eTrade 2009 Annual Report Download - page 229

22
(b) with respect to a Separation from Service on or after attaining age fifty-five (55) and five (5) Years of Service, either a
single lump sum payment or substantially equal annual installments over a period of five (5), ten (10) or fifteen (15) years.
11.26“Plan” shall mean the Company’s Deferred Compensation Plan, which shall be evidenced by this instrument, as amended from
time-to-time.
11.27“Plan Year” shall mean a period beginning on January 1 of each calendar year and continuing through December 31 of such
calendar year.
11.28“Related Company” shall mean the Company and all persons with whom the Company would be considered a single employer
under Code section 414(b) (employees of controlled group of corporations), and all persons with whom such person would be
considered a single employer under Code section 414(c) (employees of partnerships, proprietorships, etc., under common
control); provided that in applying Code sections 1563(a)(1), (2), and (3) for purposes of determining a controlled group of
corporations under Code section 414(b), the language “at least 50 percent” is used instead of “at least 80 percent” each place it
appears in Code sections 1563(a)(1), (2), and (3), and in applying Treasury Regulation section 1.414(c)-2 for purposes of
determining trades or businesses (whether or not incorporated) that are under common control for purposes of Code section 414
(c), “at least 50 percen
t
” is used instead of “at least 80 percen
t
” each place it appears in Treasury Regulation section 1.414(c)-2.
11.29“Separation from Service” shall mean that the Participant terminates employment within the meaning of Treasury Regulation
section 1.409A-1(h) and other applicable guidance with all Related Companies. Whether a termination of employment has
occurred is determined under the facts and circumstances, and a termination of employment shall occur if all Related Companies
and the Participant reasonably anticipate that no further services shall be performed after a certain date or that the level of bona
fide services the Participant shall perform after such date (as an employee or an independent contractor) shall permanently
decrease to no more than 20 percent of the average level of bona fide services performed (whether as an employee or an
independent contractor) over the immediately preceding 36-month period (or the full period of services to the Related
Companies if the Participant has been providing services to the Related Companies less than 36 months). A Participant shall not
be considered to separate from service during a bona fide leave of absence for less than six (6) months or longer if the
Participant retains a right to reemployment with the any Related Company by contract or statute. With respect to disability
leave, a Participant shall not be considered to separate from service for 29 months unless the Participant otherwise terminates
employment or is terminated by all Related Companies. For purposes of determining whether a Separation from Service has
occurred on account of a disability, a Participant shall be disabled if the Participant is suffering from any medically
determinable physical or mental impairment resulting in the Participant’s inability to perform the duties of his position