Common use of Feature Clause in Contracts

Feature. For purposes of determining the actual deferral 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 Employee 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 401(k) deferrals, contributions and compensation (as defined in Section 414(s) of the Code) of such Member shall include 401(k) deferrals, 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 deferral percentages. The TPA shall determine as of the end of the Plan Year whether one of the actual deferral percentage tests specified in Section 3.9 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. In the event that neither of such actual deferral percentage tests is satisfied, the TPA shall, to the extent permissible under the Code and the IRS Regulations, refund the excess contributions for the Plan Year in the following order of priority: by (i) refunding such amounts deferred by the Member which were not matched by his Employer (and any earnings and losses allocable thereto), and (ii) refunding amounts deferred for such Plan Year by the Member (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 Member's 401(k) deferrals that are returned pursuant to this Paragraph (and any earnings and losses allocable thereto). The distribution of such excess contributions shall be made to Highly Compensated Members to the extent practicable before the 15th day of the third month immediately following the Plan Year for which such excess 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 purposes of this 401(k) Feature, "excess contributions" means, with respect to any Plan Year, the excess of the aggregate amount of 401(k) deferrals (and any earnings and losses allocable thereto) made to the accounts of Highly Compensated Members for such Plan Year, over the maximum amount of such deferrals that could be made by such Members without violating the requirements described above, determined by reducing 401(k) deferrals made by or on behalf of Highly Compensated Members in order of the actual deferral percentages beginning with the highest of such percentages.

Feature. For purposes of determining the actual deferral 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 Employee 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 401(k) deferrals, contributions and compensation (as defined in Section 414(s) of the Code) of such Member shall include 401(k) deferrals, 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 deferral percentages. The TPA shall determine as of the end of the Plan Year whether one of the actual deferral percentage tests specified in Section 3.9 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. In the event that neither of such actual deferral percentage tests is satisfied, the TPA shall, to the extent permissible under the Code and the IRS Regulations, refund the excess contributions for the Plan Year in the following order of priority: by (i) refunding such amounts deferred by the Member which were not matched by his Employer (and any earnings and losses allocable thereto), and (ii) refunding amounts deferred for such Plan Year by the Member (and any earnings and losses allocable thereto), and, solely to the extent permitted under the Code and applicable IRS Regulations, distributing to the Member forfeiting amounts contributed for such Plan Year by the Employer with respect to the Member's ’s 401(k) deferrals that are returned pursuant to this Paragraph (and any earnings and losses allocable thereto). The distribution of such excess contributions shall be made to Highly Compensated Members Employees to the extent practicable before the 15th day of the third month immediately following the Plan Year for which such excess 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 purposes of this 401(k) Feature, "“excess contributions" ” means, with respect to any Plan Year, the excess of the aggregate amount of 401(k) deferrals (and any earnings and losses allocable theretoother amounts contributed by the Employer that are taken into account in determining the actual deferral percentage of Highly Compensated Employees for such Plan Year) (collectively, “401(k) amounts”) made to the accounts of Highly Compensated Members Employees for such Plan Year, over the maximum amount of such deferrals that could be made by such Members without violating the requirements described above, . The excess contributions to be distributed shall be determined by reducing 401(k) deferrals amounts made by or on behalf of Highly Compensated Members in order of the actual deferral percentages Employees beginning with the highest Highly Compensated Employee with the largest 401(k) amounts for the Plan Year until such amount is reduced to be equal to the Highly Compensated Employee with the next largest 401(k) amount. The procedure described in the preceding sentence shall be repeated until all excess contributions have been eliminated and, as applicable, refunded. Where an Employer has elected, in the Adoption Agreement, to allow Member contributions, a Member may treat excess contributions allocated to him as an amount distributed to the Member and then contributed by the Member to the Plan. Recharacterized amounts will remain nonforfeitable. Amounts may not be recharacterized by a Highly Compensated Employee to the extent that such amount in combination with other Employee contributions made by that Employee would exceed any stated limit under the Plan on Employee contributions. Recharacterization must occur no later than 2½ months after the last day of the Plan Year in which such percentagesexcess contributions arose and is deemed to occur no earlier than the date the last Highly Compensated Employee is informed in writing of the amount recharacterized and the consequences thereof. Recharacterized amounts will be taxable to the Member for the Member’s taxable year in which the Member would have received them in cash.

