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
(646)
521-4300
|
||
(Address,
Including Zip Code, and Telephone Number, Including Area Code, of
Registrant’s Principal Executive
Offices)
|
Russell
S. Elmer
General
Counsel
135
East 57th
Street
New
York, New York 10022
(646)
521-4300
|
||
(Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of
Agent For Service)
|
Copy
to:
|
||
Daniel
G. Kelly, Jr.
Davis
Polk & Wardwell
1600
El Camino Real
Menlo
Park, California 94025
(650)
752-2000
|
CALCULATION
OF REGISTRATION FEE
|
||||
Title
of Each
Class
of Securities
to
be Registered
|
Amount
to be
Registered
|
Proposed
Maximum
Offering
Price
Per
Unit (1)
|
Proposed
Maximum
Aggregate
Offering
Price
(1)
|
Amount
of
Registration
Fee (1)
|
Common
Stock, par value $0.01 per share (2)
|
|
|
|
|
Preferred
Stock, par value $0.01 per share
|
||||
Debt
Securities
|
||||
Depositary
Shares
|
||||
Rights
|
||||
Warrants
|
||||
Purchase
Contracts
|
||||
Units
|
(1)
|
An
indeterminate amount of securities to be offered at indeterminate prices
is being registered pursuant to this registration
statement. The registrant is deferring payment of the
registration fee pursuant to Rule 456(b) and is omitting this information
in reliance on Rule 456(b) and Rule
457(r).
|
(2)
|
The
common stock being registered hereby includes associated rights to acquire
Series B Participating Cumulative Preferred Stock of E*TRADE Financial
Corporation pursuant to the Rights Agreement described in the prospectus
contained in this registration
statement.
|
1
|
|
2
|
|
3
|
|
4
|
|
4
|
|
5
|
|
6
|
|
10
|
|
11
|
|
20
|
|
23
|
|
23
|
|
23
|
|
24
|
|
25
|
|
27
|
|
28
|
|
28
|
·
|
E*TRADE
Bank is a Federally chartered savings bank that provides investor-focused
banking services to retail customers nationwide and deposit accounts
insured by the Federal Deposit Insurance Corporation
(“FDIC”);
|
·
|
E*TRADE
Capital Markets, LLC is a registered broker-dealer and
market-maker;
|
·
|
E*TRADE
Clearing LLC is the clearing firm for our brokerage subsidiaries and is a
wholly-owned operating subsidiary of E*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 our
customers.
|
|
(a)
|
Annual
Report on Form 10-K for the year ended December 31, 2008 filed with
the SEC on February 26, 2009;
and
|
|
(b)
|
The
description of our capital stock and the rights associated therewith
included in our Registration Statement on Form 8-A12B filed with the SEC
on December 26, 2006, including any amendments or reports filed for the
purpose of updating such
descriptions.
|
·
|
our
potential inability to return to profitability, particularly in light of
the significant losses we incurred in 2008 and the substantial diminution
in customer assets and accounts we experienced as a result of the losses
in our institutional business segment in
2007;
|
·
|
potential
increases in our provision for loan losses if the residential real estate
and credit markets continue to deteriorate and potential concerns about
our continued viability;
|
·
|
our
potential inability to retain our current customer assets and accounts and
to rebuild our franchise by reclaiming customers and growing
assets;
|
·
|
our
potential inability to service our substantial indebtedness and obtain
additional financing, as well as the challenges we face due to our
substantial leverage;
|
·
|
liabilities
and costs associated with investigations and lawsuits, including those
relating to our losses from mortgage loans and asset-backed
securities;
|
·
|
our
potential inability to compete
effectively;
|
·
|
adverse
changes in general economic conditions, including fluctuations in interest
rates;
|
·
|
adverse
changes in governmental regulations or enforcement practices;
and
|
·
|
other
factors described elsewhere in this prospectus or in our current and
future filings with the SEC.
