eTrade 2009 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, 2009.
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)
Indicate by check mark if the registrant is a well-known seasonal issuer, as defined in Rule 405 of the Securities
Act. Yes ÈNo
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 whether the registrant has submitted electronically and posted on its corporate Web site, if any, every
Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or
for such shorter period that the registrant was required to submit and post such files). Yes No
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, 2009, the aggregate market value of voting stock held by non-affiliates of the registrant was approximately $1.2
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.
Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date:
As of February 22, 2010, there were 1,917,988,680 shares of common stock outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Certain portions of the definitive Proxy Statement relating to the Company’s 2010 Annual Meeting of Shareholders, to be filed
hereafter (incorporated into Part III hereof).

Table of contents

  • Page 1
    ... THE FISCAL YEAR ENDED DECEMBER 31, 2009. 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) (State or...

  • Page 2
    ...of Credit Risk ...Summary of Critical Accounting Policies and Estimates ...Required Statistical Disclosure by Bank Holding Companies ...Glossary of Terms ...Item 7A. Quantitative and Qualitative Disclosures about Market Risk ...Item 8. Financial Statements and Supplementary Data ...Management Report...

  • Page 3
    ... 12-Deposits ...Note 13-Securities Sold Under Agreement to Repurchase and Other Borrowings ...Note 14-Corporate Debt ...Note 15-Accounts Payable, Accrued and Other Liabilities ...Note 16-Income Taxes ...Note 17-Shareholders' Equity ...Note 18-Loss Per Share ...Note 19-Employee Share-Based Payments...

  • Page 4
    ... to individual retail investors, under the brand "E*TRADE Financial." Our primary focus is to profitably grow our online brokerage business, which includes our active trader and long term investing customers. We also provide investor-focused banking products, primarily sweep deposits and savings...

  • Page 5
    ... The sale of the German operations closed in 2009 and we expect to complete the Nordic and United Kingdom transactions during 2010. PRODUCTS AND SERVICES Trading and Investing Our trading and investing segment offers a full suite of financial products and services to individual retail investors. The...

  • Page 6
    ... software for active traders; two-second execution guarantee on all Standard & Poor's ("S&P") 500 stocks and exchange-traded funds; margin accounts allowing customers to borrow against their securities; access to international equities in Canada, France, Germany, Hong Kong, Japan and the United...

  • Page 7
    ...Center and Online Advisor offerings. COMPETITION The online financial services market continues to evolve rapidly and we expect it to remain highly competitive. Our trading and investing segment competes with full commission brokerage firms, discount brokerage firms, online brokerage firms, Internet...

  • Page 8
    ...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"), average commission per trade, end of period brokerage accounts and net new brokerage accounts, customer assets...

  • Page 9
    ... of the brokerage business, including, but not limited to, client protection, net capital requirements, required books and records, safekeeping of funds and securities, trading, prohibited transactions, public offerings, margin lending, customer qualifications for margin and options transactions...

  • Page 10
    ...situation stabilized, customers withdrew approximately $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...

  • Page 11
    ...and increase our dependence on our more 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. Continuing turmoil in the global financial markets could lead to changes in 8

  • Page 12
    ... accounts or our accounts related to employee stock option management software and services would significantly impact revenues and increase dependence on more active trading customers who receive more favorable pricing based on their trade volume. A decrease in trading activity or securities prices...

  • Page 13
    ...specific industry. Sudden changes in the value of these positions could impact our financial results. Reduced spreads in securities pricing, levels of trading activity and trading through market makers could harm our market maker business. Computer-generated buy/sell programs and other technological...

  • Page 14
    ...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 15
    ...E*TRADE Bank and reduce substantially the amount of our outstanding debt in order to withstand any further deterioration in current credit and market conditions. In furtherance of these objectives, we completed the Debt Exchange, the Public Equity Offering and the At the Market common stock offering...

  • Page 16
    ...repay debt and redeem or purchase shares of our outstanding stock. As a non-grandfathered savings and loan holding company, we are subject to regulations that could restrict our ability to take advantage of certain business opportunities. We are required to file periodic reports with the OTS and are...

  • Page 17
    ... our plans for the 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. We have the ability to issue a significant number of shares...

  • Page 18
    ... stock. In recent periods, the global financial markets were in turmoil and the equity and credit markets experienced extreme volatility, which caused already weak economic conditions to worsen. Continued turmoil in the global financial markets could further restrict our access to the public equity...

  • Page 19
    ... to make payments of interest and principal on our outstanding indebtedness on a timely basis would likely result in a reduction of our credit rating, which could harm our ability to incur additional indebtedness. If our operating results and available cash are insufficient to meet our debt service...

  • Page 20
    ... in the Superior Court for the State of California, County of Santa Clara. Ajaxo sought damages and certain non-monetary relief for the Company's alleged breach of a non-disclosure agreement with Ajaxo pertaining to certain wireless technology that Ajaxo offered the Company as well as damages and...

  • Page 21
    ...portfolios; failed to timely record an impairment on its mortgage and home equity portfolios; materially overvalued its securities portfolio, which included assets backed by mortgages; and based on the foregoing, lacked a reasonable basis for the positive statements made about the Company's earnings...

  • Page 22
    ...the Northern District of California against E*TRADE Securities LLC by Joseph Roling on his own behalf and on behalf of all others similarly situated. The lead plaintiff alleges that E*TRADE Securities LLC unlawfully charged and collected certain account activity fees from its customers. Claimant, on...

  • Page 23
    ... 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. The Company maintains insurance coverage that management believes is reasonable...

  • Page 24
    ... OTS. This dividend restriction includes E*TRADE Securities LLC and E*TRADE Clearing LLC as they are subsidiaries of E*TRADE Bank. Equity Compensation Plan Information Refer to Note 19-Employee Shared-Based Payments and Other Benefits of Item 8. Financial Statements and Supplementary Data for equity...

  • Page 25
    ...cumulative total return to a holder of the 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, 2004 through December 31, 2009...

  • Page 26
    ...CONSOLIDATED FINANCIAL DATA (Dollars in millions, shares in thousands, except per share amounts): 2009 Year Ended December 31, 2008 2007 2006 2005 Variance 2009 vs. 2008 Results of Operations:(1) Net operating interest income Total net revenue Provision for loan losses Income (loss) from continuing...

  • Page 27
    (Dollars in millions): 2009 2008 December 31, 2007 2006 2005 Variance 2009 vs. 2008 Financial Condition: Available-for-sale mortgagebacked and investment securities Margin receivables Loans, net Total assets Deposits Corporate debt Interest-bearing Non-interest-bearing Shareholders' equity * ...

  • Page 28
    ...utilize certain metrics, ratios and other terms that are defined in the Glossary of Terms, which is located at the end of Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations. OVERVIEW Strategy Our core business is our trading and investing customer franchise...

  • Page 29
    ... accounts(2) Customer assets (dollars in billions) Net new brokerage assets (dollars in billions)(2) Brokerage related cash (dollars in billions)(2) Company Financial Metrics: Corporate cash (dollars in millions) E*TRADE Bank excess risk-based capital (dollars in millions) Allowance for loan losses...

  • Page 30
    ... June 2009 (the "Public Equity Offering") in which a total of 500 million shares of common stock were issued; and We raised $150 million in gross proceeds ($147 million in net proceeds) from our common stock offering that was launched and completed in September 2009 (the "At the Market Offering") in...

  • Page 31
    ... portfolio management from a registered investment advisor affiliate; We introduced new tools that are designed to simplify the bond and fixed income mutual fund selection and investment process in order to help customers make more informed fixed income decisions; We launched online chat services...

  • Page 32
    Summary Financial Results Income Statement Highlights (dollars in millions, except per share amounts): Year Ended December 31, 2009 2008 Variance 2009 vs. 2008 Net operating interest income Commissions Fees and service charges Total net revenue Provision for loan losses Operating margin Loss from ...

  • Page 33
    ... non-cash loss of $772.9 million (pre-tax loss of $968.3 million) on early extinguishment of debt during the third quarter of 2009. Our trading and investing segment income was $659.1 million for the year ended December 31, 2009. However, the provision for loan losses in our balance sheet management...

