Common use of Determining the Actual Contribution Percentages Clause in Contracts

Determining the Actual Contribution Percentages. Notwithstanding any other provision of this Section 3.11, effective for Plan Years beginning after December 31, 1996, the actual contribution percentage for the Plan Year for Highly Compensated Employees shall, in accordance with the Code and IRS Regulations, satisfy either (i) or (ii) as follows: (i) Prior Year Testing (a) the actual contribution percentage for a Plan Year for Members who are Highly Compensated Employees for the Plan Year shall not exceed the prior Plan Year's actual contribution percentage for Members who were Non-Highly Compensated Employees for the prior Plan Year multiplied by 1.25, or (b) the actual contribution percentage for Members who are Highly Compensated Employees for the Plan Year shall not exceed the prior year's actual contribution percentage for Members who were Non-Highly Compensated Employees for the prior Plan Year multiplied by 2, provided that the actual contribution percentage for Members who are Highly Compensated Employees does not exceed the actual contribution percentage for Members who were Non-Highly Compensated Employees in the prior Plan Year by more than 2 percentage points. For the first Plan Year this Plan permits any Member to make after-tax contributions pursuant to Section 3.1, provides for Employer matching contributions (pursuant to Section 3.5), or both, and this is not a successor plan, for purposes of the foregoing tests, the prior Plan Year's Non-Highly Compensated Employees' actual contribution percentage shall be 3 percent unless the Employer has elected in the Adoption Agreement to use the current Plan Year's actual contribution percentage for these Members.

Determining the Actual Contribution Percentages. Notwithstanding any other provision of this Section 3.11, effective for Plan Years beginning after December 31, 1996, the actual contribution percentage for the Plan Year for Highly Compensated Employees shall, in accordance with shall not exceed the Code and IRS Regulations, satisfy either (i) or (ii) as followsgreater of the following actual contribution percentages: (i) Prior Year Testing (a) the actual contribution percentage for a such Plan Year for Members of those Employees who are not Highly Compensated Employees for the Plan Year shall not exceed the prior Plan Year's actual contribution percentage for Members who were Non-Highly Compensated Employees for the prior Plan Year multiplied by 1.25, or or (b) the actual contribution percentage for Members the Plan Year of those Employees who are not Highly Compensated Employees for the Plan Year shall not exceed the prior year's actual contribution percentage for Members who were Non-Highly Compensated Employees for the prior Plan Year multiplied by 22.0, provided that the actual contribution percentage for Members who are the Highly Compensated Employees does not exceed the actual contribution percentage for Members who were Non-Highly Compensated such other Employees in the prior Plan Year by more than 2 percentage points. For purposes of this Article III, the first "actual contribution percentage" for a Plan Year this Plan permits any means, for each specified group of Employees, the average of the ratios (calculated separately for each Employee in such group) of (A) the sum of (i) Member to make after-tax contributions pursuant credited to Section 3.1his Account for the Plan Year, provides for (ii) Employer matching contributions (pursuant and/or supplemental contributions under Formula 1 credited to Section 3.5), or bothhis Account as described in this Article for the Plan Year, and this is not a successor plan(iii) in accordance with and to the extent permitted by the IRS Regulations, 401(k) deferrals (and, as provided in Section 3.9, any Employer qualified nonelective contributions) credited to his Account, to (B) the amount of the Member's compensation (as defined in Section 414(s) of the Code) for the Plan Year or, alternatively, where specifically elected by the Employer, for purposes only that part of the foregoing tests, Plan Year during which the prior Plan YearMember was eligible to participate in the Plan. An Employee's Non-Highly Compensated Employees' actual contribution percentage shall be 3 percent unless the Employer has elected in the Adoption Agreement to use the current zero if no such contributions are made on his behalf for such Plan Year's . The actual contribution percentage taken into account for these