DAVIS HEALTH SYSTEM. 401(k) PROFIT SHARING PLAN BY AND AMONG DAVIS MEMORIAL HOSPITAL, INC. ( DMH ), BROADDUS HOSPITAL

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1 DAVIS HEALTH SYSTEM 401(k) PROFIT SHARING PLAN MADE the 15 th day of September, 2009, BY AND AMONG DAVIS MEMORIAL HOSPITAL, INC. ( DMH ), BROADDUS HOSPITAL ASSOCIATION, INC. ( BHA ), HEALTH FACILITIES, INC. ( HFI ) and CENTRAL WV MEDCORP, INC. ( CWVM ) INTRODUCTION: WHEREAS, DMH, BHA and CWVM are subsidiaries of the Davis Health System, Inc., and HFI is a subsidiary of DMH; and WHEREAS, DMH and BHA are the sponsors of the Davis Health System 401(k) Profit Sharing Plan (the DHS Plan ); and 1

2 WHEREAS, HFI and CWVM are the sponsors of the HFI/MEDCORP, INC. 401(k) Profit Sharing Plan (the HFI/MedCorp Plan ); and WHEREAS, the DHS Plan reserves the right to amend the plan to DMH and BHA; and CWVM; and WHEREAS, the HFI/MedCorp Plan reserves the right to amend the plan to HFI and WHEREAS, DMH, BHA, HFI and CWVM now wish to exercise their rights to amend both plans in order to provide for the merger of the HFI/MedCorp Plan into the DHS Plan, effective September 30, NOW, THEREFORE, pursuant to the power reserved to DMH, BHA, HFI and CWVM, the parties hereby amend both plans by restating the DHS Plan (as the survivor of the plan merger) in its entirety as follows: 2

3 ARTICLE I EFFECTIVE DATE 1.01 Effective Date: The DHS Plan was originally effective January 1, The HFI/MedCorp Plan was originally effective October 1, The merger of the HFI/MedCorp Plan into the DHS Plan is effective September 30, Therefore, this restatement of the DHS Plan generally reflects the terms of the surviving plan effective October 1, However, certain provisions in this document have effective dates other than this general effective date, as indicated by each such provision. 3

4 ARTICLE II DEFINITIONS Words and phrases used in this Plan will have the meanings given to them by applicable law, unless the context clearly requires another meaning or unless they are specifically defined in this document. The following capitalized terms will have the following meanings: 2.01 Account means the sum of all of the separate accounts established for a Participant under this Plan. A Participant s Account will include his Elective Deferral Account, his Matching Contribution Account, his Rollover Account, his Nonelective Contribution Account and his Supplemental Nonelective Contribution Account Account Balance means the amount contained in a Participant s Account as of a Valuation Date ACP Test means the nondiscrimination test applicable to Matching Contributions under Section 401(m) of the Code and the terms of this Plan, as further described in Section Actual Contribution Percentage ( ACP ) means, for a specified group of Participants (either Highly Compensated Employees or Non-Highly Compensated Employees) for a Plan Year, the average of the Contribution Percentages of the eligible Participants in the group. For this purpose, an eligible Participant is any Employee who is eligible to make an Elective Deferral (if the Employer takes such contributions into account in the calculation of the Contribution Percentage), or who is eligible to receive a Matching Contribution (including forfeitures allocated in lieu of or as part of a Matching Contribution) Actual Deferral Percentage ( ADP ) means, for a specified group of Participants (either Highly Compensated Employees or Non-Highly Compensated Employees) for a Plan Year, the average of the ratios (calculated separately for each Participant in such group) of the amount of Employer contributions paid into the Trust on behalf of such Participant for the Plan Year to the Participant s Compensation for such Plan Year. (a) For purposes of this definition, the Employer contributions counted with respect to any Participant will consist of the following: (1) any Elective Deferrals (other than Catch-up Contributions) made pursuant to the Participant s Deferral Election, including Excess Elective Deferrals of Highly Compensated Employees, but excluding (A) Excess Elective Deferrals of Non-Highly Compensated Employees that arise solely from Elective Deferrals made under this Plan or any other plan of the Employer, and (B) Elective Deferrals that are taken into account in the ACP Test (provided that the ADP Test is satisfied both with and without exclusion 4

