UNDER THE AGGREGATE
DEFINED CONTRIBUTION PLANS FOR ALL PARTICIPANTS, DETERMINED IN ACCORDANCE WITH
(IV) ABOVE, PLUS THE PRESENT VALUE OF ACCRUED BENEFITS UNDER THE DEFINED BENEFIT
PLANS FOR ALL SUCH PARTICIPANTS AS OF THE DETERMINATION DATE, ALL DETERMINED IN
ACCORDANCE WITH CODE SECTION 416; PROVIDED, HOWEVER, THAT THE NUMERATOR AND
DENOMINATOR OF THE TOP-HEAVY RATIO SHALL INCLUDE ANY ACCRUED BENEFIT UNDER A
DEFINED BENEFIT PLAN DISTRIBUTED WITHIN THE ONE YEAR PERIOD ENDING ON THE
DETERMINATION DATE DUE TO SEVERANCE FROM EMPLOYMENT, SEPARATION FROM SERVICE,
DEATH, OR DISABILITY, AND SHALL ALSO INCLUDE ANY PART OF ANY ACCOUNT BALANCE
DISTRIBUTED FOR ANY OTHER REASON WITHIN THE FIVE YEAR PERIOD ENDING ON THE
DETERMINATION DATE.
(III)
FOR PURPOSES OF DETERMINING THE TOP-HEAVY
RATIO, THE VALUE OF ACCOUNT BALANCES WILL BE DETERMINED AS OF THE MOST RECENT
TOP-HEAVY VALUATION DATE THAT FALLS WITHIN OR ENDS WITH THE TWELVE (12) MONTH
PERIOD ENDING ON THE DETERMINATION DATE, EXCEPT AS PROVIDED IN CODE SECTION 416
FOR THE FIRST AND SECOND PLAN YEARS OF A DEFINED BENEFIT PLAN. THE ACCOUNT
BALANCES OF ANY PARTICIPANT WHO (A) IS A NON-KEY EMPLOYEE, BUT WHO WAS A KEY
EMPLOYEE IN A PRIOR YEAR, OR (B) HAS NOT PERFORMED AN HOUR OF SERVICE WITH THE
COMPANY OR ANY AFFILIATE AT ANY TIME DURING THE ONE 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 CODE SECTION 416. WHEN AGGREGATING
PLANS, THE VALUE OF ACCOUNT BALANCES WILL BE CALCULATED WITH REFERENCE TO THE
DETERMINATION DATES THAT FALL WITHIN THE SAME CALENDAR YEAR.
(K)
TOP-HEAVY VALUATION DATE MEANS THE DATE AS
OF WHICH ACCOUNT BALANCES, OR ACCRUED BENEFITS, ARE VALUED TO CALCULATE THE
TOP-HEAVY RATIO.
5.4.2
IF THE PLAN IS DETERMINED TO BE A TOP-HEAVY PLAN AS
OF ANY DETERMINATION DATE, THEN NOTWITHSTANDING ANY PLAN PROVISION TO THE
CONTRARY, IT SHALL BE SUBJECT TO THE RULES SET FORTH IN THE BALANCE OF THIS
SECTION 5.4, BEGINNING WITH THE FIRST PLAN YEAR COMMENCING AFTER SUCH
DETERMINATION DATE.
5.4.3
(A)
EXCEPT AS
PROVIDED IN SECTION 5.4.3(B), AND EXCEPT TO THE EXTENT ANY OTHER DEFINED
CONTRIBUTION PLAN OR DEFINED BENEFIT PLAN PROVIDES SUCH MINIMUM BENEFIT TO THE
PARTICIPANT, FOR ANY PLAN YEAR IN WHICH THE PLAN IS A TOP-HEAVY PLAN,
CONTRIBUTIONS AND FORFEITURES ALLOCATED TO THE EMPLOYER ACCOUNT OF ANY
PARTICIPANT WHO IS A NON-KEY EMPLOYEE (WHETHER OR NOT SUCH PARTICIPANT HAS
COMPLETED 1,000 HOURS OF SERVICE IN THAT PLAN YEAR) IN RESPECT OF THAT PLAN YEAR
SHALL NOT BE LESS THAN THE SMALLER OF:
(I)
3% OF SUCH PARTICIPANT'S LIMITATION
COMPENSATION, OR
(II)
THE LARGEST PERCENTAGE OF CONTRIBUTIONS
AND FORFEITURES, AS A PERCENTAGE OF THE KEY EMPLOYEE'S COMPENSATION, ALLOCATED
TO THE ACCOUNT OF ANY KEY EMPLOYEE FOR THAT YEAR.
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(B)
THE PROVISION IN (A) ABOVE SHALL NOT APPLY
TO ANY PARTICIPANT WHO WAS NOT EMPLOYED BY THE COMPANY OR AN AFFILIATE ON THE
LAST DAY OF THE