  • Page 34
    ... (dollars in millions): Year Ended December 31, 2009 2008 Variance 2009 vs. 2008 Amount % Revenue: Net operating interest income Commissions Fees and service charges Principal transactions Gains (losses) on loans and securities, net Net impairment Other revenues Total non-interest income Total net...

  • Page 35
    ....1 Margin receivables 3,103.5 138.5 Available-for-sale mortgage-backed securities 10,365.7 436.9 Available-for-sale investment securities 1,227.6 36.2 Trading securities 21.4 2.6 Cash and cash equivalents(2) 6,001.4 19.0 Stock borrow and other 669.0 47.8 Total enterprise interest-earning assets Non...

  • Page 36
    ... 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 37
    ... in the volume of equity shares that were traded, which was partially offset by a decrease in our average revenue earned per share traded for the year ended December 31, 2009. Gains (Losses) on Loans and Securities, Net Gains (losses) on loans and securities, net were gains of $169.1 million and...

  • Page 38
    ... of net impairment. Prior to this new presentation, OTTI was included in the "Gains (losses) on loans and securities, net" line item on the consolidated statement of loss. We recognized $89.1 million of net impairment during the year ended December 31, 2009, on certain securities in our non-agency...

  • Page 39
    ... reduction in our employee base of 5% compared to the year ended December 31, 2008. Advertising and Market Development Advertising and market development expense decreased 35% to $114.4 million for the year ended December 31, 2009 compared to 2008. This decrease was due to high levels of advertising...

  • Page 40
    ...): Year Ended December 31, 2009 2008 Variance 2009 vs. 2008 Amount % Other income (expense): Corporate interest income Corporate interest expense Losses on sales of investments, net Gains (losses) on early extinguishment of debt Equity in income (loss) of investments and venture funds Total other...

  • Page 41
    ... may, under certain circumstances, be increased or decreased by built-in gains or losses, respectively, which may be present with respect to assets held at the time of the ownership change that are recognized in the five-year period (one-year for loans) after the ownership change. The use of NOLs...

  • Page 42
    ... when compared to our credit losses in the three-year period ending in 2009. Our trading and investing segment generated substantial book taxable income for each of the last six years and we estimate that it will continue to generate taxable income in future periods at a level sufficient to generate...

  • Page 43
    ... (dollars in millions): Year Ended December 31, 2008 2007 Variance 2008 vs. 2007 Amount % Revenue: Net operating interest income Commissions Fees and service charges Principal transactions Losses on loans and securities, net Net impairment Other revenues Total non-interest income Total net revenue...

  • Page 44
    ... of a decrease in our average available-for-sale portfolio, average margin receivables and average loans, offset by an increase in average cash and equivalents. Average available-for-sale mortgage-backed and investment securities decreased 41% to $9.6 billion for the year ended December 31, 2008...

  • Page 45
    ...The losses 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 46
    ... and services to investors. Impairment of Goodwill Impairment of goodwill was $101.2 million for the year ended December 31, 2007. This impairment represents the entire amount of goodwill associated with our balance sheet management business, which had a significant decline in fair value during...

  • Page 47
    ... million in gain on sales of investments, net. The gain on early extinguishment of debt is primarily due to a gain of $21.5 million recognized on the exchange of our senior notes for shares of our common stock for the year ended December 31, 2008. The gain of $21.5 million is offset by a loss of $10...

  • Page 48
    ... to sell the Canadian brokerage business was in place. The sale of the Canadian brokerage business was completed in the third quarter of 2008 for a gain of $268.8 million, net of tax. SEGMENT RESULTS REVIEW Beginning in the first quarter of 2009, we revised our segment financial reporting to...

  • Page 49
    ... Fees and service charges Principal transactions Gains (losses) on loans and securities, net Other revenues Net segment revenue Total segment expense Total trading and investing segment income Key Metrics: U.S. DARTs(1) U.S. average commission per trade End of period brokerage accounts(2) Net new...

  • Page 50
    ... 2007. This decrease was driven primarily by a decrease in average margin receivables as well as the above market rate on our Complete Savings Account. Trading and investing commissions revenue decreased 1% to $514.7 million for the year ended December 31, 2008 compared to 2007. The slight decrease...

  • Page 51
    ...management segment loss: Net operating interest income Commissions Fees and service charges Principal transactions Gains (losses) on loans and securities, net Net impairment Other revenues Net segment revenue Provision for loan losses Total segment expense Total balance sheet management segment loss...

  • Page 52
    ... in CDO management fees, which are no longer a revenue stream due to the sale of our collateral management agreements during the first quarter of 2008. The total loss on loans and securities, net during year ended December 31, 2008 was due principally to losses on our preferred stock in Fannie...

  • Page 53
    ... regulations Trading securities Available-for-sale mortgage-backed and investment securities Margin receivables Loans, net Investment in FHLB stock Other assets(1) Total assets Liabilities and shareholders' equity: Deposits Wholesale borrowings(2) Customer payables Corporate debt Accounts payable...

  • Page 54
    ...a result of paying down our FHLB advances and securities sold under agreements to repurchase. Customer payables increased due to higher trading activity and net new brokerage customer acquisition. The increase in shareholders' equity was due to the issuance of 620.9 million shares of common stock in...

  • Page 55
    ...are summarized as follows (dollars in millions): December 31, 2009 2008 Variance 2009 vs. 2008 Amount % Sweep deposit accounts Complete savings accounts Certificates of deposit Other money market and savings accounts Checking accounts Brokered certificates of deposit Total deposits $12,551.5 9,704...

  • Page 56
    ... line with our overall strategy of reducing our balance sheet and growing our brokerage business as the customers being sold are primarily not affiliated with an active broker account. The deposits balance is a component of the total customer cash and deposits balance reported as a customer activity...

  • Page 57
    ... stock during the third and fourth quarters of 2009. For further details on the Debt Exchange, see Note 1-Organization, Basis of Presentation and Summary of Significant Accounting Policies, Note 5-Fair Value Disclosures and 14-Corporate Debt of Item 8. Financial Statements and Supplementary Data...

  • Page 58
    ...' equity during the year ended December 31, 2009 is summarized as follows (dollars in millions): Common Stock/ Additional PaidIn Capital Accumulated Deficit/Other Comprehensive Loss Total Beginning balance, December 31, 2008 Common stock offerings Activity related to the Debt Exchange: After-tax...

  • Page 59
    ... in the table below (dollars and shares in millions): Net Proceeds Shares Equity Drawdown Program, May 2009 Public Equity Offering, June 2009 At the Market Offering, September 2009 Total $ 63 523 147 $733 41 500 80 621 Also as part of our capital plan, we completed an exchange of $1.7 billion...

  • Page 60
    ...cash Bank cash(1) International brokerage and other cash Less: Cash reported in other assets(2) Total consolidated cash (1) $ 393.2 $ 434.9 2,863.2 3,276.5 275.8 288.7 (49.0) (146.3) $3,483.2 $3,853.8 $ (41.7) (413.3) (12.9) 97.3 $(370.6) (2) During the second quarter of 2009, E*TRADE Securities...

  • Page 61
    ... level required to be considered "well capitalized." In the current credit environment, we plan to maintain excess risk-based total capital at E*TRADE Bank in order to enhance our ability to absorb credit losses while still maintaining "well capitalized" status. However, events beyond management...

  • Page 62
    ... cancellation fees. Excluded from the table are purchase obligations expected to be settled in cash within one year of the end of the reporting period. As of December 31, 2009, the Company had $0.9 billion of unused lines of credit available to customers under home equity lines of credit and...

  • Page 63
    ... inability to meet current and future cash flow and collateral needs. Interest Rate Risk-Interest rate risk is the risk of loss from adverse changes in interest rates, which could cause fluctuations in our long-term earnings or in the value of the Company's net assets. Operational Risk-Operational...

  • Page 64
    ... at the business or operating units and is aggregated across the Company through the enterprise risk management process. Credit Risk Management Our primary sources of credit risk are our loan and securities portfolios, where risk results from extending credit to customers and purchasing securities...

  • Page 65
    ... non-parallel shifts in the yield curve. See Item 7A. Quantitative and Qualitative Disclosures about Market Risk for additional information about our interest rate risks. Operational Risk Management Operational risks exist in most areas of the Company from clearing to customer service. While we make...

