eTrade 2008 Annual Report Download - page 269

(e) Section 409A. Notwithstanding anything to the contrary in this Agreement, if Employee is determined by the Company’s
Compensation Committee to be a “specified employee” within the meaning of Section 409A of the Internal Revenue Code, as
amended (“Section 409A”) and the regulations thereunder, as of the date of Employee’s “separation from service” as defined in
Treasury Regulation Section 1.409A-1(h) (or any successor regulation), and if any payments or entitlements provided for in this
Agreement constitute a “deferral of compensation” within the meaning of Section 409A and therefore cannot be paid or provided in
the manner provided herein without subjecting Employee to additional tax, interest or penalties under Section 409A, then any such
payment and/or entitlement which would have been payable during the first six months following Employee’s “separation from
service” shall instead be paid or provided to Employee in a lump sum payment on the first business day immediately following the
six-month anniversary of Employee’s “separation from service”.
Section 4. Definitions. As used in this Agreement, the following terms shall have the meanings indicated.
“Cause” means any of the following:
(i) Employee’s theft, dishonesty, willful misconduct, breach of fiduciary duty for personal profit, or falsification of any
employment or Company documents or records;
(ii) Employee’s material failure to abide by the Company’s code of conduct or other policies (including, without limitation,
policies relating to confidentiality and reasonable workplace conduct);
(iii) Employee’s unauthorized use misappropriation, destruction or diversion of any tangible or intangible asset or
corporate opportunity of the Company (including, without limitation, Employee’s improper use or disclosure of the Company’s
confidential or proprietary information);
(iv) any intentional act by Employee which has a material detrimental effect on the Company’s reputation or business;
(v) Employee’s repeated failure or inability to perform any reasonable assigned duties after written notice from the
Company of, and a reasonable opportunity to cure, such failure or inability;
(vi) any material breach by Employee of any employment, service, non-disclosure, non-competition, non-solicitation or
other similar agreement between Employee and the Company, which breach is not cured pursuant to the terms of such
agreement; or
(vii) Employee’s conviction (including any plea of guilty or nolo contendere) of any criminal act involving fraud,
dishonesty, misappropriation or moral turpitude, or which impairs Employee’s ability to perform his or her duties with the
Company.
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