|
For
the Year Ended December 31,
|
|||||||||
2008
|
2007
|
2006
|
2005
|
2004
|
|||||
Ratio
of earnings to fixed charges
|
(a)
|
(b)
|
1.61
|
1.75
|
1.95
|
||||
Ratio
of earnings to fixed charges and preferred stock dividends
|
(a)
|
(b)
|
1.61
|
1.75
|
1.95
|
·
|
a
merger or consolidation of us or any of our subsidiaries with an
interested stockholder or with a corporation that is or would become an
affiliate or associate, with these terms defined for purposes of this
provision of our Certificate of Incorporation as they are defined in the
Exchange Act, of an interested
stockholder,
|
·
|
any
sale, lease, exchange, mortgage, pledge, transfer or other disposition to
or with, or proposed by or on behalf of, an interested stockholder or any
affiliate or associate of an interested stockholder involving any assets
of ours or our subsidiaries that constitute 5% or more of our total
assets,
|
·
|
the
issuance or transfer by us or by any of our subsidiaries of any of our or
their securities to, or proposed by or on behalf of, an interested
stockholder or any affiliate or associate of an interested stockholder in
exchange for cash, securities or other property that constitute 5% or more
of our total assets,
|
·
|
the
adoption of any plan or proposal for our liquidation or dissolution or any
spin-off or split-up of any kind of us or any of our subsidiaries,
proposed by or on behalf of an interested stockholder or an affiliate or
associate of an interested stockholder,
or
|
·
|
any
reclassification, recapitalization, or merger or consolidation of us with
any of our subsidiaries or any similar transaction that has the effect,
directly or indirectly, of increasing the percentage of the outstanding
shares of (i) any class of equity securities of us or any of our
subsidiaries or (ii) any class of securities of us or any of our
subsidiaries convertible into equity securities of us or any of our
subsidiaries which are directly or indirectly owned by an interested
stockholder or an affiliate or associate of an interested
stockholder.
|
·
|
is
one of our associates or affiliates and at any time within the prior
two-year period was the beneficial owner, directly or indirectly, of 10%
or more of our outstanding voting securities,
or
|
·
|
is,
or was at any time within the prior two-year period, the beneficial owner,
directly or indirectly, of 10% or more of our outstanding voting
securities, or
|
·
|
is
under circumstances described in more detail in our Certificate of
Incorporation, an assignee of any of the persons described
above.
|
·
|
that
person or any of its affiliates or associates, beneficially owns, directly
or indirectly,
|
·
|
that
person or any of its affiliates or associates has, directly or indirectly,
the right to acquire (whether such right is exercisable immediately or
subject only to the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or the right to vote
pursuant to any agreement, arrangement or understanding,
or
|
·
|
are
beneficially owned, directly or indirectly, by any other person with which
the person in question or any of its affiliates or associates has any
agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of capital
stock.
|
·
|
the
transaction is approved by the board before the date the interested
stockholder attained that status;
|
·
|
upon
consummation of the transaction that resulted in the stockholder becoming
an interested stockholder, the interested stockholder owned at least 85%
of the voting stock of the corporation outstanding at the time the
transaction commenced; or
|
·
|
on
or after the date the business combination is approved by the board and
authorized at a meeting of stockholders by at least two-thirds of the
outstanding voting stock that is not owned by the interested
stockholder.
|
·
|
any
sale, lease, exchange, mortgage, transfer, pledge or other disposition of
10% or more of the assets of the corporation involving the interested
stockholder;
|
·
|
any
merger or consolidation involving the corporation or any majority-owned
subsidiary and the interested
stockholder;
|
·
|
subject
to certain exceptions, any transaction that results in the issuance or
transfer by the corporation or by any majority-owned subsidiary of any
stock of the corporation or of such subsidiary to the interested
stockholder;
|
·
|
any
transaction involving the corporation or any majority-owned subsidiary
that has the effect of increasing the proportionate share of the stock of
any class or series of the corporation beneficially owned by the
interested stockholder; or
|
·
|
the
receipt by the interested stockholder of the benefit of any loans,
advances, guarantees, pledges or other financial benefits provided by or
through the corporation or any majority-owned
subsidiary.
|
·
|
create
one or more series of preferred
stock,
|
·
|
issue
shares of preferred stock in any series up to the maximum number of shares
of preferred stock authorized, and
|
·
|
determine
the preferences, rights, privileges and restrictions of any
series.