  • Page 66
    ... the time of origination, include: borrowers' debt-to-income ratio, borrowers' credit scores, housing prices, documentation type, occupancy type, and loan type. We also review estimated current loan-to-value ("LTV") ratios when monitoring credit risk in our loan portfolios. In economic conditions in...

  • Page 67
    ... equity are based on drawn balances. Current property values are updated on a quarterly basis using the most recent property value data available to us. For properties in which we did not have an updated valuation, we utilized home price indices to estimate the current property value. The average...

  • Page 68
    ... loan portfolio; the interest rate climate; the overall availability of housing credit; and general economic conditions. The allowance for loan losses is typically equal to management's estimate of loan charge-offs in the twelve months following the balance sheet date as well as the estimated charge...

  • Page 69
    ... in TDRs represents the balance of TDRs, net of charge-offs, at December 31, 2009. The recorded investment in TDRs includes the charge-offs related to certain loans that were written down to the estimated current property value less costs to sell. These charge-offs were recorded primarily on...

  • Page 70
    ... charge-off the amount of the loan balance in excess of the estimated current property value less costs to sell. Our policy is to charge-off credit cards when collection is not probable or the loan has been delinquent for 180 days and to charge-off closed-end consumer loans when the loan is 120 days...

  • Page 71
    ...-offs on our one- to four-family loans and home equity loans, which were driven mainly by the same factors as described above. We believe net charge-offs will decline in future periods when compared to the level of charge-offs in the three months ended December 31, 2009 as a result of our decline in...

  • Page 72
    ... data for nonperforming loans and assets (dollars in millions): 2009 Year Ended December 31, 2008 2007 2006 2005 One- to four-family Home equity Consumer and other Total nonperforming loans Real estate owned ("REO") and other repossessed assets, net Total nonperforming assets, net Nonperforming...

  • Page 73
    ... loans, which have a lower level of expected loss when compared to home equity loans as one- to four-family loans are generally secured in a first lien position by real estate assets. The balance of nonperforming loans includes loans delinquent 90 to 179 days as well as loans delinquent 180 days...

  • Page 74
    ... 90 to 170 days (dollars in millions) $800 $700 $600 $500 $400 $300 $200 $100 $0 Q1 08 Q2 08 Q3 08 Q4 08 Q1 09 Q2 09 Q3 09 Q4 09 Quarter ended One- to four-family Home equity Consumer and other Total In addition to nonperforming assets, we monitor loans where a borrower's past credit history casts...

  • Page 75
    ... 09 Q2 09 Q3 09 Q4 09 Quarter ended One- to four-family Home equity Consumer and other Total (1) Loans modified as TDRs are accounted for as nonaccrual loans at the time of modification and return to accrual status after six consecutive payments are made in accordance with the modified terms. 72

  • Page 76
    ... is the non-agency CMO portfolio. The table below details the amortized cost by average credit ratings and type of asset as of December 31, 2009 and 2008 (dollars in millions): Below Investment Grade and Non-Rated December 31, 2009 AAA AA A BBB Total Agency mortgage-backed securities and CMOs...

  • Page 77
    ... loan portfolio; the interest rate climate; the overall availability of housing credit; and general economic conditions. The allowance for loan losses is typically equal to management's estimate of loan charge-offs in the twelve months following the balance sheet date as well as the estimated charge...

  • Page 78
    ... the year ended December 31, 2009, fair value was also used for certain other nonrecurring measurements, including the Debt Exchange. The fair value measurement accounting guidance describes the following three levels used to classify fair value measurements Level 1-Quoted prices in active markets...

  • Page 79
    spread data for similar instruments and are generally categorized in Level 2 of the fair value hierarchy. Non-agency CMOs are typically valued using market observable data, when available, including recent market transactions. We also utilized a pricing service to corroborate the market ...

  • Page 80
    ... fair value of each individual component, using the $1.35 closing stock price on August 25, 2009, the date of consummation of the Debt Exchange (dollars in millions): August 25, 2009 Fair Value as a % of Principal Fair Value Amount Intrinsic value of the underlying stock Value of 10-year put option...

  • Page 81
    ... and hedging accounting guidance. Changes in the fair value of derivatives that hedge cash flows associated with repurchase agreements, FHLB advances and home equity lines of credit are reported in accumulated other comprehensive loss as unrealized gains or losses, for both active and terminated...

  • Page 82
    ... was no longer probable, the $403.4 million pre-tax loss in accumulated other comprehensive loss related to cash flow hedges on repurchase agreements would be reclassified into the gains (losses) on loans and securities, net line item in the consolidated statement of loss in the period in which this...

  • Page 83
    ... when compared to our credit losses in the three-year period ending in 2009. Our trading and investing segment generated substantial book taxable income for each of the last six years and we estimate that it will continue to generate taxable income in future periods at a level sufficient enough to...

  • Page 84
    ...Expensing of Share-Based Payments Description We value employee share-based payments, which are primarily stock options, at the grant date and expense the associated compensation cost over the vesting period less estimated forfeitures. We value each granted option using an option pricing model using...

  • Page 85
    ... of Allowance for Loan Losses ...Allocation of the Allowance for Loan Losses ...Deposits Average Balance and Average Rates Paid ...Time Deposit Maturities ...Time Deposits in Excess of the FDIC Deposit Insurance Coverage Limits ...Return of Equity and Assets ...Short-Term Borrowings ... 32 83 86...

  • Page 86
    ...Available-for-sale mortgage-backed securities Available-for-sale investment securities Trading securities Cash and cash equivalents(2) Stock borrow and other Total enterprise interest-earning assets(3) Enterprise interest-bearing liabilities: Retail deposits Brokered certificates of deposit Customer...

  • Page 87
    ...769.7 1,841.3 $20,178.1 (2) Estimated scheduled principal repayments are calculated using weighted-average interest rate and weighted-average remaining maturity of each loan portfolio. Excludes loans held-for-sale of $7.9 million at December 31, 2009. The third party company providing this product...

  • Page 88
    ... with mortgage lending. There is a short period of time after closing of the loans in which we record the originated loan as held-for-sale prior to the third party company purchasing the loan. Available-for-Sale and Trading Securities Our portfolios of mortgage-backed and investment securities are...

  • Page 89
    ... values and current yields for the Company's available-for-sale investment portfolio at December 31, 2009 (dollars in millions): After One But After Five But Within One Year Within Five Years Within Ten Years After Ten Years Total Weighted Weighted Weighted Weighted Weighted Balance Average Balance...

  • Page 90
    ...'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/liability matching needs. The following table sets forth information regarding the weighted-average interest rates and the highest and average month-end...

  • Page 91
    ... six months. Active Trader-The customer group that includes those who execute 30 or more trades per quarter. Adjusted total assets-E*TRADE Bank-only assets composed of total assets plus/(less) unrealized losses (gains) on available-for-sale securities, less deferred tax assets, goodwill and certain...

  • Page 92
    ... and customer 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 93
    ... term investor-The customer group that includes those who invest for the long term. LTV-Loan-to-value. NASDAQ-National Association of Securities Dealers Automated Quotations. Net New Customer Asset Flows-The total inflows to all new and existing customer accounts less total outflows from all closed...

  • Page 94
    ... similar securities at a specified price on a given date. These agreements are generally collateralized by mortgage-backed or investment-grade securities. Retail deposits-Balances of customer cash held at the Bank; excludes brokered certificates of deposit. Return on average total assets-Annualized...

  • Page 95
    ... 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 accounts, complete savings accounts, other money market...

  • Page 96
    ... 100 basis points increase in rates may not result in a change in value as indicated above. The ALCO monitors E*TRADE Bank's interest rate risk position. Other Market Risk Equity Security Risk Equity securities risk is the risk of potential loss from investing in public and private equity securities...

  • Page 97
    ... management's assessment, management believes as of December 31, 2009, that E*TRADE Financial Corporation's internal control over financial reporting is effective based on those criteria. E*TRADE Financial Corporation's Independent Registered Public Accounting Firm, Deloitte & Touche LLP, has issued...

  • Page 98
    ... Organizations of the Treadway Commission. We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated financial statements as of and for the year ended December 31, 2009 of the Company and our report dated February 24...

  • Page 99
    ... Public Company Accounting Oversight Board (United States), the Company's internal control over financial reporting as of December 31, 2009, based on the criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission and...

