eTrade 2007 Annual Report Download

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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
ÈANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934 FOR THE FISCAL YEAR ENDED DECEMBER 31, 2007.
or
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 FOR THE TRANSITION PERIOD FROM TO .
Commission File Number 1-11921
E*TRADE Financial Corporation
(Exact Name of Registrant as Specified in its Charter)
Delaware 94-2844166
(State or Other Jurisdiction
of Incorporation or Organization)
(I.R.S. Employer
Identification Number)
135 East 57th Street, New York, New York 10022
(Address of Principal Executive Offices and Zip Code)
(646) 521-4300
(Registrant’s Telephone Number, including Area Code)
Securities Registered Pursuant to Section 12(b) of the Act:
(Title of each class and Name of exchange on which registered)
Common Stock—$0.01 par value—NASDAQ
Mandatory Convertible Notes
Securities Registered Pursuant to Section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasonal issuer, as defined in Rule 405 of the Securities
Act. Yes ÈNo
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of
the Securities Act. Yes No È
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of
the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ÈNo
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained
herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated
filer or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ÈAccelerated filer
Non-accelerated filer (Do not check if a smaller reporting company) Smaller reporting company
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes No È
At June 30, 2007, the aggregate market value of voting stock, comprised of the registrant’s common stock and
shares exchangeable into common stock, held by nonaffiliates of the registrant was approximately $7.4 billion (based
upon the closing price for shares of the registrant’s common stock as reported by the NASDAQ Global Select Market
on that date). Shares of common stock held by each officer, director and holder of 5% or more of the outstanding
common stock have been excluded in that such persons may be deemed to be affiliates. This determination of affiliate
status is not necessarily a conclusive determination for other purposes.
Number of shares outstanding of the registrant’s common stock as of February 22, 2008: 461,992,712
DOCUMENTS INCORPORATED BY REFERENCE
Definitive Proxy Statement relating to the Company’s Annual Meeting of Shareholders to be filed hereafter
(incorporated into Part III hereof).

Table of contents

  • Page 1
    ... OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE FISCAL YEAR ENDED DECEMBER 31, 2007. or ' TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM TO . Commission File Number 1-11921 E*TRADE Financial Corporation (Exact Name of...

  • Page 2
    ...Review ...Balance Sheet Overview ...Liquidity and Capital Resources ...Risk Management ...Summary of Critical Accounting Policies and Estimates ...Required Statistical Disclosure by Bank Holding Companies ...Glossary of Terms ...Quantitative and Qualitative Disclosures about Market Risk ...Financial...

  • Page 3
    ......Note 14-Securities Sold Under Agreement to Repurchase and Other Borrowings ...Note 15-Corporate Debt ...Note 16-Accounts Payable, Accrued and Other Liabilities ...Note 17-Income Taxes ...Note 18-Shareholders' Equity ...Note 19-Earnings (Loss) per Share ...Note 20-Employee Share-Based Payments and...

  • Page 4
    ...to another; and • E*TRADE Securities LLC is a registered broker-dealer and provider of brokerage services to both retail and institutional customers. A complete list of our subsidiaries can be found in Exhibit 21.1. We offer, either alone or with our partners, branded retail websites in the United...

  • Page 5
    ... account access; and • Lending-includes mortgage, home equity, margin and credit card products that offer online loan status and quick transfer. Our primary institutional product is market making. Retail Our retail segment offers a full suite of financial solutions to retail customers including...

  • Page 6
    ... mortgage loans, including home equity lines of credit, secured by singlefamily residences; and • credit cards that earn miles or offer rewards for commission-free trades, travel or merchandise. All of our retail products are covered by the E*TRADE Complete Protection Guarantee. Retail customers...

  • Page 7
    ... large block trading activity on the New York Stock Exchange ("NYSE") and NASDAQ exchanges. In addition, we provide institutional customers with trade execution services, including direct access to international exchanges. Our web-based platform offers real-time, online access to statements and...

  • Page 8
    ... global financial services company. To achieve that goal, we continue to invest in and grow our international operations. We offer services in international markets directly through our website at www.etrade.com as well as through additional branded retail brokerage websites in Canada, Denmark...

  • Page 9
    ... the Financial Services Authority ("FSA"), Securities & Futures Commission and the Investment Dealers Association ("IDA"). We make our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and amendments to those reports, available free of charge at our website as...

  • Page 10
    ... $3.40 per share, for the year ended December 31, 2007, due primarily to losses in our home equity loan and asset-backed securities portfolios. We also experienced a substantial diminution of customer assets and accounts as a result of the losses experienced in our institutional business segment. It...

  • Page 11
    ... active customers who receive lower pricing Online investing services to the retail customer, including trading and margin lending, account for a significant portion of our revenues. A downturn in or disruption to the securities markets may lead to changes in volume and price levels of securities...

  • Page 12
    ...deposits. A sharp change in security market values may result in losses if counterparties to the borrowing and lending transactions fail to honor their commitments. We may be unsuccessful in managing the effects of changes in interest rates and the enterprise interest-earning assets in our portfolio...

  • Page 13
    ... our customers' employee stock option and stock purchase plans. In December 2004, the Financial Accounting Standards Board ("FASB") issued Statement of Financial Accounting Standard ("SFAS") No. 123(R), Share-Based Payment, which among other things required public companies to expense employee stock...

  • Page 14
    ... altogether the services we could provide to clients in exchange for commissions, we may realize a decrease in our institutional commission revenues. Similarly, E*TRADE Financial Corporation, E*TRADE Re, LLC and ETB Holdings, Inc., as savings and loan holding companies, and E*TRADE Bank, as...

  • Page 15
    ...to Risk-weighted Assets and Tier 1 Capital to adjusted total assets ratios. As a non-grandfathered savings and loan holding company, we are subject to regulations that could restrict our ability to take advantage of certain business opportunities We are required to file periodic reports with the OTS...

  • Page 16
    ... free under the terms of the Investment Agreement to sell the equity securities it received under the Investment Agreement and any such sales may have a depressing effect on the trading price of our common stock. In addition, Citadel's 12 1⁄ 2% springing lien notes contain restrictive covenants...

  • Page 17
    ... adequate funds are not available on acceptable terms, we may be unable to fund our plans for the growth of our business. In addition, if funds are available, the issuance of equity securities could dilute the value of our shares of our common stock and cause the market price of our common stock to...

  • Page 18
    ... of New York against certain directors and officers of MarketXT seeking declaratory relief and unspecified monetary damages for defendants' fraud in connection with the 2002 sale, including, but not limited to, having presented the Company with fraudulent financial statements regarding the condition...

  • Page 19
    ... in delinquency rates in its mortgage and home equity portfolios; failed to timely record an impairment on its mortgage and home equity portfolios; materially overvalued its securities portfolio, which includes assets backed by mortgages; and based on the foregoing, lacked a reasonable basis for the...

  • Page 20
    ... Company's loan and securities portfolios. That inquiry is continuing. The Company is cooperating fully with the SEC in this matter. An unfavorable outcome in any matter that is not covered by insurance could have a material adverse effect on our business, financial condition, results of operations...

  • Page 21
    ...paid cash dividends on our common stock. Although we do not currently have any plans to do so, we may pay dividends in the future. Equity Compensation Plan Information Refer to Note 20-Employee Shared-Based Payments and Other Benefits in Item 8. Financial Statements and Supplementary Data for equity...

