Top-Heavy Provisions
Section 9.01.     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 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 9.02.     Definitions.

For purposes of this Article, the following definitions apply:

  1. “Key Employee” means any employee or former employee (including any deceased employee) who at any time during the Calendar Year that includes the Determination Date was:


    1. An officer of the Employer having annual compensation greater than the dollar limitation under Code Section 416(i)(1) as adjusted from time to time for Calendar Years beginning on or after January 1, 2001;


    2. A five-percent (5%) owner of the Employer; or


    3. A one-percent (1%) owner of the Employer having annual compensation of more than $150,000.


    For purposes of this subsection, annual compensation means compensation within the meaning of Section 415(c)(3) of the Code. The determination of who is a Key Employee will be made in accordance with Section 416(i)(1) of the Code and the applicable regulations and other guidance of general applicability issued thereunder.

  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 Sections 410(b) and 401(a)(4) of the Code.


  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 present values of accrued benefits of an Employee as of the Determination Date shall be increased by the distributions made with respect to the Employee under the Plan and any plan aggregated with the Plan under Section 416(g)(2) of the Code during the one-year period ending on the Determination Date. The preceding sentence shall also apply to distributions under a terminated plan which, had it not been terminated, would have been aggregated with the Plan under Section 416(g)(2)(A)(i) of the Code. In the case of a distribution made for a reason other than separation from service, death, or disability, this provision shall be applied by substituting “five-year period” for “one-year period.”

    The accrued benefits and account of any individual who has not performed service for the Employer during the one-year period ending on the Determination Date shall not be taken into account in determining whether the Plan is a Top Heavy Plan. Proportional subsidies will be ignored but non-proportional subsidies will be considered for purposes of determining whether the Plan as a whole is Top-Heavy.


  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 the Group exceeds sixty percent (60%) of a similar sum determined for all employees under all plans of the Employer which are part of the Group. The present values of accrued benefits of an employee as of the Determination Date shall be increased by the distributions made with respect to the employee under the Plan and any plan aggregated with the Plan under Section 416(g)(2) of the Code during the one-year period ending on the Determination Date. The preceding sentence shall also apply to distributions under a terminated plan which, had it not been terminated, would have been aggregated with the Plan under Section 416(g)(2)(A)(i) of the Code. In the case of a distribution made for a reason other than separation from service, death, or disability, this provision shall be applied by substituting “five-year period” for “one-year period.”

    The accrued benefits and accounts of any individual who has not performed service for the Employer during the one-year period ending on the Determination Date shall not be taken into account in determining whether the Plan is a Top Heavy Plan. The proportional subsidies of a defined benefit plan will be ignored but its non-proportional subsidies will be considered for purposes of determining whether a Required or Permissive Group is a Top Heavy Group.


  9. Top-Heavy Actuarial Assumptions. Solely for purposes of this Article 9, in calculating the present value of accrued benefits for purposes of determining whether the Plan as a whole is Top-Heavy, the Trustees will use the same actuarial assumptions used for purposes of the Plan’s minimum funding under Section 412. of the Code. For purposes of determining whether the Plan as a whole is Top Heavy, if an Aggregation Group, as defined in subsections (d) or (e) above, includes two or more defined benefit plans, these actuarial assumptions will be used with respect to each plan.


Section 9.03.     Top Heavy Minimum Benefits.
  1. Whole Plan


    1. In any Calendar 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 (A) two percent (2%) times the number of Years of Vesting Service under the Plan during which the Plan was Top Heavy, or (B) twenty percent (20%) of his Compensation for the five (5) consecutive years for which the Non-Collectively Bargained Non-Key Employee had the highest Compensation from Employers.


    2. In any Calendar Year in which this Plan as a whole is not Top Heavy but a group of plans of a 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 (A) two percent (2%) times the number of Years of Vesting Service with that Employer during which the Group was Top Heavy, or (B) twenty percent (20%) of his Compensation for the five (5) 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.


  2. In any Calendar Year in which a Non-Key Employee is a Participant in both this Plan and a 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.


  3. Effective for Calendar Years beginning after December 31, 2001, for purposes of satisfying the top heavy minimum benefit requirements set forth in Section 416(c)(1) of the Code and this Plan, in determining years of service with the Employer, any service with the Employer shall be disregarded to the extent that such service occurs during a Calendar Year when the Plan benefits (within the meaning of Section 410(b) of the Code) no Key Employee or Former Key Employee.


  4. Adjustment of Limitation on Annual Benefit.


    1. If, for any Calendar 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 Section 415(e) of the Code 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 9.03(a)(1)(A) or 9.03(a)(2)(A) above is changed to three (3) percent, and the percentage in Section 9.03(a)(1)(B) or 9.03(a)(2)(B) above is increased by one (1) percent for each Calendar Year taken into account under Section 416(h) of the Code (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 9.02(g) and (h), the exception provided for in Section 9.03(d)(1) will not apply.





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