5 of these Elective Deferrals), and (2) qualified nonelective contributions under this Plan or any other plan of the Employer. (b) For purposes of computing Actual Deferral Percentages, an Employee who would be a Participant but for the failure to make Elective Deferrals will be treated as a Participant on whose behalf no Elective Deferrals are made Administrator means the Employer, or such other Person as may be designated by the Employer to serve as administrator of the Plan. The Administrator will be the named fiduciary required by Section 402 of ERISA ADP Test means the nondiscrimination test applicable to Elective Deferrals under Section 401(k) of the Code and the terms of this Plan, as further described in Section Affiliated Employer means a corporation which is a member of a controlled group of corporations (as defined in Section 414(b) of the Code) including the Employer, a trade or business which is a member of a group under common control (as defined in Section 414(c) of the Code) including the Employer, an organization which is a member of an affiliated service group (as defined in Section 414(m) of the Code) including the Employer, or any other entity required to be aggregated with the Employer under Section 414(o) of the Code Alternate Payee means a Spouse, former Spouse, child or other dependent of a Participant who has a right to receive payment of all or some portion of the Participant s Account Balance under the terms of a Qualified Domestic Relations Order Annual Additions means the sum of the following amounts credited to a Participant s Account (or to an account under another plan maintained by the Employer) for a Limitation Year: (a) (b) Employer contributions, Employee contributions, (c) forfeitures (including forfeitures applied under the terms of this Plan in the Limitation Year to reduce Employer contributions), (d) amounts allocated to an individual medical account (as defined in Section 415(l)(2) of the Code) which is part of a pension or annuity plan maintained by the Employer, (e) amounts derived from contributions paid or accrued which are attributable to post-retirement medical benefits and allocated to the separate account of a Key Employee (as defined in Section 419A(d)(3) of the Code), 5

6 (f) contributions under a welfare benefit fund (as defined in Section 419(e) of the Code) maintained by the Employer, and (g) allocations under a simplified employee pension Annual Valuation Date means the last day of each Plan Year. The Annual Valuation Date under this Plan is December 31 of each year Beneficiary means any Person entitled to receive a payment of benefits from this Plan after the death of a Participant Break-in-Service means a period of twelve (12) consecutive months during which an Employee is not credited with more than Five Hundred (500) Hours of Service with the Employer. The computation period for determining whether a Break-in-Service has occurred will be the Plan Year, except in the case of an Eligibility Computation Period other than the Plan Year, in which case the computation period for determining whether a Break-in-Service has occurred will be the same as the Eligibility Computation Period Catch-up Contributions are Elective Deferrals that are (a) in excess of an applicable plan limit, and (b) made to the Plan by Participants who have attained age 50 by the end of their taxable years. An applicable plan limit is a limit in the Plan that applies to Elective Deferrals without regard to Catch-up Contributions, such as the limit on Annual Additions under Section 415(c) of the Code, the dollar limit on Elective Deferrals under Section 402(g) of the Code (not counting Catch-up Contributions), and the limit imposed by the ADP Test under Section 401(k)(3) of the Code Code means the Internal Revenue Code of 1986, as amended, and as it may be further amended from time to time Compensation means wages within the meaning of Section 3401(a) of the Code and all other payments of compensation to an Employee by the Employer (in the course of the Employer s trade or business) for which the Employer is required to furnish a written statement to the Employee under Sections 6041(d), 6051(a)(3) and 6052 of the Code, determined without regard to any rules that limit the remuneration included in wages based on the nature or location of the employment or the services performed, but subject to the following adjustments: (a) Compensation will include any amount which is contributed by the Employer pursuant to a salary reduction agreement and which is not includible in the gross income of an Employee under Section 125, 132(f)(4), 402(e)(3), 402(h)(1)(B) or 403(b) of the Code. 6

7 (b) Compensation will not include: (1) any amount paid to an Employee in the form of a bonus, (2) any amount intended to reimburse an Employee for moving expenses, (3) any amount intended to reimburse an Employee for automobile expenses, (4) any amount constituting forgiveness for a loan to an Employee, (5) any incentive pay (including, but not limited to, gift cards), or (6) paid time off under the alternative method. (c) In the case of an Employee who commences participation in the Plan on an Entry Date other than the first day of a Plan Year, Compensation prior to such Entry Date will not be counted. (d) The annual Compensation of each Participant taken into account in determining allocations for a Plan Year will not exceed $200,000, as adjusted for cost-of-living increases in accordance with Section 401(a)(17)(B) of the Code. (1) The cost-of-living adjustment in effect for a calendar year applies to annual Compensation for the Plan Year that begins coincident with or within such calendar year. (2) In the case of a short plan year or other Compensation determination period consisting of fewer than twelve (12) months, the applicable Compensation limit is an amount equal to the applicable annual Compensation limit multiplied by a fraction. The numerator of the fraction is the number of months in the short determination period, and the denominator of the fraction is twelve (12) Contribution Percentage means the ratio (expressed as a percentage) of a Participant s Contribution Percentage Amounts to the Participant s Compensation for the Plan Year Contribution Percentage Amounts means the sum of the Matching Contributions made under the Plan on behalf of a Participant for a Plan Year. However, Contribution Percentage Amounts will not include Matching Contributions that are forfeited either to correct Excess Aggregate Contributions or because the contributions to which they relate are Excess Deferrals, Excess Contributions or Excess Aggregate Contributions. The Employer may 7

