eTrade 2008 Annual Report Download - page 209

year shall be treated as a single arrangement. The foregoing notwithstanding, certain plans shall be treated as separate if
mandatorily disaggregated under the regulations of Code Section 401(k).
In the event this Plan satisfies the requirements of Code Section 401(k), 401(a)(4), or 410(b) only if aggregated with one or
more other plans, or if one or more other plans satisfy the requirements of such Code sections only if aggregated with this
Plan, then this section shall be applied by determining the Deferral Percentage of Employees as if all such plans were a
single plan. If more than 10 percent of the Employer’s Nonhighly Compensated Employees are involved in a plan coverage
change as defined in section 1.401(k)-2(c)(4) of the regulations, then any adjustments to the Nonhighly Compensated
Employee ADP for the prior year shall be made in accordance with such regulations, unless the Employer has elected to
use the current year testing method. Plans may be aggregated in order to satisfy Code Section 401(k) only if they have the
same plan year and use the same testing method for the ADP Test.
For purposes of the ADP Test, Elective Deferral Contributions, Qualified Nonelective Contributions, and Qualified
Matching Contributions must be made before the end of the 12-month period immediately following the Plan Year to
which the contributions relate.
If the Plan Administrator should determine during the Plan Year that the ADP Test is not being met, the Plan Administrator
may limit the amount of future Elective Deferral Contributions of the Highly Compensated Employees.
Notwithstanding any other provisions of this Plan, Excess Contributions, plus any income and minus any loss allocable
thereto, shall be distributed no later than 12 months after the last day of a Plan Year to Participants to whose Accounts such
Excess Contributions were allocated for such Plan Year, except to the extent such Excess Contributions are classified as
Catch-up Contributions. Excess Contributions are allocated to the Highly Compensated Employees with the largest
amounts of employer contributions taken into account in calculating the ADP Test for the year in which the excess arose,
beginning with the Highly Compensated Employee with the largest amount of such employer contributions and continuing
in descending order until all of the Excess Contributions have been allocated. For Plan Years beginning on or after
January 1, 2006, if a Highly Compensated Employee participates in two or more cash or deferred arrangements of the
Employer or of a Controlled Group member, the amount distributed shall not exceed the amount of the employer
contributions taken into account in calculating the ADP test and made to this Plan for the year in which the excess arose. If
Catch-up Contributions are allowed for the Plan Year being tested, to the extent a Highly Compensated Employee has not
reached his Catchup Contribution limit under the Plan for such year, Excess Contributions allocated to such Highly
Compensated Employee are Catch-up Contributions and will not be treated as Excess Contributions. If such excess
amounts (other than Catch-up Contributions) are distributed more than 2
1
/ 2 months after the last day of the Plan Year in
which such excess amounts arose, a 10 percent excise tax shall be imposed on the employer maintaining the plan with
respect to such amounts.
Excess Contributions shall be treated as Annual Additions, as defined in the CONTRIBUTION LIMITATION SECTION
of this article, even if distributed.
The Excess Contributions shall be adjusted for any income or loss. The income or loss allocable to such Excess
Contributions allocated to each Participant shall be equal to the income or loss
RESTATEMENT DECEMBER 15, 2006 42 ARTICLE III (5-19047)