  • Page 22
    ... 12/02 12/03 12/04 12/05 12/06 12/07 E*TRADE Financial Corporation S & P 500 S & P Super Cap Diversified Financials * $100 invested on 12/31/02 in stock or index-including reinvestment of dividends. Fiscal year ending December 31. Copyright © 2008, Standard & Poor's, a division of The McGraw-Hill...

  • Page 23
    ...(Dollars in millions): December 31, 2005 Variance 2007 vs. 2006 2007 2006 2004 2003 Financial Condition: Available-for-sale mortgage-backed and investment securities Total loans, net Margin receivables Total assets Deposits Corporate debt Shareholders' equity $11,255.0 $30,139.4 $ 7,179.2 $56...

  • Page 24
    ...vs. 2006 Key Measures: Retail client assets(1) Customer cash and deposits(1) Total daily average revenue trades Average commission per trade Enterprise net interest spread (basis points)(2) Enterprise interest-earning assets, average(2) Total employees (period end) (1) $ $ 190.0 33.6 187,022 $ 11...

  • Page 25
    ... the Glossary of Terms, which is located at the end of Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations. OVERVIEW Strategy Our strategy centers on growing our global customer base and mitigating the risks associated with our balance sheet. We plan to grow...

  • Page 26
    ... impact the reporting of these items on our balance sheet. Revenue growth is the difference between the current and prior comparable period total net revenue divided by the prior comparable period total net revenue. Customer Activity Metrics • Retail client assets are an indicator of the value of...

  • Page 27
    ... financial growth. Launch of Global Trading Platform We launched our Global Trading Platform, which provides the ability to buy, sell and hold foreign equities in local currencies to investors who seek liquidity and diversity in their portfolios. Our U.S. customers now have access to foreign stocks...

  • Page 28
    ... E*TRADE Complete Savings Account We launched the E*TRADE Complete Savings Account, which allows customers to quickly and easily take advantage of investment opportunities by offering a competitive annual percentage yield, no minimums in balances or account fees and free transfers to any institution...

  • Page 29
    ... per share amounts) Year Ended December 31, 2007 2006 Variance 2007 vs. 2006 Total net revenue Net operating interest income Provision for loan losses Net operating interest income after provision for loan losses Commission revenue Fees and service charges revenue Operating margin Net income (loss...

  • Page 30
    ... second quarters of 2007. Beginning in the second half of 2007, we altered our strategy and halted our previous focus on growing our balance sheet. For the foreseeable future, we plan to allow our interest earning assets, particularly our mortgage-backed securities and home equity loans, to pay down...

  • Page 31
    ... year ended December 31, 2007 compared to 2006. Net operating interest income is earned primarily through holding credit balances, which includes margin, real estate and consumer loans, and by holding customer cash and deposits, which are a low cost source of funding. The increase in net operating...

  • Page 32
    ... by Bank Holding Companies" (dollars in thousands): Year Ended December 31, 2007 Average Balance Enterprise interest-earning assets: Loans, net(1) Margin receivables Mortgage-backed and related available-for-sale securities Available-for-sale investment securities Trading securities Cash and cash...

  • Page 33
    ...first and second quarters of 2007. Beginning in the second half of 2007, we altered our strategy and halted the focus on growing the balance sheet. For the foreseeable future, we plan to allow our interest earning assets, particularly our mortgage-backed securities and home equity loans, to pay down...

  • Page 34
    ... for loan losses will continue at historically high levels in future periods as the crisis in the residential real estate and credit markets continues to impact the performance of our loan portfolio. Commission Commission revenue increased 11% to $694.1 million for the year ended December 31, 2007...

  • Page 35
    ...): Year Ended December 31, 2007 2006 Variance 2007 vs. 2006 Amount Gain on sales of originated loans Loss on sales of loans held-for-sale, net Gain (loss) on sales of loans, net Gain (loss) on securities and other investments Loss on asset-backed securities sale to Citadel Loss on impairment Loss...

  • Page 36
    The decrease in the total gain (loss) on loans and securities, net during the year ended December 31, 2007 was due primarily to the $2.2 billion loss on the sale of our asset-backed securities portfolio in the fourth quarter of 2007. Other Revenue Other revenue increased 36% to $47.5 million for the...

  • Page 37
    ... in thousands): Year Ended December 31, 2007 2006 Variance 2007 vs. 2006 Amount % Other income (expense): Corporate interest income Corporate interest expense Gain on sales of investments, net Loss on early extinguishment of debt Equity in income of investments and venture funds Total other income...

  • Page 38
    ... on sales of investments, net. During 2006, we sold shares of our investments in SBI and International Securities Exchange Holdings, Inc. ("ISE") resulting in gains of $71.7 million. Income Tax Expense (Benefit) The income tax benefit from continuing operations was $736.0 million for the year ended...

  • Page 39
    ... to its customer base and local market practices, and as a result, a change in the relative numbers of executed trades in these businesses impacts average commission per trade. Each business also has different trade types (e.g. equities, options, fixed income, ETFs, CFDs and mutual funds) that can...

  • Page 40
    ... operations at these locations in addition to severance charges for those employees to whom we communicated our plans and who were terminated as part of this relocation during the year. (1) In July 2005 we adopted SFAS No. 123 (R), Share-Based Payment, which requires the expensing of stock options...

  • Page 41
    ... was $70.8 million in gain on sales and impairment of investments. During 2006, we sold shares of our investments in SBI and International Securities Exchange Holdings, Inc. ("ISE") resulting in gains of $71.7 million. Income Tax Expense Income tax expense from continuing operations increased 31% to...

  • Page 42
    ... segment income: Net operating interest income Commission Fees and service charges Gain on loans and securities, net Other revenue Net segment revenue Total segment expense Total retail segment income Key Metrics: Retail client assets (dollars in billions)(1) Customer cash and deposits (dollars in...

  • Page 43
    ... in net operating interest income and commission revenue, offset by lower gain on sales of loans and securities, net. Retail net operating interest income after provision for loan losses increased 98% to $883.6 million for the year ended December 31, 2006 compared to 2005. Average margin receivables...

  • Page 44
    ..., market-making and global execution and settlement services. Balance sheet management activities include purchasing loan receivables from the retail segment as well as third parties, and leveraging these loans and retail customer cash and deposit relationships to generate additional net operating...

  • Page 45
    ... in service fee income as a result of lower rates and lower home equity, credit card and CDO management fees. Gain (loss) on loans and securities, net decreased to a loss of $2.5 billion for the year ended December 31, 2007. This decline was due primarily to the $2.2 billion loss on the sale of...

  • Page 46
    ...: Cash and equivalents(1) Trading securities Available-for-sale mortgage-backed and investment securities Loans held-for-sale Margin receivables Loans receivable, net Investment in FHLB stock Other assets(2) Total assets Liabilities and shareholders' equity: Deposits Wholesale borrowings(3) Customer...

  • Page 47
    ... intend to allow our home equity and consumer loan portfolios to decline over time. As a general matter, we do not originate or purchase sub-prime(1) loans to hold on our balance sheet; however, in the normal course of purchasing large pools of real estate loans, we invariably end up acquiring a de...

  • Page 48
    ... Collateralized mortgage obligations and other Total mortgage-backed securities Investment securities: Asset-backed securities Municipal bonds Publicly traded equity securities: Preferred stock Corporate investments Other Total investment securities Total available-for-sale securities $ 9,330...

  • Page 49
    ...our home equity loan portfolio, we believe our retail customer base has stabilized, and will return to growth in 2008. The deposits balance is a component of the total customer cash and deposits balance reported as a customer activity metric of $33.6 billion for the year ended December 31, 2007. The...

