eTrade 2008 Annual Report Download

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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
ÈANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934 FOR THE FISCAL YEAR ENDED DECEMBER 31, 2008.
or
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 FOR THE TRANSITION PERIOD FROM TO .
Commission File Number 1-11921
E*TRADE Financial Corporation
(Exact Name of Registrant as Specified in its Charter)
Delaware 94-2844166
(State or Other Jurisdiction
of Incorporation or Organization)
(I.R.S. Employer
Identification Number)
135 East 57th Street, New York, New York 10022
(Address of Principal Executive Offices and Zip Code)
(646) 521-4300
(Registrant’s Telephone Number, including Area Code)
Securities Registered Pursuant to Section 12(b) of the Act:
(Title of each class and Name of exchange on which registered)
Common Stock—$0.01 par value—NASDAQ
Securities Registered Pursuant to Section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasonal issuer, as defined in Rule 405 of the Securities
Act. Yes No È
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of
the Securities Act. Yes No È
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of
the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ÈNo
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained
herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated
filer or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ÈAccelerated filer
Non-accelerated filer (Do not check if a smaller reporting company) Smaller reporting company
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes No È
At June 30, 2008, the aggregate market value of voting stock, comprised of the registrant’s common stock and
shares exchangeable into common stock, held by nonaffiliates of the registrant was approximately $1.4 billion (based
upon the closing price for shares of the registrant’s common stock as reported by the NASDAQ Global Select Market
on that date). Shares of common stock held by each officer, director and holder of 5% or more of the outstanding
common stock have been excluded in that such persons may be deemed to be affiliates. This determination of affiliate
status is not necessarily a conclusive determination for other purposes.
Number of shares outstanding of the registrant’s common stock as of February 23, 2009: 572,045,762
DOCUMENTS INCORPORATED BY REFERENCE
Definitive Proxy Statement relating to the Company’s 2009 Annual Meeting of Shareholders, to be filed hereafter
(incorporated into Part III hereof).

Table of contents

  • Page 1
    ... OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE FISCAL YEAR ENDED DECEMBER 31, 2008. or ' TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM TO . Commission File Number 1-11921 E*TRADE Financial Corporation (Exact Name of...

  • Page 2
    ... of Credit Risk ...Summary of Critical Accounting Policies and Estimates ...Required Statistical Disclosure by Bank Holding Companies ...Glossary of Terms ...Quantitative and Qualitative Disclosures about Market Risk ...Financial Statements and Supplementary Data ...Management Report on...

  • Page 3
    ... and Other Exit Activities ...Note 5-Operating Interest Income and Operating Interest Expense ...Note 6-Fair Value Disclosures ...Note 7-Available-for-Sale Mortgage-Backed and Investment Securities ...Note 8-Loans, Net ...Note 9-Accounting for Derivative Financial Instruments and Hedging...

  • Page 4
    ... a financial services company that provides online brokerage and related products and services primarily to individual retail investors, under the brand "E*TRADE Financial." Our products and services include investor-focused banking, primarily sweep deposits and savings products, and asset gathering...

  • Page 5
    ...traded funds, mutual funds and bonds. We also offer quick transfer, wireless account access, extended hours trading, quotes, research and advanced planning tools; and Banking-includes checking, savings, sweep, money market and certificates of deposit ("CD") products that offer online bill pay, quick...

  • Page 6
    ... management of employee option plans, employee stock purchase plans and restricted stock plans, including necessary accounting and reporting functions. This business is a component of the retail segment since it serves as an introduction to E*TRADE for many retail customers who conduct equity option...

  • Page 7
    ... market, the overall profitability of our businesses and customer relationships when pricing our various products and services. We manage the performance of our business using various customer activity and financial metrics, including daily average revenue trades ("DARTs"), net new customer assets...

  • Page 8
    ... see Note 21-Regulatory Requirements of Item 8. Financial Statements and Supplementary Data beginning on page 143. We make our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and amendments to those reports, available free of charge at our website as soon as...

  • Page 9
    ...$5.6 billion of net cash and approximately $12.2 billion of net assets from our bank and brokerage businesses. Many of the accounts that were closed belonged to sophisticated and active customers with large cash and securities balances. While we were able to stabilize and return our retail franchise...

  • Page 10
    ... active customers who receive lower pricing Online investing services to the retail customer, including trading and margin lending, account for a significant portion of our revenues. The continuing turmoil in the global financial markets could lead to changes in volume and price levels of securities...

  • Page 11
    ... a material impact on our financial performance. Downturns in the securities markets increase the credit risk associated with margin lending or stock loan transactions We permit customers to purchase securities on margin. A downturn in securities markets may impact the value of collateral held in...

  • Page 12
    ...not be completely effective at managing this risk and changes in market interest rates and the yield curve could reduce the value of our financial assets and reduce net operating interest income. Among other items, we periodically enter into repurchase agreements to support the funding and liquidity...

  • Page 13
    ...of our broker-dealer subsidiaries have to comply with many laws and rules, including rules relating to sales practices and the suitability of recommendations to customers, possession and control of customer funds and securities, margin lending, execution and settlement of transactions and anti money...

  • Page 14
    ... investing activities, marketing and the financing of customer account balances. Also, our ability to withdraw capital from brokerage subsidiaries could be restricted, which in turn could limit our ability to repay debt and redeem or purchase shares of our outstanding stock. Similarly, the Bank...

  • Page 15
    ... its equity and debt investments in E*TRADE. For example, following April 29, 2008, Citadel was generally free under the terms of the Investment Agreement to sell the equity securities it received under the Investment Agreement and any such sales may have a depressing effect on the trading price of...

  • Page 16
    ... growth of our business. In addition, if funds are available, the issuance of equity securities could significantly dilute the value of our shares of our common stock and cause the market price of our common stock to fall. During the second half of 2008, the global financial markets were in turmoil...

  • Page 17
    ... or are otherwise not in the best interests of the Company and our shareholders. In addition, certain provisions of our stock incentive plans, management retention and employment agreements (including severance payments and stock option acceleration), and Delaware law may also discourage, delay or...

  • Page 18
    ... to timely record an impairment on its mortgage and home equity portfolios; materially overvalued its securities portfolio, which includes assets backed by mortgages; and based on the foregoing, lacked a reasonable basis for the positive statements it made about the Company's earnings and prospects...

  • Page 19
    ... the Company committed various sales practice violations in the sale of certain auction rate securities to investors between April 2, 2003, and February 13, 2008 (the "class period") by allegedly misrepresenting that these securities were highly liquid and safe investments for short term investing...

  • Page 20
    ...'s favor, the defense of such litigation could entail considerable cost or the diversion of the efforts of management, either of which could have a material adverse effect on the Company's business, financial condition, results of operations or cash flows. In addition to the matters described above...

  • Page 21
    ... 5. MARKET FOR REGISTRANT'S COMMON EQUITY, RELATED SHAREHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES Price Range of Common Stock The following table shows the high and low sale prices of our common stock as reported by the NASDAQ for the periods indicated: High Low 2008: First Quarter...

  • Page 22
    ... Company's common stock, assuming dividend reinvestment, compared with the cumulative total return, assuming dividend reinvestment, of the S&P 500 and the S&P Super Cap Diversified Financials during the period from December 31, 2003 through December 31, 2008. COMPARISON OF 5 YEAR CUMULATIVE TOTAL...

  • Page 23
    ... recorded a credit of $1.6 million, net of tax, as a cumulative effect of accounting change, to reflect the amount by which compensation expense would have been reduced in periods prior to adoption of Statement of Financial Accounting Standards ("SFAS") No. 123(R) revised 2004, Share-Based Payment...

  • Page 24
    ...trade amounts): 2008 At or For the Year Ended December 31, 2007 2006 2005 2004 Variance 2008 vs. 2007 Key Measures(1): Retail customer assets Customer cash and deposits Total daily average revenue trades Average commission per trade End of period total accounts Enterprise net interest spread (basis...

  • Page 25
    ... Strategy Our strategy is to profitably grow our retail customer franchise and mitigate the risks associated with our balance sheet. We plan to grow our retail customer franchise by offering online brokerage and related products and services, including investor-focused banking and asset gathering...

  • Page 26
    ...) Net new customer assets (dollars in billions)(2) Customer cash and deposits (dollars in billions) Total daily average revenue trades Average commission per trade End of period total accounts Company Financial Metrics(1): Corporate cash (dollars in millions) E*TRADE Bank excess risk-based capital...

  • Page 27
    ... new accounts; Net new customer asset flows of $5.4 billion ($6.4 billion excluding the sale of RAA); Customer cash and deposit balances decreased slightly to $32.3 billion; and Total DARTs of 188,000, up 6% from the prior year. Execution of Our Capital Plan • E*TRADE Bank had excess risk-based...

  • Page 28
    ... to trade equities and options and brokerage and bank account cash transfers, among other features. We began offering expanded tools and services, including improved charting capabilities and redesigned our "Global Markets," "US Markets," and "Market News" pages. We also began offering customization...

  • Page 29
    ... Statement Highlights for the Year Ended December 31, 2008 (dollars in millions, except per share amounts) Year Ended December 31, 2008 2007 Variance 2008 vs. 2007 Net operating interest income Total net revenue Provision for loan losses Commission revenue Fees and service charges revenue Operating...

  • Page 30
    ...both the Canadian brokerage business and the direct retail lending business have been reported in discontinued operations for all periods presented. Additionally, we re-defined "Total net revenue" by removing "Provision for loan losses" and separately stating it as its own line item and reclassified...