Feature. For purposes of determining the actual deferral 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 Employee 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 401(k) deferrals, contributions and compensation (as defined in Section 414(s) of the Code) of such Member shall include 401(k) deferrals, 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 deferral percentages. The TPA shall determine as of the end of the Plan Year whether one of the actual deferral percentage tests specified in Section 3.9 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. In the event that neither of such actual deferral percentage tests is satisfied, the TPA shall, to the extent permissible under the Code and the IRS Regulations, refund the excess contributions for the Plan Year in the following order of priority: by (i) refunding such amounts deferred by the Member which were not matched by his Employer (and any earnings and losses allocable thereto), and (ii) refunding amounts deferred for such Plan Year by the Member (and any earnings and losses allocable thereto), and, solely to the extent permitted under the Code and applicable IRS Regulations, distributing to the Member forfeiting amounts contributed for such Plan Year by the Employer with respect to the Member's ’s 401(k) deferrals that are returned pursuant to this Paragraph (and any earnings and losses allocable thereto). The distribution of such excess contributions shall be made to Highly Compensated Members Employees to the extent practicable before the 15th day of the third month immediately following the Plan Year for which such excess 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 purposes of this 401(k) Feature, "“excess contributions" ” means, with respect to any Plan Year, the excess of the aggregate amount of 401(k) deferrals (and any earnings and losses allocable theretoother amounts contributed by the Employer that are taken into account in determining the actual deferral percentage of Highly Compensated Employees for such Plan Year) (collectively, “401(k) amounts”) made to the accounts of Highly Compensated Members Employees for such Plan Year, over the maximum amount of such deferrals that could be made by such Members without violating the requirements described above, . The excess contributions to be distributed shall be determined by reducing 401(k) deferrals amounts made by or on behalf of Highly Compensated Members in order of the actual deferral percentages Employees beginning with the highest Highly Compensated Employee with the largest 401(k) amounts for the Plan Year until such amount is reduced to be equal to the Highly Compensated Employee with the next largest 401(k) amount. The procedure described in the preceding sentence shall be repeated until all excess contributions have been eliminated and, as applicable, refunded. Where an Employer has elected, in the Adoption Agreement, to allow Member contributions, a Member may treat excess contributions allocated to him as an amount distributed to the Member and then contributed by the Member to the Plan. Recharacterized amounts will remain nonforfeitable. Amounts may not be recharacterized by a Highly Compensated Employee to the extent that such amount in combination with other Employee contributions made by that Employee would exceed any stated limit under the Plan on Employee contributions. Recharacterization must occur no later than 22 months after the last day of the Plan Year in which such percentagesexcess contributions arose and is deemed to occur no earlier than the date the last Highly Compensated Employee is informed in writing of the amount recharacterized and the consequences thereof. Recharacterized amounts will be taxable to the Member for the Member’s taxable year in which the Member would have received them in cash.

Feature. For purposes of determining the actual deferral 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 Employee 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 401(k) deferrals, contributions and compensation (as defined in Section 414(s) of the Code) of such Member shall include 401(k) deferrals, 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 deferral percentages. The TPA shall determine as of the end of the Plan Year whether one of the actual deferral percentage tests specified in Section 3.9 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. In the event that neither of such actual deferral percentage tests is satisfied, the TPA shall, to the extent permissible under the Code and the IRS Regulations, refund the excess contributions for the Plan Year in the following order of priority: by (i) refunding such amounts deferred by the Member which were not matched by his Employer (and any earnings and losses allocable thereto), and (ii) refunding amounts deferred for such Plan Year by the Member (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 Member's 401(k) deferrals that are returned pursuant to this Paragraph (and any earnings and losses allocable thereto). The distribution of such excess contributions shall be made to Highly Compensated Members to the extent practicable before the 15th day of the third month immediately following the Plan Year for which such excess 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 purposes of this 401(k) Feature, "excess contributions" means, with respect to any Plan Year, the excess of the aggregate amount of 401(k) deferrals (and any earnings and losses allocable thereto) made to the accounts of Highly Compensated Members for such Plan Year, over the maximum amount of such deferrals that could be made by such Members without violating the requirements described above, determined by reducing 401(k) deferrals made by or on behalf of 18 Highly Compensated Members in order of the actual deferral percentages beginning with the highest of such percentages.