8 elect to include qualified nonelective contributions in the Contribution Percentage Amounts. The Employer may also elect to count Elective Deferrals in the Contribution Percentage Amounts, provided that (a) the ADP Test is met before the Elective Deferrals are used in the ACP Test, and (b) the ADP Test continues to be met following the exclusion of those Elective Deferrals that are used to meet the ACP Test Deferral Election means a Participant s election to have Elective Deferrals contributed to the Plan on behalf of the Participant Designated Beneficiary means a Person who is designated by a Participant (or by the Participant s Surviving Spouse) as the Beneficiary of the Participant s interest under the Plan and who is the designated beneficiary within the meaning of Section 401(a)(9) of the Code and Section 1.401(a)(9)-4 of the regulations Direct Rollover means a payment from the Plan to the Eligible Retirement Plan designated by a Distributee Disability means a physical or mental disability which is deemed by an independent physician selected by the Administrator to be sufficient to prevent a Participant from satisfactorily performing work for which he was suited by ability, training, and experience immediately prior to the onset of such physical or mental disability. For all purposes, the decision of the physician selected by the Administrator as to the nature and extent of a disability will be conclusive on all parties Disabled refers to the condition of a Participant who has incurred a Disability Disqualified Person means, for purposes of applying the prohibited transaction provisions of ERISA, the Code and this Plan, a Person who is: by the Plan; (a) (b) (c) (d) (e) a fiduciary; a Person providing services to the Plan; an employer with one (1) or more employees who are covered by the Plan; an employee organization with one (1) or more members who are covered an owner, directly or indirectly, of fifty percent (50%) or more of: (1) the combined voting power of all classes of stock entitled to vote or the total value of shares of all classes of stock of a corporation, 8

9 (2) the capital interest or the profits interest of a partnership, or (3) the beneficial interest of a trust or unincorporated enterprise, which is an employer or an employee organization described in subsection (c) or (d) above; (f) a member of the family (spouse, lineal descendant, or spouse of a lineal descendant) of any individual described in subsection (a), (b), (c), or (e) above; (g) a corporation, partnership, trust or estate of which (or in which) fifty percent (50%) or more of: (1) the combined voting power of all classes of stock entitled to vote or the total value of shares of all classes of stock of such corporation, (2) the capital interest or the profits interest of such partnership, or (3) the beneficial interest of such trust or estate, is owned directly or indirectly, or held by Persons described in subsection (a), (b), (c), (d), or (e) above; (h) an officer, director (or an individual having powers or responsibilities similar to those of officers or directors), a ten percent (10%) or more shareholder, or a Highly Compensated Employee of a Person or organization described in subsection (c), (d), (e), or (g) above; or (i) a ten percent (10%) or more (in capital or profits) partner, member or joint venturer of a Person or organization described in subsection (c), (d), (e), or (g) above Distributee means the recipient of a distribution from this Plan which is subject to the Direct Rollover requirements of this Plan. The term specifically includes the following such recipients: (a) an Employee or former Employee, and (b) an Employee s or former Employee s Surviving Spouse or former Spouse who is the Alternate Payee under a Qualified Domestic Relations Order, with regard to the interest of such Surviving Spouse or former Spouse. 9

10 2.26 Distribution Calendar Year means a calendar year for which a minimum distribution is required. For distributions beginning before a Participant s death, the first Distribution Calendar Year is the calendar year immediately preceding the calendar year which contains the Participant s Required Beginning Date. For distributions beginning after the Participant s death, the first Distribution Calendar Year is the calendar year in which distributions are required to begin under subsection (b)(2) in the section on Required Minimum Distributions contained in Article VII. The required minimum distribution for the Participant s first Distribution Calendar Year will be made on or before the Participant s Required Beginning Date. The required minimum distribution for other Distribution Calendar Years, including the required minimum distribution for the Distribution Calendar Year containing the Participant s Required Beginning Date, will be made on or before December 31 of that Distribution Calendar Year Early Retirement Age means the later of (a) age sixty (60), or (b) completion of five (5) Years of Service (as defined in this Plan for purposes of vesting) Elective Deferrals means Employer contributions made to the Plan based on a Deferral Election of a Participant, in lieu of cash compensation. (a) With respect to any taxable year, a Participant s Elective Deferrals include all employer contributions made on behalf of such Participant pursuant to any election to defer under any qualified cash or deferred arrangement ( CODA ) described in Section 401(k) of the Code, any salary reduction simplified employee pension ( SARSEP ) described in Section 408(k)(6) of the Code, any SIMPLE IRA described in Section 408(p) of the Code, any plan described in Section 501(c)(18) of the Code, and all employer contributions made on behalf of a Participant for the purchase of an annuity contract under Section 403(b) of the Code pursuant to a salary reduction agreement. (b) Elective Deferrals will not include any deferrals properly distributed as excess Annual Additions Elective Deferral Account means the account of a Participant to which Elective Deferrals and investment gains and losses attributable to Elective Deferrals are allocated Eligibility Computation Period means a period of twelve (12) consecutive months during which an Employee must be credited with at least one thousand (1,000) Hours of Service in order to be credited with a Year of Service for eligibility to participate in the Plan, as further described in Article III Eligible Retirement Plan means a plan eligible to receive a Direct Rollover of an Eligible Rollover Distribution from this Plan. 10