|
·
|
the
number of shares and designation or title of the
shares;
|
·
|
any
liquidation preference per share;
|
·
|
any
date of maturity;
|
·
|
any
redemption, repayment or sinking fund
provisions;
|
·
|
any
dividend rate or rates and the dates of payment (or the method for
determining the dividend rates or dates of
payment);
|
·
|
any
voting rights;
|
·
|
if
other than the currency of the United States, the currency or currencies
including composite currencies in which the preferred stock is denominated
and/or in which payments will or may be
payable;
|
·
|
the
method by which amounts in respect of the preferred stock may be
calculated and any commodities, currencies or indices, or value, rate or
price, relevant to such
calculation;
|
·
|
whether
the preferred stock is convertible or exchangeable and, if so, the
securities or rights into which the preferred stock is convertible or
exchangeable, and the terms and conditions of conversion or
exchange;
|
·
|
the
place or places where dividends and other payments on the preferred stock
will be payable; and
|
·
|
any
additional voting, dividend, liquidation, redemption and other rights,
preferences, privileges, limitations and
restrictions.
|
·
|
the
debt securities’ designation;
|
·
|
the
aggregate principal amount of the debt
securities;
|
·
|
the
percentage of their principal amount (i.e. price) at which the debt
securities will be issued;
|
·
|
the
date or dates on which the debt securities will mature and the right, if
any, to extend such date or dates;
|
·
|
the
rate or rates, if any, per year, at which the debt securities will bear
interest, or the method of determining such rate or
rates;
|
·
|
the
date or dates from which such interest will accrue, the interest payment
dates on which such interest will be payable or the manner of
determination of such interest payment dates and the record dates for the
determination of holders to whom interest is payable on any interest
payment date;
|
·
|
the
right, if any, to extend the interest payment periods and the duration of
that extension;
|
·
|
the
manner of paying principal and interest and the place or places where
principal and interest will be
payable;
|
·
|
provisions
for a sinking fund purchase or other analogous fund, if
any;
|
·
|
the
period or periods, if any, within which, the price or prices at which, and
the terms and conditions upon which the debt securities may be redeemed,
in whole or in part, at our option or at your
option;
|
·
|
the
form of the debt securities;
|
·
|
any
provisions for payment of additional amounts for taxes and any provision
for redemption, if we must pay such additional amounts in respect of any
debt security;
|
·
|
the
terms and conditions, if any, upon which we may have to repay the debt
securities early at your option;
|
·
|
the
currency, currencies or currency units for which you may purchase the debt
securities and the currency, currencies or currency units in which
principal and interest, if any, on the debt securities may be
payable;
|
·
|
the
terms and conditions upon which conversion or exchange of the debt
securities may be effected, if any, including the initial conversion or
exchange price or rate and any adjustments thereto and the period or
periods when a conversion or exchange may be
effected;
|
·
|
whether
and upon what terms the debt securities may be
defeased;
|
·
|
any
events of default or covenants in addition to or in lieu of those set
forth in the indenture;
|
·
|
provisions
for electronic issuance of debt securities or for debt securities in
uncertificated form; and
|
·
|
any
other terms of the debt securities, including any terms which may be
required by or advisable under applicable laws or regulations or advisable
in connection with the marketing of the debt
securities.
|
·
|
the
successor entity, if any, is a U.S. corporation, limited liability
company, partnership or trust (subject to certain exceptions provided for
in the senior indenture);
|
·
|
the successor entity assumes our
obligations on the senior debt securities and under the senior
indenture;
|
·
|
immediately
after giving effect to the transaction, no default or event of default
shall have occurred and be continuing;
and
|
·
|
certain
other conditions are met.
|
·
|
our
default in the payment of principal or premium on the senior debt
securities of such series when due and payable whether at maturity, upon
acceleration, redemption, or otherwise, if that default continues for a
period of five days (or such other period as may be specified for such
series);
|
·
|
our
default in the payment of interest on any senior debt securities of such
series when due and payable, if that default continues for a period of 60
days (or such other period as may be specified for such
series);
|
·
|
our
default in the performance of or breach of any of our other covenants or
agreements in the senior indenture applicable to senior debt securities of
such series, other than a covenant breach which is specifically dealt with
elsewhere in the senior indenture, and that default or breach continues
for a period of 90 consecutive days after we receive written notice from
the trustee or from the holders of 25% or more in aggregate principal
amount of the senior debt securities of such
series;
|
·
|
there
occurs any other event of default provided for in such series of senior
debt securities;
|
·
|
a
court having jurisdiction enters a decree or order
for:
|
·
|
relief
in respect of us in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in
effect;
|
·
|
appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of us or for all or substantially all of our property and
assets; or
|
·
|
the
winding up or liquidation of our affairs and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive
days.