  • Page 50
    ... and second quarters of 2007, the Bank used these wholesale sources along with deposit growth to fund the increase in loans receivable. We expect total other borrowings to decline in future periods as we focus on replacing this funding with growth in retail deposits. Corporate Debt Corporate debt is...

  • Page 51
    ... and equivalents balance increased to $1.8 billion for the period ended December 31, 2007. Cash and equivalents at E*TRADE Financial Corporation, on a standalone holding company basis, increased $112.1 million to $251.7 million due primarily to an increase in cash provided by operating activities of...

  • Page 52
    ... in cash within one year of the end of the reporting period. As of December 31, 2007, the Company had $6.3 billion of unused lines of credit available to customers under home equity lines of credit and $0.5 billion of unused credit card and commercial lines. As of December 31, 2007, outstanding...

  • Page 53
    ..., credit and enterprise risk management. Interest Rate Risk Management Interest rate risk is the risk of loss from adverse changes in interest rates. Interest rate risks are monitored and managed by the E*TRADE Bank's Asset Liability Committee ("ALCO"). The ALCO reviews balance sheet trends, market...

  • Page 54
    ... Equity Loans-Prime credit quality second-lien mortgage loans, including home equity lines of credit, secured by single-family residences. We originate loans primarily through our mortgage lending sales force. The loans are almost entirely secured by a primary residence for the purpose of purchase...

  • Page 55
    ... percent of our total real estate loan portfolio and we held no option ARM loans. As noted above, we believe loan type, loan-to-value ratios and borrowers' credit scores are key determinates of future loan performance. Our home equity loan portfolio is primarily second lien loans(1) on residential...

  • Page 56
    ... the year ended December 31, 2007. In addition to the factors described above, we monitor credit trends in loans by acquisition channel and vintage, which are summarized below as of December 31, 2007 (dollars in thousands): One- to Four-Family December 31, December 31, 2007 2006 Home Equity December...

  • Page 57
    ...rising mortgage interest rates and home price depreciation in key markets contributed to the declining performance of our home equity loan portfolio. Second, concerns that began in the sub-prime mortgage loan market spread to the broader credit markets beginning in the second half of 2007, resulting...

  • Page 58
    ... Home equity Recreational vehicle Marine Credit card Other Total charge-offs Recoveries: One- to four-family Home equity Recreational vehicle Marine Credit card Other Total recoveries Net charge-offs Allowance for loan losses, end of period Net charge-offs to average loans receivable outstanding...

  • Page 59
    ... market, specifically home price depreciation combined with tighter mortgage lending guidelines, will likely lead to a higher level of charge-offs in the future. The following graph illustrates the net charge-offs by quarter: Net Charge-offs Trend 3.50% 3.00% Charge-offs, net as a % of average loans...

  • Page 60
    .... Loans held-for-sale are accounted for at lower of cost or market value with adjustments recorded in the gain (loss) on loans and securities, net line item and are not considered in the allowance for loan losses. During the year ended December 31, 2007, our nonperforming assets, net increased...

  • Page 61
    ..., rate and term modifications, re-aging programs and short sale options. During 2007, an insignificant number of borrowers have utilized these programs. We are also focused on managing the exposure of undrawn home equity lines of credit. These efforts include, but are not limited to: • Restricting...

  • Page 62
    ... the average credit ratings by type of asset as of December 31, 2007 and 2006 (dollars in thousands): AA or Higher Below Investment Grade December 31, 2007 A BBB Non-Rated Total Mortgage-backed securities Asset-backed securities Corporate bonds, municipal bonds and preferred stock Total $10...

  • Page 63
    ... losses inherent in our loan portfolio as of the balance sheet date. At December 31, 2007, our allowance for loan losses was $508.2 million on $30.2 billion of loans designated as held-for-investment. In addition to our banking loans, we extend credit to brokerage customers in the form of margin...

  • Page 64
    ... are included in gain on sales of loans and securities, net for our banking investments and gain on sales and impairment of investments for our brokerage (other than those held for market-making purposes) and corporate investments. We have investments in certain publicly-traded and privately-held...

  • Page 65
    customer deposits and other short-term borrowings with interest rates that are fixed for a shorter period of time, if at all. The Bank purchases interest rate derivatives, including interest rate swaps, caps and floors, to manage this difference between long-term and short-term interest rates and to...

  • Page 66
    ...amount of goodwill associated with our balance sheet management business, which had a significant decline in fair value during the fourth quarter of 2007, was determined to be impaired. We also evaluate the remaining useful lives on intangible assets each reporting period to determine whether events...

  • Page 67
    ... Loans ...Summary of Loan Loss Experience Analysis of Allowance for Loan Losses ...Allocation of the Allowance for Loan Losses ...Deposits Average Balance and Average Rates Paid ...Time Deposit Maturities ...Time Deposits in Excess of $100,000 ...Return of Equity and Assets ...Short-Term Borrowings...

  • Page 68
    ...: Loans, net(1) Margin receivables Mortgage-backed and related available-for-sale securities Available-for-sale investment securities Trading securities Cash and cash equivalents Stock borrow and other Total interest-earning banking assets(2) Interest-bearing banking liabilities: Retail deposits...

  • Page 69
    Lending Activities The following table presents the balance and associated percentage of each major loan category in our portfolio (dollars in thousands): 2007 Balance %(1) One- to four-family Home equity Consumer and other loans: Recreational vehicle Marine Commercial Credit card Other Total ...

  • Page 70
    ...We buy and hold mortgage-backed trading securities principally for the purpose of selling them in the near term. These securities are carried at market value and any realized or unrealized gains and losses are reflected in our consolidated statement of income as gain on sales of loans and securities...

  • Page 71
    ... the cost basis and fair value of our mortgage-backed securities and investment portfolio that the Bank held and classified as available-for-sale (dollars in thousands): 2007 Cost Basis Fair Value December 31, 2006 Cost Fair Basis Value 2005 Cost Basis Fair Value Mortgage-backed securities: Backed...

  • Page 72
    ... repurchase agreements as borrowings and secure them with designated fixed- and variable-rate securities. We also participate in the Federal Reserve Bank's term investment option and treasury, tax and loan borrowing programs. We use the proceeds from these transactions to meet our cash flow or asset...

  • Page 73
    ...Adjusted total assets-Bank-only assets composed of total assets plus/(less) unrealized losses (gains) on available-for-sale securities, less deferred tax assets, goodwill and certain other intangible assets. Average commission per trade-Total retail segment commission revenue divided by total number...

  • Page 74
    ... Street Investor-The customer segment that includes those who execute less than 30 trades per quarter and hold less than $50,000 in assets in combined retail accounts. Margin debt-The extension of credit to brokerage customers of the Company, on and off balance sheet, where the loan is secured with...

  • Page 75
    ...assets-Market value of all client assets held by the Company including security holdings, customer cash and deposits and vested unexercised options. Retail deposits-Balances of retail customer cash held at the Bank; excludes brokered certificates of deposit. Return on average total assets-Annualized...

  • Page 76
    ... capital adequacy ratios at E*TRADE Bank as required by the OTS. Tier 1 capital equals: total shareholder's equity at E*TRADE Bank, plus/(less) unrealized losses (gains) on available-for-sale securities and cash flow hedges, less deferred tax assets, goodwill and certain other intangible assets. 73

  • Page 77
    ... and long term notes. Our transactional deposit accounts and customer payables tend to be less rate-sensitive than wholesale borrowings. Agreements to repurchase securities and money market accounts re-price as interest rates change. Certificates of deposit re-price over time depending on maturities...