11 (a) An Eligible Retirement Plan is any plan that accepts a Distributee s Eligible Rollover Distribution, provided that the plan is one of the following: (1) an eligible plan under Section 457(b) of the Code which is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state and which agrees to separately account for amounts transferred into such plan from this Plan, Code, Code, (2) an individual retirement account described in Section 408(a) of the (3) an individual retirement annuity described in Section 408(b) of the (4) an annuity plan described in Section 403(a) of the Code, (5) an annuity contract described in Section 403(b) of the Code, or (6) a qualified plan described in Section 401(a) of the Code. (b) The definition of Eligible Retirement Plan will also apply in the case of a distribution to a Surviving Spouse, or to a Spouse or former Spouse who is the Alternate Payee under a Qualified Domestic Relations Order. (c) Effective January 1, 2008, the term Eligible Retirement Plan also includes a Roth individual retirement account described in Section 408A(b) of the Code (subject to the restrictions of Section 408A(c)(3)(B) of the Code for tax years beginning before January 1, 2010) Eligible Rollover Distribution means any distribution of all or any portion of the Account Balance to the credit of a Distributee under this Plan, with the following exceptions: (a) any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the Distributee or the joint lives (or joint life expectancies) of the Distributee and the Distributee s Designated Beneficiary, or for a specified period of not less than ten (10) years; (b) any distribution to the extent such distribution is required under Section 401(a)(9) of the Code; (c) any hardship distribution; 11

12 (d) the portion of any other distribution that is not includible in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities); or (e) any other distribution or distributions that are reasonably expected to total less than Two Hundred and 00/100 Dollars ($200.00) during a year Employee means any employee of the Employer or any Affiliated Employer. The term Employee also includes any Leased Employee treated as an employee of the Employer or any Affiliated Employer under Section 414(n) or (o) of the Code Employer means, collectively, Davis Memorial Hospital, Inc., a West Virginia non-profit corporation, Broaddus Hospital Association, Inc., a West Virginia non-profit corporation, Health Facilities, Inc., a West Virginia non-profit corporation, and Central WV MedCorp, Inc., a West Virginia non-profit corporation Entry Date means a date upon which an eligible Employee commences participation in the Plan. The Entry Dates for this Plan are each January 1, each April 1, each July 1 and each October ERISA means the Employee Retirement Income Security Act of 1974, as amended, and as it may be further amended from to time Excess Aggregate Contributions means, with respect to any Plan Year, the excess of: (a) the aggregate Contribution Percentage Amounts taken into account in determining the numerator of the Contribution Percentage actually made on behalf of Highly Compensated Employees for such Plan Year, over (b) the maximum Contribution Percentage Amounts permitted by the ACP Test (determined by hypothetically reducing contributions made on behalf of Highly Compensated Employees in order of their Contribution Percentages beginning with the highest of such percentages). The determination of Excess Aggregate Contributions will be made after first determining Excess Elective Deferrals, and then determining Excess Contributions Excess Contributions means, with respect to any Plan Year, the excess of: (a) the aggregate amount of Employer contributions taken into account in computing the ADP of Highly Compensated Employees for such Plan Year, over 12

13 (b) the maximum amount of such contributions permitted by the ADP Test (determined by hypothetically reducing contributions made on behalf of Highly Compensated Employees in order of their ADPs, beginning with the highest of such percentages) Excess Elective Deferrals means those Elective Deferrals of a Participant that either (a) are made during the Participant s taxable year and exceed the dollar limitation imposed by Section 402(g) of the Code (including, if applicable, the dollar limitation on Catch-up Contributions described in Section 414(v) of the Code) for such year, or (2) are made during a calendar year and exceed the dollar limitation imposed by Section 402(g) of the Code (including, if applicable, the dollar limitation on Catch-up Contributions described in Section 414(v) of the Code) for the Participant s taxable year beginning in such calendar year, counting only Elective Deferrals made under this Plan and any other plan, contract or arrangement maintained by the Employer Excluded Employee means an Employee who is in a category of Employees specifically excluded from participation in this Plan. The Excluded Employees under this Plan include: (a) (b) any Leased Employee, any Employee employed by the Employer under a PRN classification, (c) any Employee included in a unit of employees covered by a collective bargaining agreement between the Employer and employee representatives under which retirement benefits were the subject of good faith bargaining, unless such agreement specifically provides for participation in this Plan, (d) any Employee who is employed by an Affiliated Employer and not by the Employer, unless the Affiliated Employer has specifically adopted this Plan as a participating employer (with the approval of the Employer), and (e) any Employee who is not reported on the payroll records of the Employer as a common law employee. (More specifically, no individual treated as an independent contractor by the Employer or any other individual not treated as a common law employee by the Employer will be eligible to participate in this Plan, even if a court, the Internal Revenue Service, any other administrative agency or any other authority determines that such individual is or was in fact a common law employee of the Employer.) 2.41 Highly Compensated Employee means any Employee who, with respect to a particular Plan Year: 13

