eTrade 2009 Annual Report Download - page 243

award or other Company stock-based award granted to Executive, the extent to which such awards are vested through the date of
his termination or as otherwise provided in the applicable award agreement.
6. Certain Tax Considerations:
(a) Section 409A:
(i) The payments under Section 5 are intended to qualify for the short-term deferral exception to Section 409A of the
Code (“Section 409A”) described in the regulations promulgated under Section 409A (the “Section 409A Regulations”)
to the maximum extent possible, and to the extent they do not so qualify, they are intended to qualify for the involuntary
separation pay plan exception to Section 409A described in the Section 409A Regulations to the maximum extent possible.
To the extent Section 409A is applicable to this Agreement, this Agreement is intended to comply with Section 409A, and
shall be interpreted and construed and shall be performed by the parties consistent with such intent, and the Company shall
have no right, without Executive’s consent, to accelerate any payment or the provision of any benefits under this
Agreement if such payment or provision of such benefits would, as a result, be subject to tax under Section 409A.
(ii) Without limiting the generality of the foregoing, if Executive is a “specified employee” within the meaning of
Section 409A, as determined under the Company’s established methodology for determining specified employees, on the
date of termination of employment, then to the extent required in order to comply with Section 409A, amounts that would
otherwise be payable under this Agreement during the six-month period immediately following such termination date shall
instead be paid (together with interest at the then current six-month LIBOR rate) on the first business day after the first to
occur of (i) the date that is six months following Executive’s termination of employment and (ii) the date of Executive’s
death.
(iii) Except as expressly provided otherwise herein, no reimbursement payable to Executive pursuant to any
provisions of this Agreement or pursuant to any plan or arrangement of the Company covered by this Agreement shall be
paid later than the last day of the calendar year following the calendar year in which the related expense was incurred, and
no such reimbursement during any calendar year shall affect the amounts eligible for reimbursement in any other calendar
year, except, in each case, to the extent that the right to reimbursement does not provide for a “deferral of compensation”
within the meaning of Section 409A of the Code.
(iv) For purposes of this Agreement, the terms “terminate,” “terminated” and “termination” mean a termination of
Executive’s employment that constitutes a “separation from service” within the meaning of the default rules of
Section 409A of the Code; provided , however, that, in the event of the Executive’s Permanent Disability, “separation from
service” means the date that is six months after the first day of disability.
(b) 280G Limitation: If the payments and benefits provided to Executive under this Agreement, either alone or together
with other payments and benefits provided to him from the Company (including, without limitation, any accelerated vesting
thereof) (the “Total Payments”), would constitute a “parachute payment” (as defined in
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