|
·
|
we:
|
·
|
commence
a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such
law;
|
·
|
consent
to the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of ours for
all or substantially all of our property and assets;
or
|
·
|
effect
any general assignment for the benefit of
creditors.
|
·
|
the
holder gives the trustee written notice of a continuing event of
default;
|
·
|
the
holders of at least 25% in aggregate principal amount of such series of
senior debt securities make a written request to the trustee to pursue the
remedy in respect of such event of
default;
|
·
|
the
requesting holder or holders offer the trustee indemnity satisfactory to
the trustee against any costs, liability, or
expense;
|
·
|
the
trustee does not comply with the request within 60 days after receipt of
the request and the offer of indemnity;
and
|
·
|
during
such 60-day period, the holders of a majority in aggregate principal
amount of such series of senior debt securities do not give the trustee a
direction that is inconsistent with the
request.
|
·
|
we
pay or cause to be paid, as and when due and payable, the principal of and
any interest on all senior debt securities of such series outstanding
under the senior indenture;
|
·
|
all
senior debt securities of such series previously authenticated and
delivered with certain exceptions, have been delivered to the trustee for
cancellation and we have paid all sums payable by us under the senior
indenture; or
|
·
|
the
senior debt securities of such series mature within one year or all of
them are to be called for redemption within one year under arrangements
satisfactory to the trustee for giving the notice of redemption, and we
irrevocably deposit in trust with the trustee, as trust funds solely for
the benefit of the holders of the senior debt securities of such series,
for that purpose, the entire amount in cash or, in the case of any series
of senior debt securities payments on which may only be made in U.S.
dollars, U.S. government obligations (maturing as to principal and
interest in such amounts and at such times as will insure the availability
of cash sufficient), after payment of all federal, state and local taxes
or other charges and assessments in respect thereof payable by the
trustee, to pay principal of and interest on the senior debt securities of
such series to maturity or redemption, as the case may be, and to pay all
other sums payable by us under the senior
indenture.
|
·
|
we
have irrevocably deposited in trust with the trustee as trust funds solely
for the benefit of the holders of the senior debt securities of such
series, for payment of the principal of and interest on the senior debt
securities of such series, cash in an amount or, in the case of any series
of senior debt securities payments on which can only be made in U.S.
dollars, U.S. government obligations (maturing as to principal and
interest
|
·
|
such
deposit will not result in a breach or violation of, or constitute a
default under, the senior indenture or any other material agreement or
instrument to which we are a party or by which we are
bound;
|
·
|
no
default or event of default with respect to the senior debt securities of
such series shall have occurred and be continuing on the date of such
deposit;
|
·
|
we
shall have delivered to the trustee either an officer’s certificate and an
opinion of counsel that the holders of the senior debt securities of such
series will not recognize income, gain or loss for federal income tax
purposes as a result of our exercising our option under this provision of
the senior indenture and will be subject to federal income tax on the same
amount and in the same manner and at the same times as would have been the
case if such deposit and defeasance had not occurred or a ruling by the
Internal Revenue Service to the same effect;
and
|
·
|
we
have delivered to the trustee an officer’s certificate and an opinion of
counsel, in each case stating that all conditions precedent provided for
in the senior indenture relating to the contemplated defeasance of the
senior debt securities of such series have been complied
with.
|
·
|
to
convey, mortgage or pledge any assets as security for the senior debt
securities of one or more series;
|
·
|
to
evidence the succession of another corporation to us, and the assumption
by such successor corporation of our covenants, agreements and obligations
under the senior indenture;
|
·
|
to
cure any ambiguity, defect, or inconsistency in the senior indenture or in
any supplemental indenture; provided that such amendments or supplements
shall not adversely affect the interests of the holders of the senior debt
securities of any series in any material respect, or to conform the senior
indenture or the senior debt securities to the description of senior debt
securities of such series set forth in this prospectus or a prospectus
supplement;
|
·
|
to
comply with the provisions described under “—Certain
Covenants—Consolidation, Merger and Sale of
Assets”;
|
·
|
to
evidence and provide for the acceptance of appointment hereunder by a
successor trustee, or to make such changes as shall be necessary to
provide for or facilitate the administration of the trusts in the senior
indenture by more than one trustee;
|
·
|
to
provide for or add guarantors with respect to the senior debt securities
of any series;
|
·
|
to
establish the form or forms or terms of the senior debt securities as
permitted by the senior indenture;
|
·
|
to
make any change that is necessary or desirable provided that such change
shall not adversely affect the interests of the holders of the senior debt
securities of any series in any material
respect;
|
·
|
to
add to our covenants such new covenants, restrictions, conditions or
provisions for the protection of the holders, and to make the occurrence,
or the occurrence and continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an event of
default;
|
·
|
to
make any change to the senior debt securities of any series so long as no
senior debt securities of such series are outstanding;
or
|
·
|
to
make any change that does not adversely affect the rights of any
holder.