  • Page 78
    ... a fair value of zero, will fluctuate in value during the lock period as market interest rates change. See mortgage banking activities discussion at Note 8-Accounting for Derivative Financial Instruments and Hedging Activities in Item 8. Financial Statements and Supplementary Data. Scenario Analysis...

  • Page 79
    ... and in trading securities for market-making purposes. The foreign currency exchange risk associated with these investments is not material to the Company. For corporate investment purposes, we currently hold publicly traded equity securities, in which we had an estimated fair value of $1.3 million...

  • Page 80
    ... management's assessment, management believes as of December 31, 2007, that E*TRADE Financial Corporation's internal control over financial reporting is effective based on those criteria. E*TRADE Financial Corporation's Independent Registered Public Accounting Firm, Deloitte & Touche LLP, has issued...

  • Page 81
    ... Organizations of the Treadway Commission. We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated financial statements as of and for the year ended December 31, 2007 of the Company and our report dated February 28...

  • Page 82
    ... (loss), shareholders' equity, and cash flows for each of the three years in the period ended December 31, 2007. These consolidated financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these consolidated financial statements based on...

  • Page 83
    ... share amounts) Year Ended December 31, 2007 2006 2005 Revenue: Operating interest income Operating interest expense Net operating interest income Provision for loan losses Net operating interest income after provision for loan losses Commission Fees and service charges Principal transactions Gain...

  • Page 84
    E*TRADE FINANCIAL CORPORATION AND SUBSIDIARIES CONSOLIDATED BALANCE SHEET (In thousands, except share amounts) December 31, 2007 2006 ASSETS Cash and equivalents Cash and investments required to be segregated under Federal or other regulations Trading securities Available-for-sale mortgage-backed ...

  • Page 85
    ...TRADE FINANCIAL CORPORATION AND SUBSIDIARIES CONSOLIDATED STATEMENT OF COMPREHENSIVE INCOME (LOSS) (In thousands) Year Ended December 31, 2007 2006 2005 Net income (loss) Other comprehensive loss: Available-for-sale securities: Unrealized gains (losses), net Reclassification into earnings, net Net...

  • Page 86
    ...Shares Amount Capital Deficit) Loss Equity Balance, December 31, 2004 Net income Cumulative effect of accounting change Other comprehensive loss Exercise of stock options and purchase plans, including tax benefit Issuance of common stock upon exercise of forward contract Employee stock purchase plan...

  • Page 87
    ... balance Net loss Other comprehensive loss Issuance of common stock related to the Citadel Investment(1) Exercise of stock options and purchase plans, including tax benefit Repurchases of common stock Issuance of restricted stock Cancellation of restricted stock Retirement of restricted stock to pay...

  • Page 88
    ... Purchases of trading securities Decrease (increase) in other assets Increase (decrease) in accounts payable, accrued and other liabilities Facility restructuring liabilities Net cash provided by operating activities Cash Flows From Investing Activities: Purchases of available-for-sale mortgage...

  • Page 89
    ... thousands) 2007 Year Ended December 31, 2006 2005 Cash Flows From Financing Activities: Net increase (decrease) in deposits Net increase (decrease) in securities sold under agreements to repurchase Net increase (decrease) in other borrowed funds Advances from other long-term borrowings Payments on...

  • Page 90
    ... investment securities portfolio. Gain (loss) on sales of investments, net relates to historical equity investments of the Company at the corporate level and are not related to the ongoing business of the Company's operating subsidiaries. New Income Statement Reporting Format-During the year ended...

  • Page 91
    ... the year ended December 31, 2007, the Company re-presented its balance sheet to report margin receivables and customer payables directly on the face of the balance sheet. The remaining components of brokerage receivables and brokerage payables are now reported in the "Other assets" and "Accounts...

  • Page 92
    ... trading securities and financial derivative instruments, that are not designated for hedge accounting, are bought and held principally for the purpose of selling them in the near term and are carried at estimated fair value based on quoted market prices. Realized and unrealized gains and losses...

  • Page 93
    ... the assets sold and the net cash proceeds received. These gains or losses are recorded in the gain (loss) on loans and securities, net line item in the consolidated statement of income (loss). Fair value is determined based on quoted market prices, if available. Generally, quoted market prices are...

  • Page 94
    ... portfolio at the balance sheet date. Loan losses are charged and recoveries are credited to the allowance for loan losses. Property and Equipment, Net-Property and equipment are carried at cost and depreciated on a straight-line basis over their estimated useful lives, generally three to ten years...

  • Page 95
    ... impairment charges in service charges and fees in the consolidated statement of income (loss). Servicing assets are included in the other assets line item in the consolidated balance sheet. As of January 1, 2008, the Company elected to account for servicing rights under the fair value measurement...

  • Page 96
    ... corporate interest expense over the life of the debt using the interest method. The value of the stock purchase contracts is included in equity based on the requirements of SFAS No. 150, Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity, and EITF Issue...

  • Page 97
    ... (losses) on available-for-sale mortgage-backed and investment securities and the effective portion of the unrealized gains (losses) on financial derivatives in cash flow hedge relationships, net of reclassification adjustments and related taxes. Earnings Per Share-Basic earnings (loss) per share is...

  • Page 98
    ...value being reported in the gain (loss) on loans and securities, net line item in the consolidated statement of income (loss). Revenue Recognition Operating Interest Income-Operating interest income is recognized as earned on interest-earning assets, customer margin receivable balances, stock borrow...

  • Page 99
    ... service charges consist of account maintenance fees, servicing fee income, payments for order flow, foreign exchange margin revenue, 12b-1 fees after rebates, fixed income product revenue and management fee revenue. Account maintenance fees are charges to the customer either quarterly or annually...

  • Page 100
    ...Company's financial condition, results of operations or cash flows in future periods. SFAS No. 159-The Fair Value Option for Financial Assets and Financial Liabilities In February 2007, the FASB issued SFAS No. 159, The Fair Value Option for Financial Assets and Financial Liabilities. This Statement...

  • Page 101
    ... 2006, the Company completed its acquisition of RAA, a Dallas, Texas-based investment advisor managing over $1 billion in assets. The aggregate purchase price of approximately $24.9 million included $19.8 million, or 0.8 million shares, in common stock issued and $5.1 million in cash. At acquisition...

  • Page 102
    ... a table summarizing the gains (losses), net of taxes, resulting from the sale and closure of discontinued operations (dollars in thousands): Year Ended December 31, 2006 2005 E*TRADE Professional(1) Consumer Finance Corporation-origination business(2) Gain, net of tax, on disposal of discontinued...

  • Page 103
    ...thousands): Year Ended December 31, 2007 2006 2005 Restructuring of institutional equity business Exit of wholesale mortgage origination channel 2003 Restructuring Plan 2001 Restructuring Plan Exit of Consumer Finance Corporation-servicing business Other exit activities Total facility restructuring...

  • Page 104
    ... with 43 E*TRADE Zones located in Target stores. These unprofitable product lines consisted of our Stock Basket product offered to customers and our online advisory service, eAdvisor, a joint initiative with Enlight Holdings, LLC. The Company terminated its revenue sharing agreements associated with...

  • Page 105
    ...clearing operations and costs related to the relocation of certain accounting functions. The Company incurred charges of $0.9 million and $29.2 million for the years ended December 31, 2007 and 2006, respectively, related to costs for exiting those facilities. The total charge for this exit activity...