Membersany Highly Compensated Employee who is eligible to make Member contributions or receive Employer matching contributions under two or more plans described in Section 401(a) of the Code or arrangements described in Section 401(k) of the Code that are maintained by the Employer shall be determined as if all such contributions were made under a single plan. For purposes of determining the actual contribution percentage of a Member who is a Highly Compensated Employee subject to the family aggregation rules of Section 414(q)(6) of the Code because such Member is either a five-percent owner or one of the ten most Highly Compensated Employees as described in Section 414(q)(6) of the Code, the Employer matching contributions and Member contributions and compensation (as defined in Section 414(s) of the Code) of such Member shall include the Employer matching and Member contributions and compensation (as defined in Section 414(s) of the Code) of "family members," within the meaning of Section 414(q)(6) of the Code, and such "family members" shall not be considered as separate Employees in determining actual contribution percentages. The TPA shall determine as of the end of the Plan Year whether one of the actual contribution percentage tests specified above is satisfied for such Plan Year. This determination shall be made after first determining the treatment of excess deferrals within the meaning of Section 402(g) of the Code under Section 3.2 above and then determining the treatment of excess contributions under Section 3.10 above. In the event that neither of the actual contribution percentage tests is satisfied, the TPA shall refund the excess aggregate contributions in the manner described below.

Determining the Actual Contribution Percentages. Notwithstanding any other provision of this Section 3.11, effective for Plan Years beginning after December 31, 1996, the actual contribution percentage for the Plan Year for Highly Compensated Employees shall, in accordance with shall not exceed the Code and IRS Regulations, satisfy either (i) or (ii) as followsgreater of the following actual contribution percentages: (i) Prior Year Testing (a) the actual contribution percentage for a such Plan Year for Members of those Employees who are not Highly Compensated Employees for the Plan Year shall not exceed the prior Plan Year's actual contribution percentage for Members who were Non-Highly Compensated Employees for the prior Plan Year multiplied by 1.25, or or (b) the actual contribution percentage for Members the Plan Year of those Employees who are not Highly Compensated Employees for the Plan Year shall not exceed the prior year's actual contribution percentage for Members who were Non-Highly Compensated Employees for the prior Plan Year multiplied by 22.0, provided that the actual contribution percentage for Members who are the Highly Compensated Employees does not exceed the actual contribution percentage for Members who were Non-Highly Compensated such other Employees in the prior Plan Year by more than 2 percentage points. For purposes of this Article III, the first "actual contribution percentage" for a Plan Year this Plan permits any means, for each specified group of Employees, the average of the ratios (calculated separately for each Employee in such group) of (A) the sum of (i) Member to make after-tax contributions pursuant credited to Section 3.1his Account for the Plan Year, provides for (ii) Employer matching contributions (pursuant and/or supplemental contributions under Formula 1 credited to Section 3.5), or bothhis Account as described in this Article for the Plan Year, and this is not a successor plan(iii) in accordance with and to the extent permitted by the IRS Regulations, 401(k) deferrals (and, as provided in Section 3.9, any Employer qualified nonelective contributions) credited to his Account, to (B) the amount of the Member's compensation (as defined in Section 414(s) of the Code) for the Plan Year or, alternatively, where specifically elected by the Employer, for purposes only that part of the foregoing tests, Plan Year during which the prior Plan YearMember was eligible to participate in the Plan. An Employee's Non-Highly Compensated Employees' actual contribution percentage shall be 3 percent unless the Employer has elected in the Adoption Agreement to use the current zero if no such contributions are made on his behalf for such Plan Year's . The actual contribution percentage taken into account for these Membersany Highly Compensated Employee who is