eTrade 2008 Annual Report Download - page 250

SECTION 11.03—MODIFICATION OF VESTING REQUIREMENTS.
If a Participant’s Vesting Percentage determined under Article I is not at least as great as his Vesting Percentage would be if it
were determined under a schedule permitted in Code Section 416, the following shall apply. During any Plan Year in which the Plan
is a Top-heavy Plan, the Participant’s Vesting Percentage shall be the greater of the Vesting Percentage determined under Article I or
the schedule below.
The schedule above shall not apply to Participants who are not credited with an Hour of Service after the Plan first becomes a
Top-heavy Plan. The Vesting Percentage determined above applies to the portion of the Participant’s Account that is multiplied by a
Vesting Percentage to determine his Vested Account, including benefits accrued before the effective date of Code Section 416 and
benefits accrued before this Plan became a Top-heavy Plan.
If, in a later Plan Year, this Plan is not a Top-heavy Plan, a Participant’s Vesting Percentage shall be determined under Article I.
A Participant’s Vesting Percentage determined under either Article I or the schedule above shall never be reduced and the election
procedures of the AMENDMENTS SECTION of Article X shall apply when changing to or from the schedule as though the
automatic change were the result of an amendment.
The part of the Participant’s Vested Account resulting from the minimum contributions required pursuant to the
MODIFICATION OF CONTRIBUTIONS SECTION of this article (to the extent required to be nonforfeitable under Code
Section 416(b)) may not be forfeited under Code Section 411(a)(3)(B) or (D).
SECTION 11.04—MODIFICATION OF CONTRIBUTIONS.
During any Plan Year in which this Plan is a Top-heavy Plan, the Employer shall make a minimum contribution as of the last
day of the Plan Year for each Nonkey Employee who is an Employee on the last day of the Plan Year and who was an Active
Participant at any time during the Plan Year. A Nonkey Employee is not required to have a minimum number of Hours of Service or
minimum amount of Compensation in order to be entitled to this minimum. A Nonkey Employee who fails to be an Active Participant
merely because his Compensation is less than a stated amount or merely because of a failure to make mandatory participant
contributions or, in the case of a cash or deferred arrangement, elective contributions shall be treated as if he were an Active
Participant. The minimum is the lesser of (a) or (b) below:
VESTING SERVICE
(whole
y
ears)
NONFORFEITABLE
PERCENTAGE.
Less than 3 0
3 or more
100
(a) 3 percent of such person’s Compensation for such Plan Year.
(b) The “highest percentage” of Compensation for such Plan Year at which the Employer’s Contributions are made for or
allocated to any Key Employee. The highest percentage shall be determined by dividing the Employer Contributions made
for or allocated to each Key Employee during the Plan Year by the amount of his Compensation for such Plan Year, and
selecting the greatest quotient (expressed as a percentage). To determine the highest percentage, all of the
RESTATEMENT DECEMBER 15, 2006 83 ARTICLE XI (5-19047)