eTrade 2012 Annual Report Download - page 197

expenses upon a final adjudication that, the indemnitee has not met any applicable standard for indemnification set forth in the
Delaware Law. Neither the failure of the corporation (including its directors who are not parties to such action, a committee of such
directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that
indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct
set forth in the Delaware Law, nor an actual determination by the corporation (including its directors who are not parties to such
action, a committee of such directors, independent legal counsel, or its stockholders) that the indemnitee has not met such applicable
standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to
indemnification or to an advancement of expenses hereunder, or brought by the corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Article 5 or otherwise shall be on the corporation.
Section 5.04. Non-Exclusivity of Rights. The rights to indemnification and to the advancement of expenses conferred in this
Article 5 shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the corporation’s
Certificate of Incorporation, Bylaws, agreement, vote of stockholders or directors or otherwise.
Section 5.05. Insurance. The corporation may maintain insurance, at its expense, to protect itself and any director, officer,
employee or agent of the corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not the corporation would have the power to indemnify such person against such expense, liability or loss
under the Delaware Law.
Section 5.06. Indemnification of Employees and Agents of the Corporation. The corporation may, to the extent authorized from
time to time by the Board of Directors, grant rights to indemnification and to the advancement of expenses to any employee or agent
of the corporation to the fullest extent of the provisions of this Article with respect to the indemnification and advancement of
expenses of directors and officers of the corporation.
Section 5.07. Nature of Rights. The rights conferred upon indemnitees in this Article 5 shall be contract rights and such rights
shall continue as to an indemnitee who has ceased to be a director, officer or trustee and shall inure to the benefit of the indemnitee’s
heirs, executors and administrators. Any amendment, alteration or repeal of this Article 5 that adversely affects any right of an
indemnitee or its successors shall be prospective only and shall not limit, eliminate, or impair any such right with respect to any
proceeding involving any occurrence or alleged occurrence of any action or omission to act that took place prior to such amendment
or repeal.
ARTICLE 6
G ENERAL P ROVISIONS
Section 6.01. Fiscal Year. Except as from time to time otherwise designated by the Board of Directors, the fiscal year of the
corporation shall end on December 31.
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