  • Page 31
    ... of activities in our operations, namely our balance sheet management business, including impairment on our available-for sale mortgage-backed and investment securities portfolio. Gain (loss) on sales of investments, net relates to historical equity investments of the Company at the corporate level...

  • Page 32
    ... by parties outside E*TRADE Financial, including third party money market funds and sweep deposit accounts at unaffiliated financial institutions. Other consists of net operating interest earned on average stock conduit assets of $1.3 million and $303.5 million for the years ended December 31, 2007...

  • Page 33
    ... interest-earning assets decreased 16% to $46.9 billion for the year ended December 31, 2008 compared to 2007, primarily the result of a decrease in our available-for-sale portfolio, margin receivables and loans, net, offset by an increase in cash and equivalents. Average available-for-sale mortgage...

  • Page 34
    ... to its customer base and local market practices, and as a result, a change in the relative number of executed trades in these businesses impacts average commission per trade. Each business also has different trade types (e.g. equities, options, fixed income, exchange-traded funds, contract for...

  • Page 35
    ... The loss on loans and securities, net during the year ended December 31, 2008 was due principally to losses on our preferred stock in Fannie Mae and Freddie Mac, which experienced record price declines and volatility during the third quarter of 2008. Based upon our concerns about continuing market...

  • Page 36
    ...: home price depreciation in virtually all key markets; growing inventories of unsold homes; rising foreclosure rates; sustained contraction in the availability of credit; and a severe downturn in the economy. While we do believe the provision for loan losses will be at historically high levels in...

  • Page 37
    ...): Year Ended December 31, 2008 2007 Variance 2008 vs. 2007 Amount % Other income (expense): Corporate interest income Corporate interest expense Gain (loss) on sales of investments, net Gain (loss) on early extinguishment of debt Equity in income of investments and venture funds Total other...

  • Page 38
    ... we did conclude that a valuation allowance was required, the resulting loss would have a material adverse effect on our results of operations, financial condition and our regulatory capital position at E*TRADE Bank. As of December 31, 2008, we had net deferred tax assets of $1.0 billion. We did not...

  • Page 39
    ...our net operating losses in 2007 and 2008 were due solely to the credit losses in our institutional segment. We believe these losses were caused by the crisis in the residential real estate and credit markets which significantly impacted our asset-backed securities and home equity loan portfolios in...

  • Page 40
    ... operations (dollars of thousands): Years Ended December 31, 2008 2007 Variance 2008 vs. 2007 Amount % Lending loss, net of tax Canada income, net of tax Canada-gain on disposal, net of tax Canada-tax benefit of excess tax basis over book basis Income from discontinued operations, net of tax...

  • Page 41
    ... year ended December 31, 2007 compared to 2006. This increase was due to an increase in order flow payment, advisor management fees, foreign currency margin revenue, fixed income product revenue and mutual fund fees, partially offset by a decrease in account maintenance fees and mortgage servicing...

  • Page 42
    ...million in gain on sales of investments, net. During 2006, we sold shares of our investments in Softbank Investment Corporation and International Securities Exchange Holdings, Inc. resulting in gains of $71.7 million. Income Tax Expense (Benefit) The income tax benefit from continuing operations was...

  • Page 43
    ... Commission Fees and service charges Gain (loss) on loans and securities, net Other revenue Net segment revenue Total segment expense Total retail segment income Key Metrics(1): Retail customer assets (dollars in billions) Net new customer assets (dollars in billions)(2) Customer cash and deposits...

  • Page 44
    ... Company in connection with the credit related losses in our institutional segment. While we anticipate credit related losses will be at historically high levels in future periods, primarily in our home equity loan portfolio, we believe our retail customer base has stabilized. During the year ended...

  • Page 45
    ... and market-making activities. Balance sheet management activities include managing loans previously purchased from the retail segment as well as third parties, and leveraging these loans and retail customer cash and deposit relationships to generate additional net operating interest income. 2008...

  • Page 46
    ... lower rates and lower home equity, credit card and CDO management fees. Gain (loss) on loans and securities, net decreased to a loss of $2.5 billion for the year ended December 31, 2007. This decline was due primarily to the $2.2 billion loss on the sale of our asset-backed securities portfolio in...

  • Page 47
    ... 2008 vs. 2007 Amount % Assets: Cash(1) Trading securities Available-for-sale mortgage-backed and investment securities Margin receivables Loans, net Investment in FHLB stock Other assets(2) Total assets Liabilities and shareholders' equity: Deposits Wholesale borrowings(3) Customer payables...

  • Page 48
    ... sale of our Canadian brokerage business during the year ended December 31, 2008. In addition, stock loan, which is reported within the accounts payable, accrued and other liabilities line item, decreased $1.7 billion to $0.3 billion at December 31, 2008 compared to 2007. Available-for-Sale Mortgage...

  • Page 49
    ... thousands): December 31, 2008 2007 Variance 2008 vs. 2007 Amount % Loans held-for-sale One- to four-family Home equity Consumer and other loans: Recreational vehicle Marine Commercial Credit card Other Unamortized premiums, net Allowance for loan losses Total loans, net * Percentage not meaningful...

  • Page 50
    ... for loan losses. Deposits Deposits are summarized as follows (dollars in thousands): December 31, 2008 2007 Variance 2008 vs. 2007 Amount % Money market and savings accounts Sweep deposit accounts Certificates of deposit Checking accounts Brokered certificates of deposit Total deposits $12...

  • Page 51
    ... 31, 2008 was due primarily to a decrease in FHLB advances. Securities sold under agreements to repurchase coupled with FHLB advances are the primary wholesale funding sources of the Bank. As a result, we expect these balances to fluctuate over time as our deposits and our interest-earning assets...

  • Page 52
    ... plans. While the liquidity risk associated with our customer deposits remains at historically high levels, we believe the current level of risk is substantially lower than it was during the fourth quarter of 2007. Capital is generated primarily through our business operations and our capital market...

  • Page 53
    ... company. Cash and Equivalents Held in the Reserve Fund At December 31, 2008, we held cash in The Reserve Funds' Primary Fund ("the Fund") of $146.3 million, which is included as a receivable in other assets line item on the balance sheet. On September 16, 2008, the Fund reported that its shares...

  • Page 54
    ...$7.7 million related to our banking and brokerage subsidiaries is included in gain (loss) on loans and securities, net line item. The remaining amount of $146.3 million, net of the $11.2 million impairment charge, that we invested in the Fund is included as a receivable in the other assets line item...

  • Page 55
    ... not include sweep deposit accounts, money market and savings accounts or checking accounts as there are no maturities and /or scheduled contractual payments. Includes annual interest based on the contractual features of each transaction, using market rates at December 31, 2008. Interest rates are...

  • Page 56
    ... unused lines of credit available to customers under home equity lines of credit and $0.5 billion of unused credit card and commercial lines. As of December 31, 2008, the Company had no commitments to originate, purchase or sell loans. The Company had a commitment to purchase and sell securities of...

  • Page 57
    ... during 2008. The significant and abrupt evaporation of secondary market liquidity for various types of mortgage loans, particularly home equity loans, has decreased the overall availability of housing credit. As a result, many borrowers, particularly those in markets with declining housing prices...

  • Page 58
    ... company to provide access to real estate loans for our customers. Underwriting Standards-Purchased Loans In the second half of 2007, we altered our business strategy and halted the focus on growing the balance sheet. As a result, we did not purchase loans during the year ended December 31, 2008...

  • Page 59
    ...interest rate risks. Operational Risk Management Operational risks exist in most areas of the Company from clearing to customer service. While we make every effort to protect against failures in the internal controls system, no system is completely fail proof. Loss of company and customer assets due...

  • Page 60
    ... for home equity are based on undrawn balances. The average estimated current LTV ratio reflects the outstanding balance at the balance sheet date, divided by the estimated current property value. Current property values are estimated using the most recent property value data available to...

  • Page 61
    ... loan products based on an analysis of individual loans and pools of loans. However, the entire allowance is available to absorb credit losses inherent in the total loan portfolio as of the balance sheet date. The following table presents the allowance for loan losses by major loan category (dollars...

  • Page 62
    ... Home equity Recreational vehicle Marine Credit card Other Total charge-offs Recoveries: One- to four-family Home equity Recreational vehicle Marine Credit card Other Total recoveries Net charge-offs Allowance for loan losses, end of period Net charge-offs to average loans receivable outstanding...

  • Page 63
    ... loan losses by loan category (dollars in thousands): 2008 Amount 2007 Amount %(1) December 31, 2006 Amount %(1) 2005 Amount %(1) 2004 Amount %(1) %(1) One- to four- family Home equity Consumer and other loans: Recreational vehicle Marine Commercial Credit card Other Total consumer and other loans...

  • Page 64
    ...days past due. The following table shows the comparative data for nonperforming loans and assets (dollars in thousands): 2008 December 31, 2007 2006 2005 2004 One- to four-family Home equity Consumer and other loans: Recreational vehicle Marine Credit card Other Total consumer and other loans Total...

  • Page 65
    ... of $411.8 million and home equity loans of $111.7 million for the year ended December 31, 2008 when compared to December 31, 2007. We expect nonperforming loan levels to increase over time due to the weak conditions in the residential real estate and credit markets. The following graph illustrates...

  • Page 66
    ...4.5% 4.0% 3.5% loans receivable 3.0% 2.5% 2.0% 1.5% 1.0% 0.5% 0.0% Q107 Q207 Q307 Q407 Q108 Q208 Q308 Q408 Quarter ended One- to four- family Home equity Consumer & other Total Securities We focus primarily on security type and credit rating to monitor credit risk in our securities portfolios. We...

