**Exhibit 10.21**

**FORM OF EMPLOYMENT AGREEMENT**

This EmploymentAgreement (this “**Agreement**”) is made and entered into by and between E*TRADE Financial Corporation (the “ **Company**”) and                         (“**Executive**”) as of                         (the “Effective Date”). 

1. *Position and Duties*: As of the Effective Date, Executive will be appointed as                            . Executive agrees to devote all necessary time, energy and skill to hisduties at the Company. 

The Company shall provide Executive with the same indemnification and D&O insurance protectionprovided from time to time to its officers and directors generally. Notwithstanding anything to the contrary in this Agreement, the rights of Executive to indemnification and the D&O insurance coverage with respect to all matters, events ortransactions occurring or effected during the Executive’s period of employment with the Company shall survive the termination of Executive’s employment. 

2. *Term of Agreement*: This Agreement shall remain in effect through December 31, 2011 (the “**Term**”), unless Executive’s employment is terminated earlier by either party,subject to payments under Section 5 hereof to the extent applicable. The Term of this Agreement shall automatically renew for additional one-year periods unless either party provides at least ninety days’ prior written notice oftermination of the Agreement; *provided* that in the event of a Change in Control during the term of this Agreement, this Agreement may not be terminated until 24 months following such Change in Control. Executive’s employment with theCompany shall be “at-will”. Unless Executive terminates his employment prior to the end of the Term pursuant to the terms of this Agreement (for the avoidance of doubt, including to the extent an Involuntary Termination occurs followingthe Company’s delivery of notice of its non-renewal of this Agreement pursuant to the preceding sentence), Executive’s continued employment following the end of the Term shall continue to be on an at-will basis and on such terms andconditions as the parties may agree. 

3. *Compensation*: During the Term, Executive shall be compensated by the Companyfor his services as follows: 

(a) *Base Salary*: Executive shall be paid an annualized base salary of$                 per year, subject to applicable withholding, in accordance with the Company’s normal payroll procedures. Executive’s base salary maybe adjusted from time to time in the discretion of the Company, subject to the provisions of Section 5 (incorporating the definitions set forth in Section 7) (this is referred to as the “**Base Salary**”)*.*

(b) *Performance Bonus*: Executive shall have the opportunity to earn an annual performance bonus. The performancebonus shall be earned upon the Executive and the Company meeting pre-established performance targets. Executive’s current cash bonus target amount is$                . The annual cash bonus, if earned, will be paid at the same time and in the same manner as payments to similarly situated executives of theCompany and, except as expressly provided otherwise in this Agreement or in the applicable bonus plan document, shall not be earned unless Executive remains employed with the Company on the date of payment. 

(c) *Benefits*: Executive shall have the right, on the same basis asother senior executives of the Company, to participate in and to receive benefits under any of the Company’s employee benefit plans, as such plans may be modified from time to time. 

4. *Equity Compensation.*Executive will be eligible to receive equity compensation awards from time to time if the Company’sBoard of Directors or its designee, in its sole discretion, determines that such an award(s) is appropriate. 

5. *Effect ofTermination of Employment During the Term*: 

(a) *Involuntary Termination outside a Change in ControlPeriod*: If Executive’s employment with the Company is terminated as a result of an Involuntary Termination outside of a Change in Control Period, then subject to Executive signing and not revoking the Release (so long as such Release issigned in a period such that the payments under clauses (i) and (ii) below may be made no later than 2 and 1/2 months following the end of the year in such termination of employment occurs), Executive shall receive the following benefits,in addition to any compensation and benefits earned and unpaid under Section 3 through the date of Executive’s termination of employment: 

(i) a lump sum cash severance payment equal 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 shareof the target performance bonus for the year in which termination of employment occurs, *provided* that the Company’s performance meets the target performance level for the year of termination, as determined at year-end, which paymentshall be paid no later than 2 and 1/2 months following the end of the year in such termination of employment occurs; 

(iii) reimbursement for the cost of medical coverage at a level equivalent to that provided by the Company immediately prior to termination of employment, through the earlier of: (A) 12 months following Executive’s termination ofemployment, or (B) the time Executive begins alternative employment; *provided* that (x) it shall be the obligation of Executive to inform the Company that new employment has been obtained and (y) such reimbursement shall be madeby the Company subsidizing or reimbursing COBRA premiums or, if Executive is no longer eligible for COBRA continuation coverage, by a lump sum payment based on the monthly premiums immediately prior to the expiration of COBRA coverage. 