  • Page 106
    ...): 2007 Year Ended December 31, 2006 2005 Operating interest income: Loans, net Mortgage-backed and investment securities Margin receivables Other Total operating interest income Operating interest expense: Deposits Repurchase agreements and other borrowings FHLB advances Other Total operating...

  • Page 107
    ... amortized cost basis and estimated fair values of available-for-sale mortgage-backed and investment securities are shown in the following tables (dollars in thousands): Amortized Cost Gross Unrealized Gains Gross Unrealized Losses Estimated Fair Values December 31, 2007: Mortgage-backed securities...

  • Page 108
    ...December 31, 2007 and 2006, respectively, of available-for-sale securities as collateral for federal reserves, repurchase agreements and short-term borrowings. Other-Than-Temporary Impairment of Investments The following tables show the fair values and unrealized losses on investments, aggregated by...

  • Page 109
    ... securities Realized losses on sales of available-for-sale securities Realized loss on asset-backed securities sale to Citadel Losses on impairment Gains (loss) on sales of trading securities Total gain (loss) on securities, net Gain (loss) on loans and securities, net Gain on Sales of Investments...

  • Page 110
    ..., 2007 2006 Loans held-for-sale Loans receivable, net: One- to four-family Home equity Consumer and other loans: Recreational vehicle Marine Commercial Credit card Other Total consumer and other loans Total loans receivable Unamortized premiums, net Allowance for loan losses Total loans receivable...

  • Page 111
    ... from third parties. A summary of these activities is presented below (dollars in thousands): 2007 Year Ended December 31, 2006 2005 Loans sold: Originated Purchased Total loans sold Gain (loss) on sales of loans: Originated Purchased Total gain (loss) on sales of loans, net $1,354,523 885,026...

  • Page 112
    .... NOTE 8-ACCOUNTING FOR DERIVATIVE FINANCIAL INSTRUMENTS AND HEDGING ACTIVITIES The Company enters into derivative transactions to protect against the risk of market price or interest rate movements on the value of certain assets, liabilities and future cash flows. The Company is also required to...

  • Page 113
    ...: Pay-fixed interest rate swaps: Mortgage-backed securities Recreational vehicle loans Home equity loans Investment securities Asset backed securities Receive-fixed interest rate swaps: Brokered certificates of deposit FHLB advances Purchased interest rate options(1): Caps Swaptions(2) Floors Total...

  • Page 114
    ... match the terms of the securities purchased or sold. Changes in the fair value of derivatives that hedge cash flows associated with repurchase agreements, FHLB advances and home equity lines of credit are reported in accumulated other comprehensive income as unrealized gains or losses. The amounts...

  • Page 115
    ... statement of income (loss). Cash flow and fair value ineffectiveness are re-measured on a quarterly basis. The following table summarizes income (expense) recognized by the Company as fair value and cash flow hedge ineffectiveness (dollars in thousands): Year Ended December 31, 2007 2006...

  • Page 116
    ...as closed loans held-for-sale, expose the Company to interest rate risk. The Company manages this risk by selling mortgages or mortgage-backed securities on a forward basis referred to as forward sale agreements. Changes in the fair value of these derivatives are included as gain (loss) on loans and...

  • Page 117
    ..., $37.3 million and $34.7 million for the years ended December 31, 2007, 2006 and 2005, respectively. Completed projects are carried at cost and are amortized on a straight-line basis over their estimated useful lives, generally four years. Amortization expense for the capitalized amounts was $28...

  • Page 118
    ... other assets line item during 2007. See Note 11-Other Assets for further discussion. For the year ended December 31, 2007, the changes in the carrying value of goodwill are the result of the Company recognizing an impairment of goodwill related the Company's Balance Sheet Management business. The...

  • Page 119
    ...): December 31, 2007 2006 Deferred tax asset Income tax receivable Deposit paid for securities borrowed Accrued interest receivable Net settlements and deposits with clearing organizations Bank owned life insurance policy(1) Other investments Other receivables from brokers, dealers and clearing...

  • Page 120
    ... entity's expected losses. The Company purchased only 20% of the equity interests (i.e., preference shares) in CDOs IV-VI and as Collateral Manager has the right to receive collateral management fees under each deal. During the fourth quarter of 2007, the Company reached an agreement to sell all of...

  • Page 121
    ... $2,328,087 $ 721,392 479,166 287,593 458,292 $1,946,443 Year Ended December 31, 2007 2006 2005 Sweep deposit account Money market and savings accounts Certificates of deposit Brokered certificates of deposit Checking accounts Total interest expense $102,131 464,084 224,649 25,402 5,689 $821,955...

  • Page 122
    ... (dollars in thousands): Repurchase Agreements Other Borrowings FHLB Advances Other Weighted Average Interest Rate Total Years Ending December 31, 2008 2009 2010 2011 2012 Thereafter Subtotal Fair value adjustments Total borrowings at December 31, 2007 Total borrowings at December 31, 2006 $7,374...

  • Page 123
    ... loans at December 31, 2007. Other borrowings also includes $12.0 million of overnight and other short-term borrowings in connection with the Federal Reserve Bank's term investment option and treasury, tax and loan programs. The Company pledged $12.0 million of securities to secure these borrowings...

  • Page 124
    ... payable semi-annually and notes are non-callable for four years and may then be called by the Company at a premium, which declines over time. Debt issuance costs of $9.6 million are being amortized over the term of the senior notes. In November 2007, $46.2 million of the 8% Notes were exchanged for...

  • Page 125
    ... to purchase, and the Company to sell, at a purchase price of $25.00 in cash, a variable number of shares of the Company's common stock. The stock conversion ratio varies depending on the average closing price of the Company's common stock over a 20-day trading period ending on the third trading day...

  • Page 126
    ... other borrowings on the consolidated balance sheet. See Note 14-Securities Sold Under Agreement to Repurchase and Other Borrowings. Future Maturities of Corporate Debt Scheduled principal payments of corporate debt as of December 31, 2007 are as follows (dollars in thousands): Years ending December...

  • Page 127
    ... income tax rate in future periods. A reconciliation of the beginning and ending amount of unrecognized tax benefits is as follows (dollars in thousands): Balance at January 1, 2007 Additions based on tax positions related to prior years Additions based on tax positions related to the current year...

  • Page 128
    ... in thousands) Year Ended December 31, 2007 2006 2005 Current: Federal Foreign State Tax benefit recognized for FIN 48 uncertainties in the statement of income (loss) Total current Deferred: Federal Foreign State Total deferred Income tax expense (benefit) from continuing operations $(315,229...

  • Page 129
    ...-sale Net operating loss carry-forwards Deferred compensation Capitalized technology development Tax credits Restructuring reserve and related write-downs Total deferred tax assets Deferred tax liabilities: Internally developed software Acquired intangibles Basis differences in investments Loan fees...

  • Page 130
    ... of these excess tax benefits on these capital assets are uncertain and not in the control of the Company, as there is no ready market or liquidity for these investments. During the year ended December 31, 2007, the Company generated a federal net operating loss of approximately $2.4 billion...

  • Page 131
    ...the year ended December 31, 2007 (dollars in thousands, except per share amounts): Maximum Dollar Value of Shares That May Yet be Purchased Under the April 2007 and December 2004 Plan Three Months Ended Total Number of Shares Purchased Aggregate Price Average Price Paid per Share March 31, 2007...

