Common use of Highly Compensated Employee Clause in Contracts

Highly Compensated Employee. effective January 1, 1997, means an Employee described in Code section 414(q) and the Regulations thereunder, and generally means an Employee who performed services for the Employer during the “determination year” and is in one or more of the following groups: (a) Employees who at any time during the determination year or the look-back year were Five Percent Owners. (b) Employees who received 414(q) Compensation during the look-back year in excess of $80,000 (as adjusted at the same time and in the same manner as under Code section 415(d), except that the base period is the calendar quarter ending September 30, 1996). (c) If so specified in the Adoption Agreement, at the Employer’s election, Employees considered in Section 1.30(b) above may be limited to Employees in the Top-Paid Group during the look-back year. (d) For purposes of this Section 1.30 the “determination year” shall be the Plan Year for which testing is being performed, and the “look-back year” shall be the immediately preceding twelve-month period. The Employer may make a calendar year data election, under which election the look-back year shall be the calendar year beginning with or within the look-back year. Pursuant to Notice 97-45, the calendar year data election may not be used to determine whether an Employee is a Highly Compensated Employee under Section 1.30(a) above. (e) A Top-Paid Group election under Section 1.30(c) and a calendar year data election under Section 1.30(d) must be applied consistently to the determination year of all plans of the Employer, except that the consistency requirement will not apply to determination years beginning with or within the 1997 calendar year, and for determination years beginning on or after January 1, 1998, and before January 1, 2000, satisfaction of the consistency requirement is determined without regard to any nonretirement plans of the Employer. (f) The dollar threshold amounts specified in 1.30(b) above shall be adjusted at such time and in such manner as is provided in Code section 415(d) and the applicable Treasury Regulations. (g) In determining who is a Highly Compensated Employee, Employees who are non-resident aliens and who received no earned income (within the meaning of Code section 911(d)(2)) from the Employer constituting United States source income within the meaning of Code section 861(a)(3) shall not be treated as Employees. Additionally, all Affiliated Employers shall be taken into account as a single Employer and Leased Employees within the meaning of Code sections 414(n)(2) and 414(o)(2) shall be considered Employees unless such Leased Employees are covered by a plan described in Code section 414(n)(5) and are not covered in any qualified plan maintained by the Employer. The exclusion of Leased Employees for this purpose shall be applied on a uniform and consistent basis for all of the Employer’s retirement plans. Highly Compensated Former Employees shall be treated as Highly Compensated Employees without regard to whether they performed services during the “determination year.” (h) With respect to any Plan Year commencing prior to January 1, 1997, Highly Compensated Employee means an active Employee if, at any time during the Plan Year or the immediately preceding Plan Year, such active Employee: (1) was a Five Percent Owner of the Employer; (2) received 414(q) Compensation from the Employer in excess of $75,000 (as adjusted by section 415(d) of the Code); (3) received 414(q) Compensation from the Employer in excess of $50,000 (as adjusted by section 415(d) of the Code) and was a member of the Top Paid Group of Employees during the same Plan Year; or (4) received 414(q) Compensation from the Employer in excess of fifty percent (50%) of the limit in effect for such Plan Year under section 415(b)(1)(A) of the Code and was at any time an officer of the Employer. If an Employee is not described in (2), (3) or (4) above for the Plan Year immediately preceding the Plan Year for which the determination of Highly Compensated Employee is made, he shall not be considered a Highly Compensated Employee for the determination year unless he is a member of the group consisting of the 100 Employees paid the greatest Highly Compensated Employee Compensation during the Plan Year for which the determination is being made.