(iv) 12 months’ accelerated vesting of outstanding options, restricted stock awards, restricted stock units and otherequity awards (collectively, “**Equity Grants**”), such that as of the later of the date of Executive’s termination of employment or the last day following Executive’s execution of the Release on which Executive may revokesuch Release under its terms, all such Equity Grants will be deemed vested to the extent such awards would have become vested on or before the first anniversary of the date of Executive’s termination of employment; 

(b) *Involuntary Termination during a Change in Control Period*: If Executive’s employment with the Company isterminated as a result of an Involuntary Termination

 

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during a Change in Control Period, then subject to Executive signing and not revoking the Release (so long as such Release is signed in a period such that the payment may be made no later than 2and 1/2 months following the end of the year in such termination of employment occurs), Executive shall receive the following benefits, in addition to any compensation and benefits earned and unpaid under Section 3 through the date ofExecutive’s termination of employment: 

(i) a lump sum cash severance payment equal to two times the sumof (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 termination of employment occurs, *provided*that the Company’s performance meets the target performance level for the year of termination, as determined at year-end, which payment shall be paid no later than 2 and 1/2 months following the end of the year in such termination of employmentoccurs; 

(iii) each Equity Grant shall become fully vested and, if applicable, exercisable (and any forfeitureprovision shall lapse) in full as of the later of the date of Executive’s termination of employment or the last day following Executive’s execution of the Release on which Executive may revoke such Release under its terms; 

(iv) reimbursement for the cost of medical coverage at a level equivalent to that provided by the Company immediately priorto termination of employment, through the earlier of: (A) 24 months following Executive’s termination of employment, or (B) the time Executive begins alternative employment; *provided* that (x) it shall be the obligation ofExecutive to inform the Company that new employment has been obtained and (y) such reimbursement shall be made by the Company subsidizing or reimbursing COBRA premiums or, if Executive is no longer eligible for COBRA continuation coverage, by alump sum payment based on the monthly premiums immediately prior to the expiration of COBRA coverage. 

(c)*Death or Disability.*

(i) In the event of Executive’s death, all Equity Grants held by Executive,to the extent then outstanding, shall become fully vested and, if applicable, exercisable (and any forfeiture provision shall lapse) as of the date of Executive’s death. 

(ii) In the event the Executive’s employment terminates as a result of his death or Permanent Disability, Executive (orExecutive’s estate, as applicable) shall be entitled to a pro rata share of the Executive’s cash or other performance bonus to the date of death or Permanent Disability. 

(d) *Other Termination*: In the event of a termination of Executive’s employment not specified underSection 5(a), Section 5(b) or Section 5(c) above, including, without limitation, a termination for Cause, Executive shall not be entitled to any compensation or benefits from the Company, other than those earned and unpaid underSection 3 through the date of his termination and, in the case of each stock option, restricted stock

 

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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 awardagreement. 

6. *Certain Tax Considerations*: 

(a) *Section 409A*: 

(i) The payments under Section 5 are intended to qualify for the short-term deferral exception to Section 409A of the Code (“**Section 409A**”) described in the regulationspromulgated under Section 409A (the “**Section 409A Regulations**”) to the maximum extent possible, and to the extent they do not so qualify, they are intended to qualify for the involuntary separation pay plan exception toSection 409A described in the Section 409A Regulations to the maximum extent possible. To the extent Section 409A is applicable to this Agreement, this Agreement is intended to comply with Section 409A, and shall be interpretedand construed and shall be performed by the parties consistent with such intent, and the Company shall have no right, without Executive’s consent, to accelerate any payment or the provision of any benefits under this Agreement if such paymentor provision of such benefits would, as a result, be subject to tax under Section 409A. 

