ADP/ACP when Seller's plan terminated and HCE's then move to Buyer's plan mid-year

[Trekker]

FACTS: Stock Acquisition occurred 12/31/08. Buyer continued Acquired Entity's plan for the first 3 months of 2009, then the Plan was terminated. (We know they should have terminated the Plan prior to acquisiton.) Acquired Entity remains, now as a controlled group member, and it adopted Buyer's plan as a participating employer effective April 1, 2009. All of Acquired Entity's employees now participate in Buyer's Plan. There are no termination of employment issues.

The HCE's (as well as non-HCEs) of Acquired Entity participated in their old plan for three months and then the Buyer's plan for the remaining nine months of 2009.

QUESTIONS: Do the mandatory aggregation rules of IRC 401(k)(3)(A) apply in this situation, which state that if an HCE participates in more than one CODA of the Employer, the deferral amounts in all such arrangements are added together in computing the HCE's ADP under each arrangement.

Of course, the desired answer is that this statute refers to ongoing plans and does not contemplate terminating plans of an acquired entity who happens to now be part of the controlled group. The affected HCEs were only eligible to participate in one plan at a time and never in both at the same time.

We've looked at the 410(b)(6) transition rule but can not conclude that we get a pass on the aggregation.

Any thougts and cites are much appreciated!