eTrade 2010 Annual Report Download - page 185

5. Mutual Non-Disparagement; Disclosure of Agreement: During and following Executive’s employment with the Company,
Executive agrees that he shall not disparage the Company or any of its current or future officers, directors, employees with whom he
is acquainted, or its current products or services, and the Company agrees that it will not disparage Executive in the course of any
authorized internal or external communication, and the Company shall cause its current and future directors and executive officers not
to disparage Executive and shall instruct its executive officers and directors to refrain from making such statements and to instruct
their respective representatives to so refrain. Notwithstanding the foregoing, nothing contained in this Agreement shall prohibit
Executive or the Company from (x) responding publicly to incorrect, disparaging or derogatory public statements to the extent
reasonably necessary to correct or refute such public statement or (y) making any truthful statement to the extent (i) necessary with
respect to any litigation, arbitration or mediation involving this Agreement, including, but not limited to, the enforcement of this
Agreement or (ii) required by law or by any court, arbitrator, mediator or administrative or legislative body (including any committee
thereof) with apparent jurisdiction over Executive or the Company. Executive and the Company acknowledge that the Company will
be required to disclose this Agreement and its terms in its public filings with the SEC.
6. Dispute Resolution: Consistent with the Employment Agreement, in the event of any dispute or claim relating to or arising out
of this Agreement (including, but not limited to, any claims of breach of contract, wrongful termination or age, sex, race or other
discrimination), Executive and the Company agree that all such disputes shall be fully and finally resolved by binding arbitration
conducted by the American Arbitration Association in New York, New York in accordance with its National Employment Dispute
Resolution rules. Executive acknowledges that by accepting this arbitration provision he 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 borne by a plaintiff in a
court proceeding. The prevailing party shall 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.
7. 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 any 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 he may have pursuant to the terms and provisions of this Agreement.
8. Entire Agreement; Miscellaneous: This Agreement, any confidentiality, proprietary rights and dispute resolution agreement
between Executive and the Company, and any agreement or plan concerning any stock options and other equity awards issued to
Executive, constitute the entire agreement between the parties with respect to the subject matter hereof and thereof and supersede all
prior negotiations and agreements,
3