Feature. For purposes of determining the actual deferral 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 Employee 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 401(k) deferrals, contributions and compensation (as defined in Section 414(s) of the Code) of such Member shall include 401(k) deferrals, 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 deferral percentages. The TPA shall determine as of the end of the Plan Year whether one of the actual deferral percentage tests specified in Section 3.9 3.10 above is satisfied for such Plan Year. This determination shall be made after first determining the treatment of excess deferrals within the meaning of Code Section 402(g) of the Code under Section 3.2 above. The amount of excess contributions for a Highly Compensated Employee will be determined, in accordance with Treas. Reg. Section 1.401(k)-2(b)(2)(ii), in the following manner: The actual deferral percentage of the Highly Compensated Employee with the highest actual deferral percentage is reduced to equal the actual deferral percentage of the Highly Compensated Employee with the next highest actual deferral percentage. This process is repeated until the actual deferral percentage test would be satisfied. In determining the necessary reduction in a Highly Compensated Employee’s actual deferral percentage as provided above, if a lesser reduction would enable the Plan to satisfy the actually deferral percentage test, then only such lesser reduction is used to determine the highest permitted actual deferral percentage for a Highly Compensated Employee. For purposes of the actual deferral test, 401(k) deferrals of a Highly Compensated Employee that exceed the limits of Code Section 402(g) shall be taken into account. In the event that neither of such actual deferral percentage tests is satisfied, the TPA shall, to the extent permissible under the Code and the IRS Regulations, refund the excess contributions for the Plan Year in the following order of priority: by (i) refunding such amounts deferred by the Member or a pre-tax basis which were not matched by his Employer (and any earnings and losses allocable thereto), (ii) refunding such amounts deferred by the Member which the Member designates as Rxxx Elective Deferrals, and (iiiii) refunding amounts deferred for such Plan Year by the Member (and any earnings and losses allocable thereto), and, solely to the extent permitted under the Code and applicable IRS Regulations, distributing to the Member forfeiting amounts contributed for such Plan Year by the Employer with respect to the Member's =s 401(k) deferrals that are returned pursuant to this Paragraph (and any earnings and losses allocable thereto). Notwithstanding anything in this Section 3.11 to the contrary, and in accordance with IRS Regulation Section 1.401(k)-2(b)(2)(iv), the income allocable to the excess contributions to be refunded shall be equal to the allocable gain or loss for the Plan Year in question and, as applicable, for the “gap period” following the close of the Plan Year and ending on the date that is seven (7) days preceding the distribution date. The Plan shall determine the allocable income in accordance with IRS Regulation Section 1.401(k)-2(b)(2)(iv)(C) or (D) or, in accordance with IRS Regulation Section 1.401(k)-2(b)(2)(iv)(B), any reasonable method for computing the income allocable to the excess contributions. The distribution of such excess contributions shall be made to Highly Compensated Members Employees to the extent practicable before the 15th day of the third month immediately following the Plan Year for which such excess 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. The distribution of excess contributions will include the income allocable thereto. The income allocable to the excess contributions includes, in accordance with Treas. Reg. Section 1.401(k)-2(b)(2)(iv), income for the Plan Year for which the excess contributions were made and for the period between the end of the Plan Year and the date that is seven (7) days prior to the date of distribution. For purposes of this 401(k) Feature, "excess Aexcess contributions" ” means, with respect to any Plan Year, the excess of the aggregate amount of 401(k) deferrals (and any earnings and losses allocable theretoother amounts contributed by the Employer that are taken into account in determining the actual deferral percentage of Highly Compensated Employees for such Plan Year) (collectively, A401(k) amounts”) made to the accounts Accounts of Highly Compensated Members Employees for such Plan Year, over the maximum amount of such deferrals that could be made by such Members without violating the requirements described above, . The excess contributions to be distributed shall be determined by reducing 401(k) deferrals amounts made by or on behalf of Highly Compensated Members in order of the actual deferral percentages Employees beginning with the highest Highly Compensated Employee with the largest 401(k) amounts for the Plan Year until such amount is reduced to be equal to the Highly Compensated Employee with the next largest 401(k) amount. The procedure described in the