eTrade 2008 Annual Report Download - page 211

If this is not a successor plan, for the first Plan Year the Plan permits any Participant to make Participant
Contributions, provides for Matching Contributions, or both, for purposes of the foregoing tests, the prior year’s
Nonhighly Compensated Employees’ ACP shall be 3 percent, unless the Employer has elected to use the Plan
Year’s ACP for these Eligible Participants.
If the Employer has elected to use the current year testing method, that election cannot be changed unless (i) the
Plan has been using the current year testing method for the preceding five Plan Years, or if less, the number of Plan
Years the Plan has been in existence; or (ii) if as a result of a merger or acquisition described in Code Section 410(b)
(6)(C)(i), the Employer maintains both a plan using the prior year testing method and a plan using the current year
testing method and the change is made within the transition period described in Code Section 410(b)(6)(C)(ii).
A Participant is a Highly Compensated Employee for a particular Plan Year if he meets the definition of a Highly
Compensated Employee in effect for that Plan Year. Similarly, a Participant is a Nonhighly Compensated Employee for a
particular Plan Year if he does not meet the definition of a Highly Compensated Employee in effect for that Plan Year.
The Contribution Percentage for any Eligible Participant who is a Highly Compensated Employee for the Plan Year and
who is eligible to have Contribution Percentage Amounts allocated to his account under two or more plans described in
Code Section 401(a) or arrangements described in Code Section 401(k) that are maintained by the Employer or a
Controlled Group member shall be determined as if the total of such Contribution Percentage Amounts was made under
each plan and arrangement. For Plan Years beginning on or after January 1, 2006, if a Highly Compensated
(ii) The ACP for a Plan Year for Eligible Participants who are Highly Compensated Employees for the Plan Year:
A. shall not exceed the prior year’s ACP for Eligible Participants who were Nonhighly Compensated
Employees for the prior Plan Year multiplied by 2, and
B. the difference between such ACPs is not more than 2.
(2) Current Year Testing Method. The ACP for a Plan Year for Eligible Participants who are Highly Compensated
Employees for each Plan Year and the ACP for Eligible Participants who are Nonhighly Compensated Employees
for the Plan Year must satisfy one of the following tests:
(i) The ACP for a Plan Year for Eligible Participants who are Highly Compensated Employees for the Plan Year
shall not exceed the ACP for Eligible Participants who are Nonhighly Compensated Employees for the Plan
Year multiplied by 1.25; or
(ii) The ACP for a Plan Year for Eligible Participants who are Highly Compensated Employees for the Plan Year:
A. shall not exceed the ACP for Eligible Participants who are Nonhighly Compensated Employees for the
Plan Year multiplied by 2, and
B. the difference between such ACPs is not more than 2.
RESTATEMENT DECEMBER 15, 2006 44 ARTICLE III (5-19047)