  • Page 67
    ... is our CMO portfolio. The table below details the amortized cost by average credit ratings and type of asset as of December 31, 2008 and 2007 (dollars in thousands): Below Investment Grade and Non-Rated December 31, 2008 AAA AA A BBB Total Mortgage-backed securities backed by U.S. Government...

  • Page 68
    ... loss on defaulted mortgage loans. Our one- to four-family and home equity loan portfolios represented 51% and 40%, respectively, of the total gross loan portfolio as of December 31, 2008. For the consumer and other loan portfolio, management establishes loss estimates for portfolio based on credit...

  • Page 69
    ... at E*TRADE Bank. Fair Value Measurements Description Effective January 1, 2008, we adopted SFAS No. 157, Fair Value Measurements ("SFAS No. 157"), which defines fair value as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market...

  • Page 70
    ... value that we believe to be other-than-temporary are included in gain (loss) on loans and securities, net for our banking and brokerage investments and gain (loss) on sales of investments, net for our corporate investments. We have investments in certain publicly-traded and privately-held companies...

  • Page 71
    ... securities with fair values lower than amortized cost were impaired, we would record a pre-tax loss of $439.9 million. Accounting for Financial Derivatives Description We enter into derivative transactions to reduce the risk of market price or interest rate movements on the value of certain assets...

  • Page 72
    ... on loans and securities, net line item in the consolidated statement of income (loss) in the period in which this determination was made. This loss would have a material adverse effect on the regulatory capital position at E*TRADE Bank and our results of operations. Estimates of Effective Tax Rates...

  • Page 73
    ... and credit markets which significantly impacted our asset-backed securities portfolio and our home equity loan portfolios in 2007 and continued to generate credit losses in 2008. We estimate that these credit losses will continue in future periods; however, we ceased the business activities which...

  • Page 74
    ... We value and expense employee share-based payments, which is primarily stock options, in accordance with SFAS No. 123(R). We value each granted option using an option pricing model using assumptions that match the characteristics of the granted options. We then assume a forfeiture rate that is used...

  • Page 75
    ... and Operating Interest Differential Average Balance Sheet and Analysis of Net Interest Income ...Net Operating Interest Income-Volumes and Rates Analysis ...Investment Portfolio Investment Portfolio-Book Value and Market Value ...Investment Portfolio Maturity ...Loan Portfolio Loans by Type ...Loan...

  • Page 76
    ... investment securities (252,240) 1,701 Trading securities 17,376 (5,251) Cash and cash equivalents(2) 50,742 (24,583) Stock borrow and other (13,948) (1,645) Total enterprise interest-earning assets(3) Enterprise interest-bearing liabilities: Retail deposits Brokered certificates of deposit Customer...

  • Page 77
    ...-sale at December 31, 2008. Loans held-for-sale are accounted for at lower of cost or fair value with adjustments recorded in the gain (loss) on loans and securities, net line item and are not considered in the allowance for loan losses. Approximately 39% and 38% of the Company's real estate loans...

  • Page 78
    ... of selling them in the near term. These holdings are classified as trading securities and are carried at market value with any realized or unrealized gains and losses reflected in our consolidated statement of income (loss) as gain (loss) on loans and securities, net. Our securities classified...

  • Page 79
    ... sheet as trading securities during 2008; however, in the third quarter of 2008, all preferred stock positions were sold. The following table shows the scheduled maturities, carrying values and current yields for the Company's available-for-sale investment portfolio at December 31, 2008 (dollars in...

  • Page 80
    ... repurchase agreements as borrowings and secure them with designated fixed- and variable-rate securities. We also participate in the Federal Reserve Bank's term investment option and treasury, tax and loan borrowing programs. We use the proceeds from these transactions to meet our cash flow or asset...

  • Page 81
    ... customer money market balances held by third parties. Enterprise interest-earning assets-Consists of the primary interest-earning assets of the Company and includes: loans, net, mortgage-backed and available-for-sale securities, margin receivables, stock borrow balances, and cash required to...

  • Page 82
    ..., stock conduit and cash held by third parties. Exchange-traded funds-A fund that invests in a group of securities and trades like an individual stock on an exchange. Fair value-The price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market...

  • Page 83
    ...-Dealer and subsequently lending the same shares to another Broker-Dealer netting a fee. Swaptions-Options to enter swaps starting on a given day. Sweep deposit accounts-Accounts with the functionality to transfer brokerage cash balances to and from an FDIC-insured money market account at the Bank...

  • Page 84
    ...-Adjusted equity capital used in the calculation of capital adequacy ratios at E*TRADE Bank as required by the OTS. Tier 1 capital equals: total shareholder's equity at E*TRADE Bank, plus/(less) unrealized losses (gains) on available-for-sale securities and cash flow hedges, less deferred tax assets...

  • Page 85
    ... of funding. In addition, the parent company has issued a significant amount of corporate debt. Our deposit accounts and customer payables tend to be less rate-sensitive than wholesale borrowings. Agreements to repurchase securities re-price as interest rates change. Sweep, money market and savings...

  • Page 86
    ... year ended December 31, 2008. Under criteria published by the OTS, E*TRADE Bank's overall interest rate risk exposure at December 31, 2008 was characterized as "minimum." We actively manage our interest rate risk positions. As interest rates change, we will re-adjust our strategy and mix of assets...

  • Page 87
    ...in which we had an estimated fair value of $0.5 million as of December 31, 2008. See the corporate investments line item in the publicly traded equity securities section in Note 7-Available-for-Sale Mortgage-Backed and Investment Securities in Item 8. Financial Statements and Supplementary Data. 84

  • Page 88
    ...to the company's management and board of directors regarding the preparation and fair presentation of published financial statements. Internal control over financial reporting is defined in Rule 13a-15(f) or 15d-15(f) promulgated under the Securities Exchange Act of 1934 as a process designed by, or...

  • Page 89
    ... that our audit provides a reasonable basis for our opinion. A company's internal control over financial reporting is a process designed by, or under the supervision of, the company's principal executive and principal financial officers, or persons performing similar functions, and effected by the...

  • Page 90
    ... of E*TRADE Financial Corporation and subsidiaries (the "Company") as of December 31, 2008 and 2007, and the related consolidated statements of income (loss), comprehensive income (loss), shareholders' equity, and cash flows for each of the three years in the period ended December 31, 2008. These...

  • Page 91
    ..., except per share amounts) Year Ended December 31, 2008 2007 2006 Revenue: Operating interest income Operating interest expense Net operating interest income Commission Fees and service charges Principal transactions Gain (loss) on loans and securities, net Other revenue Total non-interest income...

  • Page 92
    ... for loan losses of $1,080,611 and $508,164 at December 31, 2008 and 2007, respectively) Investment in FHLB stock Property and equipment, net Goodwill Other intangibles, net Other assets Total assets LIABILITIES AND SHAREHOLDERS' EQUITY Liabilities: Deposits Securities sold under agreements to...

  • Page 93
    ...) Year Ended December 31, 2008 2007 2006 Net income (loss) Other comprehensive loss: Available-for-sale securities: Unrealized gains (losses), net(1) Reclassification into earnings, net(2) Net change from available-for-sale securities Cash flow hedging instruments: Unrealized gains (losses), net...

  • Page 94
    ... balance Net loss Other comprehensive loss Issuance of common stock related to the Citadel Investment(1) Exercise of stock options and purchase plans, including tax benefit Repurchases of common stock Issuance of restricted stock Cancellation of restricted stock Retirement of restricted stock to pay...

  • Page 95
    ... balance Net loss Other comprehensive loss Issuance of common stock related to the Citadel Investment(1) Exchange of debt for common stock(2) Exercise of stock options and purchase plans, including tax benefit Issuance of restricted stock Cancellation of restricted stock Retirement of restricted...

  • Page 96
    ... investments and venture funds(1) Gain on sale of the Canadian brokerage business Gain on sale of corporate aircraft related assets Gain on sale of RAA (Gain) loss on early extinguishment of debt Non-cash facility restructuring costs and other exit activities Share-based compensation Deferred taxes...

  • Page 97
    ...common stock from employee stock transactions Tax benefit related to share-based compensation Repurchases of common stock Net cash flow from derivative hedging liabilities Other Net cash (used in) provided by financing activities Effect of exchange rates on cash Increase in cash and equivalents Cash...

  • Page 98
    ...TRADE Bank. Its main purpose is to transfer securities from one party to another; and E*TRADE Securities LLC is a registered broker-dealer and the primary provider of brokerage services to the Company's customers. • Basis of Presentation-The consolidated financial statements include the accounts...

  • Page 99
    ...-for-sale mortgage-backed and investment securities portfolio. Gain (loss) on sales of investments, net relates to historical equity investments of the Company at the corporate level and are not related to the ongoing business of the Company's operating subsidiaries. New Income Statement Reporting...

  • Page 100
    ... loss, net of tax. As of January 1, 2008, the Company adopted SFAS No. 157 for the fair value measurement of available-for-sale mortgage-backed and investment securities. Realized and unrealized gains or losses on available-for-sale securities, except for publicly traded equity securities...

  • Page 101
    ... from non-customers represent credit extended to principal officers and directors of the Company to finance their purchase of securities by borrowing against securities owned by them. Margin receivables to the Company's principal officers totaled less than $0.1 million for both December 31, 2008 and...

  • Page 102
    ... all loan types. Management believes this level is representative of probable losses inherent in the loan portfolio at the balance sheet date. Loan losses are charged and recoveries are credited to the allowance for loan losses. Property and Equipment, Net-Property and equipment are carried at cost...