14 (a) was a 5-percent owner (as defined in Section 416(i)(1) of the Code) at any time during the Plan Year or the preceding Plan Year, or (b) for the preceding Plan Year had Compensation from the Employer in excess of $80,000. (The $80,000 threshold will be adjusted at the same time and in the same manner as under Section 415(d) of the Code, except that the base period is the calendar quarter ending September 30, 1996.) 2.42 Hour of Service means an hour described in subsection (a), subsection (b) or subsection (c) below, subject to the rules contained in subsection (d) and subsection (e) below: (a) Hours of Service will include each hour for which an Employee is paid, or entitled to payment, for the performance of duties for the Employer. Each such hour will be credited to the Employee for the computation period in which the duties are performed. (b) Hours of Service will include each hour for which an Employee is paid, or entitled to payment, by the Employer on account of a period of time during which no duties are performed (irrespective of whether the employment relationship has terminated) due to vacation, holiday, illness, incapacity (including disability), layoff, jury duty, military duty, or leave of absence. However, no more than 501 Hours of Service will be credited under this subsection (b) for any single continuous period (whether or not such period occurs in a single computation period). Hours under this subsection (b) will be calculated and credited pursuant to Section b-2 of the Department of Labor Regulations, which is incorporated herein by this reference. (c) Hours of Service will include each hour for which back pay, irrespective of mitigation of damages, is either awarded or agreed to by the Employer. The same hours will not be credited under both subsection (a) above or subsection (b) above, and under this subsection (c). These hours will be credited to the Employee for the computation period or periods to which the award or agreement pertains rather than the computation period in which the award, agreement or payment is made. (d) Hours of Service will be credited for employment with other members of an affiliated service group (under Section 414(m) of the Code), a controlled group of corporations (under Section 414(b) of the Code), or a group of trades or businesses under common control (under Section 414(c) of the Code) of which the Employer is a member, and any other entity required to be aggregated with the Employer pursuant to Section 414(o) of the Code. Hours of Service will also be credited for any individual considered to be an employee for purposes of this Plan under Section 414(n) of the Code or Section 414(o) of the Code. (e) Solely for purposes of determining whether a Break-in-Service for participation and vesting purposes has occurred in a computation period, an individual who is 14

15 absent from work for maternity or paternity reasons will receive credit for the Hours of Service which would have been credited to such individual but for such absence, or in any case in which the number of hours cannot be determined, eight (8) Hours of Service per day of such absence. For purposes of this subsection (e), an absence from work for maternity or paternity reasons means an absence (1) by reason of the pregnancy of the individual, (2) by reason of the birth of a child of the individual, (3) by reason of the placement of a child with the individual in connection with the adoption of such child by such individual, or (4) for purposes of caring for such child for a period beginning immediately following such birth or placement. The Hours of Service credited under this subsection (e) will be credited for the computation period in which the absence begins if the crediting is necessary to prevent a Break-in-Service in that period, or, in all other cases, for the following computation period Investment Manager means any Person who is appointed by the Employer for the purpose of serving as investment manager under this Plan and who satisfies the definition of investment manager contained in Section 3(38) of ERISA Key Employee means any Employee or former Employee (including any deceased Employee) who at any time during the Plan Year that contains the Top-Heavy Determination Date is: (a) an officer of the Employer with annual Compensation in excess of $130,000 (as adjusted under Section 416(i)(1) of the Code), $150,000. (b) (c) a 5% owner of the Employer, or a 1% owner of the Employer with annual Compensation in excess of All determinations of Key Employee status will be made in accordance with Section 416(i)(1) of the Code and applicable regulations and other guidance of general applicability issued under that section (including the definitions of officer, 5% owner and 1% owner contained in such Code section, regulations and other guidance) Leased Employee means any Person (other than an employee of the Employer) who, pursuant to an agreement between the Employer and any other Person (a leasing organization ), has performed services for the Employer (or for the Employer and related Persons determined in accordance with Section 414(n)(6) of the Code) on a substantially full-time basis for a period of at least one (1) year, if such services are performed under the primary direction or control of the Employer. 15