Highly Compensated Employee. effective January 1, 1997, means an Employee described in Code section 414(q) and the Regulations thereunder, and generally means an Employee who performed services for the Employer during the “"determination year” " and is in one or more of the following groups: (a) Employees who at any time during the determination year or the look-back year were Five Percent Owners. (b) Employees who received 414(q) Compensation during the look-back year in excess of $80,000 (as adjusted at the same time and in the same manner as under Code section 415(d), except that the base period is the calendar quarter ending September 30, 1996). (c) If so specified in the Adoption Agreement, at the Employer’s 's election, Employees considered in Section 1.30(b) above may be limited to Employees in the Top-Paid Group during the look-back year. (d) For purposes of this Section 1.30 the “"determination year” " shall be the Plan Year for which testing is being performed, and the “"look-back year” " shall be the immediately preceding twelve-month period. The Employer may make a calendar year data election, under which election the look-back year shall be the calendar year beginning with or within the look-back year. Pursuant to Notice 97-45, the calendar year data election may not be used to determine whether an Employee is a Highly Compensated Employee under Section 1.30(a) above. (e) A Top-Paid Group election under Section 1.30(c) and a calendar year data election under Section 1.30(d) must be applied consistently to the determination year of all plans of the Employer, except that the consistency requirement will not apply to determination years beginning with or within the 1997 calendar year, and for determination years beginning on or after January 1, 1998, and before January 1, 2000, satisfaction of the consistency requirement is determined without regard to any nonretirement plans of the Employer. (f) The dollar threshold amounts specified in 1.30(b) above shall be adjusted at such time and in such manner as is provided in Code section 415(d) and the applicable Treasury Regulations. (g) In determining who is a Highly Compensated Employee, Employees who are non-resident aliens and who received no earned income (within the meaning of Code section 911(d)(2)) from the Employer constituting United States source income within the meaning of Code section 861(a)(3) shall not be treated as Employees. Additionally, all Affiliated Employers shall be taken into account as a single Employer and Leased Employees within the meaning of Code sections 414(n)(2) and 414(o)(2) shall be considered Employees unless such Leased Employees are covered by a plan described in Code section 414(n)(5) and are not covered in any qualified plan maintained by the Employer. The exclusion of Leased Employees for this purpose shall be applied on a uniform and consistent basis for all of the Employer’s 's retirement plans. Highly Compensated Former Employees shall be treated as Highly Compensated Employees without regard to whether they performed services during the “"determination year.”" (h) With respect to any Plan Year commencing prior to January 1, 1997, Highly Compensated Employee means an active Employee if, at any time during the Plan Year or the immediately preceding Plan Year, such active Employee: (1) was a Five Percent Owner of the Employer; (2) received 414(q) Compensation from the Employer in excess of $75,000 (as adjusted by section 415(d) of the Code); (3) received 414(q) Compensation from the Employer in excess of $50,000 (as adjusted by section 415(d) of the Code) and was a member of the Top Paid Group of Employees during the same Plan Year; or (4) received 414(q) Compensation from the Employer in excess of fifty percent (50%) of the limit in effect for such Plan Year under section 415(b)(1)(A) of the Code and was at any time an officer of the Employer. If an Employee is not described in (2), (3) or (4) above for the Plan Year immediately preceding the Plan Year for which the determination of Highly Compensated Employee is made, he shall not be considered a Highly Compensated Employee for the determination year unless he is a member of the group consisting of the 100 Employees paid the greatest Highly Compensated Employee Compensation during the Plan Year for which the determination is being made.