  • Page 132
    ... per share amounts): Year Ended December 31, 2007 2006 2005 Basic: Numerator: Net income (loss) from continuing operations Gain (loss) from discontinued operations, net of tax Cumulative effect of accounting change, net of tax Net income (loss) Denominator: Basic weighted-average shares outstanding...

  • Page 133
    ... or incentive stock options to officers, directors, key employees and consultants for the purchase of newly issued shares of the Company's common stock at a price determined by the Board at the date the option is granted. Options are generally exercisable ratably over a four-year period from...

  • Page 134
    ... as the Company has not, nor does it currently plan to, issue dividends to its shareholders. Year Ended December 31, 2007 2006 2005 Expected volatility Expected term (years) Risk-free interest rate Dividend yield 32% 4.5 5% - 34% 4.5 5% - 34% 4.9 4% - The weighted-average fair values of options...

  • Page 135
    ... of the Company previously approved the 2002 Employee Stock Purchase Plan ("2002 Purchase Plan"), and reserved 5,000,000 shares of common stock for sale to employees at a price no less than 85% of the lower of the fair market value of the common stock at the beginning of the one-year offering period...

  • Page 136
    ...for the Company's broker-dealer subsidiaries (dollars in thousands): December 31, 2007 Required Excess Net Net Net Capital Capital Capital E*TRADE Clearing LLC(1) E*TRADE Securities LLC(1) E*TRADE Capital Markets, LLC(2) E*TRADE Global Asset Management, Inc.(2)(3) International broker-dealers Total...

  • Page 137
    ...22,151 67,686 $222,804 Certain leases contain provisions for renewal options and rent escalations based on increases in certain costs incurred by the lessor. Rent expense, net of sublease income, was $30.2 million, $28.6 million and $22.2 million for the years ended December 31, 2007, 2006 and 2005...

  • Page 138
    ... of New York against certain directors and officers of MarketXT seeking declaratory relief and unspecified monetary damages for defendants' fraud in connection with the 2002 sale, including, but not limited to, having presented the Company with fraudulent financial statements regarding the condition...

  • Page 139
    ... in delinquency rates in its mortgage and home equity portfolios; failed to timely record an impairment on its mortgage and home equity portfolios; materially overvalued its securities portfolio, which includes assets backed by mortgages; and based on the foregoing, lacked a reasonable basis for the...

  • Page 140
    ... an inquiry into the trading activities of certain specialist firms, including the Company's subsidiary E*TRADE Capital Markets, LLC ("ETCM"), on various regional exchanges in order to determine whether such firms executed proprietary orders in a given security prior to a customer order in the same...

  • Page 141
    ...31, 2007(1) Fixed Rate Variable Rate Total Originate loans Sell loans (1) $294,283 $ 88,155 $107,891 $ 4,500 $402,174 $ 92,655 The Company had no commitments to purchase loans at December 31, 2007. Securities, Unused Lines of Credit and Certificates of Deposit At December 31, 2007, the Company...

  • Page 142
    ...; and • stock plan administration products and services. Institutional includes: • balance sheet management activities including generation of institutional net interest spread, gain on loans and securities, net and management income; • market-making; and • global equity execution and...

  • Page 143
    ... Commission Fees and service charges Principal transactions Gain (loss) on loans and securities, net Other revenue Total non-interest income (expense) Total net revenue Expense excluding interest: Compensation and benefits Clearing and servicing Advertising and market development Communications...

  • Page 144
    ... for loan losses Commission Fees and service charges Principal transactions Gain on loans and securities, net Other revenue Total non-interest income Total net revenue Expense excluding interest: Compensation and benefits Clearing and servicing Advertising and market development Communications...

  • Page 145
    ... for loan losses Commission Fees and service charges Principal transactions Gain on loans and securities, net Other revenue Total non-interest income Total net revenue Expense excluding interest: Compensation and benefits Clearing and servicing Advertising and market development Communications...

  • Page 146
    ... • Cash and equivalents, cash and investments required to be segregated, margin receivables and customer payables-Fair value is estimated to be carrying value. • Trading securities, available-for-sale mortgage-backed and investment securities-Fair value is estimated by using quoted market prices...

  • Page 147
    ... market and savings accounts and checking accounts, fair value is the amount payable on demand at the reporting date. For certificates of deposit and brokered certificates of deposits, fair value is estimated by discounting future cash flows at the currently offered rates for deposits of similar...

  • Page 148
    ... sheet and cash flows: STATEMENT OF INCOME (LOSS) AND COMPREHENSIVE INCOME (LOSS) (In thousands) Year Ended December 31, 2007 2006 2005 Revenue: Management fees from subsidiaries Total net revenue Expense excluding interest: Compensation and benefits Clearing and servicing Advertising and market...

  • Page 149
    BALANCE SHEET (In thousands) December 31, 2007 2006 ASSETS Cash and equivalents Property and equipment, net Investment in other consolidated subsidiaries Receivable from subsidiaries Other assets Total assets LIABILITIES AND SHAREHOLDERS' EQUITY Liabilities: Corporate debt Other liabilities Total ...

  • Page 150
    ...) 2007 Year Ended December 31, 2006 2005 Cash Flows from Operating Activities: Net income (loss) Adjustments to reconcile net income to net cash provided by operating activities: Cumulative effect of accounting change Depreciation and amortization Gain on sales of investments, net Equity in...

  • Page 151
    ... estate and credit markets adversely impacted our financial performance. The decrease in net income for the fourth quarter ended December 31, 2007 was due principally to the $2.2 billion loss on the sale of our asset-backed securities portfolio and $402.3 million in provision for loan losses. 148

  • Page 152
    ... Registered Public Accounting Firm are included in Item 8. Financial Statements and Supplementary Data. ITEM 9B. OTHER INFORMATION Not applicable. PART III The Company's Proxy Statement for its Annual Meeting of Shareholders which, when filed pursuant to Regulation 14A under the Securities Exchange...

  • Page 153
    .... and J.P. Morgan Invest Inc. (Incorporated by reference to Exhibit 2.1 of the Company's Current Report on Form 8-K filed on October 3, 2005.) First Amendment to Purchase and Sale Agreement, dated October 6, 2005, by and among Harris Financial Corp, Harrisdirect LLC and E*TRADE Financial Corporation...

  • Page 154
    ... 10, 2005, between E*TRADE Financial Corporation and the Bank of New York, as Trustee (Incorporated by reference to Exhibit 4.1 of the Company's Current Report on Form 8-K filed on November 15, 2005.) Common Stock Underwriting Agreement among E*TRADE Financial Corporation and Morgan Stanley & Co...

  • Page 155
    ... Statement No. 333-05525.) Employee Bonus Plan (Incorporated by reference to Exhibit 10.10 of the Company's Registration Statement on Form S-1, Registration Statement No. 333-05525.) Stock Purchase Agreement dated June 5, 1998 by and between E*TRADE Financial Corporation and SOFTBANK Holdings...

  • Page 156
    ... to Exhibit 10.2 of the Company's Current Report on Form 8-K filed on December 4, 2007.) ABS Purchase Agreement, dated as of November 29, 2007, by and among E*TRADE Financial Corporation, E*TRADE Bank, E*TRADE Global Asset Management, Inc. and Citadel Equity Fund Ltd. (Incorporated by reference to...

  • Page 157
    Exhibit Number Description *10.29 (redacted) Equities and Options Order Handling Agreement, dated as of November 29, 2007, by and among E*TRADE Financial Corporation, E*TRADE Securities LLC, and Citadel Derivatives Group LLC Statement of Earnings to Fixed Charges. Subsidiaries of the Registrant. ...