eligible to make Member contributions or receive Employer matching contributions under two or more plans described in Section 401(a) of the Code or arrangements described in Section 401(k) of the Code that are maintained by the Employer shall be determined as if all such contributions were made under a single plan. For purposes of determining the actual contribution percentage of a Member who is a Highly Compensated Employee subject to the family aggregation rules of Section 414(q)(6) of the Code because such Member is either a five-percent owner or one of the ten most Highly Compensated Employees as described in Section 414(q)(6) of the Code, the Employer matching contributions and Member contributions and compensation (as defined in Section 414(s) of the Code) of such Member shall include the Employer matching and Member contributions and compensation (as defined in Section 414(s) of the Code) of "family members," within the meaning of Section 414(q)(6) of the Code, and such "family members" shall not be considered as separate Employees in determining actual contribution percentages. The TPA shall determine as of the end of the Plan Year whether one of the actual contribution percentage tests specified above is satisfied for such Plan Year. This determination shall be made after first determining the treatment of excess deferrals within the meaning of Section 402(g) of the Code under Section 3.2 above and then determining the treatment of excess contributions under Section 3.10 above. In the event that neither of the actual contribution percentage tests is satisfied, the TPA shall refund the excess aggregate contributions in the manner described below. For purposes of this Article III, (excess aggregate contributions) means, with respect to any Plan Year and with respect to any Member, the excess of the aggregate amount of contributions (and any earnings and losses allocable thereto) made as (i) Member after-tax contributions credited to his Account for the Plan Year, (ii) Employer matching contributions and/or supplemental contributions under Formula 1 credited to his Account as described in this Article for the Plan Year, and (iii) in accordance with and to the extent permitted by the IRS Regulations, 401(k) deferrals (and, as provided in Section 3.9, any Employer qualified nonelective contributions) credited to his Account (if the Plan Administrator elects to take into account such deferrals and contributions when calculating the actual contribution percentage) of Highly Compensated Members for such Plan Year, over the maximum amount of such contributions that could be made as Employer contributions, Member contributions and 401(k) deferrals of such Members without violating the requirements of any Subparagraph of this Section 3.11. If the TPA is required to refund excess aggregate contributions for any Highly Compensated Member for a Plan Year in order to satisfy the requirements of any Subparagraph above, then the refund of such excess aggregate contributions shall be made with respect to such Highly Compensated Members to the extent practicable before the 15th day of the third month immediately following the Plan Year for which such excess aggregate contributions were made, but in no event later than the end of the Plan Year following such Plan Year or, in the case of the termination of the Plan in accordance with Article XI, no later than the end of the twelve-month period immediately following the date of such termination. For each such Member, the amounts so refunded shall be made in the following order of priority: (i) to the extent that the amounts contributed by the Member on an after-tax basis for such Plan Year exceed the highest rate of such contributions with respect to which amounts were contributed by the Employer, by refunding such amounts contributed by the Member which were not matched by his Employer (and any earnings and losses allocable thereto) and (ii) by refunding amounts contributed for such Plan Year by the Member which were matched by his Employer (and any earnings and losses allocable thereto) and, solely to the extent permitted under the Code and applicable IRS Regulations, distributing to the Member amounts contributed for such Plan Year by the Employer with respect to the amounts so returned (and any earnings and losses allocable thereto). All such distributions shall be made to, or shall be with respect to, Highly Compensated Members on the basis of the respective portions of such amounts attributable to each such Highly Compensated Member.

