eTrade 2008 Annual Report Download - page 204

are forfeited either to correct Excess Aggregate Contributions or because the contributions to which they relate are Excess
Elective Deferrals, Excess Contributions, or Excess Aggregate Contributions. Under such rules as the Secretary of the
Treasury shall prescribe, in determining the Contribution Percentage the Employer may elect to include Qualified
Nonelective Contributions under this Plan that were not used in computing the Deferral Percentage. For plan years
beginning on or after January 1, 2006, Qualified Nonelective Contributions cannot be taken into account for a plan year for
a Nonhighly Compensated Employee to the extent they are disproportionate contributions as defined in section 1.401(m)-2
(a)(6)(v) of the regulations. The Employer may also elect to use Elective Deferral Contributions in computing the
Contribution Percentage so long as the ADP Test is met before the Elective Deferral Contributions are used in the ACP
Test and continues to be met following the exclusion of those Elective Deferral Contributions that are used to meet the
ACP Test.
Deferral Percentage means the ratio (expressed as a percentage) of Elective Deferral Contributions (other than Catch-up
Contributions) under this Plan on behalf of the Eligible Participant for the Plan Year to the Eligible Participant’s
Compensation for the Plan Year (whether or not the Eligible Participant was an Eligible Participant for the entire Plan
Year). In modification of the foregoing, Compensation shall be limited to the Compensation received while an Eligible
Participant. The Elective Deferral Contributions used to determine the Deferral Percentage shall include Excess Elective
Deferrals (other than Excess Elective Deferrals of Nonhighly Compensated Employees that arise solely from Elective
Deferral Contributions made under this Plan or any other plans of the Employer or a Controlled Group member), but shall
exclude Elective Deferral Contributions that are used in computing the Contribution Percentage (provided the ADP Test is
satisfied both with and without exclusion of these Elective Deferral Contributions). Under such rules as the Secretary of the
Treasury shall prescribe, the Employer may elect to include Qualified Nonelective Contributions and Qualified Matching
Contributions under this Plan in computing the Deferral Percentage. For Plan Years beginning on or after January 1, 2006,
Qualified Matching Contributions cannot be taken into account for a Plan Year for a Nonhighly Compensated Employee to
the extent they are disproportionate matching contributions as defined in section 1.401(m)-2(a)(5)(ii) of the regulations.
For Plan Years beginning on or after January 1, 2006, Qualified Nonelective Contributions cannot be taken into account
for a Plan Year for a Nonhighly Compensated Employee to the extent they are disproportionate contributions as defined in
section 1.401(k)-2(a)(6)(iv) of the regulations. For an Eligible Participant for whom such contributions on his behalf for the
Plan Year are zero, the percentage is zero.
Elective Deferral Contributions means any employer contributions made to a plan at the election of a participant in lieu
of cash compensation. With respect to any taxable year, a participant’s Elective Deferral Contributions are the sum of all
employer contributions made on behalf of such participant pursuant to an election to defer under any qualified cash or
deferred arrangement described in Code Section 401(k), any salary reduction simplified employee pension plan described
in Code Section 408(k)(6), any SIMPLE IRA plan described in Code Section 408(p), any plan described under Code
Section 501(c)(18), and any employer contributions made on behalf of a participant for the purchase of an annuity contract
under Code Section 403(b) pursuant to a salary reduction agreement. For taxable years beginning after December 31, 2005,
Elective Deferral Contributions include Pre-tax Elective Deferral Contributions and Roth Elective Deferral Contributions.
Elective Deferral Contributions shall not include any deferrals properly distributed as excess annual additions.
RESTATEMENT DECEMBER 15, 2006 37 ARTICLE III (5-19047)