preceding sentence shall be repeated until all excess contributions have been eliminated and, as applicable, refunded. Where an Employer has elected, in the Adoption Agreement, to allow Member contributions, a Member may treat excess contributions allocated to him as an amount distributed to the Member and then contributed by the Member to the Plan. Recharacterized amounts will remain nonforfeitable. Amounts may not be recharacterized by a Highly Compensated Employee to the extent that such amount in combination with other Employee contributions made by that Employee would exceed any stated limit under the Plan on Employee contributions. Recharacterization must occur no later than 22 months after the last day of the Plan Year in which such percentagesexcess contributions arose and is deemed to occur no earlier than the date the last Highly Compensated Employee is informed in writing of the amount recharacterized and the consequences thereof. Recharacterized amounts will be taxable to the Member for the Member=s taxable year in which the Member would have received them in cash.

Feature. For purposes of determining the actual deferral 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 Employee 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 401(k) deferrals, contributions and compensation (as defined in Section 414(s) of the Code) of such Member shall include 401(k) deferrals, 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 deferral percentages. The TPA shall determine as of the end of the Plan Year whether one of the actual deferral percentage tests specified in Section 3.9 3.10 above is satisfied for such Plan Year. This determination shall be made after first determining the treatment of excess deferrals within the meaning of Code Section 402(g) of the Code under Section 3.2 above. The amount of excess contributions for a Highly Compensated Employee will be determined, in accordance with Treas. Reg. Section 1.401(k)-2(b)(2)(ii), in the following manner: The actual deferral percentage of the Highly Compensated Employee with the highest actual deferral percentage is reduced to equal the actual deferral percentage of the Highly Compensated Employee with the next highest actual deferral percentage. This process is repeated until the actual deferral percentage test would be satisfied. In determining the necessary reduction in a Highly Compensated Employee’s actual deferral percentage as provided above, if a lesser reduction would enable the Plan to satisfy the actually deferral percentage test, then only such lesser reduction is used to determine the highest permitted actual deferral percentage for a Highly Compensated Employee. For purposes of the actual deferral test, 401(k) deferrals of a Highly Compensated Employee that exceed the limits of Code Section 402(g) shall be taken into account. In the event that neither of such actual deferral percentage tests is satisfied, the TPA shall, to the extent permissible under the Code and the IRS Regulations, refund the excess contributions for the Plan Year in the following order of priority: by (i) refunding such amounts deferred by the Member or a pre-tax basis which were not matched by his Employer (and any earnings and losses allocable thereto), (ii) refunding such amounts deferred by the Member which the Member designates as Xxxx Elective Deferrals, and (iiiii) refunding amounts deferred for such Plan Year by the Member (and any earnings and losses allocable thereto), and, solely to the extent permitted under the Code and applicable IRS Regulations, distributing to the Member forfeiting amounts contributed for such Plan Year by the Employer with respect to the Member's ’s 401(k) deferrals that are returned pursuant to this Paragraph (and any earnings and losses allocable thereto). Notwithstanding anything in this Section 3.11 to the contrary, and in accordance with IRS Regulation Section 1.401(k)-2(b)(2)(iv), the income allocable to the excess contributions to be refunded shall be equal to the allocable gain or loss for the Plan Year in question and, as applicable, for the “gap period” following the close of the Plan Year and ending on the date that is seven (7) days preceding the distribution date. The Plan shall determine the allocable income in accordance with IRS Regulation Section 1.401(k)-2(b)(2)(iv)(C) or (D) or, in accordance with IRS Regulation Section 1.401(k)-2(b)(2)(iv)(B), any reasonable method for computing the income allocable to the excess contributions. The distribution of such excess contributions shall be made to Highly Compensated Members Employees to the extent practicable before the 15th day of the third month immediately following the Plan Year for which such excess 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. The distribution of excess contributions will include the income allocable thereto. The income allocable to the excess contributions includes, in accordance with Treas. Reg. Section 1.401(k)-2(b)(2)(iv), income for the Plan Year for which the excess contributions were made and for the period between the end of the Plan Year and the date that is seven (7) days prior to the date of distribution. For