(ii) Withoutlimiting the generality of the foregoing, if Executive is a “specified employee” within the meaning of Section 409A, as determined under the Company’s established methodology for determining specified employees, on the date oftermination of employment, then to the extent required in order to comply with Section 409A, amounts that would otherwise be payable under this Agreement during the six-month period immediately following such termination date shall instead bepaid (together with interest at the then current six-month LIBOR rate) on the first business day after the first to occur of (i) the date that is six months following Executive’s termination of employment and (ii) the date ofExecutive’s death. 

(iii) Except as expressly provided otherwise herein, no reimbursement payable toExecutive pursuant to any provisions of this Agreement or pursuant to any plan or arrangement of the Company covered by this Agreement shall be paid later than the last day of the calendar year following the calendar year in which the relatedexpense was incurred, and no such reimbursement during any calendar year shall affect the amounts eligible for reimbursement in any other calendar year, except, in each case, to the extent that the right to reimbursement does not provide for a“deferral of compensation” within the meaning of Section 409A of the Code. 

(iv) For purposes ofthis Agreement, the terms “terminate,” “terminated” and “termination” mean a termination of Executive’s employment that constitutes a “separation from service” within the meaning of the default rules ofSection 409A of the Code; *provided* , however, that, in the event of the Executive’s Permanent Disability, “separation from service” means the date that is six months after the first day of disability. 

(b) *280G**Limitation*: If the payments and benefits provided to Executive under this Agreement, either alone ortogether with other payments and benefits provided to him from the Company (including, without limitation, any accelerated vesting thereof) (the “**Total Payments**”), would constitute a “parachute payment” (as defined in

 

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Section 280G of the Code) and be subject to the excise tax (the “**Excise Tax**”) imposed under Section 4999 of the Code, the Total Payments shall be reduced if and to theextent that a reduction in the Total Payments would result in Executive retaining a larger amount than if Executive received all of the Total Payments, in each case measured on an after-tax basis (taking into account federal, state and local incometaxes and, if applicable, the Excise Tax). The determination of any reduction in the Total Payments shall be made at the Company’s cost by the Company’s independent public accountants or another firm designated by the Company andreasonably 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 andother professional advice in the event of a challenge of any such reasonable, good faith interpretations by the Internal Revenue Service. 

7. *Certain Definitions*: For the purposes of this Agreement, the following capitalized terms shall have the meanings set forth below: 

(a) “**Cause**” shall mean any of the following: 

(i) Executive’s theft, dishonesty, willful misconduct, breach of fiduciary duty for personal profit, or falsification ofany material employment or Company records; 

(ii) Executive’s conviction (including any plea of guilty ornolo contendere) of any criminal act involving fraud, dishonesty, misappropriation or moral turpitude, or which impairs Executive’s ability to perform his duties with the Company; 

(iii) Executive’s intentional and repeated failure to perform stated duties after notice from the Company of, and areasonable opportunity to cure, such failure; 

(iv) Executive’s improper disclosure of the Company’sconfidential or proprietary information; 

(v) any material breach by Executive of the Company’s Code ofProfessional Conduct, which breach shall be deemed “material” if it results from an intentional act by Executive and has a material detrimental effect on the Company’s reputation or business; or 

(vi) any material breach by Executive of this Agreement or of any agreement regarding proprietary information and inventions,which breach, if curable, is not cured within thirty (30) days following written notice of such breach from the Company. 