  • Page 100
    ... STATEMENT OF LOSS (In thousands, except per share amounts) Year Ended December 31, 2009 2008 2007 Revenue: Operating interest income Operating interest expense Net operating interest income Commissions Fees and service charges Principal transactions Gains (losses) on loans and securities, net...

  • Page 101
    E*TRADE FINANCIAL CORPORATION AND SUBSIDIARIES CONSOLIDATED BALANCE SHEET (In thousands, except share amounts) December 31, 2009 2008 ASSETS Cash and equivalents Cash and investments required to be segregated under federal or other regulations Trading securities Available-for-sale mortgage-backed ...

  • Page 102
    E*TRADE FINANCIAL CORPORATION AND SUBSIDIARIES CONSOLIDATED STATEMENT OF COMPREHENSIVE LOSS (In thousands) 2009 Year Ended December 31, 2008 2007 Net loss Other comprehensive income (loss): Available-for-sale securities: OTTI, net(1) Noncredit portion of OTTI reclassification out of (into) other ...

  • Page 103
    ... 1, 2008(1) Adjusted balance Net loss Other comprehensive loss Issuance of common stock Exchange of debt for common stock Exercise of stock options and purchase plans and related tax effects Issuance of restricted stock, net of forfeitures and retirements to pay taxes Share-based compensation Other...

  • Page 104
    ...the convertible debentures Conversion of convertible debentures Exercise of stock options and purchase plans and related tax effects Issuance of restricted stock, net of forfeitures and retirements to pay taxes Share-based compensation Other Balance, December 31, 2009 (1) 563,523 $ 5,635 $4,064,282...

  • Page 105
    ... of goodwill Equity in (income) loss of investments and venture funds Gain on sale of the Canadian brokerage business Gain on sale of corporate aircraft related assets (Gains) losses on early extinguishment of debt Share-based compensation Deferred taxes Other Net effect of changes in assets and...

  • Page 106
    ... thousands) Year Ended December 31, 2008 2007 2009 Cash flows from financing activities: Net (decrease) increase in deposits Net decrease in securities sold under agreements to repurchase Net (decrease) increase in other borrowed funds Advances from other long-term borrowings Payments on advances...

  • Page 107
    ... to this new presentation, OTTI was included in the "Gains (losses) on loans and securities, net" line item on the consolidated statement of loss. The Company added a new operating expense line item to the consolidated statement of loss for FDIC insurance premiums. During the year ended December 31...

  • Page 108
    ... certain investments; accounting for derivative instruments; estimates of effective tax rates, deferred taxes and valuation allowances; valuation of goodwill and other intangibles; and valuation and expensing of share-based payments. Debt Exchange-In the third quarter of 2009, the Company exchanged...

  • Page 109
    ... for the purpose of selling them in the near term and are carried at fair value. Realized and unrealized gains and losses on securities classified as trading held by the Bank are included in the gains (losses) on loans and securities, net line item and are derived using the specific identification...

  • Page 110
    ... purchasing the loan. The Company's commitment to sell mortgage loans was the entire balance of loans held for sale, $7.9 million, at December 31, 2009. Loans that are held for investment are carried at amortized cost adjusted for charge-offs, net, allowance for loan losses, deferred fees or costs...

  • Page 111
    ... current industry charge-off and loss experience; the condition of the real estate market and geographic concentrations within the loan portfolio; the interest rate climate; the overall availability of housing credit; and general economic conditions. The Company's one- to four-family and home equity...

  • Page 112
    ...value, less estimated selling costs. Income Taxes-Deferred income taxes are recorded when revenues and expenses are recognized in different periods for financial statement and tax return purposes. Deferred tax asset or liability account balances are calculated at the balance sheet date using current...

  • Page 113
    ... gains (losses) on loans and securities, net line item in the consolidated statement of loss. See Note 8-Accounting for Derivative Instruments and Hedging Activities. Fair Value-Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly...

  • Page 114
    ...cost basis and the security's fair value. Other Revenues-Other revenues primarily consists of employee stock option management software and services, other revenue ancillary to the Company's customer transactions and income from the cash surrender value of BOLI. Employee stock option management fees...

  • Page 115
    ... consolidated balance sheet as of April 1, 2009. For additional information regarding the adoption of this amended accounting and disclosure guidance, see Note 6- Available-for-Sale Mortgage-Backed and Investment Securities. Determining Fair Value When the Volume and Level of Activity for the Asset...

  • Page 116
    ... financial statements issued for interim and annual periods ending after September 15, 2009, or September 30, 2009 for the Company. The Company's adoption of the Codification as the source of authoritative GAAP did not impact its financial condition, results of operations or cash flows. Fair Value...

  • Page 117
    ... effective for interim and annual periods ending after September 15, 2009, or September 30, 2009 for the Company. The Company's adoption of this guidance did not impact its financial condition, results of operations or cash flows. Consolidation-Accounting and Reporting for Decreases in Ownership...

  • Page 118
    ... results of operations of the Company's former retail segment. The following table summarizes the results of discontinued operations for the direct retail lending business (dollars in thousands): For the year ended December 31, 2008 2007 Net revenue Loss from discontinued operations before income...

  • Page 119
    ... the changes in the facility restructuring and other exit activities liabilities for the years ended December 31, 2009 and 2008 (dollars in thousands): Year Ended December 31, 2009 2008 Beginning balance Facility restructuring and other exit activities Cash payments Non-cash charges(1) Total...

  • Page 120
    ...for the year ended December 31, 2009. The total charges for this restructuring are expected to be up to $30 million, all of which will be recorded to the trading and investing segment. Institutional Brokerage Operations In 2007, the Company announced a plan to simplify and streamline the business by...

  • Page 121
    ...continuing operations (dollars in thousands): 2009 Year Ended December 31, 2008 2007 Operating interest income: Loans Mortgage-backed and investment securities Margin receivables Other Total operating interest income(1) Operating interest expense: Deposits Repurchase agreements and other borrowings...

  • Page 122
    ... categorized in Level 2 of the fair value hierarchy. Non-Agency Collateralized Mortgage Obligations Non-agency CMOs are valued using market observable data, when available, including recent market transactions. The Company also utilized a pricing service to corroborate the market observability of...

  • Page 123
    ... equity securities, the Company's definition of actively traded is based on average daily volume and other market trading statistics. The fair value of securities owned and securities sold, not yet purchased is determined using listed or quoted market prices and are categorized in Level 1 or Level...

  • Page 124
    ... (dollars in thousands): Level 1 Level 2 Level 3 Fair Value December 31, 2009: Assets Investments required to be segregated under federal or other regulations(1) Trading securities Available-for-sale securities: Residential mortgage-backed securities: Agency mortgage-backed securities and CMOs Non...

  • Page 125
    ...tables present additional information about Level 3 assets and liabilities measured at fair value on a recurring basis (dollars in thousands): Realized and Unrealized Gains (Losses) Included in Other December 31, Included in Comprehensive (1) 2008 Earnings Income Total(2) Purchases, Net Sales, Other...

  • Page 126
    ...as Level 3. Nonrecurring Fair Value Measurements The Company measures certain other assets at fair value on a nonrecurring basis: 1) one- to four-family and home equity loans in which the amount of the loan balance in excess of the estimated current property value less costs to sell has been charged...

  • Page 127
    ...fair value of each individual component, using the $1.35 closing stock price on August 25, 2009, the date of consummation of the Debt Exchange (dollars in thousands): August 25, 2009 Fair Value as a % of Principal Fair Value Amount Intrinsic value of the underlying stock Value of 10-year put option...

  • Page 128
    ... credit risk, coupon, term, and payment characteristics, as well as the secondary market conditions for these types of loans. For loans held-for sale, fair value is estimated using third party commitments to purchase loans. Deposits-For sweep deposit accounts, complete savings accounts, other money...

  • Page 129
    ... 6-AVAILABLE-FOR-SALE MORTGAGE-BACKED AND INVESTMENT SECURITIES The amortized cost basis and fair value 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 Fair Value...

  • Page 130
    ...-for-sale debt securities, including mortgage-backed and debt securities, at December 31, 2009 are shown below (dollars in thousands): Amortized Cost Fair Value Due within one year Due within one to five years Due within five to ten years Due after ten years Total available-for-sale debt securities...