purposes of this 401(k) Feature, "“excess contributions" ” means, with respect to any Plan Year, the excess of the aggregate amount of 401(k) deferrals (and any earnings and losses allocable theretoother amounts contributed by the Employer that are taken into account in determining the actual deferral percentage of Highly Compensated Employees for such Plan Year) (collectively, “401(k) amounts”) made to the accounts Accounts of Highly Compensated Members Employees for such Plan Year, over the maximum amount of such deferrals that could be made by such Members without violating the requirements described above, . The excess contributions to be distributed shall be determined by reducing 401(k) deferrals amounts made by or on behalf of Highly Compensated Members in order of the actual deferral percentages Employees beginning with the highest Highly Compensated Employee with the largest 401(k) amounts for the Plan Year until such amount is reduced to be equal to the Highly Compensated Employee with the next largest 401(k) amount. The procedure described in the preceding sentence shall be repeated until all excess contributions have been eliminated and, as applicable, refunded. Where an Employer has elected, in the Adoption Agreement, to allow Member contributions, a Member may treat excess contributions allocated to him as an amount distributed to the Member and then contributed by the Member to the Plan. Recharacterized amounts will remain nonforfeitable. Amounts may not be recharacterized by a Highly Compensated Employee to the extent that such amount in combination with other Employee contributions made by that Employee would exceed any stated limit under the Plan on Employee contributions. Recharacterization must occur no later than 2 1/2 months after the last day of the Plan Year in which such percentagesexcess contributions arose and is deemed to occur no earlier than the date the last Highly Compensated Employee is informed in writing of the amount recharacterized and the consequences thereof. Recharacterized amounts will be taxable to the Member for the Member’s taxable year in which the Member would have received them in cash.

Feature. For purposes of determining the actual deferral 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 Employee 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 401(k) deferrals, contributions and compensation (as defined in Section 414(s) of the Code) of such Member shall include 401(k) deferrals, 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 deferral percentages. The TPA shall determine as of the end of the Plan Year whether one of the actual deferral percentage tests specified in Section 3.9 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. In the event that neither of such actual deferral percentage tests is satisfied, the TPA shall, to the extent permissible under the Code and the IRS Regulations, refund the excess contributions for the Plan Year in the following order of priority: by (i) refunding such amounts deferred by the Member which were not matched by his Employer (and any earnings and losses allocable thereto), and (ii) refunding amounts deferred for such Plan Year by the Member (and any earnings and losses allocable thereto), and, solely to the extent permitted under the Code and applicable IRS Regulations, distributing to the Member forfeiting amounts contributed for such Plan Year by the Employer with respect to the Member's Members 401(k) deferrals that are returned pursuant to this Paragraph (and any earnings and losses allocable thereto). The distribution of such excess contributions shall be made to Highly Compensated Members Employees to the extent practicable before the 15th day of the third month immediately following the Plan Year for which such excess 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 XIXl, no later than the end of the twelve-twelve- month period immediately following the date of such termination. For purposes of this 401(k) Feature, "excess contributions" means, with respect to any Plan Year, the excess of the aggregate amount of 401(k) 40 deferrals (and any earnings and losses allocable theretoother amounts contributed by the Employer that are taken into account in determining the actual deferral percentage of Highly Compensated Employees for such Plan Year) (collectively, "401(k) amounts") made to the accounts of Highly Compensated Members Employees for such Plan Year, over the maximum amount of such deferrals that could be made by such Members without violating the requirements described above, . The excess contributions to be distributed shall be determined by reducing 401(k) deferrals amounts made by or on behalf of Highly Compensated Members in order of the actual deferral percentages Employees beginning with the highest of Highly Compensated Employee with the largest 401(k) amounts for the Plan Year until such percentagesamount is reduced to be equal to the Highly Compensated Employee with the next largest 401 (k) amount. The procedure described in the preceding sentence shall be repeated until all excess contributions have been eliminated and, as applicable, refunded.

