each other plan of the Employer which enables any plan in which a Key Employee participates to meet the requirements of IRC Sections 410(b) and 401(a)(4).


  5. "Permissive Aggregation Group" means a group of plans consisting of a Required Aggregation Group and any other plan not required to be included in the Required Aggregation Group, provided the resulting group, taken as a whole, would continue to satisfy the provisions of Code Sections 401(a)(4) and 410(b).


  6. "Top Heavy Compensation" means an employee's compensation as defined in Section 8.01(e) for any Calendar Year that this Plan is "Top Heavy".


  7. "Top Heavy Plan" means a Plan, under which the aggregate present value of accrued benefits for "Key Employees" exceeds sixty percent (60%) of the present value of accrued benefits for all Employees under such plan and which is not part of a Required or Permissive Aggregation Group that is not a Top Heavy Group. "Top Heavy Plan" also means a Plan which is part of a Required Aggregation Group that is a Top Heavy Group. The value of an Employee's accrued benefit distributed during the five (5) year period ending on the Determination Date will be included in determining whether a plan is a Top Heavy Plan. However, if a former Employee has received no compensation from the Employer during the five (5) year period ending on the Determination Date, or if an Employee is not a Key Employee on the Determination Date but was a Key Employee for any Calendar Year prior to the Determination Date, the value of his or her accrued benefit will not be included in determining whether a plan is a Top Heavy Plan.


  8. "Top Heavy Group" means a Required or Permissive Aggregation Group in which, as of the Determination Date, the sum of: (1) the present value of accrued benefits for Key Employees under all defined benefit plans included in the Group, and (2) the aggregate value of account balances of Key Employees under all defined contribution plans included in Group exceeds sixty percent (60%) of a similar sum determined for all employees under all Plans of the Employer which are part of such Group. The value of an Employee's accrued benefit or account balance distributed during the five (5) year period ending on the Determination Date will be included in determining whether a Group is a Top Heavy Group. However, if a former Employee has received no compensation from the Employer during the five (5) year period ending on the Determination Date or if an Employee is not a Key Employee on the Determination Date but was a Key Employee for any Calendar Year prior to the Determination Date, the value of the accrued benefits or account balances will not be included in determining whether the Group is a Top Heavy Group.


Section 11.03.     Top Heavy Minimum Benefits.
    1. In any Plan Year in which this Plan as a whole is a Top Heavy Plan, the Plan will provide a minimum benefit to each Non-Collectively Bargained Non-Key Employee in this Plan of the lesser of (i) two percent (2%) times the number of Years of Vesting Service under the Plan during which the Plan was Top Heavy, or (ii) twenty percent (20%) of his Compensation for the five consecutive years for which the Non-Collectively Bargained Non-Key Employee had the highest Compensation from Employers.


    2. In any Plan Year in which this Plan as a whole is not Top Heavy but a group of plans of an Employer, including the portion of this Plan attributable to service with the Employer, is a Top Heavy Group, this Plan will provide a minimum benefit to each Non-Collectively Bargained Non-Key Employee of that Employer of the lesser of (i) two percent (2%) times the number of Years of Vesting Service with that Employer during which the Group was Top Heavy, or (ii) twenty percent (20%) of his Compensation for the five consecutive years for which the Non-Collectively Bargained Non-Key Employee had the highest Compensation from that Employer.


    3. The minimum benefit refers to a benefit payable at the Non-Key Employee's Normal Retirement Age in the form of a single life annuity. A Non-Key Employee will not fail to accrue a minimum benefit because the Non-Key Employee:


      1. was not employed on a specified day; or


      2. received compensation less than a stated amount; or


      3. failed to make a mandatory employee contribution, if any.


  1. In any Calendar Year in which a Non-Key Employee is a Participant in both this Plan and defined contribution plan included in a Top Heavy Aggregation Group, the Plans of the Employer, including the portion of this Plan attributable to service with the Employer, will not be required to provide a Non-Key Employee with both the full separate minimum defined benefit plan benefit and the full separate defined contribution plan allocation. Therefore, for Non-Collectively Bargained Non-Key Employees who are participating in a defined contribution Plan maintained by the Employer, the minimum benefits provided to such Employee above will be offset by benefits provided to the Employee under the defined contribution plan of the Employer.


    1. For any Plan Year in which this Plan as a whole Top Heavy, the vested portion of each Non-Collectively Bargained Non-Key Employee's Accrued Benefit will be determined under the vesting schedule in (c)(iii) below.


    2. For any Plan Year in which this Plan as a whole is not Top Heavy but a group of plans of an Employer, including the portion of this Plan attributable to service with the Employer, is a Top Heavy Group, the vested portion of the Accrued Benefit of each Non-Collectively Bargained Non-Key Employee of that Employer will be determined under the vesting schedule in (c)(iii) below.


    3. Vesting Schedule

      Years of Vesting Service
      Vested Percentage
      1
      0%
      2
      0%
      3
      100%


    4. If in any subsequent Plan Year, the Plan as a whole or, if applicable, a group of plans of an Employer, including the portion of this Plan attributable to service with the Employer, ceases to be a Top Heavy Plan or a Top Heavy Group, the Trustees may, in their sole discretion, elect to (1) continue to apply this vesting schedule in determining the vested portion of the benefit of the Non-Collectively Bargained Non-Key Employee's to which it applied, or (2) revert to the vesting schedule in effect before the Plan or Group became Top Heavy. Any portion of an Employee's benefit that was vested before the Plan or Group ceased to be Top Heavy will remain vested, and any Non-Collectively Bargained Non-Key Employee to which the Top Heavy Vesting Schedule applied with five or more Years of Vesting Service must be given the option of remaining under the Top Heavy vesting schedule.


  2. Adjustment of Limitation on Annual Benefit


    1. If, for any Plan Year, this Plan as a whole or the portion of this Plan attributable to service with an individual Employer is a Top Heavy Plan, paragraphs (2)(B) and (3)(B) of Internal Revenue Code Section 415(e) will be modified by substituting the number "1.0" for "1.25" in that Section. However, this modification will not apply if the minimum benefit provided under Section 11.03(a)(1)(i) or 11.03(a)(2)(i) above is changed to three (3) percent, and the percentage in Section 11.03(a)(1)(ii) or 11.03(a)(2)(ii) above is increased by one percent for each Plan Year taken in account under IRC Section 416(h) (not to exceed 30%).


    2. If this Plan as a whole or the portion of this Plan attributable to service with an individual Employer is "Super Top Heavy" (that is, it would be a Top Heavy Plan if "90%" were substituted for "60%" in Sections 11.03(g) and (h), the exception provided for in Section 11.03(d)(1) will not apply.


    3. This subsection (c) will not apply to Plan Years beginning on or after December 31, 1999.





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