Highly Compensated Employee. effective January 1, 1997, means an Employee described in Code section 414(q) and the Regulations thereunder, and generally means an Employee who performed services for the Employer during the “determination year” and is in one or more of the following groups: (a) Employees who at any time during the determination year or the look-back year were Five Percent Owners. (b) Employees who received 414(q) Compensation during the look-back year in excess of $80,000 (as adjusted at the same time and in the same manner as under Code section 415(d), except that the base period is the calendar quarter ending September 30, 1996). (c) If so specified in the Adoption Agreement, at the Employer’s election, Employees considered in Section 1.30(bparagraph (b) above may be limited to Employees in the Top-Paid Group during the look-back year. (d) For purposes of this Section 1.30 1.31 the “determination year” shall be the Plan Year for which testing is being performed, and the “look-back year” shall be the immediately preceding twelve-month period. The Employer may make a calendar year data election, under which election the look-back year shall be the calendar year beginning with or within the look-back year. Pursuant to Notice 97-45, the calendar year data election may not be used to determine whether an Employee is a Highly Compensated Employee under Section 1.30(aparagraph (a) above. (e) A Top-Paid Group election under Section 1.30(cparagraph (c) above and a calendar year data election under Section 1.30(dparagraph (d) must be applied consistently to the determination year of all plans of the Employer, except that the consistency requirement will not apply to determination years beginning with or within the 1997 calendar year, and for determination years beginning on or after January 1, 1998, and before January 1, 2000, satisfaction of the consistency requirement is determined without regard to any nonretirement plans of the Employer. (f) The dollar threshold amounts specified in 1.30(bparagraph (b) above shall be adjusted at such time and in such manner as is provided in Code section 415(d) and the applicable Treasury Regulations. (g) In determining who is a Highly Compensated Employee, Employees who are non-resident aliens and who received no earned income (within the meaning of Code section 911(d)(2)) from the Employer constituting United States source income within the meaning of Code section 861(a)(3) shall not be treated as Employees. Additionally, all Affiliated Employers shall be taken into account as a single Employer and Leased Employees within the meaning of Code sections 414(n)(2) and 414(o)(2) shall be considered Employees unless such Leased Employees are covered by a plan described in Code section 414(n)(5) and are not covered in any qualified plan maintained by the Employer. The exclusion of Leased Employees for this purpose shall be applied on a uniform and consistent basis for all of the Employer’s retirement plans. Highly Compensated Former Employees shall be treated as Highly Compensated Employees without regard to whether they performed services during the “determination year.” (h) With respect to any Plan Year commencing prior to January 1, 1997, Highly Compensated Employee means an active Employee if, at any time during the Plan Year or the immediately preceding Plan Year, such active Employee: (1) was a Five Percent Owner of the Employer; (2) received 414(q) Compensation from the Employer in excess of $75,000 (as adjusted by section 415(d) of the Code); (3) received 414(q) Compensation from the Employer in excess of $50,000 (as adjusted by section 415(d) of the Code) and was a member of the Top Paid Group of Employees during the same Plan Year; or (4) received 414(q) Compensation from the Employer in excess of fifty percent (50%) of the limit in effect for such Plan Year under section 415(b)(1)(A) of the Code and was at any time an officer of the Employer. If an Employee is not described in (2), (3) or (4) above for the Plan Year immediately preceding the Plan Year for which the determination of Highly Compensated Employee is made, he shall not be considered a Highly Compensated Employee for the determination year unless he is a member of the group consisting of the 100 Employees paid the greatest Highly Compensated Employee Compensation during the Plan Year for which the determination is being made.

Highly Compensated Employee. effective January 1, 1997, means an Employee described in Code section 414(q) and the Regulations thereunder, and generally means an Each Employee who performed services for the Employer during the “determination year” and is in one or more of the following groups: (a) Employees who at any time during the determination year or the look-back year were Five Percent Owners. (b) Employees who received 414(q) Compensation during the look-back year in excess of $80,000 (as adjusted at the same time and in the same manner as under Code section 415(d), except that the base period is the calendar quarter ending September 30, 1996). (c) If so specified in the Adoption Agreement, at the Employer’s election, Employees considered in Section 1.30(b) above may be limited to Employees in the Top-Paid Group during the look-back year. (d) For purposes of this Section 1.30 the “determination year” shall be the Plan Year for which testing is being performed, and the “look-back year” shall be the immediately preceding twelve-month period. The Employer may make a calendar year data election, under which election the look-back year shall be the calendar year beginning with or within the look-back year. Pursuant to Notice 97-45, the calendar year data election may not be used to determine whether an Employee is a Highly Compensated Employee under Section 1.30(a) above. (e) A Top-Paid Group election under Section 1.30(c) and a calendar year