16 (a) Contributions or benefits provided to a Leased Employee by the leasing organization which are attributable to services performed for the Employer will be treated as provided by the Employer. (b) A Leased Employee will not be considered an employee of the Employer if: providing: (1) such employee is covered by a money purchase pension plan (A) a nonintegrated employer contribution rate of at least ten percent (10%) of compensation, as defined in Section 415(c)(3) of the Code, but including amounts contributed pursuant to a salary reduction agreement which are excludable from the employee s gross income under Section 125, 132(f), 402(e)(3), 402(h)(1)(B) or 403(b) of the Code, (B) (C) immediate participation, and full and immediate vesting; and (2) Leased Employees do not constitute more than 20% of the Employer s workforce (considering only Non-Highly Compensated Employees) Life Expectancy means life expectancy as determined by use of the Single Life Table in Section 1.401(a)(9)-9, Q. & A.-1, of the regulations Limitation Year means the period of twelve (12) consecutive months used for purposes of applying the limitations of Section 415 of the Code. The Limitation Year under this Plan will be the same as the Plan Year Matching Contribution means an Employer contribution made on behalf of a Participant on account of Elective Deferrals of the Participant Matching Contribution Account means the account of a Participant to which Matching Contributions and investment gains and losses on Matching Contributions are allocated Maximum Permissible Amount means the maximum amount which can be allocated to a Participant Account for a Limitation Year without exceeding the limitations on Annual Additions imposed by Section 415(c) of the Code and the provisions of this Plan implementing such limitations. 16

17 2.51 Nonelective Contribution Account means the account of a Participant to which Nonelective Contributions and investment gains and losses attributable to Nonelective Contributions are allocated Nonelective Contributions means those contributions made by the Employer pursuant to the provisions of Subsection 4.08(a) Non-Highly Compensated Employee means any Employee who is not a Highly Compensated Employee Normal Retirement Age means age sixty-five (65) Normal Retirement Date means the first day of the month immediately following, or coincident with, the date on which a Participant attains Normal Retirement Age Participant means any Employee who has met the eligibility and participation requirements of the Plan. The term includes any individual who is no longer employed by the Employer but has a fully or partially vested Account remaining in the Plan Permissive Aggregation Group means, for purposes of determining whether the Plan is Top-Heavy, the Required Aggregation Group 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 Person means, as required by the context in which it is used, an individual, partnership, joint venture, corporation, mutual company, joint-stock company, limited liability company, trust, estate, unincorporated organization, association, or employee organization Plan means this Davis Health System 401(k) Profit Sharing Plan, as it may be amended from time to time Plan Quarter means each period of three (3) consecutive months ending March 31, June 30, September 30 or December Plan Year means the period of twelve (12) consecutive months on which the records of the Plan are kept. The Plan Year under this Plan will be the same as the calendar year, i.e., each period of twelve (12) consecutive months beginning January 1 and ending December Qualified Domestic Relations Order means a domestic relations order meeting the requirements of Section 414(p) of the Code and Section 206(d)(3) of ERISA. 17

18 2.63 Qualified Reservist means an individual who is a member of a reserve component (as defined in Section 101 of Title 37 of the United States Code) and who is ordered or called to active duty after September 11, 2001 for a period in excess of one hundred seventy nine (179) days or an indefinite period Qualified Reservist Distribution means a distribution of Elective Deferrals to a Qualified Reservist during the period beginning on the date that the Qualified Reservist is ordered or called to active duty and ending on the last day of such active duty Required Aggregation Group means, for purposes of determining whether the Plan is Top-Heavy, the sum of the following: (a) each qualified plan of the Employer in which at least one Key Employee participates or participated at any time during the plan year containing the Top-Heavy Determination Date or any of the four preceding plan years (regardless of whether the plan has terminated), and (b) each other qualified plan of the Employer which enables a plan described in subsection (a) above to meet the requirements of Section 401(a)(4) or Section 410 of the Code Required Beginning Date will have a meaning determined as follows: (a) The Required Beginning Date of any Participant who is not a 5-percent owner is April 1 of the calendar year immediately following the later of (a) the calendar year in which the Participant attains age 70½, or (b) the calendar year in which the Participant retires. (b) The Required Beginning Date of any Participant who is a 5-percent owner is April 1 of the calendar year immediately following the calendar year in which the Participant attains age 70½. (1) A Participant is treated as a 5-percent owner for purposes of this section if such Participant is a 5-percent owner (as defined in Section 416 of the Code) at any time during the Plan Year ending coincident with or within the calendar year in which such owner attains age 70½. (2) After minimum distributions required under Section 401(a)(9) of the Code have begun to a 5-percent owner, they must continue to be distributed, even if the Participant ceases to be a 5-percent owner in a subsequent year Rollover Account means the account of a Participant to which Rollover Contributions and investment gains and losses attributable to Rollover Contributions are allocated. 18