  • Page 103
    ...and other funds pending completion of securities transactions. The Company pays interest on certain customer payables balances. Mandatory Convertible Debt-The Company accounted for its mandatory convertible debt by allocating the proceeds using the relative fair value of the stock purchase contracts...

  • Page 104
    ...gain (loss) on loans and securities, net line item in the consolidated statement of income (loss). Cash payments or receipts and related accruals during the reporting period on derivatives included in fair value hedge relationships are recorded as an adjustment to interest income on the hedged asset...

  • Page 105
    ... gains and losses on securities classified as trading are included in the gain (loss) on loans and securities, net line item. The Company liquidated its investment in preferred stock during the year ended December 31, 2008, which resulted in a pre-tax loss of $153.8 million, net of hedges. Operating...

  • Page 106
    ... of share-based compensation pursuant to SFAS No. 123(R). New Accounting Standards-Below are the new accounting pronouncements that relate to activities in which the Company is engaged. SFAS No. 156-Accounting for Servicing Financial Assets In March 2006, the FASB issued SFAS No. 156. This statement...

  • Page 107
    ... transfer is executed on or after January 1, 2009. The Company does not expect the adoption of this FSP to have a material impact on its financial condition, results of operations or cash flows in future periods. FSP No. FAS 142-3-Determination of the Useful Life of Intangible Assets In April 2008...

  • Page 108
    ... financial condition, results of operations or cash flows. NOTE 2-BUSINESS COMBINATIONS The Company did not complete any business combinations in 2008 or 2007. On August 1, 2006, the Company completed its acquisition of RAA, a Dallas, Texas-based investment advisor managing over $1 billion in assets...

  • Page 109
    ..., the Company's results of operations, net of income tax, include direct retail lending business as a discontinued operation on the Company's consolidated statement of income (loss) for all periods presented. Prior to the direct retail lending business being recorded as a discontinued operation, it...

  • Page 110
    ... LLC In 2005, the Company decided to sell its professional agency business, E*TRADE Professional Trading, LLC. The Company executed and settled this transaction during the year ended December 31, 2006 and recorded approximately $2.6 million in gain, net of tax, on the sale. The Company does not have...

  • Page 111
    ...clearing operations and costs related to the relocation of certain accounting functions. The Company incurred charges of $0.9 million and $29.2 million for the years ended December 31, 2007 and 2006, respectively, related to costs for exiting those facilities. The total charge for this exit activity...

  • Page 112
    ... expense from continuing operations (dollars in thousands): Year Ended December 31, 2007 2006 2008 Operating interest income: Loans, net Mortgage-backed and investment securities Margin receivables Other Total operating interest income Operating interest expense: Deposits Repurchase agreements...

  • Page 113
    ... asset or liability. For equity securities, the Company's definition of actively traded was based on average daily volume and other market trading statistics. The Company considered the market for other types of financial instruments, including certain CMOs, to be inactive as of December 31, 2008...

  • Page 114
    ...based on quoted market prices in active markets. U.S. Treasuries are classified as Level 1 of the fair value hierarchy. Securities Owned and Securities Sold, Not Yet Purchased Securities transactions entered into by certain broker-dealer subsidiaries are included in trading securities and securities...

  • Page 115
    ... the gain (loss) on loans and securities, net line item. The majority of total realized and unrealized gains (losses) were related to Level 3 instruments held at December 31, 2008. The Company's transfers in and out of Level 3 are as of the beginning of the reporting period on a quarterly basis. The...

  • Page 116
    ... impairment recorded for the year ended December 31, 2008 related to the CMO portfolio, $93.6 million related to CMOs classified as Level 3 as of January 1, 2008 and December 31, 2008. Nonrecurring Fair Value Measurements The Company also measures certain other financial assets at fair value on...

  • Page 117
    ...accounts, money market and savings accounts and checking accounts, fair value is the amount payable on demand at the reporting date. For certificates of deposit and brokered certificates of deposits, fair value is estimated by discounting future cash flows at the currently offered rates for deposits...

  • Page 118
    ... amortized cost basis and estimated fair values of available-for-sale mortgage-backed and investment securities are shown in the following tables (dollars in thousands): Amortized Cost Gross Unrealized Gains Gross Unrealized Losses Estimated Fair Values December 31, 2008: Mortgage-backed securities...

  • Page 119
    ... of time that individual securities have been in a continuous unrealized loss position (dollars in thousands): Less than 12 Months Fair Unrealized Values Losses 12 Months or More Fair Unrealized Values Losses Total Fair Values Unrealized Losses December 31, 2008: Mortgage-backed securities: Backed...

  • Page 120
    ... 31, 2008, the Company no longer held preferred stock securities as all positions were sold during the year ended December 31, 2008. The detailed components of the gain (loss) on loans and securities, net and gain (loss) on sales of investments, net line items on the consolidated statement of income...

  • Page 121
    ... operations are as follows (dollars in thousands): 2008 Year Ended December 31, 2007 2006 Realized loss on sales of originated loans Gain (loss) on securities, net Realized gain on sales of available-for-sale securities Realized loss on sales of available-for-sale securities Realized loss on asset...

  • Page 122
    ... 31, 2008. Loans held-for-sale are accounted for at lower of cost or fair value with adjustments recorded in the gain (loss) on loans and securities, net line item and are not considered in the allowance for loan losses. The weighted-average remaining maturity of mortgage loans secured by one...

  • Page 123
    ...nonperforming loans by type (dollars in thousands): December 31, 2008 2007 One- to four-family Home equity Credit card Recreational vehicle Other Total nonperforming loans $593,075 341,255 4,146 2,353 1,293 $942,122 $181,315 229,523 3,769 2,235 1,600 $418,442 If the Company's nonperforming loans...

  • Page 124
    NOTE 9-ACCOUNTING FOR DERIVATIVE FINANCIAL INSTRUMENTS AND HEDGING ACTIVITIES The Company enters into derivative transactions to protect against the risk of market price or interest rate movements on the value of certain assets, liabilities and future cash flows. The Company is also required to ...

  • Page 125
    ...period at the time of de-designation. Changes in the fair value of these derivative instruments after de-designation of fair value hedge accounting are recorded in the gain (loss) on loans and securities, net line item in the consolidated statement of income (loss). Cash Flow Hedges The Company uses...

  • Page 126
    ... agreements and FHLB advances. Floors are used to hedge home equity lines of credit. Under SFAS No. 133, as amended, the Company is required to record the fair value of gains and losses on derivatives designated as cash flow hedges in accumulated other comprehensive loss in the consolidated balance...

  • Page 127
    ... type of hedged item (dollars in thousands): As of December 31, 2008 2007 Accumulated other comprehensive income (loss) related to: FHLB advances Repurchase agreements Home equity lines of credit Other Total other comprehensive income (loss) before tax Tax benefit Total cash flow hedges, net of tax...

  • Page 128
    Derivatives used as economic hedges but not designated in a hedging relationship for accounting purposes are included in derivative assets or derivative liabilities. The mark and interest income or expense on the net hedged position is recognized in gain (loss) on loans and securities, net. ...

  • Page 129
    ... and credit markets. The method used for determining the fair value of the balance sheet management business was a combination of prices for comparable businesses and the expected present value of future cash flows of the business. In addition, there was a write-off of goodwill related to certain...

  • Page 130
    ... Deposit paid for securities borrowed Reserve fund receivable(2) Derivative assets Net settlements and deposits with clearing organizations Real estate owned and repossessed assets Other receivables from brokers, dealers and clearing organizations Other investments Third party loan servicing...

  • Page 131
    ... (dollars in thousands): Weighted-Average Rate December 31, 2008 2007 Amount December 31, 2008 2007 Percentage to Total December 31, 2008 2007 Money market and savings accounts Sweep deposit accounts (1) Certificates of deposit Checking accounts Brokered certificates of deposit Total deposits...

  • Page 132
    ...Operating interest expense on deposits is summarized as follows (dollars in thousands): Year Ended December 31, 2008 2007 2006 Money market and savings accounts Sweep deposit accounts Certificates of deposit Checking accounts Brokered certificates of deposit Total operating interest expense related...

  • Page 133
    ... December 31, 2008. The floating-rate advances adjust quarterly based on the LIBOR. As a condition of its membership in the FHLB Atlanta, the Company is required to maintain a FHLB stock investment currently equal to the lesser of: a percentage of 0.2% of total Bank assets; or a dollar cap amount of...

  • Page 134
    ... of mortgage loans and mortgage-backed securities. At December 31, 2008 and 2007, the Company pledged loans with a lendable value of $13.2 billion and $16.8 billion, respectively, of the one- to fourfamily and home equity loans as collateral in support of both its advances and unused borrowing lines...

  • Page 135
    ... 8% Notes were exchanged for an equal amount of the 12 1⁄ 2% Springing Lien notes discussed below. In 2008, the Company exchanged $18.3 million in principal of its 8% Senior Notes for 4.9 million shares of common stock. This exchange resulted in the Company recording a $0.8 million pre-tax gain on...

  • Page 136
    ... are non-callable for five years and may then be called by the Company at a premium, which declines over time. The Company has the option to make interest payments on its 12 1⁄ 2% Notes in the form of either cash or additional 12 1⁄ 2% Notes through May 2010. During the second quarter of 2008...

  • Page 137
    ... and other liabilities consist of the following (dollars in thousands): December 31, 2008 2007 Derivative liabilities Deposits received for securities loaned Accounts payable and accrued expenses Other payables to brokers, dealers and clearing organizations Derivatives payable to Lehman Brothers...