  • Page 131
    ... individual unrealized loss in the available-for-sale portfolio as of December 31, 2009 represents a credit related impairment. The majority of the unrealized losses on mortgagebacked securities are attributable to changes in interest rates and a re-pricing of risk in the market. All agency mortgage...

  • Page 132
    ... (dollars in thousands): 2009 Year Ended December 31, 2008 2007 Losses on sales of loans, net Gains (losses) on securities, net: Gains on available-for-sale securities and other investments Losses on available-for-sale securities and other investments Losses on sale of asset-backed securities Gains...

  • Page 133
    ... all mortgage loans outstanding at December 31, 2009 and 2008 in the held-for-investment portfolio were serviced by other companies. Activity in the allowance for loan losses is summarized as follows (dollars in thousands): 2009 Year Ended December 31, 2008 2007 Allowance for loan losses, beginning...

  • Page 134
    ... to the Company's modified loans accounted for as TDRs for the year ended December 31, 2009 (dollars in thousands): Recorded Investment in TDRs (1) December 31, 2009 Specific Valuation Allowance Specific Valuation Allowance as a % of TDR Loans One- to four-family Home equity Total(2) (1) $207,581...

  • Page 135
    ... a yield adjustment in the same period the hedged transaction affects earnings. The ineffective portion of changes in fair value of the derivative instruments is reported as a fair value adjustment in the gains (losses) on loans and securities, net line item in the consolidated statement of loss. If...

  • Page 136
    ...Floors are used to hedge home equity lines of credit. Additionally, the Company enters into forward purchase and sale agreements, which are considered cash flow hedges, when the terms of the commitments exactly match the terms of the securities purchased or sold. As of December 31, 2009, there were...

  • Page 137
    ... being hedged. The cash flow hedge ineffectiveness is reflected in the gains (losses) on loans and securities, net line item. During the upcoming twelve months, the Company expects to include a pre-tax amount of approximately $19.3 million of net unrealized gains that are currently reflected in...

  • Page 138
    ... type of hedged item (dollars in thousands): As of December 31, 2009 2008 Accumulated other comprehensive loss balance related to cash flow hedges: Repurchase agreements FHLB advances Home equity lines of credit Other Total cash flow hedges before tax Tax benefit Total cash flow hedges, net of tax...

  • Page 139
    ...amended disclosure requirements on January 1, 2009 (dollars in thousands): Year Ended December 31, 2009 Hedging Hedged Instrument Item Gains (losses) included in earnings: Interest rate contracts: Corporate debt Brokered certificates of deposit Total fair value hedges $(7,874) (8) $(7,882) $7,874...

  • Page 140
    ...and $64.1 million for the years ended December 31, 2009, 2008 and 2007, respectively. Completed projects are carried at cost and are amortized on a straight-line basis over their estimated useful lives, generally four years. Amortization expense from continuing operations for the capitalized amounts...

  • Page 141
    ...-estate and credit markets. As a result, the entire carrying value of the segment's goodwill of $101.2 million was impaired for the year ended December 31, 2007. There was no goodwill assigned to reporting units within the balance sheet management segment for the years ended December 31, 2009 and...

  • Page 142
    ... tax asset Deposit paid for securities borrowed Bank owned life insurance policy(1) Prepaid FDIC insurance premiums Accrued interest receivable Real estate owned and repossessed assets Derivative assets Brokerage operational related receivables Reserve fund receivable Third party loan servicing...

  • Page 143
    ...Weighted-Average Rate December 31, 2009 2008 Amount December 31, 2009 2008 Percentage to Total December 31, 2009 2008 Sweep deposit accounts(1) Complete savings accounts Certificates of deposit Other money market and savings accounts Checking accounts Brokered certificates of deposit Total deposits...

  • Page 144
    ... follows (dollars in thousands): Year Ended December 31, 2009 2008 2007 Sweep deposit accounts Complete savings accounts Certificates of deposit Other money market and savings accounts Checking accounts Brokered certificates of deposit Total operating interest expense related to deposits $ 7,653...

  • Page 145
    ... 2009 and 2008, respectively. 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...

  • Page 146
    ... and other short-term borrowings in connection with the Federal Reserve Bank's term investment option and treasury, tax and loan programs as of December 31, 2009 and 2008, respectively. The Company pledged $17.6 million and $14.1 million of securities to secure these borrowings from the Federal...

  • Page 147
    ... Company recorded a pre-tax non-cash charge of $968.3 million on the early extinguishment of debt related to the Debt Exchange for the year ended December 31, 2009. For further details regarding the accounting on the exchange of the corporate debt, see Note 1-Organization, Basis of Presentation and...

  • Page 148
    ... terms which include customary financial covenants. As of December 31, 2009, the Company was in compliance with all such covenants. Future Maturities of Corporate Debt Scheduled principal payments of corporate debt as of December 31, 2009 are as follows (dollars in thousands): Years ending December...

  • Page 149
    ... liabilities consist of the following (dollars in thousands): December 31, 2009 2008 Deposits received for securities loaned Other payables to brokers, dealers and clearing organizations Accounts payable and accrued expenses Derivative liabilities Subserviced loan advances Reserves for legal and...

  • Page 150
    ... in which the Company operates: Jurisdiction Open Tax Year Hong Kong United Kingdom United States Various states(1) (1) 2001 - 2009 2005 - 2009 2005 - 2009 1999 - 2009 Includes California, Georgia, Illinois, New Jersey, New York and Virginia. It is likely that certain examinations may be...

  • Page 151
    ... tax assets in the future. The Company reviewed the estimated future taxable income for its trading and investing and balance sheet management segments separately and determined that the net operating losses since 2007 are due solely to the credit losses in the balance sheet management segment...

  • Page 152
    ... to the credit losses in the three-year period ending in 2009. The Company's trading and investing segment generated substantial book taxable income for each of the last six years and the Company estimates that it will continue to generate taxable income in future periods at a level sufficient to...

  • Page 153
    ... which are summarized in the following table (dollars in thousands): Year Ended December 31, 2009 Amount of Loss Tax Rate Tax Benefit Deductible portion of the loss on the Debt Exchange Non-deductible portion of the loss on the Debt Exchange Prior period interest expense on the 12 1⁄ 2% Notes not...

  • Page 154
    ...' equity during the year ended December 31, 2009 is summarized as follows (dollars in thousands): Common Stock/ Additional PaidIn Capital Accumulated Deficit/Other Comprehensive Loss Total Beginning balance, December 31, 2008 Common stock offerings Activity related to the Debt Exchange: After-tax...

  • Page 155
    ... shares upon all required regulatory approvals in May 2008. Debt Exchange Impact on Shareholders' Equity The completion of the Debt Exchange in 2009 resulted in a pre-tax non-cash charge of $968.3 million and an increase of $707.2 million to additional paid-in capital. The net effect of the exchange...

  • Page 156
    ...April 1, 2009 and the level of impairment that would have been recorded on these same securities under the new accounting guidance. On January 1, 2008, the Company elected to carry investments in Fannie Mae and Freddie Mac preferred stock at fair value through earnings under the fair value option in...

  • Page 157
    ... 2007. For the year ended December 31, 2007, there were 46.7 million shares that had not been issued in connection with the Citadel Investment of which 3.9 million shares were anti-dilutive because of the Company's net loss for the period. NOTE 19-EMPLOYEE SHARE-BASED PAYMENTS AND OTHER BENEFITS In...

  • Page 158
    ... exercise patterns. The risk-free interest rate is based on the U.S. Treasury zero-coupon bond where the remaining term approximates the expected term. The dividend yield is zero as the Company has not, nor does it currently plan to, issue dividends to its shareholders. Year Ended December 31, 2009...

  • Page 159
    ... years. The total fair value of restricted shares and restricted stock units vested was $8.1 million, $5.6 million and $11.0 million for the years ended December 31, 2009, 2008 and 2007, respectively. Employee Stock Purchase Plan The shareholders of the Company previously approved the 2002 Employee...

  • Page 160
    ... Company. Total contribution expense from continuing operations under this plan was $4.1 million, $4.6 million and $5.4 million for the years ended December 31, 2009, 2008 and 2007, respectively. NOTE 20-REGULATORY REQUIREMENTS Registered Broker-Dealers The Company's U.S. broker-dealer subsidiaries...