19 2.68 Rollover Contributions means those amounts transferred to this Plan from another tax-qualified plan or an individual retirement account (or individual retirement annuity) pursuant to a rollover election by an Employee Section 415 Compensation will be determined and applied as follows: (a) Basic Definition: The term Section 415 Compensation means wages within the meaning of Section 3401(a) of the Code (for purposes of income tax withholding at the source), plus all other payments of compensation to an Employee by the Employer (in the course of the Employer s trade or business) for which the Employer is required to provide a written statement to the Employee under Section 6041(d), 6051(a)(3) or 6052 of the Code. Amounts that would be included in wages but for an election under Section 125(a), 132(f)(4), 402(e)(3), 402(h)(1)(B), 402(k) or 457(b) of the Code will be counted. Any rules that limit the remuneration included in wages based on the nature or location of the employment or the services performed (such as the exception for agricultural labor in Section 3401(a)(2) of the Code) will be disregarded for purposes of this definition. Also, Section 415 Compensation will include amounts that are includible in the gross income of an Employee under the rules of Section 409A or Section 457(f)(1)(A) of the Code or because the amounts are constructively received by the Employee. (b) General Timing Rules: (1) Except as otherwise specifically provided below, in order to be counted as Section 415 Compensation for a Limitation Year, compensation must be actually paid or made available to an Employee (or, if earlier, includible in the gross income of the Employee) within the Limitation Year. For this purpose, compensation is treated as paid on a date if it is actually paid on that date or it would have been paid on that date but for an election under Section 401(k), 403(b), 408(k), 408(p)(2)(A)(i), 457(b), 132(f), or 125 of the Code. (2) Except as otherwise specifically provided below, in order to be counted as Section 415 Compensation for a Limitation Year, compensation must be paid or treated as paid to the Employee (in accordance with the rules of subsection (b)(1) above) prior to severance from employment (within the meaning of Section 401(k)(2)(B)(i)(l) of the Code) with the Employer. (c) Regular Pay Exception: Any compensation described in this subsection (c) does not fail to be Section 415 Compensation pursuant to the rule of subsection (b)(2) above merely because it is paid after the Employee s severance from employment with the Employer, provided that the compensation is paid by the later of 2½ months after severance from employment with the Employer or the end of the Limitation Year that includes the date of severance from employment with the Employer. An amount is described in this subsection (c) if: 19

20 (1) The payment is regular compensation for services during the Employee s regular working hours, or compensation for services outside of the Employee s regular working hours (such as overtime or shift differential), commissions, bonuses, or other similar payments; and (2) The payment would have been paid to the Employee prior to a severance from employment if the Employee had continued in employment with the Employer. (d) Minor Timing Differences: Section 415 Compensation for a Limitation Year does not include amounts earned during that Limitation Year but not paid during that Limitation Year because of the timing of pay periods and pay dates, even if the amounts are paid during the first few weeks of the next Limitation Year. These amounts will be treated as Section 415 Compensation for the Limitation Year in which they are paid. (e) Payments for Sick, Vacation and Other Leave: The amounts described in this subsection (e) are included in Section 415 Compensation only if such amounts are paid by the end of the Limitation Year that includes the date of severance from employment with the Employer. An amount is described in this subsection (e) if the amount is a payment for unused, accrued, bona fide sick, vacation, or other leave, but only if the Employee would have been able to use the leave if employment had continued. (f) Deferred Compensation: Section 415 Compensation does not include amounts received by an Employee pursuant to a nonqualified, unfunded deferred compensation plan, even if the payment would have been paid to the Employee at the same time if the Employee had continued in employment with the Employer and even if the payment is includible in the Employee s gross income. (g) Military Service: The rule of subsection (b)(2) above does not apply to payments to an individual who does not currently perform services for the Employer by reason of qualified military service (to the extent those payments do not exceed the amounts the individual would have received if the individual had continued to perform services for the Employer rather than entering qualified military service). (h) Disability: The rule of subsection (b)(2) above applies to compensation paid to a Participant who is permanently and totally disabled (as defined in section 22(e)(3) of the Code), even if the Participant is not a Highly Compensated Employee (as defined in the Plan immediately before the date of the onset of the disability), or the Plan generally provides for the continuation of Compensation on behalf of all Participants who are permanently and totally disabled for a fixed or determinable period. (i) Severance Pay: Any payment that is not described in subsection (c), (e) or (g) above is not considered Section 415 Compensation if paid after severance from employment 20

21 with the Employer, even if it is paid within the time period described in any of such subsections. Thus, Section 415 Compensation does not include severance pay, or parachute payments within the meaning of Section 280G(b)(2) of the Code, if they are paid after severance from employment with the Employer. (j) Compensation Limit: The definition of Section 415 Compensation will not reflect compensation for a year that is in excess of the limitation of Section 401(a)(17) of the Code that applies to that year. However, the Plan will not be treated as failing to satisfy the preceding sentence merely because, under provisions of the Plan adopted and in effect before April 5, 2007, the Plan s definition of Compensation used for purposes of the limitations of Section 415(c) of the Code reflects compensation for a year in excess of the limitation of Section 401(a)(17) of the Code that applies to that year. (k) Purposes: (1) Notwithstanding any other provision in this Plan, the definition of Section 415 Compensation applies for purposes of applying the limitations of Section 415 of the Code, for purposes of determining whether any Employee is a Highly Compensated Employee, and for purposes of applying the Top-Heavy rules set forth in this Plan and Section 416 of the Code. (2) In addition to applying to the definition of Section 415 Compensation, the rules and adjustments described in subsection (b) above and the following subsections will apply to the definition of Compensation used for other purposes under the Plan, including, but not limited to, the Compensation from which Elective Deferrals can be made and the Compensation used to determine the amount or allocation of any Employer contributions to the Plan Spouse means the Person who is legally married to a Participant Supplemental Nonelective Contribution Account means the account of a Participant to which Supplemental Nonelective Contributions and investment gains and losses attributable to Supplemental Nonelective Contributions are allocated Supplemental Nonelective Contributions means those contributions made by the Employer pursuant to the provisions of Subsection 4.08(b) Surviving Spouse means the Person who is legally married to a Participant on the date of the Participant s death Top-Heavy means the status of this Plan if any of the following conditions exist: 21