  • Page 138
    ... in which the Company operates: Jurisdiction Open Tax Year Hong Kong United Kingdom United States Various States(1) (1) 2002 - 2008 2005 - 2008 2005 - 2008 1999 - 2008 Includes California, Georgia, Illinois, New Jersey, New York and Virginia. It is likely that certain examinations may be...

  • Page 139
    ... tax expense (benefit) from continuing operations are as follows (dollars in thousands) 2008 Year Ended December 31, 2007 2006 Current: Federal Foreign State Tax benefit recognized for FIN 48 uncertainties Total current Deferred: Federal Foreign State Total deferred Income tax expense (benefit...

  • Page 140
    ..., net Net unrealized loss on equity investments and Bank assets held-for-sale Net operating loss carryforwards Deferred compensation Capitalized technology development Capitalized interest Loan fees Tax credits Restructuring reserve and related write-downs Total deferred tax assets Deferred tax...

  • Page 141
    ... of operations, financial condition and regulatory capital position at E*TRADE Bank. In addition, a significant portion of the net deferred tax asset relates to a $2.3 billion federal tax loss carryforward, the utilization of which may be further limited in the event of certain material changes in...

  • Page 142
    ... of Common Stock In 2008, the Company exchanged a total of $120.8 million in principal of outstanding senior notes for 27.1 million shares of common stock. Also in 2008, the Company issued 25.0 million shares of common stock at $18 per share (the mandatory conversion price) to retire the entire...

  • Page 143
    ...Income from discontinued operations, net of tax Net income (loss) Denominator: Basic weighted-average shares outstanding Diluted: Numerator: Net income (loss) Denominator: Basic weighted-average shares outstanding Effect of dilutive securities: Weighted-average options and restricted stock issued to...

  • Page 144
    ... patterns. The risk-free interest rate is based on the U.S. Treasury zero-coupon bond where the remaining term equals the expected term. Dividend yield is zero as the Company has not, nor does it currently plan to, issue dividends to its shareholders. Year Ended December 31, 2008 2007 2006 Expected...

  • Page 145
    ... over the period, generally two to four years. The fair value is calculated as the market price upon issuance. In connection with the Company's contract to hire the Chief Executive Officer ("CEO"), the Board made grants of restricted stock and stock options. The grants vest through October 2009, 62...

  • Page 146
    ... approved the 2002 Employee Stock Purchase Plan ("2002 Purchase Plan"), and reserved 5,000,000 shares of common stock for sale to employees at a price no less than 85% of the lower of the fair market value of the common stock at the beginning of the one-year offering period or the end of each of...

  • Page 147
    ... excess capital requirements for the Company's broker-dealer subsidiaries (dollars in thousands): December 31, 2008 Required Excess Net Net Net Capital Capital Capital E*TRADE Clearing LLC(1) E*TRADE Securities LLC(1) E*TRADE Capital Markets, LLC(2) International broker-dealers Total (1) (2) $64...

  • Page 148
    ... million for the years ended December 31, 2008, 2007 and 2006, respectively. Rent expense excludes costs related to leases involved in facility restructurings, which are recorded in the facility restructuring and other exit activities line item in the consolidated statement of income (loss). NOTE 23...

  • Page 149
    ... to timely record an impairment on its mortgage and home equity portfolios; materially overvalued its securities portfolio, which includes assets backed by mortgages; and based on the foregoing, lacked a reasonable basis for the positive statements it made about the Company's earnings and prospects...

  • Page 150
    ... the Company committed various sales practice violations in the sale of certain auction rate securities to investors between April 2, 2003, and February 13, 2008 (the "class period") by allegedly misrepresenting that these securities were highly liquid and safe investments for short term investing...

  • Page 151
    .... Loans In 2008, the Company exited its direct retail lending business, which was the last remaining loan origination channel of the Company. As a result, the Company had no commitments to originate or sell mortgage loans at December 31, 2008. Additionally, the Company had no commitments to purchase...

  • Page 152
    ...; and stock plan administration products and services. Institutional includes: • • balance sheet management activities; and market-making. The Company evaluates the performance of its segments based on segment contribution (net revenue less provision for loan losses and operating expense). All...

  • Page 153
    ... Year Ended December 31, 2008 Institutional Eliminations(1) Total Revenue: Operating interest income Operating interest expense Net operating interest income Commission Fees and service charges Principal transactions Loss on loans and securities, net Other revenue Total non-interest income (expense...

  • Page 154
    Retail Year Ended December 31, 2007 Institutional Eliminations(1) Total Revenue: Operating interest income Operating interest expense Net operating interest income Commission Fees and service charges Principal transactions Gain (loss) on loans and securities, net Other revenue Total non-interest ...

  • Page 155
    ... Year Ended December 31, 2006 Institutional Eliminations(1) Total Revenue: Operating interest income Operating interest expense Net operating interest income Commission Fees and service charges Principal transactions Gain on loans and securities, net Other revenue Total non-interest income Total...

  • Page 156
    ... other operating expense to the loss on loans and securities, net line item. Results of operations from the Canadian brokerage business and direct retail lending business have been reclassified to discontinued operations. Therefore, net revenue from these businesses has been excluded from total net...

  • Page 157
    ...Corporate interest expense Loss on sales of investments, net Gain (loss) on early extinguishment of debt Equity in income (loss) of investments and venture funds Total other income (expense) Loss before income tax expense (benefit), discontinued operations and equity in income (loss) of consolidated...

  • Page 158
    BALANCE SHEET (In thousands) December 31, 2008 2007 ASSETS Cash and equivalents Property and equipment, net Investment in consolidated subsidiaries Receivable from subsidiaries Other assets Total assets LIABILITIES AND SHAREHOLDERS' EQUITY Liabilities: Corporate debt Other liabilities Total ...

  • Page 159
    ...) of investments and venture funds Gain on sale of the Canadian brokerage business (Gain) loss on early extinguishment of debt Non-cash restructuring costs and other exit activities Share-based compensation Tax benefit related to share-based compensation Other Other changes, net: Other assets and...

  • Page 160
    ... subsidiary to the parent company. In support of the Company's brokerage business, the Company has provided guarantees on the settlement of its subsidiaries' financial obligations with several financial institutions related to its securities lending activities. Terms and conditions of the guarantees...

  • Page 161
    ... or 15d-15. (b) Our Chief Executive Officer and our Chief Financial Officer have evaluated the changes to the Company's internal control over financial reporting that occurred during our last fiscal quarter ended December 31, 2008, as required by paragraph (d) of Exchange Act Rules 13a-15 and 15d-15...

  • Page 162
    ...filed on October 7, 2005.) Stock Purchase Agreement, dated as of July 14, 2008, between The Bank of Nova Scotia and U.S. Raptor Three, Inc. (Incorporated by reference to Exhibit 2.1 of the Company's Current Report on Form 8-K filed on July 16, 2008.) Certificate of Incorporation of E*TRADE Financial...

  • Page 163
    ... and the Bank of New York, as Trustee (Incorporated by reference to Exhibit 4.1 of the Company's Current Report on Form 8-K filed on November 15, 2005.) Common Stock Underwriting Agreement among E*TRADE Financial Corporation and Morgan Stanley & Co. Incorporated and J.P. Morgan Securities Inc., as...

  • Page 164
    ...] Master Service Agreement and Global Services Schedule, dated April 9, 2003, between E*TRADE Group, Inc. and ADP Financial Information Services, Inc. (Incorporated by reference to Exhibit 10.1 of the Company's Form 10-Q filed on August 8, 2003.) E*TRADE FINANCIAL Sweep Deposit Account Brokerage and...

  • Page 165
    ... to Exhibit 10.2 of the Company's Current Report on Form 8-K filed on December 4, 2007.) ABS Purchase Agreement, dated as of November 29, 2007, by and among E*TRADE Financial Corporation, E*TRADE Bank, E*TRADE Global Asset Management, Inc. and Citadel Equity Fund Ltd. (Incorporated by reference to...

  • Page 166
    ...14, 2008, by E*TRADE Financial Corporation in favor of The Bank of Nova Scotia (Incorporated by reference to Exhibit 10.1 of the Company's Current Report on Form 8-K filed on July 16, 2008). Extension of Consulting Period in Separation Agreement for Investor Relations Services dated July 15, 2008 by...

  • Page 167
    ...H. Layton Chairman & Chief Executive Officer By /s/ BRUCE P. NOLOP Bruce P. Nolop Chief Financial Officer (Principal Financial and Accounting Officer) Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the...

  • Page 168
    .... Neither Principal Life Insurance Company nor its agents can be responsible for the legal or tax aspects of the plan nor its appropriateness for your situation. If you wish to change the provisions of this sample plan, you may ask us to prepare new sample wording for you and your lawyer to review.

  • Page 169
    E*TRADE 401(k) PLAN 401(k) Plan CL2005 Restated December 15, 2006

  • Page 170
    ... Investment and Timing of Contributions BENEFITS Retirement Benefits Death Benefits Vested Benefits When Benefits Start Withdrawal Benefits Loans to Participants Distributions Under Qualified Domestic Relations Orders DISTRIBUTION OF BENEFITS Automatic Forms of Distribution Optional Forms...

  • Page 171
    ... PLAN Administration Expenses Records Information Available Claim Procedures Delegation of Authority Exercise of Discretionary Authority Transaction Processing Voting and Tender of Self-Directed Brokerage Accounts GENERAL PROVISIONS Amendments Direct Rollovers Mergers and Direct Transfers Provisions...

  • Page 172
    ... previously established a 401(k) savings plan on January 1, 2003. The Primary Employer is of the opinion that the plan should be changed. It believes that the best means to accomplish these changes is to completely restate the plan's terms, provisions and conditions. The restatement, effective...