  • Page 158
    ...2008 E*TRADE FINANCIAL CORPORATION (Registrant) By: /S/ R. JARRETT LILIEN R. Jarrett Lilien Acting Chief Executive Officer By: /S/ ROBERT J. SIMMONS Robert J. Simmons Chief Financial Officer (Principal Financial and Accounting Officer) Pursuant to the requirements of the Securities Exchange Act...

  • Page 159
    Exhibit 10.29 EXECUTION VERSION EQUITIES AND OPTIONS ORDER HANDLING AGREEMENT dated as of November 29, 2007 by and among E*TRADE FINANCIAL CORPORATION, E*TRADE SECURITIES LLC, and CITADEL DERIVATIVES GROUP LLC

  • Page 160
    ...Routing of Orders Customer Complaints Execution Quality Customer Disclosure, Segregation and Responsibility Order Transmission Procedures and Requirements ARTICLE III. PAYMENTS Section 3.1 Section 3.2 Section 3.3 Section 3.4 Section 3.5 Timing and Amount of Payments by the Company Reports and Other...

  • Page 161
    ...In General Security Breaches Storage of Customer Information ARTICLE VIII. TERM AND TERMINATION Section 8.1 Section 8.2 Section 8.3 Section 8.4 Section 8.5 ARTICLE IX. Section 9.1 Term Termination Effects of Termination on Accrued Rights Continuation of Routing Service Survival MISCELLANEOUS Use of...

  • Page 162
    ... Agreement Descriptive Headings; Certain Interpretations Notices Counterparts; Fax Signatures Benefits of Agreement Amendments and Waivers Assignment Governing Law Consent to Jurisdiction Registration and Filing of this Agreement Force Majeure Waiver Relationship of the Parties Bona Fide Customers...

  • Page 163
    ... limited liability company ("E*TRADE Securities"), and E*TRADE FINANCIAL CORPORATION, a Delaware corporation ("Parent") (each individually a "Party" and together the "Parties"). WHEREAS, Parent and Affiliates of the Company have entered into that certain Investment and Securities Purchase Agreement...

  • Page 164
    ... as a broker or dealer under Section 15 of the Securities Exchange Act. (d) "Business Day" means a day other than a Saturday or Sunday or other day on which banks located in New York, New York are authorized or required by law to close. (e) "Change in Control of E*TRADE Capital Markets" shall mean...

  • Page 165
    ... by a Parent Customer that is an investment adviser affiliated with Parent, to the extent that the routing of such Order to the Company under this Agreement would be prohibited under applicable law. (n) "Execution Quality Service Levels" shall mean the service levels set forth on Schedule A to this...

  • Page 166
    ... Exchange Commission or any SRO of which a Party is a member); federal and state privacy, confidentiality, consumer protection, advertising, electronic mail and data security laws and regulations, whether in effect now or in the future; and requirements under permits, orders, decrees or directives...

  • Page 167
    ... equity securities for which transaction reports are collected, processed and made available pursuant to an effective transaction reporting plan, but excludes Options. (aa) "Option" shall mean any option contract that is listed on an Exchange. (bb) "Order" shall mean an instruction to buy or sell...

  • Page 168
    ... have the meaning set forth in the indicated Section: Term Location Acquiring Person Agreement Company Company Indemnified Parties Company Services Cure Period Disclosing Party E*TRADE Securities End Date Execution Quality Committee Force Majeure Indemnification Notice 6 Section 1.1(g) Preamble...

  • Page 169
    Indemnified Parties Indemnifying Party Investment Agreement Liquidated Damages Amount Losses Order Flow Change Other Parties Parent Parent Cure Period Parent Indemnified Parties Parties Party Proceeding Products Change Receiving Party Security Breach Term Termination Election Period Third Party ...

  • Page 170
    ... permitted to exclude from the Covered Orders in Options that Parent and its Affiliates are required to route to the Company and its Affiliates under this Agreement. Any Covered Orders in NMS Stocks that are routed to any Exchange, market center or Broker-Dealer pursuant to this Section 2.1(b) shall...

  • Page 171
    ... terms reasonably available for Covered Orders to fulfill the Execution Quality Service Levels set forth in Schedule A to this Agreement as may be modified pursuant to this Section 2.3 or Schedule A to this Agreement. (b) The Company and Parent and/or E*TRADE Securities may, from time to time...

  • Page 172
    ... methodology set forth in Schedule A to this Agreement in conformance with their respective duties of best execution. Section 2.4 Customer Disclosure, Segregation and Responsibility. (a) The Parties shall use commercially reasonable efforts not to publish or make any communication or take any other...

  • Page 173
    ... and communications lines, including any data lines or internet access necessary to operate the routing and executions system for Covered Orders received by the Company and to maintain connectivity to Exchanges and other market centers. (e) Parent shall ensure that all Covered Orders in Options are...

  • Page 174
    ... III shall be paid in U.S. Dollars by bank wire transfer in immediately available funds to such bank account(s) as Parent shall designate from time to time by giving notice to the Company. Section 3.4 Interest on Late Payments. If the Company shall fail to make a timely payment pursuant to this...

  • Page 175
    ..., including Customer Information, of the Disclosing Party for any purpose other than in performance of this Agreement or with respect to the Company's operations and shall not disclose the same to any other Person other than to such of its Affiliates, employees, agents, advisers, representatives...

  • Page 176
    ... required to resolve a trade dispute or in connection with a Legal Proceeding; provided, however, that Parent shall provide for each Covered Order (i) a unique descriptor code (that may be a coded or scrambled account number) allowing recognition of the Parent Customer placing such Covered Order...

  • Page 177
    ... under or in connection with this Agreement. This Section 5.2 shall not be construed to limit a Party's right to indemnification for payments required to be made by it to third parties in respect of damages (of any kind or type, including, but not limited to, direct or consequential) for third party...

  • Page 178
    ... the receipt of such notice, Parent (or the Successor Entity) and the Company shall negotiate in good faith to amend the terms of this Agreement to include such order flow within the scope of this Agreement upon terms to be mutually agreed by the Parties. If the Parties are unable reasonably...

  • Page 179
    ... shall be obligated to pay the Liquidated Damages Amount to the extent required by this Section 5.7(a) if there is a termination subsequent to a Partial Termination. (b) The Parties agree that the Company's actual damages in the event of the occurrence of any of the types of situations set forth...

  • Page 180
    (c) All payments required under Section 5.5(a) shall be made within thirty calendar days of this Agreement being terminated and the payment shall be made by wire transfer of immediately available funds to an account designated by the Company. ARTICLE VI. INDEMNIFICATION Section 6.1 Company ...

  • Page 181
    ... any Party or its Affiliates, and contains a provision requiring confidentiality with respect to the facts and circumstances of the dispute and of the existence and amount of the settlement. The Indemnified Party shall make its employees available and furnish such information regarding itself or the...

  • Page 182
    ... practices to remedy such Security Breach in a timely manner. Section 7.3 Storage of Customer Information. Each of the Company and Parent, and their respective Affiliates, shall use its commercially reasonable efforts to implement and follow a plan to store Customer Information in accordance with...

  • Page 183
    ... Away by Parent. By the Company, if: (i) E*TRADE Securities shall have routed away a number of Covered Orders representing fifteen percent (15%) or more of the Minimum Covered Orders (for NMS Stocks or Options) for a period of three consecutive months; (ii) E*TRADE Securities shall have routed away...