In the event that the Company terminates Executive’s employment for Cause, the Company shall provide written notice to Executive of that fact prior to, or concurrently with, the termination of employment. Failure to provide writtennotice that the Company contends that the termination is for Cause shall constitute a waiver of any contention that the termination was for Cause, and the termination shall be irrebuttably presumed to be an involuntary termination without Cause.However, if, within thirty (30) days following the termination, the Company first discovers facts that would have established “Cause” for termination, and those facts were not known by the Company at the time of the termination, thenthe Company shall provide Executive with written notice, including the facts establishing that the purported “Cause” was not known at the time of the termination, and the Company will pay no severance. 

 

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(b) “**Change in Control**” shall mean the occurrence of any ofthe following events: 

(i) (X) any “person” (as such term is used in Sections 13(d) and14(d) of the Securities Exchange Act of 1934, as amended) becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company representing more than fifty percent(50%) of the total combined voting power represented by the Company’s then outstanding voting securities other than the acquisition of the Company’s common stock by a Company-sponsored employee benefit plan or through the issuance ofshares 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) becomes the “beneficial owner” (asdefined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company representing less than fifty percent (50%) of the total combined voting power represented by the Company’s then outstanding voting securities, butin connection with the person’s acquisition of securities the person acquires the right to terminate the employment of all or a portion of the Company’s management team; 

(ii) the Company is party to a merger or consolidation which results in the holders of the voting securities of the Companyoutstanding immediately prior thereto failing to retain immediately after such merger or consolidation direct or indirect beneficial ownership of more than fifty percent (50%) of the total combined voting power of the securities entitled tovote generally in the election of directors of the Company or the surviving entity outstanding immediately after such merger or consolidation; 

(iii) a change in the composition of the Board occurring within a period of twenty-four (24) consecutive months, as a result of which fewer than a majority of the directors are Incumbent Directors;

(iv) effectiveness of an agreement for the sale, lease or disposition by the Company of all or substantiallyall of the Company’s assets; or 

(v) a liquidation or dissolution of the Company. 

The Incumbent Directors shall have the right to determine whether multiple sales or exchanges of the voting stock of theCompany, which, in the aggregate, would result in a Change of Control, are related, and its determination shall be final, binding and conclusive. 

(c) “**Code**” means the Internal Revenue Code of 1986, as amended. 

(d) “**Change in Control Period**” shall mean the period commencing on the earlier of: (i) 60 days prior to the date of consummation of the Change in Control; (ii) the date ofthe first public announcement of a definitive agreement that would result in a Change in Control (even though still subject to approval by the Company’s stockholders and other conditions and contingencies); or (iii) the date of the publicannouncement of a tender offer that is not approved by the Incumbent Directors and ending on the two year anniversary date of the consummation of the Change in Control. 

(e) “**Change in Control Period Good Reason**” shall mean any of the following conditions: 

 

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(i) a material decrease in Executive’s Base Salary other than as partof any across-the-board reduction applying to all senior executives of an acquiror; 

(ii) a material, adversechange in Executive’s title, authority, responsibilities or duties, as measured against Executive’s title, authority, responsibilities or duties immediately prior to such change; provided that for purposes of this subsection (ii),in addition to any other material, adverse change in title, authority, responsibilities or duties, a material diminution in the authority, duties, or responsibilities of the supervisor to whom the Executive is required to report shall constitute anevent of “Change in Control Period Good Reason”; 

(iii) the relocation of Executive’s principalworkplace to a location greater than fifty (50) miles from the prior workplace; 

(iv) any material breachby the Company of any provision of this Agreement, which breach is not cured within thirty (30) days following written notice of such breach from Executive, or the Company’s delivery of written notice of non-renewal of this Agreement(other than as a result of a termination for Cause) pursuant to Section 2 hereof; 

(v) any failure of theCompany to obtain the assumption (by operation of law or by contract) of this Agreement by any successor or assign of the Company; or 

(vi) any purported termination of Executive’s employment for “material breach of contract” which is purportedly effected without providing the “cure” period, if applicable,described in Section 7(a)(vi), above; 

*provided* that Executive shall have provided written notice to the Company ofthe existence of the condition constituting Good Reason within 90 days of the initial existence of the condition. 