Determining the Actual Contribution Percentages. Notwithstanding any other provision of this Section 3.11, effective for Plan Years beginning after December 31, 1996, the actual contribution percentage for the Plan Year for Highly Compensated Employees shall, in accordance with the Code and IRS Regulations, satisfy either (i) or (ii) as follows: (i) Prior Year TestingTesting ------------------ (a) the actual contribution percentage for a Plan Year for Members who are Highly Compensated Employees for the Plan Year shall not exceed the prior Plan Year's actual contribution percentage for Members who were Non-Highly Compensated Employees for the prior Plan Year multiplied by 1.25, or (b) the actual contribution percentage for Members who are Highly Compensated Employees for the Plan Year shall not exceed the prior year's actual contribution percentage for Members who were Non-Highly Compensated Employees for the prior Plan Year multiplied by 2, provided that the actual contribution percentage for Members who are Highly Compensated Employees does not exceed the actual contribution percentage for Members who were Non-Highly Compensated Employees in the prior Plan Year by more than 2 percentage points. For the first Plan Year this Plan permits any Member to make after-tax contributions pursuant to Section 3.1, provides for Employer matching contributions (pursuant to Section 3.5), or both, and this is not a successor plan, for purposes of the foregoing tests, the prior Plan Year's Non-Highly Compensated Employees' actual contribution percentage shall be 3 percent unless the Employer has elected in the Adoption Agreement to use the current Plan Year's actual contribution percentage for these Members. (ii) Current Year Testing -------------------- If elected by the Employer in the Adoption Agreement, the actual contribution percentage tests in (a) and (b), above, will be applied by comparing the current Plan Year's actual contribution percentage for Members who are Highly Compensated Employees for such Plan Year with the current Plan Year's actual contribution percentage for Members who are Non-Highly Compensated Employees for such year. Once made, this election can only be changed and the Prior Year Testing method applied if the Plan meets the requirements for changing to Prior Year Testing set forth in IRS Notice 98-1 (or superseding guidance).

Determining the Actual Contribution Percentages. Notwithstanding any other provision of this Section 3.11, effective for Plan Years beginning after December 31, 1996, the actual contribution percentage for the Plan Year for Highly Compensated Employees shall, in accordance with shall not exceed the Code and IRS Regulations, satisfy either (i) or (ii) as followsgreater of the following actual contribution percentages: (i) Prior Year Testing (a) the actual contribution percentage for a such Plan Year for Members of those Employees who are not Highly Compensated Employees for the Plan Year shall not exceed the prior Plan Year's actual contribution percentage for Members who were Non-Highly Compensated Employees for the prior Plan Year multiplied by 1.25, or or (b) the actual contribution percentage for Members the Plan Year of those Employees who are not Highly Compensated Employees for the Plan Year shall not exceed the prior year's actual contribution percentage for Members who were Non-Highly Compensated Employees for the prior Plan Year multiplied by 22.0, provided that the actual contribution percentage for Members who are the Highly Compensated Employees does not exceed the actual contribution percentage for Members who were Non-Highly Compensated such other Employees in the prior Plan Year by more than 2 percentage points. For purposes of this Article III, the first "actual contribution percentage" for a Plan Year this Plan permits any means, for each specified group of Employees, the average of the ratios (calculated separately for each Employee in such group) of (A) the sum of (i) Member to make after-tax contributions pursuant credited to Section 3.1his Account for the Plan Year, provides for (ii) Employer matching contributions (pursuant and/or supplemental contributions under Formula 1 credited to Section 3.5), or bothhis Account as described in this Article for the Plan Year, and this is not a successor plan(iii) in accordance with and to the extent permitted by the IRS Regulations, 401(k) deferrals (and, as provided in Section 3.9, any Employer qualified nonelective contributions) credited to his Account, to (B) the amount of the Member's compensation (as defined in Section 414(s) of the Code) for the Plan Year or, alternatively, where specifically elected by the Employer, for purposes only that part of the foregoing tests, Plan Year during which the prior Plan YearMember was eligible to participate in the Plan. An Employee's Non-Highly Compensated Employees' actual contribution percentage shall be 3 percent unless the Employer has elected in the Adoption Agreement to use the current zero if no such contributions are made on his behalf for such Plan Year's . The TPA shall determine as of the end of the Plan Year whether one of the actual contribution percentage tests specified above is satisfied for these Memberssuch Plan Year. This determination shall be made after first determining the treatment of excess deferrals within the meaning of Section 402(g) of the Code under Section 3.2 above and then determining the treatment of excess contributions under Section 3.10 above. In the event that neither of the actual contribution percentage tests is satisfied, the TPA shall refund the excess aggregate contributions in the manner described below.