eTrade 2009 Annual Report Download - page 234

will not disparage Executive in the course of any authorized internal or external communication, and the Company shall cause its
current and future directors and executive officers not to disparage Executive and shall instruct its executive officers and directors to
refrain from making such statements and to instruct their respective representatives to so refrain. Notwithstanding the foregoing,
nothing contained in this Agreement shall prohibit Executive or the Company from (x) responding publicly to incorrect, disparaging
or derogatory public statements to the extent reasonably necessary to correct or refute such public statement or (y) making any
truthful statement to the extent (i) necessary with respect to any litigation, arbitration or mediation involving this Agreement,
including, but not limited to, the enforcement of this Agreement or (ii) required by law or by any court, arbitrator, mediator or
administrative or legislative body (including any committee thereof) with apparent jurisdiction over Executive or the Company.
Executive and the Company acknowledge that the Company will be required to disclose this Agreement and its terms in its public
filings with the SEC.
8. Dispute Resolution: Consistent with the Employment Agreement, in the event of any dispute or claim relating to or arising out
of this Agreement (including, but not limited to, any claims of breach of contract, wrongful termination or age, sex, race or other
discrimination), Executive and the Company agree that all such disputes shall be fully and finally resolved by binding arbitration
conducted by the American Arbitration Association in New York, New York in accordance with its National Employment Dispute
Resolution rules. Executive acknowledges that by accepting this arbitration provision he is waiving any right to a jury trial in the
event of such dispute. In connection with any such arbitration, the Company shall bear all costs not otherwise borne by a plaintiff in a
court proceeding. The prevailing party shall be entitled to recover from the losing party its attorneys’ fees and costs incurred in any
action brought to enforce any right arising out of this Agreement.
9. Due Authority. By executing this Agreement, the representative of the Company represents and warrants that he is duly
authorized to bind the Company to the terms of this Agreement and that all necessary or appropriate corporate approvals for this
Agreement to be effective have been obtained.
10. Entire Agreement; Miscellaneous: This Agreement, the Employment Agreement, any confidentiality, proprietary rights and
dispute resolution agreement between Executive and the Company, and any agreement or plan concerning any stock options and other
equity awards issued to Executive, constitute the entire agreement between the parties with respect to the subject matter hereof and
thereof and supersede all prior negotiations and agreements, whether written or oral. This Agreement may not be altered or amended
except by a written document signed by Executive and an authorized representative of the Company. 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.
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