  • Page 173
    ... of the Investment Fund. His Account is subject to any minimum guarantees applicable under the Annuity Contract or other investment arrangement and to any expenses associated therewith. Accrual Computation Period means a consecutive 12-month period ending on the last day of each Plan Year, including...

  • Page 174
    ... an organization the principal business of which is performing management functions on a regular and continuing basis. Such service is of a type historically performed by employees. In the case of a management organization, the Affiliated Service Group shall include organizations related, within the...

  • Page 175
    ... a plan of deferred compensation; amounts realized from the exercise of a nonqualified stock option, or when restricted stock (or property) held by the Employee either becomes freely transferable or is no longer subject to a substantial risk of forfeiture; amounts realized from the sale, exchange or...

  • Page 176
    ... and allocations in Plan Years beginning on or after January 1, 2002, the annual compensation limit in effect for determination periods beginning before that date is $200,000. Compensation means, for a Leased Employee, Compensation for the services the Leased Employee performs for the Employer...

  • Page 177
    ...Group, as it is used in this Plan, shall include the term Affiliated Service Group and any other employer required to be aggregated with the Employer under Code Section 414(o) and the regulations thereunder. Direct Rollover means a payment by the Plan to the Eligible Retirement Plan specified by the...

  • Page 178
    ... the Alternate Payee under a qualified domestic relations order, as defined in Code Section 414(p). If any portion of an Eligible Rollover Distribution is attributable to payments or distributions from a designated Roth account, an Eligible Retirement Plan with respect to such portion shall include...

  • Page 179
    ... consists of after-tax employee contributions that are not includible in gross income. However, such portion may be transferred only to an individual retirement account or individual retirement annuity described in Code Section 408(a) or (b), or to a qualified defined contribution plan described in...

  • Page 180
    ... the date an Employee first performs an Hour of Service. Entry Date means the date an Employee first enters the Plan as an Active Participant. See the ACTIVE PARTICIPANT SECTION of Article II. ERISA means the Employee Retirement Income Security Act of 1974, as amended. Fiscal Year means the Primary...

  • Page 181
    ... time method of crediting service in this Plan, each hour for which an Employee is paid, or entitled to payment, for performing duties for the Employer. Hour of Service means, for the hours method of crediting service in this Plan, the following: (a) (b) Each hour for which an Employee is paid...

  • Page 182
    ..., the terms of a Trust Agreement. The Investment Fund shall be valued at current fair market value as of the Valuation Date. The valuation shall take into consideration investment earnings credited, expenses charged, payments made, and changes in the values of the assets held in the Investment Fund...

  • Page 183
    ... be credited with a proportionate share of the gain or loss of such investments. The share shall be determined by multiplying the gain or loss of the investment by the ratio of the part of the Participant's Account invested in such funding arrangement to the total of the Investment Fund invested in...

  • Page 184
    ... the Plan Year beginning on such Yearly Date. Named Fiduciary means the person or persons who have authority to control and manage the operation and administration of the Plan. The Named Fiduciary is the Employer. Nonhighly Compensated Employee means an Employee of the Employer who is not a Highly...

  • Page 185
    ... in accordance with its terms. The total value of all amounts held under the Plan Fund shall equal the value of the aggregate Participants' Accounts under the Plan. Plan Year means a period beginning on a Yearly Date and ending on the day before the next Yearly Date. RESTATEMENT DECEMBER 15...

  • Page 186
    ... Self-Directed Brokerage AccountSM. Self-employed Individual means, with respect to any Fiscal Year, an individual who has Earned Income for the Fiscal Year (or who would have Earned Income but for the fact the trade or business for which this Plan is established did not have net profits for...

  • Page 187
    ... the value of the assets of the Investment Fund is determined. The value of each Account that is maintained under this Plan shall be determined on the Valuation Date. In each Plan Year, the Valuation Date shall be the last day of the Plan Year. At the discretion of the Plan Administrator, Trustee...

  • Page 188
    ... is subsequently determined to meet the definition of Totally and Permanently Disabled. If the schedule used to determine a Participant's Vesting Percentage is changed, the new schedule shall not apply to a Participant unless he is credited with an Hour of Service on or after the date of the...

  • Page 189
    Period of Severance included (service spanning rule): A Period of Severance shall be deemed to be a Period of Service under either of the following conditions: (a) (b) the Period of Severance immediately follows a period during which an Employee is not absent from work and ends within 12 months; or ...

  • Page 190
    ...and has met the eligibility requirement set forth below. This date is his Entry Date. (1) He has one year of Eligibility Service before his Entry Date. An Employee, who is not a Part Time Employee, shall first become an Active Participant (begin active participation in the Plan) on the earliest date...

  • Page 191
    .... The election shall be made by filing a written request with the Plan Administrator not to be an Active Participant. The Eligible Employee may at any time revoke such election and, (a) (b) if he has met all of the other eligibility requirements under this section and his Entry Date has occurred, he...

  • Page 192
    ...CONTRIBUTIONS. Employer Contributions shall be made without regard to current or accumulated net income, earnings, or profits of the Employer. Notwithstanding the foregoing, the Plan shall continue to be designed to qualify as a profit sharing plan for purposes of Code Sections 401(a), 402, 412, and...

  • Page 193
    ... calculated based on Elective Deferral Contributions and Compensation for the pay period. Matching Contributions are made for all persons who were Active Participants at any time during that pay period. Matching Contributions will not be made on any Catch-up Contributions made to the Plan. Matching...

  • Page 194
    ... from the types of plans specified below. Direct Rollovers. The Plan will accept a direct rollover of an Eligible Rollover Distribution from (i) a qualified plan described in Code Section 401(a) or 403(a), including after-tax employee contributions and any portion of a designated Roth account; (ii...

  • Page 195
    ... in kind and must be made according to procedures set up by the Plan Administrator. The in kind distribution must be of an allowable security under the Self-Directed Brokerage Account. If the Eligible Employee is not an Active Participant when the Rollover Contribution is made, he shall be deemed to...

  • Page 196
    ..., and he again performs an Hour of Service as an Eligible Employee within the repayment period, the Plan Administrator shall restore the Participant's Account as if he had made a required repayment on the date he performed such Hour of Service. Restoration of the Participant's Account shall include...

  • Page 197
    ... of this section if he is an Active Participant on the last day of the Plan Year. A person shall also meet the requirements of this section if he was an Active Participant at any time during the Plan Year and retires, becomes Totally and Permanently Disabled, or dies. Elective Deferral Contributions...

  • Page 198
    ... to the remaining persons sharing in the allocation based on Annual Compensation as described above, as if they were the only persons sharing in the allocation for the Plan Year. This amount shall be credited to the person's Account. If Leased Employees are Eligible Employees, in determining the...

  • Page 199
    ... a plan of deferred compensation; amounts realized from the exercise of a nonqualified stock option, or when restricted stock (or property) held by the Employee either becomes freely transferable or is no longer subject to a substantial risk of forfeiture; amounts realized from the sale, exchange or...

  • Page 200
    ... for the Limitation Year over the Maximum Annual Addition. Limitation Year means the consecutive 12-month period ending on each December 31. If the Limitation Year is other than the calendar year, execution of this Plan (or any amendment to this Plan changing the Limitation Year) constitutes the...

  • Page 201
    ... determined for all Participants similarly situated. As soon as is administratively feasible after the end of the Limitation Year, the Maximum Annual Addition for the Limitation Year will be determined on the basis of the Participant's actual Compensation for the Limitation Year. If as a result of...

  • Page 202
    ...under this Plan for any such Limitation Year will not exceed the Maximum Annual Addition, reduced by the Annual Additions credited to a Participant's account under the other qualified defined contribution plans, welfare benefit funds, individual medical accounts, and simplified employee pensions for...

  • Page 203
    ... Excess Amount allocated as of such date, times the ratio of (i) the Annual Additions allocated to the Participant for the Limitation Year as of such date under this Plan to (ii) the total Annual Additions allocated to the Participant for the Limitation Year as of such date under this and all the...

  • Page 204
    ... Qualified Nonelective Contributions under this Plan that were not used in computing the Deferral Percentage. For plan years beginning on or after January 1, 2006, Qualified Nonelective Contributions cannot be taken into account for a plan year for a Nonhighly Compensated Employee to the extent they...

  • Page 205
    ... taken into account in computing the Deferral Percentage of Highly Compensated Employees for such Plan Year, over The maximum amount of such contributions permitted by the ADP Test (determined by hypothetically reducing contributions made on behalf of Highly Compensated Employees in the order of the...

  • Page 206
    ... Contributions) made to the plan by or on behalf of a participant that are included in the participant's gross income in the year in which made and that are maintained under a separate account to which the earnings and losses are allocated. Pre-tax Elective Deferral Contributions means a participant...

  • Page 207
    ... to use the current year testing method. (1) Prior Year Testing Method. The ADP for a Plan Year for Eligible Participants who are Highly Compensated Employees for each Plan Year and the prior year's ADP for Eligible Participants who were Nonhighly Compensated Employees for the prior Plan Year must...

  • Page 208
    ...are Highly Compensated Employees for the Plan Year: If the Employer has elected to use the current year testing method, that election cannot be changed unless (i) the Plan has been using the current year testing method for the preceding five Plan Years, or if less, the number of Plan Years the Plan...

  • Page 209
    ... end of the 12-month period immediately following the Plan Year to which the contributions relate. If the Plan Administrator should determine during the Plan Year that the ADP Test is not being met, the Plan Administrator may limit the amount of future Elective Deferral Contributions of the Highly...

