eTrade 2008 Annual Report Download - page 247

ARTICLE XI
TOP-HEAVY PLAN REQUIREMENTS
SECTION 11.01—APPLICATION.
The provisions of this article shall supersede all other provisions in the Plan to the contrary. The provisions of this article shall
apply for purposes of determining whether the Plan is a Top-heavy Plan for Plan Years beginning after December 31, 2001, and
whether the Plan satisfies the minimum benefit requirements of Code Section 416(c) for such years.
For the purpose of applying the Top-heavy Plan requirements of this article, all members of the Controlled Group shall be
treated as one Employer. The term Employer, as used in this article, shall be deemed to include all members of the Controlled Group,
unless the term as used clearly indicates only the Employer is meant.
The accrued benefit or account of a participant that results from deductible employee contributions shall not be included for any
purpose under this article.
The minimum vesting and contribution provisions of the MODIFICATION OF VESTING REQUIREMENTS and
MODIFICATION OF CONTRIBUTIONS SECTIONS of this article shall not apply to any Employee who is included in a group of
Employees covered by a collective bargaining agreement which the Secretary of Labor finds to be a collective bargaining agreement
between employee representatives and one or more employers, including the Employer, if there is evidence that retirement benefits
were the subject of good faith bargaining between such representatives. For this purpose, the term “employee representatives” does
not include any organization more than half of whose members are employees who are owners, officers, or executives.
SECTION 11.02—DEFINITIONS.
For purposes of this article the following terms are defined:
Aggregation Group means:
(a) each of the Employer’s qualified plans in which a Key Employee is a participant during the Plan Year containing the
Determination Date (regardless of whether the plans have terminated) or one of the four preceding Plan Years,
(b) each of the Employer’s other qualified plans which allows the plan(s) described in (a) above to meet the nondiscrimination
requirement of Code Section 401(a)(4) or the minimum coverage requirement of Code Section 410, and
(c) any of the Employer’s other qualified plans not included in (a) or (b) above which the Employer desires to include as part
of the Aggregation Group. Such a qualified plan shall be included only if the Aggregation Group would continue to satisfy
the requirements of Code Sections 401(a)(4) and 410.
RESTATEMENT DECEMBER 15, 2006
80 ARTICLE XI (5-19047)