eTrade 2009 Annual Report Download - page 224

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any additional guidance provided by the Treasury Department or Internal Revenue Service (“collectively, Code section 409A”).
To the extent that any provision of the Plan would cause a conflict with the requirements of Code section 409A, or would cause
the administration of the Plan to fail to satisfy Code section 409A, such provision shall be deemed null and void to the extent
permitted by applicable law. Nothing herein shall be construed as a guarantee of any particular tax treatment to a Participant.
10.16Incompetent. If the Committee determines in its discretion that a distribution under this Plan is to be paid to a minor, a person
declared incompetent or to a person incapable of handling the disposition of that person’s property, the Committee may direct
such distribution to be paid to the guardian, legal representative or person having the care and custody of such minor,
incompetent or incapable person. The Committee may require proof of minority, incompetence, incapacity or guardianship, as it
may deem appropriate prior to distribution of a payment. Any distribution shall be a payment for the account of the Participant
and the Participant’s Beneficiary, as the case may be, and shall be a complete discharge of any liability for such payment
amount.
10.17Insurance. The Employers, on their own behalf or on behalf of the trustee of the Trust, and, in their sole discretion, may apply
for and procure insurance on the life of the Participant, in such amounts and in such forms as the Trust may choose. The
Employers or the trustee of the Trust, as the case may be, shall be the sole owner and beneficiary of any such insurance. The
Participant shall have no interest whatsoever in any such policy or policies, and at the request of the Employers shall submit to
medical examinations and supply such information and execute such documents as may be required by the insurance company
or companies to whom the Employers have applied for insurance.
10.18Legal Fees to Enforce Rights after Change in Control. The Company and each Employer is aware that upon the occurrence
of a Change in Control, the Board or the board of directors of a Participant’s Employer (which might then be composed of new
members) or a shareholder of the Company or the Participant’s Employer, or of any successor corporation might then cause or
attempt to cause the Company, the Participant’s Employer or such successor to refuse to comply with its obligations under the
Plan and might cause or attempt to cause the Company or the Participant’s Employer to institute, or may institute, litigation
seeking to deny Participants amounts deferred pursuant to the Plan. In these circumstances, the purpose of the Plan could be
frustrated. Accordingly, if, following a Change in Control, it should appear to any Participant that the Company, the
Participant’s Employer or any successor corporation has failed to comply with any of its obligations under the Plan or any
agreement thereunder or, if the Company, such Employer or any other person takes any action to declare the Plan void or
unenforceable or institutes any litigation or other legal action designed to deny, diminish or to recover from any Participant
distributions intended to be provided, then the Company and the Participant’s Employer irrevocably authorize such Participant
to retain counsel of his choice at the expense of the Company and the Participant’s Employer (who shall be jointly and severally
liable) to represent such Participant in connection with the initiation or defense of any litigation or other legal action, whether by
or against the Company, the Participan
t
’s Employer or any director, officer, shareholder or other person