In any plan year in which this plan is top-heavy (as defined in [Section 5.4(d)(2)]), the top-heavy minimum benefit requirement with respect to a participant shall first be met by any allocation to the qualified nonelective contribution account for the plan year. Then, the contributions and forfeitures allocable to the profit sharing account shall be adjusted as necessary for compliance. The total of the contributions and forfeitures allocated to such account(s) of each participant shall not be less than an amount equal to 3% of his compensation or the largest percentage of elective deferral contribution, employer contribution, and forfeiture allocated on behalf of any key employee for that year, whichever is less.

The top-heavy minimum benefit requirements shall be met as provided under [Section 3.2(c)(2)] concerning profit sharing and qualified nonelective contribution allocations.

Top-Heavy Plan. This Plan is top-heavy if any of the following conditions exist:

Top-Heavy Plan. The Plan shall be deemed “Top-Heavy” with respect to any Plan Year if, as of the last day of the preceding Plan Year (the “Determination Date”), the present value of the cumulative account balances for “Key Employees,” as defined in Code Section 416(i), under the Plan and all other plans in the “Aggregation Group,” as defined below, exceeds 60% of the present value, as of the Determination Date, of the cumulative account balances under all such plans for all employees of the Affiliates. For purposes of this Article XI, # the term “Aggregation Group” shall mean each plan of the Affiliates in which a Key Employee participates and each other plan of the Affiliates that enables such plan to meet the requirements of Code Section 401(a)(4) or 410; # the present value of such account balances shall be computed in accordance with Code Section 416(g); and # the above percentage ratio shall be determined as of the Determination Date by a fraction, the numerator of which is the sum of the present value of the account balances of Key Employees under the Plan and all other plans in the Aggregation Group and the denominator of which is the sum of the present value of the account balances under all such plans, including the Plan, for all employees of the Affiliates. The accrued benefits of a Participant who did not perform any services for an Employer during the one-year period ending on the Determination Date shall be disregarded.

Top-Heavy Provisions Control in Top-Heavy Plan. In the event this Plan becomes top-heavy and a conflict arises between the top-heavy provisions herein set forth and the remaining provisions set forth in this Plan, the top-heavy provisions shall control.

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 that during the five-year period ending on the determination date(s) 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(s) including any part of any account balance distributed in the one-year period ending on the determination date(s) (five-year period ending on the determination date in the case of a distribution made for a reason other than severance from employment, death or disability and in determining whether the plan is top-heavy for plan years beginning before January 1, 2002), and the denominator of which is the sum of all account balances including any part of any account balance distributed in the one-year period ending on the determination date(s) (five-year period ending on the determination date in the case of a distribution made for a reason other than severance from employment, death or disability and in determining whether the plan is top-heavy for plan years beginning before January 1, 2002), both computed in accordance with Code section 416 and the regulations thereunder. 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 Code section 416 and the regulations thereunder.

Elective deferrals (and for plan years beginning before January 1, 2002 employer matching contributions) will not be taken into account for the purpose of satisfying the minimum top-heavy contribution requirement. However, qualified nonelective contributions and employer matching contributions (for plan years beginning on or after January 1, 2002) may be taken into account for this purpose as provided in [Section 3.2(c) or 3.3(b)])], as appropriate.

taken into account in determining the minimum allocation under [Section 5.4(b)]; however, catch-up contributions made in prior years shall be taken into account in determining whether the plan is top-heavy.

If in any subsequent Plan Year the Plan ceases to be a Top-Heavy Plan, then unless a specific Plan amendment is made to provide otherwise, the Administrator will continue to use the vesting schedule in effect while the Plan was a Top -Heavy Plan.

Top-Heavy Plan means a plan described in Section 12.3.