  • Page 210
    ...the Excess Contributions. The denominator of the fraction is the closing balance without regard to any income or loss occurring during such Plan Year (as of the end of such Plan Year) of the Participant's Account resulting from Elective Deferral Contributions (and Qualified Nonelective Contributions...

  • Page 211
    ...are Highly Compensated Employees for the Plan Year: If the Employer has elected to use the current year testing method, that election cannot be changed unless (i) the Plan has been using the current year testing method for the preceding five Plan Years, or if less, the number of Plan Years the Plan...

  • Page 212
    ..., no later than 12 months after the last day of a Plan Year to Participants to whose Accounts such Excess Aggregate Contributions were allocated for such Plan Year. Excess Aggregate Contributions are allocated to the Highly Compensated Employees with the largest Contribution Percentage Amounts taken...

  • Page 213
    ... the Plan Year multiplied by the number of complete months (counting 16 days or more as a complete month) in the gap period. Excess Aggregate Contributions allocated to a Participant shall be distributed from the Participant's Account resulting from Participant Contributions that are not required as...

  • Page 214
    ...is no longer available, the Primary Employer may require that amounts currently held in such investment be reinvested in other investments. At least annually, the Named Fiduciary shall review all pertinent Employee information and Plan data in order to establish the funding policy of the Plan and to...

  • Page 215
    ... of (i) the date the Contributions can reasonably be segregated from the Employer's assets, or (ii) the 15th business day of the month following the month in which the Contributions would otherwise have been paid in cash to the Participant. RESTATEMENT DECEMBER 15, 2006 48 ARTICLE IV (5-19047)

  • Page 216
    ...a part of his Vested Account. SECTION 5.04-WHEN BENEFITS START. (a) Unless otherwise elected, benefits shall begin before the 60th day following the close of the Plan Year in which the latest date below occurs: (1) (2) (3) The date the Participant attains age 65 (or Normal Retirement Age, if earlier...

  • Page 217
    ... Plan must be made in a lump sum. A lump sum shall include a distribution of an annuity contract. SECTION 5.05-WITHDRAWAL BENEFITS. A Participant may withdraw any part of his Vested Account in the event he becomes Totally and Permanently Disabled. A Participant may make such a withdrawal at any time...

  • Page 218
    ... exceed 7.5% of adjusted gross income); (ii) the purchase (excluding mortgage payments) of a principal residence for the Participant; (iii) payment of tuition, related educational fees, and room and board expenses, for the next 12 months of post-secondary education for the Participant, his spouse...

  • Page 219
    ...shall be a Participant-directed investment of his Account. The loan is a Trust Fund investment but no Account other than the borrowing Participant's Account shall share in the interest paid on the loan or bear any expense or loss incurred because of the loan. The number of outstanding loans shall be...

  • Page 220
    ... rates in accordance with the current appropriate standards. The loan shall by its terms require that repayment (principal and interest) be amortized in level payments, not less frequently than quarterly, over a period not extending beyond five years from the date of the loan. If the loan is used...

  • Page 221
    ... from the Account of the Participant as part of the loan balance. Each loan may be paid prior to maturity, in part or in full, without penalty or service fee, except as may be set out in the promissory note. The Plan shall suspend loan payments for a period not exceeding one year during which...

  • Page 222
    ...'s Vested Account would otherwise be used under this provision to pay any amount due under the outstanding loan, this will not occur until the time, or in excess of the extent to which, a distributable event occurs under the Plan. An outstanding loan will become due and payable in full 60 days after...

  • Page 223
    ... distributed in the manner the Plan would distribute if the order did not exist and the order shall apply prospectively if the Plan Administrator later determines the order is a qualified domestic relations order. The Plan shall make payments or distributions required under this section by separate...

  • Page 224
    ... Benefits. The only form of death benefit is a single sum payment. SECTION 6.03-ELECTION PROCEDURES. The Participant shall make any election under this section in writing. The Plan Administrator may require such individual to complete and sign any necessary documents as to the provisions to be made...

  • Page 225
    ... annuity option (purchased from a commercial provider), and if the Employer (or any entity within the same Controlled Group) does not maintain another defined contribution plan (other than an employee stock ownership plan as defined in Code Section 4975(e)(7)), the Participant's Account balance will...

  • Page 226
    ... further consent by the spouse. A spouse's consent may be revoked at any time within the Participant's election period. SECTION 6.04-NOTICE REQUIREMENTS. Optional Forms of Retirement Benefit and Right to Defer. The Plan Administrator shall furnish to the Participant a written explanation of the...

  • Page 227
    ... in the valuation calendar year after the Valuation Date. The Account balance for the valuation calendar year includes any amounts rolled over or transferred to the Plan either in the valuation calendar year or in the Distribution Calendar Year if distributed or transferred in the valuation calendar...

  • Page 228
    ... that are not purchased annuities and recommence by April 1 of the calendar year following the calendar year in which he retires. There shall be a new Annuity Starting Date upon recommencement. SECTION 7.03-REQUIRED MINIMUM DISTRIBUTIONS. (a) General Rules. (1) (2) (b) The requirements of this...

  • Page 229
    ...year rule. Under the 5-year rule, the Participant's entire interest will be distributed to the Designated Beneficiary by December 31 of the calendar year... purchased from an insurance company or in a single sum on or before the Required Beginning Date, as of the first Distribution Calendar Year ...

  • Page 230
    ... using the Participant's age as of the Participant's birthday in the Distribution Calendar Year; or (ii) if the Participant's sole Designated Beneficiary for the Distribution Calendar Year is the Participant's spouse, the quotient obtained by dividing the Participant's Account Balance by the number...

  • Page 231
    ... the Participant's Account Balance by the remaining Life Expectancy of the Participant's Designated Beneficiary, determined as provided in (d)(1) above, except to the extent that an election is made to receive distributions in accordance with the 5year rule. Under the 5-year rule, the Participant...

  • Page 232
    ... partial termination of the Plan. The Participant's Vested Account shall continue to participate in the earnings credited, expenses charged, and any appreciation or depreciation of the Investment Fund until his Vested Account is distributed. A Participant's Vested Account that does not result from...

  • Page 233
    ... does not pay such expenses, may be paid out of the assets of the Plan provided that such payment is consistent with ERISA. Such expenses include, but are not limited to, expenses for bonding required by ERISA; expenses for recordkeeping and other administrative services; fees and expenses of the...

  • Page 234
    ... report, any bargaining agreement, this Plan, the Annuity Contract, or any other instrument under which the Plan was established or is operated. The Plan Administrator shall maintain all of the items listed in this section in its office, or in such other place or places as it may designate in order...

  • Page 235
    ... for the denial; (ii) reference the specific Plan provisions on which the denial is based; (iii) include a statement that the Claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the Claimant...

  • Page 236
    ... relating to the claim for benefits. The Claimant shall be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the Claimant's claim for benefits. The Plan Administrator shall review the claim taking into account...

  • Page 237
    ... for the denial; (ii) reference the specific Plan provisions on which the denial is based; (iii) include a statement that the Claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the Claimant...

  • Page 238
    ...the Plan and considered the applicable Valuation Date for any transaction. SECTION 9.09-VOTING AND TENDER OF SELF-DIRECTED BROKERAGE ACCOUNTS. Rights of ownership of securities held in the Self-Directed Brokerage Account, including voting rights, tender rights, and rights to exercise exchange offers...

  • Page 239
    ... benefits attributable to service before the amendment except as provided in the MERGERS AND DIRECT TRANSFERS SECTION of this article and below: (a) The Plan is amended to eliminate or restrict the ability of a Participant to receive payment of his Account balance under a particular optional form of...

  • Page 240
    ... such distribution paid directly to an Eligible Retirement Plan specified by the Participant in a Direct Rollover or to receive the distribution directly, the Plan Administrator will pay the distribution in a Direct Rollover to an individual retirement plan designated by the Plan Administrator. In...

  • Page 241
    ... the requirements to become an Active Participant. The Plan shall hold, administer, and distribute the transferred assets as a part of the Plan. The Plan shall maintain a separate account for the benefit of the Employee on whose behalf the Plan accepted the transfer in order to reflect the value of...

  • Page 242
    ... to act in any particular manner or to make any contract or agreement. Until notice of any amendment or termination of this Plan or a change in Trustee has been received by the Insurer at its home office or an issuer or distributor at their principal address, they are and shall be fully protected in...

  • Page 243
    ... give written notice to the Plan Administrator of the name of the Beneficiary on a form furnished for that purpose. The Plan Administrator shall maintain records of Beneficiary designations for Participants before their Retirement Dates. However, the Plan Administrator may delegate to another party...

  • Page 244
    ... whole years of service credited to the Employee under the Plan as of the date the change is effective. One year of service for the computation period in which the change is effective if he is credited with the required number of Hours of Service. For that portion of the computation period ending on...

  • Page 245
    ... under this Plan. One year of service for the applicable computation period in which he became an Eligible Employee if he is credited with the required number of Hours of Service. For that portion of such computation period ending on the date he became an Eligible Employee (for the first day of such...

  • Page 246
    ...method for any purpose that under this Plan is determined using the elapsed time method, then the Employee's service shall be equal to the sum of (4), (5), and (6) below: (4) (5) The number of whole years of service credited to the Employee under the other plan as of the beginning of the computation...

  • Page 247
    ... who are owners, officers, or executives. SECTION 11.02-DEFINITIONS. For purposes of this article the following terms are defined: Aggregation Group means: (a) (b) (c) each of the Employer's qualified plans in which a Key Employee is a participant during the Plan Year containing the Determination...