  • Page 161
    ... E*TRADE Bank's assets, liabilities and certain off-balance sheet items as calculated under regulatory accounting practices. In addition, E*TRADE Bank may not pay dividends to the parent company without approval from the OTS and any loans by E*TRADE Bank to the parent company and its other non-bank...

  • Page 162
    ..., a class action complaint alleging violations of the federal securities laws was filed in the United States District Court for the Southern District of New York against the Company and its then Chief Executive Officer and Chief Financial Officer, Mitchell H. Caplan and Robert J. Simmons, by Larry...

  • Page 163
    ...the Northern District of California against E*TRADE Securities LLC by Joseph Roling on his own behalf and on behalf of all others similarly situated. The lead plaintiff alleges that E*TRADE Securities LLC unlawfully charged and collected certain account activity fees from its customers. Claimant, on...

  • Page 164
    ...second quarter of 2009, the OTS advised the Company, and the Company agreed, that it was necessary to raise additional equity capital for E*TRADE Bank and reduce substantially the amount of the Company's outstanding debt in order to withstand any further deterioration in credit and market conditions...

  • Page 165
    ..., 2009. The Company had $7.9 million in commitments to sell loans and no commitments to purchase loans at December 31, 2009. Securities, Unused Lines of Credit and Certificates of Deposit At December 31, 2009, the Company had commitments to purchase $25 million and no commitments to sell securities...

  • Page 166
    ... trading and investing related brokerage products and services; investor-focused banking products; market-making; and employee stock option management software and services. Balance sheet management includes managing asset allocation and credit, liquidity and interest rate risk; managing loans...

  • Page 167
    ...): Trading and Investing Year Ended December 31, 2009 Balance Sheet Management Eliminations(1) Total Revenue: Operating interest income Operating interest expense Net operating interest income Commissions Fees and service charges Principal transactions Gains (losses) on loans and securities, net...

  • Page 168
    Trading and Investing Year Ended December 31, 2008 Balance Sheet Management Eliminations(1) Total Revenue: Operating interest income Operating interest expense Net operating interest income Commissions Fees and service charges Principal transactions Gains (losses) on loans and securities, net ...

  • Page 169
    Trading and Investing Year Ended December 31, 2007 Balance Sheet Management Eliminations(1) Total Revenue: Operating interest income Operating interest expense Net operating interest income Commissions Fees and service charges Principal transactions Gains (losses) on loans and securities, net ...

  • Page 170
    ... information provides a representation of each region's contribution to the consolidated amounts (dollars in thousands): United States Europe Asia Total Total net revenue: Year ended December 31, 2009 Year ended December 31, 2008 Year ended December 31, 2007 Long-lived assets: At December 31, 2009...

  • Page 171
    ... cash flows: CONDENSED STATEMENT OF LOSS (In thousands) 2009 Year Ended December 31, 2008 2007 Revenue: Management fees from subsidiaries Other revenues (expenses) Total net revenue Operating expense: Compensation and benefits Advertising and market development Communications Professional services...

  • Page 172
    ... BALANCE SHEET (In thousands) December 31, 2009 2008 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 173
    ... (gains) on sales of investments, net Equity in undistributed loss (income) of subsidiaries Equity in loss of investments and venture funds Gain on sale of the Canadian brokerage business (Gains) losses on early extinguishment of debt Share-based compensation Other Net effect of changes in assets...

  • Page 174
    ... of the consolidated financial statements for the year ended December 31, 2009, management determined that the previously reported income tax benefit for the three months ended September 30, 2009 was overstated as a result of preparation and effective tax rate errors. The net effect of correcting...

  • Page 175
    ... Reports of Independent Registered Public Accounting Firm are included in Item 8. Financial Statements and Supplementary Data. ITEM 9B. OTHER INFORMATION Not applicable. PART III Certain portions of the Company's Proxy Statement for its 2009 Annual Meeting of Shareholders, which, when filed pursuant...

  • Page 176
    ... Exhibit Number Description 3.1 Restated Certificate of Incorporation of E*TRADE Financial Corporation as currently in effect. (Incorporated by reference to Exhibit 3.1 of the Company's Current Report on Form 8-K filed September 14, 2009.) Certificate of Designation of Series A Preferred Stock of...

  • Page 177
    ...] 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 178
    ... 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 179
    Exhibit Number Description *23.1 *31.1 *31.2 *32.1 Consent of Independent Registered Public Accounting Firm. Certification-Section 302 of the Sarbanes-Oxley. Certification-Section 302 of the Sarbanes-Oxley. Certification -Section 906 of the Sarbanes-Oxley. * Filed herein. 176

  • Page 180
    ... Chief Executive Officer (Principal 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...

  • Page 181
    Exhibit 4.4 E* TRADE FINANCIAL CORPORATION, as Issuer and THE BANK OF NEW YORK, as Trustee SECOND SUPPLEMENTAL INDENTURE Dated as of November 1, 2006 8% Senior Notes Due 2011

  • Page 182
    ... the "Indenture"), between E*TRADE FINANCIAL CORPORATION (the "Company"), a Delaware corporation, and THE BANK OF NEW YORK, a New York banking corporation, as trustee (the "Trustee"). WHEREAS, the Company has duly authorized the execution and delivery of the Base Indenture and $500,000,000 aggregate...

  • Page 183
    ...at the time of, or within twelve months after the later of the acquisition, the completion of construction or the commencement of full operation of such property; or (2) issued in exchange for, or the net proceeds of which are used to refinance or refund, then outstanding Purchase Money Indebtedness...

  • Page 184
    ... caused this Second Supplemental Indenture to be duly executed, all as of the date first written above. E*TRADE FINANCIAL CORPORATION By: /s/ Robert Simmons Name: Robert Simmons Title: Chief Financial Officer THE BANK OF NEW YORK, as Trustee By: /s/ Stacey B. Poindexter Name: Stacey B. Poindexter...

  • Page 185
    Exhibit 4.8 E* TRADE FINANCIAL CORPORATION, as Issuer and THE BANK OF NEW YORK, as Trustee SECOND SUPPLEMENTAL INDENTURE Dated as of November 1, 2006 7 3/8% Senior Notes Due 2013

  • Page 186
    ... Indenture, the "Indenture"), between E*TRADE FINANCIAL CORPORATION (the "Company "), a Delaware corporation, and THE BANK OF NEW YORK, a New York banking corporation, as trustee (the "Trustee"). WHEREAS, the Company has duly authorized the execution and delivery of the Base Indenture and $600,000...

  • Page 187
    ...at the time of, or within twelve months after the later of the acquisition, the completion of construction or the commencement of full operation of such property; or (2) issued in exchange for, or the net proceeds of which are used to refinance or refund, then outstanding Purchase Money Indebtedness...

  • Page 188
    ... caused this Second Supplemental Indenture to be duly executed, all as of the date first written above. E*TRADE FINANCIAL CORPORATION By: /s/ Robert Simmons Name: Robert Simmons Title: Chief Financial Officer THE BANK OF NEW YORK, as Trustee By: /s/ Stacey B. Poindexter Name: Stacey B. Poindexter...

  • Page 189
    Exhibit 4.10 E* TRADE FINANCIAL CORPORATION, as Issuer and THE BANK OF NEW YORK, as Trustee FIRST SUPPLEMENTAL INDENTURE Dated as of November 1, 2006 7 7/8% Senior Notes Due 2015

  • Page 190
    ...Indenture, the "Indenture"), between E*TRADE FINANCIAL CORPORATION (the "Company"), a Delaware corporation, and THE BANK OF NEW YORK, a New York banking corporation, as trustee (the "Trustee"). WHEREAS, the Company has duly authorized the execution and delivery of the Base Indenture and $300,000,000...

  • Page 191
    ...at the time of, or within twelve months after the later of the acquisition, the completion of construction or the commencement of full operation of such property; or (2) issued in exchange for, or the net proceeds of which are used to refinance or refund, then outstanding Purchase Money Indebtedness...

  • Page 192
    ... have caused this Supplemental Indenture to be duly executed, all as of the date first written above. E*TRADE FINANCIAL CORPORATION By: /s/ Robert Simmons Name: Robert Simmons Title: Chief Financial Officer THE BANK OF NEW YORK, as Trustee By: /s/ Stacey B. Poindexter Name: Stacey B. Poindexter...