|
·
|
changes
the stated maturity of the principal of, or any installment of interest
on, any senior debt securities of such
series;
|
·
|
reduces
the principal amount of, or premium, if any, or interest on, any senior
debt securities of such series;
|
·
|
changes
the place or currency of payment of principal of, or premium, if any, or
interest on, any senior debt securities of such
series;
|
·
|
changes
the provisions for calculating the optional redemption price, including
the definitions relating thereto;
|
·
|
changes
the provisions relating to the waiver of past defaults or changes or
impairs the right of holders to receive payment or to institute suit for
the enforcement of any payment of any senior debt securities of such
series on or after the due date
therefor;
|
·
|
reduces
the above-stated percentage of outstanding senior debt securities of such
series the consent of whose holders is necessary to modify or amend or to
waive certain provisions of or defaults under the senior
indenture;
|
·
|
waives
a default in the payment of principal of or interest on the senior debt
securities;
|
·
|
adversely
affects the rights of such holder under any mandatory redemption or
repurchase provision or any right of redemption or repurchase at the
option of such holder; or
|
·
|
modifies
any of the provisions of this paragraph, except to increase any required
percentage or to provide that certain other provisions cannot be modified
or waived without the consent of the holder of each senior debt security
of such series affected by the
modification.
|
·
|
all
of the indebtedness of that person for money borrowed, including any
indebtedness secured by a mortgage or other lien which is (1) given
to secure all or part of the purchase price of property subject to the
mortgage or lien, whether given to the vendor of that property or to
another lender, or (2) existing on property at the time that person
acquires it;
|
·
|
all
of the indebtedness of that person evidenced by notes, debentures, bonds
or other securities sold by that person for
money;
|
·
|
all
of the lease obligations which are capitalized on the books of that person
in accordance with generally accepted accounting
principles;
|
·
|
all
indebtedness of others of the kinds described in the first two bullet
points above and all lease obligations of others of the kind described in
the third bullet point above that the person, in any manner, assumes or
guarantees or that the person in effect guarantees through an agreement to
purchase, whether that agreement is contingent or otherwise;
and
|
·
|
all
renewals, extensions or refundings of indebtedness of the kinds described
in the first, second or fourth bullet point above and all renewals or
extensions of leases of the kinds described in the third or fourth bullet
point above;
|
·
|
all
outstanding depositary shares have been redeemed;
or
|
·
|
there
has been a final distribution of the preferred stock in connection with
our dissolution and such distribution has been made to all the holders of
depositary shares.
|
·
|
the
initial deposit of the preferred
stock;
|
·
|
the
initial issuance of the depositary
shares;
|
·
|
any
redemption of the preferred stock;
and
|
·
|
all
withdrawals of preferred stock by owners of depositary
shares.
|
·
|
refuse
to transfer depositary shares;
|
·
|
withhold
dividends and distributions; and
|
·
|
sell
the depositary shares evidenced by the depositary
receipt.
|
·
|
written
advice of counsel or accountants;
|
·
|
information
provided by holders of depositary receipts or other persons believed in
good faith
to be competent to give such information;
and
|
·
|
documents
believed to be genuine and to have been signed or presented by the proper
party or parties.
|
·
|
debt
or equity securities issued by us or securities of third parties, a basket
of such securities, an index or indices or such securities or any
combination of the above as specified in the applicable prospectus
supplement;
|
·
|
currencies;
or
|
·
|
commodities.
|
·
|
directly
to purchasers;
|
·
|
through
agents;
|
·
|
through
underwriters; and
|
·
|
through
dealers.