  • Page 248
    ... the five-year period ending on the Determination Date(s) has or has had accrued benefits, the Top-heavy Ratio for this Plan alone or for the required or permissive Aggregation Group, as appropriate, is a fraction, the numerator of which is the sum of the account balances of all Key Employees as of...

  • Page 249
    ... benefit plan. The account balances and accrued benefits of a participant (i) who is not a Key Employee but who was a Key Employee in a prior year or (ii) who has not been credited with at least one hour of service with any employer maintaining the plan at any time during the one-year period ending...

  • Page 250
    ... the last day of the Plan Year for each Nonkey Employee who is an Employee on the last day of the Plan Year and who was an Active Participant at any time during the Plan Year. A Nonkey Employee is not required to have a minimum number of Hours of Service or minimum amount of Compensation in order to...

  • Page 251
    ...defined benefit plan shall provide an annual benefit for him on, or adjusted to, a straight life basis equal to the lesser of: (c) (d) 2 percent of his average compensation multiplied by his years of service, or 20 percent of his average compensation. Average compensation and years of service shall...

  • Page 252
    ... acknowledges having counseled to the extent necessary with selected legal and tax advisors regarding the Plan's legal and tax implications. Executed this 29 th day of December, 2006. E*TRADE FINANCIAL CORPORATION By: /s/ John A. Coy Vice President, Compensation & Benefits Title Defined Contribution...

  • Page 253
    ... the legal and tax advice of its own advisors, and not that of any member of the Principal Financial Group or any representative of a member company of the Principal Financial Group. Signed this 5 th day of January, 2007. E*TRADE FINANCIAL CORPORATION By /s/ Kimberly Young Sr Manager, Benefits Title...

  • Page 254
    ...business time, allergy and skill to his duties at the Company. Executive's duties and authority shall include au those duties and authority customarily performed by the Chief Marketing Officer. During the term of Executive's employment, Executive shall be permitted to manage his personal investments...

  • Page 255
    ... to any rights granted to Executive under any such agreement. (a) Acceleration of Equity Compensation Vesting Upon Non-Assumption. In the event of a Charge In Control, each Company stock option and restricted stock award granted to Executive, to the extent then outstanding, shall become fully vested...

  • Page 256
    restricted stock and other Company stock-based award ranted to Executive then outstanding shall, as of the later of Executive's termination of employment or the last day following Executive's execution of the Release on which Executive may revoke such Release under its terms, become fully vested and...

  • Page 257
    ... the date of Executive's termination of employment, including any bonus that has been earned but not yet paid plus a pro-rata share of the Target Bonus (presuming performance at the "meets expectations" level and no greater); and (ii) a lump sum payment equivalent to one year's Base Salary; and

  • Page 258
    ... sum payment equivalent to one year's Target Bonus under the Company's Performance Bonus Plan as it is in effect at the time of the Involuntary Termination. The amount payable to Executive under subsection (ii) above shall be paid to Executive in a lump sum within ten (10) business days following...

  • Page 259
    ... date of the public announcement of a tender offer that is not approved by the Incumbent Directors and ending on the two year anniversary date of the consummation of the Change in Control. (d) "Good Reason " shall mean any of the following conditions: (i) a decrease in Executive's Base Salary and/or...

  • Page 260
    ... directly to the COO, CEO or Board of Directors of a publicly held company prior to the Change in Control reports to an individual or entity that is not, respectively, the COO, CEO or Board of Directors of a publicly held company. (iii) the relocation of Executive's principle workplace to a location...

  • Page 261
    ... to abide by the terms and conditions of the Company's standard Employee Inventions and Proprietary Rights Assignment Agreement and the Company's Insider Trading Policy, as it may be amended from time to tine. 8. Agreement Not To Compete Unfairly; Return of Company Property: Executive agrees that in...

  • Page 262
    ...substantially all of the assets of the Company. (b) Amendments; Waiver: No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to in writing and signed by Executive and by an authorized officer of the Company. No waiver by either...

  • Page 263
    ...to the Company shall be addressed as follows: E*TRADE Financial Corporation 671 North Glebe Road Arlington, VA 22203 Attention: General Counsel (d) Entire Agreement: This Agreement constitutes the entire employment agreement between Executive and the Company regarding the terms and conditions of his...

  • Page 264
    ... governed by the laws of the State of New York. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and years written below. E*TRADE Financial Corporation Date: By: /s/ Mitchell H. Caplan Mitchell H. Caplan Its: Chief Executive Officer /s/ Nick Utton Nick Utton Date: 6/1/04

  • Page 265
    ... business days following the later: the Separation Date or; (ii) the last day following Executive's execution of the Release or on which Executive may revoke such Release under its terms, the Company will pay Associate a lump sum payment equivalent to . On the Separation Date, Executive will be paid...

  • Page 266
    ... such disclosure may be required for accounting or tax reporting purposes or as otherwise may be required by law, or if this agreement becomes publicly filed. 7. Executive agrees that any dispute relating to or arising out of Executive's employment with the Company, this agreement or the Employment...

  • Page 267
    ... Period, two times Employee's annualized base salary then in effect; (iii) a lump sum payment equivalent to one times or, if such termination occurs during a Change in Control Period, two times Employee's target bonus under the Company's performance bonus plan in effect for the year in which the...

  • Page 268
    ... a lump sum payment based on the monthly premiums immediately prior to the expiration of COBRA coverage; and (v) if such termination occurs during a Change in Control Period, each Company equity compensation grant ("Equity Grants") held by Employee, to the extent then outstanding, shall become fully...

  • Page 269
    ...'s "separation from service" shall instead be paid or provided to Employee in a lump sum payment on the first business day immediately following the six-month anniversary of Employee's "separation from service". Section 4. Definitions. As used in this Agreement, the following terms shall have the...

  • Page 270
    ... a Company-sponsored employee benefit plan or through the issuance of shares sold directly by the Company to a single acquiror; or (B) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) becomes the "beneficial owner" (as defined in Rule...

  • Page 271
    ... change in responsibilities or chance in reporting relationships (including type and number) shall not constitute "Good Reason"; provided that Employee has provided the Company with prior written notification of the grounds giving rise to such Good Reason and has terminated employment within 30 days...

  • Page 272
    ... 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. (g) Withholding Taxes. The Company may withhold...

  • Page 273
    IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date. E*TRADE Financial Corporation By: /s/ Mitchell H. Caplan Mitchell H. Caplan Chief Executive Officer By: /s/ Greg Framke Greg Framke 7

  • Page 274
    ... Period, two times Employee's annualized base salary then in effect; (iii) a lump sum payment equivalent to one times or, if such termination occurs during a Change in Control Period, two times Employee's target bonus under the Company's performance bonus plan in effect for the year in which the...

  • Page 275
    ... a lump sum payment based on the monthly premiums immediately prior to the expiration of COBRA coverage; and (v) if such termination occurs during a Change in Control Period, each Company equity compensation grant ("Equity Grants") held by Employee, to the extent then outstanding shall become fully...

  • Page 276
    ...'s "separation from service" shall instead be paid or provided to Employee in a lump sum payment on the first business day immediately following the six-month anniversary of Employee's "separation from service". Section 4. Definitions. As used in this Agreement, the following terms shall have the...

  • Page 277
    ... a Company-sponsored employee benefit plan or through the issuance of shares sold directly by the Company to a single acquiror; or (B) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) becomes the "beneficial owner" (as defined in Rule...

  • Page 278
    ... change in responsibilities or chance in reporting relationships (including type and number) shall not constitute "Good Reason"; provided that Employee has provided the Company with prior written notification of the grounds giving rise to such Good Reason and has terminated employment within 30 days...

  • Page 279
    ... 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. (g) Withholding Taxes. The Company may withhold...

  • Page 280
    IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date. E*TRADE Financial Corporation By: /s/ Mitchell H. Caplan Mitchell H. Caplan Chief Executive Officer By: /s/ Michael Curcio Michael Curcio 7

  • Page 281
    ... Total fixed charges Earnings: Income (loss) before income taxes, discontinued operations and cumulative effect of accounting change less equity in income (loss) of investments Fixed charges Less: Preference securities dividend requirements of consolidated subsidiaries Earnings Ratio of earnings...

  • Page 282
    ... (Delaware) E*TRADE Asset Management, Inc. (Delaware) E*TRADE Bank (Federal Charter) E*TRADE Bank A/S (Denmark) E*TRADE Benelux SA (Belgium) E*TRADE Brokerage Holdings, LLC. (Delaware) E*TRADE Brokerage Services, Inc. (Delaware) E*TRADE Capital Management, LLC (Delaware) E*TRADE Capital Markets, LLC...

  • Page 283
    ... (Hong Kong) Limited (Hong Kong) ETRADE Financial Information Services (Asia) Limited (Hong Kong) ETRADE Securities (Hong Kong) Limited (Hong Kong) ETRADE Securities Limited (Hong Kong) Highland REIT, Inc. (Virginia) Howard Capital Management, Inc. (New York) HR Holdings (Delaware), Inc. (Delaware...

  • Page 284
    ...Fair Value Option for Financial Assets and Liabilities, on January 1, 2008) and the effectiveness of E*TRADE Financial Corporation's internal control over financial reporting, appearing in this Annual Report on Form 10-K of E*TRADE Financial Corporation for the year ended December 31, 2008. Filed on...

  • Page 285
    ... the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules...

  • Page 286
    ... the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules...

  • Page 287
    ... of the Exchange Act; and the information contained in the Annual Report fairly presents, in all material respects, the financial condition and results of operations of E*TRADE Financial Corporation. Dated: February 26, 2009 /S/ D ONALD H. LAYTON Donald H. Layton Chairman & Chief Executive Officer...