Feature. For purposes of determining the actual deferral 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 Employee 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 401(k) deferrals, contributions and compensation (as defined in Section 414(s) of the Code) of such Member shall include 401(k) deferrals, 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 deferral percentages. The TPA shall determine as of the end of the Plan Year whether one of the actual deferral percentage tests specified in Section 3.9 3.10 above is satisfied for such Plan Year. This determination shall be made after first determining the treatment of excess deferrals within the meaning of Code Section 402(g) of the Code under Section 3.2 above. The amount of excess contributions for a Highly Compensated Employee will be determined, in accordance with Treas. Reg. Section 1.401(k)-2(b)(2)(ii), in the following manner: The actual deferral percentage of the Highly Compensated Employee with the highest actual deferral percentage is reduced to equal the actual deferral percentage of the Highly Compensated Employee with the next highest actual deferral percentage. This process is repeated until the actual deferral percentage test would be satisfied. In determining the necessary reduction in a Highly Compensated Employee’s actual deferral percentage as provided above, if a lesser reduction would enable the Plan to satisfy the actually deferral percentage test, then only such lesser reduction is used to determine the highest permitted actual deferral percentage for a Highly Compensated Employee. For purposes of the actual deferral test, 401(k) deferrals of a Highly Compensated Employee that exceed the limits of Code Section 402(g) shall be taken into account. In the event that neither of such actual deferral percentage tests is satisfied, the TPA shall, to the extent permissible under the Code and the IRS Regulations, refund the excess contributions for the Plan Year in the following order of priority: by (i) refunding such amounts deferred by the Member or a pre-tax basis which were not matched by his Employer (and any earnings and losses allocable thereto), (ii) refunding such amounts deferred by the Member which the Member designates as Xxxx Elective Deferrals, and (iiiii) refunding amounts deferred for such Plan Year by the Member (and any earnings and losses allocable thereto), and, solely to the extent permitted under the Code and applicable IRS Regulations, distributing to the Member forfeiting amounts contributed for such Plan Year by the Employer with respect to the Member's =s 401(k) deferrals that are returned pursuant to this Paragraph (and any earnings and losses allocable thereto). Notwithstanding anything in this Section 3.11 to the contrary, and in accordance with IRS Regulation Section 1.401(k)-2(b)(2)(iv), the income allocable to the excess contributions to be refunded shall be equal to the allocable gain or loss for the Plan Year in question and, as applicable, for the “gap period” following the close of the Plan Year and ending on the date that is seven (7) days preceding the distribution date. The Plan shall determine the allocable income in accordance with IRS Regulation Section 1.401(k)-2(b)(2)(iv)(C) or (D) or, in accordance with IRS Regulation Section 1.401(k)-2(b)(2)(iv)(B), any reasonable method for computing the income allocable to the excess contributions. The distribution of such excess contributions shall be made to Highly Compensated Members Employees to the extent practicable before the 15th day of the third month immediately following the Plan Year for which such excess 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. The distribution of excess contributions will include the income allocable thereto. The income allocable to the excess contributions includes, in accordance with Treas. Reg. Section 1.401(k)-2(b)(2)(iv), income for the Plan Year for which the excess contributions were made and for the period between the end of the Plan Year and the date that is seven (7) days prior to the date of distribution. For purposes of this 401(k) Feature, "excess Aexcess contributions" ” means, with respect to any Plan Year, the excess of the aggregate amount of 401(k) deferrals (and any earnings and losses allocable theretoother amounts contributed by the Employer that are taken into account in determining the actual deferral percentage of Highly Compensated Employees for such Plan Year) (collectively, A401(k) amounts”) made to the accounts Accounts of Highly Compensated Members Employees for such Plan Year, over the maximum amount of such deferrals that could be made by such Members without violating the requirements described above, . The excess contributions to be distributed shall be determined by reducing 401(k) deferrals amounts made by or on behalf of Highly Compensated Members in order of the actual deferral percentages Employees beginning with the highest Highly Compensated Employee with the largest 401(k) amounts for the Plan Year until such amount is reduced to be equal to the Highly Compensated Employee with the next largest 401(k) amount. The procedure described in the preceding sentence shall be repeated until all excess contributions have been eliminated and, as applicable, refunded. Where an Employer has elected, in the Adoption Agreement, to allow Member contributions, a Member may treat excess contributions allocated to him as an amount distributed to the Member and then contributed by the Member to the Plan. Recharacterized amounts will remain nonforfeitable. Amounts may not be recharacterized by a Highly Compensated Employee to the extent that such amount in combination with other Employee contributions made by that Employee would exceed any stated limit under the Plan on Employee contributions. Recharacterization must occur no later than 22 months after the last day of the Plan Year in which such percentagesexcess contributions arose and is deemed to occur no earlier than the date the last Highly Compensated Employee is informed in writing of the amount recharacterized and the consequences thereof. Recharacterized amounts will be taxable to the Member for the Member=s taxable year in which the Member would have received them in cash.