|
Amount
to
be Paid |
||||
Registration
fee
|
$ | 0 | * | |
Printing
|
5,000 | |||
Legal
fees and expenses (including Blue Sky fees)
|
50,000 | |||
Accounting
fees and expenses
|
25,000 | |||
Miscellaneous
|
10,000 | |||
TOTAL
|
$ | 90,000 |
|
(a)
|
The
following exhibits are filed as part of this Registration
Statement:
|
Exhibit
No.
|
Document
|
1.1
|
Form
of Underwriting Agreement*
|
3.1
|
Certificate
of Incorporation of E*TRADE Financial Corporation as currently in effect
(Incorporated by reference to Exhibit 3.1 to the Company’s Annual Report
on Form 10-K for the year ended December 31, 2008)
|
3.2
|
Restated
Bylaws of E*TRADE Financial Corporation (Incorporated by reference to
Exhibit 3.3 to the Company’s Annual Report on Form 10-K for the year ended
December 31, 2008)
|
4.1
|
Specimen
of Common Stock Certificate (Incorporated by reference to Exhibit 4.1 to
Amendment No. 1 to the Company’s Registration Statement on Form S-1/A
filed on July 22, 1996)
|
4.2
|
Specimen
Preferred Stock Certificate*
|
4.3
|
Certificate
of Designation of Series B Participating Cumulative Preferred Stock
(Incorporated by reference to Exhibit 3.1 to the Company’s Quarterly
Report on Form 10-Q filed August 14, 2001)
|
4.4
|
Rights
Agreement dated as of July 9, 2001 between E*TRADE, Group, Inc. and
American Stock Transfer & Trust Company, N.A., as Rights Agent
(incorporated by reference to Exhibit 99.2 to the Company’s Current Report
on Form 8-K filed July 9, 2001)
|
4.5
|
First
Amendment to Rights Agreement, dated as of November 29, 2007, by and
between E*TRADE Financial Corporation and American Stock Transfer &
Trust Company, N.A., as Rights Agent (incorporated by reference
to Exhibit 4.3 to the Company’s Current Report on Form 8-K filed on
December 4, 2007)
|
4.6
|
Form
of Senior Indenture
|
4.7
|
Form
of Senior Note
|
4.8
|
Form
of Subordinated Indenture
|
4.9
|
Form
of Subordinated Note
|
4.10
|
Form
of Deposit Agreement*
|
4.11
|
Form
of Deposit Receipt (included in Exhibit 4.13)*
|
4.12
|
Form
of Rights Agreement*
|
4.13
|
Form
of Warrant Agreement*
|
4.14
|
Form
of Purchase Contract*
|
4.15
|
Form
of Unit Agreement*
|
5.1
|
Opinion
of Davis Polk & Wardwell
|
12.1
|
Computation
of Consolidated Ratio of Earnings to Fixed Charges and Preferred Stock
Dividends
|
23.1
|
Consent
of Independent Registered Public Accounting Firm, Deloitte & Touche
LLP
|
23.2
|
Consent
of Davis Polk & Wardwell (included in Exhibit
5.1)
|
Exhibit
No.
|
Document
|
24.1
|
Power
of Attorney (included on the signature page of the Registration
Statement)
|
25.1
|
Statement
of Eligibility on Form T-1 of The Bank of New York Mellon as Trustee under
the Senior Indenture
|
25.2
|
Statement
of Eligibility on Form T-1 of The Bank of New York Mellon as Trustee under
the Subordinated Indenture
|
|
(a)
|
The
undersigned Registrant hereby
undertakes:
|
|
(b)
|
The
undersigned Registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Trust Indenture
Act.
|
|
(c)
|
The
undersigned Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona
fide offering thereof.