data election under Section 1.30(d) must be applied consistently to the determination year of all plans of the Employer, except that the consistency requirement will not apply to determination years beginning with or within the 1997 calendar year, and for determination years beginning on or after January 1, 1998, and before January 1, 2000, satisfaction of the consistency requirement is determined without regard to any nonretirement plans of the Employer. (f) The dollar threshold amounts specified in 1.30(b) above shall be adjusted at such time and in such manner as is provided in Code section 415(d) and the applicable Treasury Regulations. (g) In determining who is a Highly Compensated Employee, Employees who are non-resident aliens and who received no earned income (within the meaning of Code section 911(d)(2)) from the Employer constituting United States source income within the meaning of Code section 861(a)(3) shall not be treated as Employees. Additionally, all Affiliated Employers shall be taken into account as a single Employer and Leased Employees within the meaning of Code sections 414(n)(2) and 414(o)(2) shall be considered Employees unless such Leased Employees are covered by a plan described in Code section 414(n)(5) and are not covered in any qualified plan maintained by the Employer. The exclusion of Leased Employees for this purpose shall be applied on a uniform and consistent basis for all of the Employer’s retirement plans. Highly Compensated Former Employees shall be treated as Highly Compensated Employees without regard to whether they performed performs services during the “determination year.” (h) With respect to any Plan Year commencing prior to January 1, 1997, Highly Compensated Employee means an active Employee if, at any time during the Plan Year or the immediately preceding Plan Year, such active Employee: (1) was a Five Percent Owner of the Employer; (2) received 414(q) Compensation from the Employer in excess of $75,000 (as adjusted by section 415(d) of the Code); (3) received 414(q) Compensation from the Employer in excess of $50,000 (as adjusted by section 415(d) of the Code) and was a member of the Top Paid Group of Employees during the same Plan Year; or (4) received 414(q) Compensation from the Employer in excess of fifty percent (50%) of the limit in effect for such Plan Year under section 415(b)(1)(A) of the Code and was at any time an officer of the Employer. If an Employee is not described in (2), (3) or (4) above for the Plan Year immediately preceding the Plan Year for which the determination of Highly Compensated Employee who is madehighly compensated is being made (the "Determination Year") and who: (A) is a five-percent owner of the Employer (within the meaning of section 416(i)(1)(A)(iii) of the Code) at any time during the Determination Year or the twelve-month period immediately preceding the Determination Year (the "Look-Back Year"); or (B) For the Look-Back Year (i) receives compensation (within the meaning of section 414(q)(4) of the Code; "compensation" for purposes of this Paragraph) in excess of $80,000 (with such amount to be adjusted automatically to reflect any cost-of-living adjust-adjustments authorized by section 414(q)(1) of the Code) during the Look-Back Year; and (ii) if the Committee elects the application of this clause in such Look-Back Year, he shall not be considered a Highly Compensated Employee for the determination year unless he is a member of the group consisting top 20% of Employees for the Look-Back Year (other than Employees described in section 414(q)(5) of the 100 Employees paid Code) ranked on the greatest basis of compensation received during the year. For purposes of the preceding sentence, (i) all employers aggregated with the Employer under section 414(b), (c), (m), or (o) of the Code shall be treated as a single employer, (ii) a former Employee who had a separation year (generally, the Determination Year such Employee separates from service) prior to the Determination Year and who was an active Highly Compensated Employee Compensation during for either such separation year or any Determination Year ending on or after such Employee's fifty-fifth birthday shall be deemed to be a Highly Compensated Employee, and (iii) the Plan Committee may elect, in accordance with the provisions of applicable Treasury regulations, rulings and notices, to make the Look-Back Year calculation for which a Determination Year on the determination basis of the calendar year ending with or within the applicable Determination Year (or, in the case of a Determination Year that is being madeshorter than twelve months, the calendar year ending with or within the twelve-month period ending with the end of the applicable Determination Year). To the extent that the provisions of this Paragraph are inconsistent or conflict with the definition of a "highly compensated employee" set forth in section 414(q) of the Code and the Treasury regulations thereunder, the relevant terms and provisions of section 414(q) of the Code and the Treasury regulations thereunder shall govern and control.