  • Page 184
    ... adverse effect on the financial condition, properties, business or results of operations of Parent. (k) Partial Termination for NMS Stocks. By Company, at any time with 90 days written notice to Parent, with respect to its obligations to accept Covered Orders in NMS Stocks routed by Parent. For...

  • Page 185
    ... of E*TRADE Capital Markets, with respect to Parent's obligation to route Covered Orders in NMS Stocks to the Company, with 90 days prior written notice. For the avoidance of doubt, if Parent effectuates a Partial Termination for NMS Stocks under this Section 8.2(m), this Agreement would remain...

  • Page 186
    ... property, names, trade names, trademarks, service marks, artwork, designs, or copyrighted materials, of the other Party, its related or subsidiary companies, parent, employees, directors, shareholders, assigns, successors or licensees: (a) in any advertising, publicity, press release, client list...

  • Page 187
    ..., return receipt requested, addressed as follows: If to the Company: Citadel Derivatives Group LLC c/o Citadel Limited Partnership 131 South Dearborn Street Chicago, IL 60603 Attention: Adam Cooper, Esq. Fax: (312) 267-7444 Fried, Frank, Harris, Shriver & Jacobson LLP One New York Plaza New York...

  • Page 188
    ... under this Section 9.7(b) would require Parent to pay to the Company the Liquidated Damages Amount pursuant to Section 5.7 of this Agreement. Section 9.8 Assignment. This Agreement and the rights and obligations hereunder shall not be assignable or transferable by the Parties hereto without...

  • Page 189
    ... interferes with the Company's ability to route Covered Orders for execution, Parent may elect to route any Covered Orders that would otherwise be required to be routed to the Company pursuant to Section 2.1 to a Broker-Dealer or execution venue other than the Company during the term of the Force...

  • Page 190
    ... or formal business organization of any kind. Section 9.15 Bona Fide Customers. Parent agrees that, without the Company's written consent, it shall not, and shall cause its Affiliates not to, sell or otherwise make available the routing services for Covered Orders contemplated by this Agreement to...

  • Page 191
    ... as of the day and year first above written. CITADEL DERIVATIVES GROUP LLC By: Citadel Limited Partnership, its Manager By: Citadel Investment Group, L.L.C., its General Partner By: /s/ Adam Cooper Name: Adam Cooper Title: Senior Managing Director & General Counsel E*TRADE FINANCIAL CORPORATION By...

  • Page 192
    ... terms for Covered Orders reasonably available under the circumstances. In the event that a customer of E*TRADE Securities directs an Order to be executed on or by a specified Exchange, market center or Broker-Dealer (other than the Company), E*TRADE Securities shall route such Order to the Company...

  • Page 193
    ...ratio of the share-weighted average between the execution price and the midpoint of the National Best Bid or Offer ("NBBO") ("Effective Spread") to the difference between the national best bid and the national best offer ("Quoted Spread") at the time of order receipt (lower is better). Average Order...

  • Page 194
    ... additional data collection or analysis of the Company's execution performance with respect to Covered Orders and the quality of competing markets should be conducted to satisfy its best execution obligations or industry best practice, then E*TRADE Securities may propose such additional review or...

  • Page 195
    ... this Agreement immediately upon written notice to the Company. Any Covered Orders that are routed away to any Exchange, market maker or Broker-dealer pursuant to this Schedule A shall count toward the two and one-half percent (2.5%) of Covered Orders in Options or sixty percent (60%) in NMS Stocks...

  • Page 196
    ... in Equity Securities included within the S&P Index or any exchange-traded fund, available through E*TRADE Securities to buy, sell or buy-to-cover from 100 to 500 shares, received between 9:45 a.m. (Eastern Time) and 3:59 p.m. (Eastern Time) (subject to adjustment if the applicable market opens late...

  • Page 197
    ...Order was made during fast market conditions. Reporting Plan. E*TRADE Securities and the Company shall use commercially reasonable efforts to create an effective reporting plan to monitor and audit the Company's performance in connection with the Execution Guarantee. V. Miscellaneous. A. Customer...

  • Page 198
    ...commission credit to use on a future qualifying order. For an order to be eligible for the 2-Second Execution Guarantee, it must be A market order for anywhere between 100 and 500 shares For a stock in the S&P 500 Index or ETFs available through E*TRADE Securities A buy, sell, or buy-to-cover order...

  • Page 199
    ... as a covered call) Orders entered as short sells Orders routed directly to a specific ECN Extended Hours trades Buy orders for stocks or ETFs trading under $1 Orders you later try to change or cancel The stock leg of complex options orders Orders placed through a live broker Orders for stocks in...

  • Page 200
    ... written two covered calls or have an order to write some covered calls, no order you placed for any of the shares is eligible for the guarantee. Note: If an order you place involves a short option position, we'll send a message to your account before market open on the next trading day. Understand...

  • Page 201
    ... regional exchanges require a manual review of any order for a listed stock that would represent a new intraday high or low. These orders are not eligible for the guarantee. Note: Should this happen to your order, we'll send a message to your account before market open of the next trading day. Know...

  • Page 202
    ...The number of commission credits you have will be displayed in the Execution Guarantee section of the View Orders screen. Commission credits are available for one calendar year. They cannot be converted to cash. Customers may accumulate up to 100 commission-free trades per account. Use my commission...

  • Page 203
    ... based upon the following rates: NMS Stock Options Rate / unit **** **** * Confidential treatment has been requested for redacted portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as ****. A complete version...

  • Page 204
    ... Total fixed charges ...Earnings: Income (loss) before income taxes, discontinued operations and cumulative effect of accounting change less equity in income (loss) of investments ...Fixed charges ...Less: Preference securities dividend requirement of consolidated subsidiaries ...Earnings ...Ratio...

  • Page 205
    ... Equipment Management Corporation (Delaware) E*TRADE Mauritius Limited (Mauritius) E*TRADE Mortgage Backed Securities Corporation (Delaware) E*TRADE Mortgage Corporation (Virginia) E*TRADE Network Services International (Canada) E*TRADE Savings Bank (Federal Charter) E*TRADE Securities Corporation...

  • Page 206
    ... Limited (Hong Kong) ETRADE Financial Information Services (Asia) Limited (Hong Kong) ETRADE Securities (Hong Kong) Limited (Hong Kong) ETRADE Securities Limited (Hong Kong) Highland Holdings Corporation (Virginia) Highland REIT, Inc. (Virginia) Howard Capital Management, Inc. (New York) HR Holdings...

  • Page 207
    ... and FASB Statement No. 123 (revised 2004), Share-Based Payment, which the Company adopted on July 1, 2005) and the effectiveness of internal control over financial reporting, appearing in this Annual Report on Form 10-K of E*TRADE Financial Corporation for the year ended December 31, 2007. Filed on...

  • Page 208
    ...R. Jarrett Lilien, certify that: 1. 2. I have reviewed this Annual Report on Form 10-K of E*TRADE Financial Corporation; Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the...

  • Page 209
    ...Robert J. Simmons, certify that: 1. 2. I have reviewed this Annual Report on Form 10-K of E*TRADE Financial Corporation; Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the...

  • Page 210
    ... 2. the Annual Report fully complies with the requirements of Section 13(a) or 15(d) of the Exchange Act; and the information contained in the Annual Report fairly presents, in all material respects, the financial condition and results of operations of E*TRADE Financial Corporation. Dated: February...