eTrade 2012 Annual Report Download - page 196

whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she is or was a
director or an officer of the corporation or is or was serving at the request of the corporation as a director, officer or trustee of another
corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan
(hereinafter an “indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer or
trustee or in any other capacity while serving as a director, officer or trustee, shall be indemnified and held harmless by the
corporation to the fullest extent permitted by Delaware law, as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the corporation to provide broader indemnification rights than such
law permitted the corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees,
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udgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnitee
in connection therewith. Notwithstanding any other provision of this Article 5, (1) except as provided in Section 5.03 with respect to
proceedings to enforce rights to indemnification and advancement, the corporation shall indemnify, and advance expenses pursuant to
Section 5.02 to, any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such
proceeding (or part thereof) was authorized by the Board of Directors of the corporation; and (2) the corporation’s obligations under
this Article shall be offset to the extent of any other source of indemnification or any otherwise applicable insurance coverage under a
policy maintained by the corporation or any other person.
Section 5.02. Right to Advancement of Expenses. In addition to the right to indemnification conferred in 5.01, an indemnitee
shall also have the right to be paid by the corporation the expenses (including attorney’s fees) incurred in defending any such
proceeding in advance of its final disposition (hereinafter an “advancement of expenses”); provided, however, that, if the Delaware
Law requires, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the corporation of an undertaking (hereinafter an “undertaking”), by or on behalf of such
indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled to be indemnified for such expenses
under this Section 5.02 or otherwise.
Section 5.03. Right of Indemnitee to Bring Suit. If a claim under Section 5.01 or 5.02 is not paid in full by the corporation within
60 days after a written claim has been received by the corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be 20 days, the indemnitee may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim. To the fullest extent permitted by law, if successful in whole or in part in any such suit, or in
a suit brought by the corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall
be entitled to be paid also the expense of prosecuting or defending such suit. In (i) any suit brought by the indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (ii) in any suit brought by the corporation to recover an advancement of expenses pursuant to the terms of
an undertaking, the corporation shall be entitled to recover such
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