Highly Compensated Employee. effective January 1, 1997, means an Employee described in Code section 414(q) and the Regulations thereunder, and generally means an Any Employee who performed services performs service for the Employer during the “determination year and who, during the immediate prior year” and is in one or more of the following groups: (a) Employees who at any time during the determination year or the look-back year were Five Percent Owners. (b) Employees who received 414(q) Compensation during the look-back year in excess of $80,000 (as adjusted at the same time and in the same manner as under Code section 415(d), except that the base period is the calendar quarter ending September 30, 1996). (c) If so specified in the Adoption Agreement, at the Employer’s election, Employees considered in Section 1.30(b) above may be limited to Employees in the Top-Paid Group during the look-back year. (d) For purposes of this Section 1.30 the “determination year” shall be the Plan Year for which testing is being performed, and the “look-back year” shall be the immediately preceding twelve-month period. The Employer may make a calendar year data election, under which election the look-back year shall be the calendar year beginning with or within the look-back year. Pursuant to Notice 97-45, the calendar year data election may not be used to determine whether an Employee is a Highly Compensated Employee under Section 1.30(a) above. (e) A Top-Paid Group election under Section 1.30(c) and a calendar year data election under Section 1.30(d) must be applied consistently to the determination year of all plans of the Employer, except that the consistency requirement will not apply to determination years beginning with or within the 1997 calendar year, and for determination years beginning on or after January 1, 1998, and before January 1, 2000, satisfaction of the consistency requirement is determined without regard to any nonretirement plans of the Employer. (f) The dollar threshold amounts specified in 1.30(b) above shall be adjusted at such time and in such manner as is provided in Code section 415(d) and the applicable Treasury Regulations. (g) In determining who is a Highly Compensated Employee, Employees who are non-resident aliens and who received no earned income (within the meaning of Code section 911(d)(2)) from the Employer constituting United States source income within the meaning of Code section 861(a)(3) shall not be treated as Employees. Additionally, all Affiliated Employers shall be taken into account as a single Employer and Leased Employees within the meaning of Code sections 414(n)(2) and 414(o)(2) shall be considered Employees unless such Leased Employees are covered by a plan described in Code section 414(n)(5) and are not covered in any qualified plan maintained by the Employer. The exclusion of Leased Employees for this purpose shall be applied on a uniform and consistent basis for all of the Employer’s retirement plans. Highly Compensated Former Employees shall be treated as Highly Compensated Employees without regard to whether they performed services during the “determination year.” (h) With respect to any Plan Year commencing prior to January 1, 1997, Highly Compensated Employee means an active Employee if, at any time during the Plan Year or the immediately preceding Plan Year, such active Employee: (1) was a Five Percent Owner of the Employer; (2) received 414(q) Compensation from the Employer in excess of $75,000 ([as adjusted by section pursuant to Code Section 415(d) of the Code);]; or (3b) received 414(q) Compensation from the Employer in excess of $50,000 ([as adjusted by section pursuant to Code Section 415(d) of the Code) )] and was a member of the Top Paid Group of Employees during the same Plan Yearfor such year; or (4c) received 414(q) Compensation from the Employer in excess of fifty percent (50%) of the limit in effect for such Plan Year under section 415(b)(1)(A) of the Code and was at any time an officer of the EmployerEmployer and received Compensation during such year that is greater than 50 percent of the dollar limitation in effect under Code Section 415(b)(1)(A). If an Employee is not described in Notwithstanding (2a), (3b) or and (4) above for c), an Employee who was not Highly Compensated during the preceding Plan Year immediately preceding the Plan Year for which the determination of Highly Compensated Employee is made, he shall not be considered treated as a Highly Compensated Employee for with respect to the determination year current Plan Year unless he such Employee is a member of the group consisting of the 100 Employees paid the greatest Highly Compensated Employee Compensation during the Plan Year year for which the such determination is being made. (d) Employees who are five percent (5%) Owners at any time during the immediate prior year or determination year. Highly Compensated Employee includes Highly Compensated active Employees and Highly Compensated former Employees. For purposes of determining those employees that are to be treated as Highly Compensated for a determination year, an Employer maintaining a fiscal year Plan may elect to make the look back year calculation as defined in Paragraph 1.414(q)-1T, Q&A 14(b) of the Treasury Regulations for a determination year on the basis of the calendar year ending with or within the applicable determination year. For purposes of this election, a determination year that is shorter than twelve (12) months, the look back year calculation may be made based upon the calendar year ending with or within the twelve month period ending with the end of the applicable determination year. Where such election is made, the employer shall make its determination year calculation pursuant to the provisions of Treasury Regulation Paragraph 1.414(q)-1T, Q&A 14(b).