22 (a) The Top-Heavy Ratio for this Plan exceeds sixty percent (60%) and this Plan is not part of any Required Aggregation Group or Permissive Aggregation Group. (b) This Plan is a part of a Required Aggregation Group but not part of a Permissive Aggregation Group and the Top-Heavy Ratio for the group exceeds sixty percent (60%). (c) This Plan is a part of a Required Aggregation Group and part of a Permissive Aggregation Group and the Top-Heavy Ratio for the Permissive Aggregation Group exceeds sixty percent (60%) Top-Heavy Determination Date means, for any Plan Year subsequent to the first Plan Year of the Plan, the last day of the immediately preceding Plan Year. For the first Plan Year of the Plan, Top-Heavy Determination Date meant the last day of that Plan Year Top-Heavy Ratio means the ratio used to determine whether the Plan is Top- Heavy, determined as follows: (a) If the Employer maintains one or more defined contribution plans (including any Simplified Employee Pension Plan) and the Employer has not maintained any defined benefit plan which during the five-year period ending on the Top-Heavy Determination Date has or has had accrued benefits, the Top-Heavy Ratio for this Plan alone or for the Required Aggregation Group 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 Top-Heavy Determination Date (including any part of any account balance distributed by reason of severance from employment, death or disability in the one-year period ending on the Top-Heavy Determination Date, and any part of any account balance distributed for any reason other than severance from employment, death or disability during the five-year period ending on the Top Heavy Determination Date), and the denominator of which is the sum of all account balances (including any part of any account balance distributed by reason of severance from employment, death or disability in the one-year period ending on the Top-Heavy Determination Date, and any part of any account balance distributed for any reason other than severance from employment, death or disability during the five-year period ending on the Top Heavy Determination Date), both computed in accordance with Section 416 of the Code and the regulations under that section. Both the numerator and the denominator of the Top-Heavy Ratio will be increased to reflect any contribution not actually made as of the Top-Heavy Determination Date, but which is required to be taken into account on that date under Section 416 of the Code or the regulations under that section. (b) If the Employer maintains one or more defined contribution plans (including any Simplified Employee Pension Plan) and the Employer maintains or has maintained one or more defined benefit plans which during the five-year period ending on the Top-Heavy Determination Date has or has had any accrued benefits, the Top-Heavy Ratio for any Required 22

23 Aggregation Group or Permissive Aggregation Group (as appropriate) is a fraction, the numerator of which is the sum of the account balances under the aggregated defined contribution plan or plans for all Key Employees (determined in accordance with (a) above) and the present value of the accrued benefits under the aggregated defined benefit plan or plans for all Key Employees as of the Top-Heavy 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 (a) above) and the present value of the accrued benefits under the defined benefit plan or plans for all participants as of the Top-Heavy Determination Date, all determined in accordance with Section 416 of the Code and the regulations under that section. The accrued benefits under a defined benefit plan included in both the numerator and denominator of the Top- Heavy Ratio will be increased for any distribution of an accrued benefit made by reason of severance from employment, death or disability in the one-year period ending on the Top-Heavy Determination Date, and any distribution of an accrued benefit made for any reason other than severance from employment, death or disability during the five-year period ending on the Top Heavy Determination Date. (c) For purposes of (a) and (b) above, the value of account balances and the present value of accrued benefits will be determined as of the most recent Annual Valuation Date that falls within or ends with the twelve-month period ending on the Top-Heavy Determination Date, except as provided in Section 416 of the Code and the regulations under that section for the first and second plan years of a defined benefit plan. (1) 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 who has not been credited with at least one Hour of Service with any employer maintaining the plan at any time during the one-year period ending on the Top-Heavy Determination Date, will be disregarded. (2) 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 under that section. Deductible employee contributions will not be taken into account for purposes of computing the Top-Heavy Ratio. (3) When aggregating plans, the value of account balances and accrued benefits will be calculated with reference to the Top-Heavy Determination Dates that fall within the same calendar year. (4) The accrued benefit of a participant other than a Key Employee will be determined under the method that uniformly applies for accrual purposes under all defined benefit plans maintained by the Employer, or, if there is no such method, as if such benefit accrued no more rapidly than the slowest accrual rate permitted under the fractional rule of Section 411(b)(1)(C) of the Code. 23