  • Page 193
    Exhibit 4.12 E* TRADE FINANCIAL CORPORATION, as Issuer and THE BANK OF NEW YORK, as Trustee FIRST SUPPLEMENTAL INDENTURE Dated as of December 27, 2007 12.5% Springing Lien Notes Due 2017

  • Page 194
    ...Indenture, the "Indenture"), between E*TRADE FINANCIAL CORPORATION (the "Company"), a Delaware corporation, and THE BANK OF NEW YORK, a New York banking corporation, as trustee (the "Trustee"). WHEREAS, the Company has duly authorized the execution and delivery of the Base Indenture and up to $1,936...

  • Page 195
    ... SEQ. OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND THE RULES AND REGULATIONS THEREUNDER. FOR INFORMATION REGARDING THE AMOUNT OF OID, THE ISSUE DATE, AND THE YIELD TO MATURITY OF THE NOTE, PLEASE CONTACT: SENIOR VICE PRESIDENT, CORPORATE TAX, E*TRADE FINANCIAL CORPORATION AT BALLSTON TOWER...

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    IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first written above. E*TRADE FINANCIAL CORPORATION By: /s/ Robert J. Lilien Name: R. Jarrett Lilien Title: President & COO 4

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    THE BANK OF NEW YORK, as Trustee By: /s/ Rafael E. Miranda Name: Rafael E. Miranda Title: Vice President 5

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    Exhibit 4.13 EXECUTION VERSION E* TRADE FINANCIAL CORPORATION, as Issuer and THE BANK OF NEW YORK, as Trustee SECOND SUPPLEMENTAL INDENTURE Dated as of January 18, 2008 12.5% Springing Lien Notes Due 2017

  • Page 199
    ... the "Indenture "), between E*TRADE FINANCIAL CORPORATION (the "Company"), a Delaware corporation, and THE BANK OF NEW YORK, a New York banking corporation, as trustee (the "Trustee"). WHEREAS, the Company has duly authorized the execution and delivery of the Base Indenture, the First Supplemental...

  • Page 200
    ...the Base Indenture is hereby deleted. ARTICLE 3 MISCELLANEOUS Section 3.01. Governing Law. This Second Supplemental Indenture shall be governed by and construed in accordance with the internal laws of the State of New York. Section 3.02. Counterparts. This Second Supplemental Indenture may be signed...

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    IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed, all as of the date first written above. E*TRADE FINANCIAL CORPORATION By: /s/ Robert J. Lilien Name: Robert J. Lilien Title: Chief Executive Officer

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    THE BANK OF NEW YORK, as Trustee By: /s/ Rafael E. Miranda Name: Rafael E. Miranda Title: Vice President

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    ... Holder, holding a majority of the aggregate principal amount of the outstanding Notes, hereby consents to the amendment of the Indenture in the ...hereof, among the Company and the Trustee, in the form attached hereto (the "Second Supplemental Indenture"). Capitalized terms used, but not defined,...

  • Page 204
    IN WITNESS WHEREOF, the undersigned has caused this instrument to be duly executed as of the date first above written. Wingate Capital Ltd. By: Citadel Limited Partnership, its Portfolio Manager By: Name: Christopher L. Ramsay Title: Authorized Signatory [Consent to Second Supplemental Indenture ...

  • Page 205
    E*TRADE Financial Corporation Deferred Compensation Plan Amended and Restated Effective January 1, 2009

  • Page 206
    ... 2.3 Withholding of Annual Deferral Amounts. 2.4 FICA and Other Taxes 2.5 Permitted Changes to Deferral Elections ARTICLE 3 Deferral Accounts 3.1 Deferral Accounts. 3.2 Vesting. 3.3 Investment Elections ARTICLE 4 Distributions 4.1 Distribution Event 4.2 Manner and Timing of Payment. 4.3 Permitted...

  • Page 207
    ...Employer Information ARTICLE 8 Claims Procedures 8.1 Presentation of Claim 8.2 Notification of Decision 8.3 Review of a Denied Claim 8.4 Decision on Review. 8.5 Legal Action ARTICLE 9 Trust 9.1 Establishment of the Trust. 9.2 Interrelationship of the Plan and the Trust 9.3 Investment of Trust Assets...

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    ... PLAN Amended and Restated Effective January 1, 2009 Purpose The purpose of this Plan is to provide deferred compensation to a select group of management and highly compensated Employees who contribute materially to the continued growth, development and future business success of E*TRADE Financial...

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    ... other Related Company elective account balance plans, within the meaning of Code section 409A, for the 24 months preceding the date on which the Participant again became eligible to participate in this Plan. 2.2 Minimum Deferrals. (a) Base Annual Salary, Bonus and Commissions. A Participant wishing...

  • Page 210
    ... the number of complete months remaining in the Plan Year and the denominator of which is 12. 2.3 Withholding of Annual Deferral Amounts. The Committee will withhold the Annual Deferral Amount not later than the end of the calendar year during which the Company would otherwise have paid the amounts...

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    ..., in its sole discretion, will select funds (the "Measurement Funds") from which Participants may select to determine gains and losses which will be credited (or debited) to Participant's Deferral Accounts. Measurement Funds will be communicated to Participants in the enrollment materials or...

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    ... Participant's Annual Base Salary at the closing price on such date; and (iii) any distribution paid to a Participant that decreases such Participant's Deferral Account ceased being invested in the Measurement Fund(s), in the percentages applicable to such day, no earlier than one business day prior...

  • Page 213
    ... age fifty- five (55) and five (5) Years of Service: (A) if the balance in a Participant's Deferral Account at the time of the Separation from Service is $100,000 or more, the Participant's Deferral Account shall be distributed in accordance with the Payment Option elected by the Participant, or if...

  • Page 214
    ...and five (5) Years of Service, a Participant's Deferral Account shall be distributed in accordance with the Payment Option elected by the Participant at the time of the deferral election. If a Participant does not elect a Payment Option in a timely manner, the Participant's Deferral Account shall be...

  • Page 215
    ...amount shall not exceed the unpaid balance in Participant's Deferral Account). If the request is granted, the tax liability distribution shall be paid between the date on which the Participant's request is approved and the end of the Plan Year during which the approval occurred, or, if later, to the...

  • Page 216
    ... discretion, to accelerate the time or schedule of a payment to the extent necessary to avoid the violation of any applicable Federal, state, local, or foreign ethics law or conflicts of interest law as provided in Treasury Regulation section 1.409A-3(j)(4)(iii)(B). Small Accounts. The Committee may...

  • Page 217
    ... Form, and returning it to the Committee or its designated agent. A Participant shall have the right to change a Beneficiary by completing, signing and otherwise complying with the terms of the Beneficiary Designation Form and the Committee's rules and procedures, as in effect from time-to-time. If...

  • Page 218
    ...with the Plan, and (ii) for 3 years following the date of termination the Company does not adopt any new arrangement that constitutes an elective account balance plan (within the meaning of Code section 409A). 6.2 Effect of Payment. The full payment of the Deferral Account shall completely discharge...

  • Page 219
    ...have no power to direct the investment of Plan or Trust assets or select any investment manager or custodial firm for the Plan or Trust. Upon and after the occurrence of a Change in Control, the Company must: (1) pay all reasonable administrative expenses and fees of the Administrator; (2) indemnify...

  • Page 220
    ... the Plan upon which such denial was based; A description of any additional material or information necessary for...review promptly, and not later than 60 days after the filing of a written request for review of the denial, unless a hearing is held or other special circumstances require additional time...

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    ... from the Committee, or investment manager appointed by the Committee, to invest and reinvest the assets of the Trust in accordance with the applicable Trust Agreement, including the disposition of stock and reinvestment of the proceeds in one or more investment vehicles designated by the Committee...

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    ... Deferral Account shall be defined only by the Plan. An Employer shall have no obligation to a Participant except as expressly provided in the Plan. 10.4 Nonassignability. Neither a Participant nor any other person shall have any right to commute, sell, assign, transfer, pledge, anticipate, mortgage...

  • Page 223
    ...of New York without regard to its conflicts of laws principles. 10.11 Notice. Any notice or filing required or permitted to be given to the Committee under this Plan shall be sufficient if in writing and hand-delivered, or sent by registered or certified mail, to the address below: E*TRADE Financial...