Highly Compensated Employee. effective January 1, 1997, means an Employee described in Code section 414(q) and the Regulations thereunder, and generally means an Any Employee who performed services performs service for the Employer during the “determination year and who, during the immediate prior year” and is in one or more of the following groups: (a) Employees who at any time during the determination year or the look-back year were Five Percent Owners. (b) Employees who received 414(q) Compensation during the look-back year in excess of $80,000 (as adjusted at the same time and in the same manner as under Code section 415(d), except that the base period is the calendar quarter ending September 30, 1996). (c) If so specified in the Adoption Agreement, at the Employer’s election, Employees considered in Section 1.30(b) above may be limited to Employees in the Top-Paid Group during the look-back year. (d) For purposes of this Section 1.30 the “determination year” shall be the Plan Year for which testing is being performed, and the “look-back year” shall be the immediately preceding twelve-month period. The Employer may make a calendar year data election, under which election the look-back year shall be the calendar year beginning with or within the look-back year. Pursuant to Notice 97-45, the calendar year data election may not be used to determine whether an Employee is a Highly Compensated Employee under Section 1.30(a) above. (e) A Top-Paid Group election under Section 1.30(c) and a calendar year data election under Section 1.30(d) must be applied consistently to the determination year of all plans of the Employer, except that the consistency requirement will not apply to determination years beginning with or within the 1997 calendar year, and for determination years beginning on or after January 1, 1998, and before January 1, 2000, satisfaction of the consistency requirement is determined without regard to any nonretirement plans of the Employer. (f) The dollar threshold amounts specified in 1.30(b) above shall be adjusted at such time and in such manner as is provided in Code section 415(d) and the applicable Treasury Regulations. (g) In determining who is a Highly Compensated Employee, Employees who are non-resident aliens and who received no earned income (within the meaning of Code section 911(d)(2)) from the Employer constituting United States source income within the meaning of Code section 861(a)(3) shall not be treated as Employees. Additionally, all Affiliated Employers shall be taken into account as a single Employer and Leased Employees within the meaning of Code sections 414(n)(2) and 414(o)(2) shall be considered Employees unless such Leased Employees are covered by a plan described in Code section 414(n)(5) and are not covered in any qualified plan maintained by the Employer. The exclusion of Leased Employees for this purpose shall be applied on a uniform and consistent basis for all of the Employer’s retirement plans. Highly Compensated Former Employees shall be treated as Highly Compensated Employees without regard to whether they performed services during the “determination year.” (h) With respect to any Plan Year commencing prior to January 1, 1997, Highly Compensated Employee means an active Employee if, at any time during the Plan Year or the immediately preceding Plan Year, such active Employee: (1) was a Five Percent Owner of the Employer; (2) received 414(q) Compensation from the Employer in excess of $75,000 ([as adjusted by section pursuant to Code Section 415(d) of the Code);]; or (3b) received 414(q) Compensation from the Employer in excess of $50,000 ([as adjusted by section pursuant to Code Section 415(d) of the Code) )] and was a member of the Top Top-Paid Group of Employees during the same Plan Yearfor such year; or (4c) received 414(q) Compensation from the Employer in excess of fifty percent (50%) of the limit in effect for such Plan Year under section 415(b)(1)(A) of the Code and was at any time an officer of the EmployerEmployer and received Compensation during such year that is greater than 50 percent of the dollar limitation in effect under Code Section 415(b)(1)(A). If an Employee is not described in Notwithstanding (2a), (3b) or and (4) above for c), an Employee who was not Highly Compensated during the preceding Plan Year immediately preceding the Plan Year for which the determination of Highly Compensated Employee is made, he shall not be considered treated as a Highly Compensated Employee for with respect to the determination year current Plan Year unless he such Employee is a member of the group consisting of the 100 Employees paid the greatest Highly Compensated Employee Compensation during the Plan Year year for which the such determination is being made. (d) Employees who are five percent (5%) Owners at any time during the immediate prior year or determination year. Highly Compensated Employee includes Highly Compensated active Employees and Highly Compensated former Employees. For purposes of determining those employees that are to be treated as Highly Compensated for a determination year, an Employer maintaining a fiscal year Plan may elect to make the look-back year calculation as defined in Paragraph 1.414(q)-1T, Q&A 14(b) of the Treasury Regulations for a determination year on the basis of the calendar year ending with or within the applicable determination year. For purposes of this election, a determination year that is shorter than twelve (12) months, the look-back year calculation may be made based upon the calendar year ending with or within the twelve-month period ending with the end of the applicable determination year. Where such election is made, the employer shall make its determination year calculation pursuant to the provisions of Treasury Regulation Paragraph 1.414(q)-1T, Q&A 14(b).