Feature. For purposes of determining the actual deferral 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 Employee 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 401(k) deferrals, contributions and compensation (as defined in Section 414(s) of the Code) of such Member shall include 401(k) deferrals, 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 deferral percentages. The TPA shall determine as of the end of the Plan Year whether one of the actual deferral percentage tests specified in Section 3.9 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. In the event that neither of such actual deferral percentage tests is satisfied, the TPA shall, to the extent permissible under the Code and the IRS Regulations, refund the excess contributions for the Plan Year in the following order of priority: by (i) refunding such amounts deferred by the Member which were not matched by his Employer (and any earnings and losses allocable thereto), and (ii) refunding amounts deferred for such Plan Year by the Member (and any earnings and losses allocable thereto), and, solely to the extent permitted under the Code and applicable IRS Regulations, distributing to the Member forfeiting amounts contributed for such Plan Year by the Employer with respect to the Member's ’s 401(k) deferrals that are returned pursuant to this Paragraph (and any earnings and losses allocable thereto). The distribution of such excess contributions shall be made to Highly Compensated Members Employees to the extent practicable before the 15th day of the third month immediately following the Plan Year for which such excess 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 purposes of this 401(k) Feature, "“excess contributions" ” means, with respect to any Plan Year, the excess of the aggregate amount of 401(k) deferrals (and any earnings and losses allocable theretoother amounts contributed by the Employer that are taken into account in determining the actual deferral percentage of Highly Compensated Employees for such Plan Year) (collectively, “401(k) amounts”) made to the accounts of Highly Compensated Members Employees for such Plan Year, over the maximum amount of such deferrals that could be made by such Members without violating the requirements described above, . The excess contributions to be distributed shall be determined by reducing 401(k) deferrals amounts made by or on behalf of Highly Compensated Members in order of the actual deferral percentages Employees beginning with the highest Highly Compensated Employee with the largest 401(k) amounts for the Plan Year until such amount is reduced to be equal to the Highly Compensated Employee with the next largest 401(k) amount. The procedure described in the preceding sentence shall be repeated until all excess contributions have been eliminated and, as applicable, refunded. Where an Employer has elected, in the Adoption Agreement, to allow Member contributions, a Member may treat excess contributions allocated to him as an amount distributed to the Member and then contributed by the Member to the Plan. Recharacterized amounts will remain nonforfeitable. Amounts may not be recharacterized by a Highly Compensated Employee to the extent that such amount in combination with other Employee contributions made by that Employee would exceed any stated limit under the Plan on Employee contributions. Recharacterization must occur no later than 2 1/2 months after the last day of the Plan Year in which such percentagesexcess contributions arose and is deemed to occur no earlier than the date the last Highly Compensated Employee is informed in writing of the amount recharacterized and the consequences thereof. Recharacterized amounts will be taxable to the Member for the Member’s taxable year in which the Member would have received them in cash.