eTrade 2008 Annual Report Download - page 212

Employee participates in two or more such plans or arrangements that have different plan years, all Contribution
Percentage Amounts made during the Plan Year shall be aggregated. For Plan Years beginning before January 1, 2006, all
such plans and arrangements ending with or within the same calendar year shall be treated as a single plan or arrangement.
The foregoing notwithstanding, certain plans shall be treated as separate if mandatorily disaggregated under the regulations
of Code Section 401(m).
In the event this Plan satisfies the requirements of Code Section 401(m), 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 Contribution 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(m)-2(c)(4) of the regulations, then any adjustments to the Nonhighly
Compensated Employee ACP 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(m) only if
they have the same plan year and use the same testing method for the ACP Test.
For purposes of the ACP Test, Participant Contributions are considered to have been made in the Plan Year in which
contributed to the Plan. Matching Contributions and Qualified Nonelective Contributions will be considered to have been
made for a Plan Year if made no later than the end of the 12-month period beginning on the day after the close of the Plan
Year.
Notwithstanding any other provisions of this Plan, Excess Aggregate Contributions, plus any income and minus any loss
allocable thereto, shall be forfeited, if not vested, or distributed, if vested, no later than 12 months after the last day of a
Plan Year to Participants to whose Accounts such Excess Aggregate Contributions were allocated for such Plan Year.
Excess Aggregate Contributions are allocated to the Highly Compensated Employees with the largest Contribution
Percentage Amounts taken into account in calculating the ACP Test for the year in which the excess arose, beginning with
the Highly Compensated Employee with the largest amount of such Contribution Percentage Amounts and continuing in
descending order until all of the Excess Aggregate Contributions have been allocated. For Plan Years beginning on or after
January 1, 2006, if a Highly Compensated Employee participates in two or more plans or arrangements of the Employer or
of a Controlled Group member that include Contribution Percentage Amounts, the amount distributed shall not exceed the
Contribution Percentage Amounts taken into account in calculating the ACP Test and made to this Plan for the year in
which the excess arose. If such Excess Aggregate 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 Aggregate Contributions shall be treated as Annual Additions, as defined in the CONTRIBUTION LIMITATION
SECTION of this article, even if distributed.
The Excess Aggregate Contributions shall be adjusted for any income or loss. The income or loss allocable to such Excess
Aggregate Contributions allocated to each Participant shall be equal to the income or loss allocable to the Participant’s
Contribution Percentage Amounts for the Plan Year in which the excess occurred multiplied by a fraction. The numerator
of the fraction is the Excess Aggregate Contributions. The denominator of the fraction is the closing balance without
RESTATEMENT DECEMBER 15, 2006 45 ARTICLE III (5-19047)