eTrade 2008 Annual Report Download - page 249

The accrued benefit of a participant other than a Key Employee shall be determined under (i) the method, if any, that
uniformly applies for accrual purposes under all defined benefit plans maintained by the Employer, or (ii) if there is no
such method, as if such benefit accrued not more rapidly than the slowest accrual rate permitted under the fractional rule of
Code Section 411(b)(1)(C).
any part of any account balance distributed in the one-year period ending on the Determination Date(s) and distributions
under a terminated plan which if it had not been terminated would have been required to be included in the Aggregation
Group), both computed in accordance with Code Section 416 and the regulations thereunder. In the case of a distribution
made for a reason other than Severance from Employment, death, or disability, this provision shall be applied by
substituting “five-year period” for “one-year period.” 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.
(b) If the Employer maintains one or more defined contribution plans (including any simplified employee pension plan) and
the Employer maintains or has maintained one or more defined benefit plans which during the five-year period ending on
the Determination Date(s) has or has had accrued benefits, the Top-heavy Ratio for any required or permissive
Aggregation Group, as appropriate, is a fraction, the numerator of which is the sum of the account balances under the
aggregated defined contribution plan or plans of all Key Employees determined in accordance with (a) above, and the
present value of accrued benefits under the aggregated defined benefit plan or plans for all Key Employees as of the
Determination Date(s), and the denominator of which is the sum of the account balances under the aggregated defined
contribution plan or plans for all participants, determined in accordance with (a) above, and the present value of accrued
benefits under the defined benefit plan or plans for all participants as of the Determination Date(s), all determined in
accordance with Code Section 416 and the regulations thereunder. The accrued benefits under a defined benefit plan in
both the numerator and denominator of the Top-heavy Ratio are increased for any distribution of an accrued benefit made
in the one-year period ending on the Determination Date (and distributions under a terminated plan which if it had not been
terminated would have been required to be included in the Aggregation Group). In the case of a distribution made for a
reason other than Severance from Employment, death, or disability, this provision shall be applied by substituting “five-
year period” for “one-year period.”
(c) For purposes of (a) and (b) above, the value of account balances and the present value of accrued benefits will be
determined as of the most recent Valuation Date that falls within or ends with the 12-month period ending on the
Determination Date, except as provided in Code Section 416 and the regulations thereunder for the first and second plan
years of a defined benefit plan. The account balances and accrued benefits of a participant (i) who is not a Key Employee
but who was a Key Employee in a prior year or (ii) who has not been credited with at least one hour of service with any
employer maintaining the plan at any time during the one-year period ending on the Determination Date will be
disregarded. The calculation of the Top-heavy Ratio and the extent to which distributions, rollovers, and transfers are taken
into account will be made in accordance with Code Section 416 and the regulations thereunder. Deductible employee
contributions will not be taken into account for purposes of computing the Top-heavy Ratio. When aggregating plans, the
value of account balances and accrued benefits will be calculated with reference to the Determination Dates that fall within
the same calendar year.
RESTATEMENT DECEMBER 15, 2006 82 ARTICLE XI (5-19047)