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    ... to comply with any of its obligations under the Plan or any agreement thereunder or, if the Company, such Employer or any other person takes any action to declare the Plan void or unenforceable or institutes any litigation or other legal action designed to deny, diminish or to recover from any...

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    ...on the Federal Income Tax Form W-2 for such calendar year, payable to a Participant as an Employee under any Employer's Bonus and cash incentive plans, including any bonuses paid semi-annually based on commissions paid to a Related Company, and excluding stock options. 11.7 "Change in Control" shall...

  • Page 226
    ... Income Tax Form W-2 for such calendar year, excluding salary, bonuses (including discretionary bonuses based in whole or in part on sales commissions), overtime, fringe benefits, stock options, relocation expenses, incentive payments, non- monetary awards, directors fees and other fees, automobile...

  • Page 227
    ... or the 15th day of the third month following the Participant's Separation from Service. 11.14"Deferral Account" shall mean (i) the sum of all of a Participant's Annual Deferral Amounts, plus (ii) amounts credited in accordance with all the applicable crediting provisions of this Plan that relate to...

  • Page 228
    ... mean the Employee Retirement Income Security Act of 1974, as it may be amended from time-to-time. 11.21"Fixed Distribution Date" shall mean the Participant's election to receive payment of an Annual Deferral Amount on a Payment Date that is at least two years after the end of the Plan Year during...

  • Page 229
    ... this instrument, as amended from time-to-time. 11.27"Plan Year" shall mean a period beginning on January 1 of each calendar year and continuing through December 31 of such calendar year. 11.28"Related Company" shall mean the Company and all persons with whom the Company would be considered a single...

  • Page 230
    ... Specified Employees for the twelve (12) month period beginning on the next April 1. 11.31"Trust" shall mean one or more trusts established pursuant to that certain Master Trust Agreement, dated as of January 1, 2001 between the Company and the trustee named therein, as amended from time-to-time. 11...

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    IN WITNESS WHEREOF, the Company has caused this amended and restated Plan to be executed by a duly authorized officer on December 30, 2008, effective as of January 1, 2009. E*TRADE Financial Corporation, a Delaware corporation By: /s/ Bruce Nolop Title: Chief Financial Officer 24

  • Page 232
    ... which the Company hires a new Chief Executive Officer; or (ii) December 31, 2009 (as applicable, the "Transition Period"), unless Executive's employment is otherwise terminated by either Party prior to the end of the Transition Period in accordance with the Employment Agreement. Upon completion of...

  • Page 233
    ... Company shall pay for the reasonable attorney's fees and expenses incurred by Executive in connection with the review and negotiation of this Agreement, such payment to be made no later than 60 days after the date hereof. (b) The Company agrees to provide to Executive the use of an office through...

  • Page 234
    ..., any confidentiality, proprietary rights and dispute resolution agreement between Executive and the Company, and any agreement or plan concerning any stock options and other equity awards issued to Executive, constitute the entire agreement between the parties with respect to the subject matter...

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    Date: September 8, 2009 E*TRADE Financial Corporation By: /s/ Ron Fisher Name: Ron Fisher Title: Chair of the Compensation Committee Date: September 8, 2009 4 /s/ Donald H. Layton Donald H. Layton

  • Page 236
    ... the agreements that are incorporated by reference therein, (iii) any right or claim that arises after the date of this Release, (iv) Executive's eligibility for indemnification and advancement of expenses in accordance with applicable laws or the certificate of incorporation and by-laws of Company...

  • Page 237
    ... accepting the Transition Agreement and signing this Release. Executive further understands and acknowledges that he has at least 21 days to sign this Release by dating and signing a copy of this Release and returning it to the Company, although it may be accepted at any time within such period...

  • Page 238
    ...agreement sets forth the terms and conditions of your consulting services to E*TRADE Financial Corp. (the "Company"), effective December 31, 2009 through June 30, 2010 (the "Consulting Period"). Services. You agree to be available for part-time consultation with the Company's Chief Executive Officer...

  • Page 239
    ...to the terms of your employment prior to the Consulting Period or the termination of such employment. This letter agreement will be governed by the laws of the State of New York. Sincerely, E*TRADE FINANCIAL CORPORATION Agreed and accepted: /s/ Donald H. Layton (Signature) 2 Dated: December 21, 2009

  • Page 240
    .... Executive's current . The annual cash bonus, if earned, will be paid at the same time and in the same manner cash bonus target amount is $ as payments to similarly situated executives of the Company and, except as expressly provided otherwise in this Agreement or in the applicable bonus plan...

  • Page 241
    ...to one times the sum of (x) Executive's annual Base Salary and (y) Executive's annual cash performance bonus at the target payment level, which payment shall be paid within 30 days following the effectiveness of the Release; (ii) a pro rata share of the target performance bonus for the year in which...

  • Page 242
    ...to two times the sum of (x) Executive's annual Base Salary and (y) Executive's annual cash performance bonus at the target payment level, which payment shall be paid within 30 days following the effectiveness of the Release; (ii) a pro rata share of the target performance bonus for the year in which...

  • Page 243
    award or other Company stock-based award granted to Executive, the extent to which such awards are vested through the date of his termination or as otherwise provided in the applicable award agreement. 6. Certain Tax Considerations: (a) Section 409A: (i) The payments under Section 5 are intended to ...

  • Page 244
    ...public accountants or another firm designated by the Company and reasonably approved by Executive, and may be determined using reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company shall pay Executive's costs incurred for tax, accounting...

  • Page 245
    ...than the acquisition of the Company's common stock by a Companysponsored employee benefit plan or through the issuance of shares sold directly by the Company to a single acquiror; or (Y) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended...

  • Page 246
    ... the Company of Executive's employment with the Company for any reason other than Cause at any time; (ii) Executive's resignation from employment for Non Change in Control Period Good Reason within six months following the occurrence of the event constituting Non Change in Control Period Good Reason...

  • Page 247
    ... party its attorneys' fees and costs incurred in any action brought to enforce any right arising out of this Agreement. The Company shall pay Executive's reasonable legal fees in connection with the review and negotiation of this Agreement and any ancillary services related thereto. 11. General...

  • Page 248
    ... Information and Inventions between the Company and Executive, (ii) the Restricted Stock Unit Agreement representing the award granted September 8, 2009 and any stock option, restricted stock, restricted stock unit award or other Company stock-based award agreements between Executive and the Company...

  • Page 249
    ... Law: Executive and the Company agree that this Agreement shall be interpreted in accordance with and governed by the laws of the State of New York. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year written below. Dated: , 2009 E*TRADE Financial Corporation By...

  • Page 250
    ... Estimated interest portion within rental expense Preference securities dividend requirements of consolidated subsidiaries Total fixed charges Earnings: Income (loss) before income taxes, discontinued operations and cumulative effect of accounting change less equity in income (loss) of investments...

  • Page 251
    ... Global Services Limited (United Kingdom) E*TRADE Information Services, LLC (Delaware) E*TRADE Institutional Holdings, Inc. (Delaware) E*TRADE Insurance Services, Inc. (California) E*TRADE Master Trust E*TRADE Mauritius Limited (Mauritius) E*TRADE Mortgage Corporation (Virginia) E*TRADE Savings Bank...

  • Page 252
    ..., Inc. (Delaware) ETRADE Asia Services 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...

  • Page 253
    ... Annual Report on Form 10-K of E*TRADE Financial Corporation for the year ended December 31, 2009. Filed on Form S-3: Registration 333-104903, 333-41628, 333-124673, 333-129077, 333-130258, 333-136356, 333-150997, 333-156570, 333Statement Nos.: 158636 Filed on Form S-4: Registration Statement Nos...

  • Page 254
    ...Robert A. Druskin, certify that: 1. 2. I have reviewed this Annual Report on Form 10-K of E*TRADE Financial Corporation; Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the...

  • Page 255
    ...I, Bruce P. Nolop, certify that: 1. 2. I have reviewed this Annual Report on Form 10-K of E*TRADE Financial Corporation; Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the...

  • Page 256
    ... 15d-14(b) of the Securities Exchange Act of 1934 (the "Exchange Act") and Section 1350 of Chapter 63 of Title 18 of the United States Code. Robert A. Druskin, the Interim Chief Executive Officer and Bruce P. Nolop, the Chief Financial Officer of E*TRADE Financial Corporation, each certifies that...