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