eTrade 2008 Annual Report Download - page 262

Employment Dispute Resolution rules and that such award may be entered in any court of competent jurisdiction. The parties
acknowledge that by accepting this arbitration provision Executive is waiving any right to a jury trial in the event of such dispute. In
connection with any such arbitration, the Company shall bear all costs not otherwise born by a plaintiff in a court proceeding.
12. Attorneys’ Fees: The prevailing party, as determined by the arbitrator, may be entitled to recover from the losing party its
attorneys’ fees and costs incurred in any action brought to enforce any right arising out of this Agreement, provided that the Executive
shall not be liable for the Company’s fees unless the arbitrator determines that the Executive’s overall position was frivolous or taken
in bad faith and further provided that the Company shall not be required to pay Executive’s fees unless an arbitrator determines that,
considering all the facts and circumstances, such an award is fair and equitable.
The Company will pay the reasonable attorneys’ fees incurred in the negotiation and preparation of this Agreement.
13. General.
(a) Successors and Assigns: The provisions of this Agreement shall inure to the benefit of and be binding upon the
Company, Executive and each and all of their respective heirs, legal representatives, successors and assigns. The duties,
responsibilities and obligations of Executive under this Agreement shall be personal and not assignable or delegable by Executive in
ay manner whatsoever to any person, corporation, partnership, firm, company, joint venture or other entity. Executive may not assign,
transfer, convey, mortgage, pledge or in any other manner encumber the compensation or other benefits to be received by him or any
rights which be may have pursuant to the terms and provisions of this Agreement. The Company may only assign this Agreement
together with all or substantially all of the assets of the Company.
(b) Amendments; Waiver: No provision of this Agreement shall be modified, waived or discharged unless the
modification, waiver or discharge is agreed to in writing and signed by Executive and by an authorized officer of the Company. No
waiver by either party of any breach of, or of compliance with, any condition or provision of this Agreement by the other party shall
be considered a waiver of any other condition or provision or of the same condition or provision at another time.
(c) Notices: Any notices to be given pursuant to this Agreement by either party to the other party may be effected by
personal delivery or by overnight delivery with receipt requested. Mailed notices shall be addressed to the parties at the addresses
stated below, but each party may change its or his address by written notice to the other in accordance with this Paragraph.
Mailed notices to Executive shall be addressed to him on the last address shown on the Company’s records.