since it's the ADP test (and not coverage) there is an option to treat all HCEs as having met the requirements.
Relius calls it carve out when you 'carve out' just the NHCEs who don't meet the requirements.
It's Friday, John probably forgot about that testing option.
The ESOP document is not silent on the matter. The ESOP document has provisions for when distributions are to be made. If the ESOP document does not say that it allows in-service distributions (no matter what age), then they are not allowed. There is no external mandate for in-service distributions unless the particpant is an owner.
The ESOP document is equally silent about whether or not it will pay benefits if you stand on your head.
If any of you are doing these submissions, I have to give the IRS credit for this document. Very very well done. Step by Step instructions, written in English (no kidding!).
http://www.irs.gov/pub/irs-tege/vcp_submission_kit_403b.pdf