|
|
(d)
|
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the
Registrants pursuant to the foregoing provisions, or otherwise, the
Registrants have been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Registrants will, unless in the opinion of their
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the
|
E*TRADE
Financial Corporation
|
||
By:
|
/s/ Bruce P. Nolop | |
Bruce
P. Nolop
Chief
Financial Officer
|
Signature
|
Title
|
Date
|
/s/
Donald H. Layton
|
Chief
Executive Officer and Chairman of the Board
(principal
executive officer)
|
April
17, 2009
|
Donald
H. Layton
|
||
/s/
Bruce P. Nolop
|
Chief
Financial Officer
(principal
financial and accounting officer)
|
April
17, 2009
|
Bruce
P. Nolop
|
||
|
||
/s/
Robert Druskin
|
Director
|
April
17, 2009
|
Robert
Druskin
|
||
|
||
/s/
Ronald D. Fisher
|
Director
|
April
17, 2009
|
Ronald
D. Fisher
|
||
|
||
/s/
George A. Hayter
|
Director
|
April
17, 2009
|
George
A. Hayter
|
||
|
||
/s/
Frederick W. Kanner
|
Director
|
April
17, 2009
|
Frederick
W. Kanner
|
Signature
|
Title
|
Date
|
Director
|
|
|
Michael
K. Parks
|
||
|
|
|
Director
|
||
C.
Cathleen Raffaeli
|
||
|
|
|
/s/
Lewis E. Randall
|
Director
|
April
17, 2009
|
Lewis
E. Randall
|
||
|
|
|
/s/
Joseph L. Sclafani
|
Director
|
April
17, 2009
|
Joseph
L. Sclafani
|
||
|
|
|
/s/
Donna L. Weaver
|
Director
|
April
17, 2009
|
Donna
L. Weaver
|
||
|
|
|
Director
|
|
|
Stephen
H. Willard
|
Exhibit
No.
|
Document
|
1.1
|
Form
of Underwriting Agreement*
|
3.1
|
Certificate
of Incorporation of E*TRADE Financial Corporation as currently in effect
(Incorporated by reference to Exhibit 3.1 to the Company’s Annual Report
on Form 10-K for the year ended December 31, 2008)
|
3.2
|
Restated
Bylaws of E*TRADE Financial Corporation (Incorporated by reference to
Exhibit 3.3 to the Company’s Annual Report on Form 10-K for the year ended
December 31, 2008)
|
4.1
|
Specimen
of Common Stock Certificate (Incorporated by reference to Exhibit 4.1 to
Amendment No. 1 to the Company’s Registration Statement on Form S-1/A
filed on July 22, 1996)
|
4.2
|
Specimen
Preferred Stock Certificate*
|
4.3
|
Certificate
of Designation of Series B Participating Cumulative Preferred Stock
(Incorporated by reference to Exhibit 3.1 to the Company’s Quarterly
Report on Form 10-Q filed August 14, 2001)
|
4.4
|
Rights
Agreement dated as of July 9, 2001 between E*TRADE, Group, Inc. and
American Stock Transfer & Trust Company, N.A., as Rights Agent
(incorporated by reference to Exhibit 99.2 to the Company’s Current Report
on Form 8-K filed July 9, 2001)
|
4.5
|
First
Amendment to Rights Agreement, dated as of November 29, 2007, by and
between E*TRADE Financial Corporation and American Stock Transfer &
Trust Company, N.A., as Rights Agent (incorporated by reference
to Exhibit 4.3 to the Company’s Current Report on Form 8-K filed on
December 4, 2007)
|
4.6
|
Form
of Senior Indenture
|
4.7
|
Form
of Senior Note
|
4.8
|
Form
of Subordinated Indenture
|
4.9
|
Form
of Subordinated Note
|
4.10
|
Form
of Deposit Agreement*
|
4.11
|
Form
of Deposit Receipt (included in Exhibit 4.13)*
|
4.12
|
Form
of Rights Agreement*
|
4.13
|
Form
of Warrant Agreement*
|
4.14
|
Form
of Purchase Contract*
|
4.15
|
Form
of Unit Agreement*
|
5.1
|
Opinion
of Davis Polk & Wardwell
|
12.1
|
Computation
of Consolidated Ratio of Earnings to Fixed Charges and Preferred Stock
Dividends
|
23.1
|
Consent
of Independent Registered Public Accounting Firm, Deloitte & Touche
LLP
|
23.2
|
Consent
of Davis Polk & Wardwell (included in Exhibit 5.1)
|
24.1
|
Power
of Attorney (included on the signature page of the Registration
Statement)
|
Exhibit
No.
|
Document
|
25.1
|
Statement
of Eligibility on Form T-1 of The Bank of New York Mellon as Trustee under
the Senior Indenture
|
25.2
|
Statement
of Eligibility on Form T-1 of The Bank of New York Mellon as Trustee under
the Subordinated Indenture
|