eTrade 2001 Annual Report Download - page 191

except as
6
provided below, as an employee, agent, consultant, advisor, independent contractor, general partner, officer, director, stockholder,
investor, lender or guarantor of any corporation, partnership or other entity, or in any other capacity directly or indirectly:
i.engage in any activity, in any market where E*TRADE conducts business, in which Executive participates, manages or advises in the
design, development, marketing, sale or servicing of any product related to global institutional and retail internet securities trading,
clearing services or execution (hereafter referred to as “the Business”);
ii.induce, encourage or solicit any individual who was employed by E*TRADE within six (6) months of the date his employment with
E*TRADE terminates to leave the Company for any reason or to accept employment with any other company, or to employ, interview
or arrange to have business opportunities offered to any such individual; or
iii.permit his name to be used in connection with a business which is competitive or substantially similar to the Business.
Notwithstanding the foregoing, Executive may own, directly or indirectly, solely as an investment, up to one percent (1%) of any class
of “publicly traded securities” of any person or entity which owns a business that is competitive or substantially similar to the
Business. The term “publicly traded securities” shall mean securities that are traded on a national securities exchange of listed on the
National Association of Securities Dealers Automated Quotation System.
If any restriction set forth in this non-competition section is found by a court to be unreasonable, then Executive agrees, and hereby
submit, to the reduction and limitation of such prohibition to such area or period as shall be deemed reasonable. Executive
acknowledges that the services that Executive will provide to E*TRADE under this Agreement are unique and that irreparable harm
will be suffered by E*TRADE in the event of the breach by Executive of any of his obligations under this Agreement, and that
E*TRADE will be entitled, in addition to its other rights, to enforce by an injunction or decree of specific performance the obligations
set forth in this Agreement. Any claims asserted by Executive against E*TRADE shall not constitute a defense in any injunction action
brought by E*TRADE to obtain specific enforcement of said paragraphs.
Executives agree that if the Company establishes that Executive, or those acting in concert with Executive or on his behalf, materially
violate the Non-Competition provision in any way, the Company shall be entitled to recover the reasonable attorneys’ fees and
litigation expenses incurred, arising out of or relating to the Company’ s efforts to prevent the breach, to establish that a breach has
occurred, to enforce the Non-Competition provisions or to seek to redress a breach, including any appeals if necessary. If the Company
fails to establish that Executive, or those acting in concert with Executive or on his behalf, have materially violated any of the
Non-Competition provisions in any way, Executive shall be entitled to reimbursement of reasonable attorneys’ fees and litigation
expenses incurred in his defense.
7
7. Arbitration. The parties each agree that any and all disputes between them which arise out of Executive’ s employment, the
termination of his employment, or under the terms of this Agreement shall be resolved through final and binding arbitration. This shall
include, without limitation, disputes relating to this Agreement, any disputes regarding Executive’ s employment by E*TRADE or the
termination thereof, claims for breach of contract or breach of the covenant of good faith and fair dealing, and any claims of
discrimination or other claims under any federal, state or local law or regulation now in existence or hereinafter enacted and as
amended from time to time concerning in any way the subject of his employment with E*TRADE or its termination. The only claims
not covered by this section are the following: (i) claims for benefits under the unemployment insurance or workers’ compensation
2002. EDGAR Online, Inc.