Common use of of the Code Clause in Contracts

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 regulations thereunder. (c) "Non-Key Employee" shall mean any Employee who is not a Key Employee. (d) "Permissive Aggregation Group" shall mean the Required Aggregation Group of plans plus any other plan or plans of the Employer which, when considered as a group with the Required Aggregation Group, would continue to satisfy the requirements of sections 401(a)(4) and 410 of the Code. (e) "Present Value" shall be based on the interest and mortality table specified in the Employer's qualified defined benefit plan for Top-Heavy purposes, or if such assumptions are not specified in the Employer's qualified defined benefit plan, Present Value shall be based on the assumptions specified in the Adoption Agreement. (f) "Required Aggregation Group" shall mean (1) each qualified defined contribution plan of the Employer in which at least one Key Employee participates or participated at any time during the determination period (regardless of whether the Plan has terminated), and (2) any other qualified defined contribution plan of the Employer which enables a plan described in (1) to meet the requirements of sections 401(a)(4) or 410 of the Code. (g) "Top-Heavy Ratio." (1) If the Employer maintains one or more defined contribution plans (including this or any other SEP) and the Employer has not maintained any defined benefit plan which during the five (5) year period ending on the Determination Date has or has had accrued benefits, the Top-Heavy Ratio for this Plan alone or for the Required or Permissive Aggregation Group as appropriate is a fraction, the numerator of which is the sum of the account balances of all Key Employees as of the Determination Date (including any part of any account balance distributed in the five (5) year period ending on the Determination Date), and the denominator of which is the sum of all account balances (including any part of any account balance distributed in the five (5) year period ending on the Determination Date), both computed in accordance with Section 416 of the Code and the regulations thereunder. The Employer may elect in the Adoption Agreement to consider the contributions that have been made to this Plan on behalf of Key Employees and all Employees rather than the account balances of Key Employees and all Employees under this Plan in computing the Top-Heavy Ratio. Both the numerator and denominator of the Top-Heavy Ratio are increased to reflect any contribution not actually made as of the Determination Date, but which is required to be taken into account on that date under Section 416 of the Code and the regulations thereunder. (2) If the Employer maintains one or more defined contribution plans (including this or any other Simplified Employee Pension) and the Employer maintains or has maintained one or more defined benefit plans which during the five (5) year period ending on the Determination Date has or has had any accrued benefits, the Top-Heavy Ratio for any Required or Permissive Aggressive Group as appropriate is a fraction, the numerator of which is the sum of account balances under the aggregated defined contribution plan or plans for all Key Employees determined in accordance with the above rules, and the Present Value of accrued benefits under the aggregated defined benefit plan or plans for all Employees as of the Determination Date, and the denominator of which is the sum of the account balances under the aggregated defined contribution plan or plans for all Participants, determined in accordance with the rules above, and the Present Value of accrued benefits under the defined benefit plan or plans for all Participants as of the Determination Date, all determined in accordance with section 416 of the Code and the regulations thereunder. The Employer may elect in the Adoption Agreement to consider the contributions that have been made to this Plan on behalf of Key Employees and all Employees rather than the account balances of Key Employees and all Employees under this Plan in computing the Top-Heavy Ratio. The accrued benefits under a defined benefit plan in both the numerator and denominator of the Top-Heavy Ratio are increased for any distribution of an accrued benefit made in the five (5) year period ending on the Determination Date. (3) For purposes of (1) and (2) above, the value of account balances and the Present Value of accrued benefits will be determined as of the most recent Valuation Date that falls within or ends with the twelve (12) month period ending on the Determination Date, except as provided in section 416 of the Code and the regulations thereunder for the first and second Plan Years of a defined benefit plan. The account balances and accrued benefits of a Participant who is not a Key Employee but who was a Key Employee in a prior year, or has not been credited with at least one hour of service for the Employer maintaining the Plan at any time during the five (5) year period ending on the Determination Date, will be disregarded. The calculation of the Top-Heavy Ratio, and the extent to which distributions, rollovers, and transfers are taken into account, will be made in accordance with section 416 of the Code and the regulations thereunder. Deductible Employee contributions will not be taken into account for purposes of computing the Top-Heavy Ratio. When aggregating plans, the value of account balances and accrued benefits will be calculated with reference to the Determination Date that falls within the same calendar year. (4) Solely for the purpose of determining if the Plan, or any other plan included in a Required Aggregation Group of which this Plan is a part, is Top-Heavy (within the meaning of section 416(g) of the Code) the accrued benefit of a Non-Key Employee shall be determined under (a) the method, if any, that uniformly applies for accrual purposes under all plans maintained by the Employer, or (b) if there is no such method, as if such benefit accrued not more rapidly than the slowest accrual rate of section 411(b)(1)(C) of the Code. (h) "Valuation Date" shall mean the last day of the Plan Year and is the day on which account balances are valued for purposes of determining whether the Plan is Top-Heavy.