(f) “**Incumbent Directors**” shall mean members of the Board who either (i) are members of the Board as of the date hereof, or (ii) are elected, or nominated for election, to the Board with the affirmative vote of atleast a majority of the Incumbent Directors at the time of such election or nomination (but shall not include an individual whose election or nomination is in connection with an actual or threatened proxy contest relating to the election of membersof the Board). 

(g) “**Involuntary Termination**” shall mean the occurrence of one of thefollowing: 

(i) termination by the Company of Executive’s employment with the Company for any reason otherthan Cause at any time; 

(ii) Executive’s resignation from employment for Non Change in Control PeriodGood Reason within six months following the occurrence of the event constituting Non Change in Control Period Good Reason; or 

(iii) during a Change in Control Period, Executive’s resignation from employment for Change in Control Period Good Reason within six months following the occurrence of the event constituting Changein Control Period Good Reason. 

(h) “**Non Change in Control Period Good Reason**” shall mean anyof the following conditions first occurring outside of a Change in Control Period and occurring without Executive’s written consent: 

 

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(i) a decrease in Executive’s Base Salary of greater than 20%;

(ii) a material, adverse change in Executive’s title, authority, responsibilities or duties, as measuredagainst Executive’s title, authority, responsibilities or duties immediately prior to such change; provided that for purposes of this subsection, a material, adverse change shall not occur merely by a change in reporting relationship; or

(iii) the relocation of Executive’s principal workplace to a location greater than fifty (50) milesfrom the prior workplace; 

(iv) any material breach by the Company of any provision of this Agreement, whichbreach is not cured within thirty (30) days following written notice of such breach from Executive, or the Company’s delivery of written notice of non-renewal of this Agreement (other than as a result of a termination for Cause) pursuantto Section 2 hereof; 

*provided* that Executive shall have provided written notice to the Company of the existence ofthe condition constituting Good Reason within 90 days of the initial existence of the condition. 

(i)“**Permanent Disability**” shall mean Executive’s permanent and total disability within the meaning of Section 22(e)(3) of the Code. 

(j) “**Release**” shall mean a general release of all known and unknown claims against the Company and itsaffiliates and their stockholders, directors, officers, employees, agents, successors and assigns substantially in a form reasonably acceptable to the Company, which has been executed by Executive and not revoked within the applicable revocationperiod. 

8. *Insider Trading Policy*: Executive agrees to abide by the terms and conditions of the Company’s InsiderTrading Policy, as it may be amended from time to time. 

9. *Dispute Resolution*: In the event of any dispute or claimrelating 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 andfinally 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 provisionhe 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. 

10. *Attorneys’ Fees*: The prevailing party shall be entitled to recover from the losing party its attorneys’ fees and costsincurred 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 relatedthereto. 

11. *General*. 

(a) *Successors and Assigns*: The provisions of this Agreement shall inure to the benefit of and be binding upon the Company, Executive and each and all of their

 

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respective heirs, legal representatives, successors and assigns. The duties, responsibilities and obligations of Executive under this Agreement shall be personal and not assignable or delegableby Executive in any manner whatsoever to any person, corporation, partnership, firm, company, joint venture or other entity. Executive may not assign, transfer, convey, mortgage, pledge or in any other manner encumber the compensation or otherbenefits to be received by him or any rights which he may have pursuant to the terms and provisions of this Agreement. 

(b) *Amendments; Waiver*: No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to in writing and signed by Executive and by an authorized officer of the Company.No waiver by either party of any breach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of any other condition or provision or of the same condition or provision at anothertime. 

(c) *Notices*: Any notices to be given pursuant to this Agreement by either party to the otherparty may be effected by personal delivery or by overnight delivery with receipt requested. Mailed notices shall be addressed to the parties at the addresses stated below, but each party may change its or his address by written notice to the otherin accordance with this Paragraph: 

Mailed notices to Executive shall be addressed to the last known addressprovided by Executive to the Company, 

Mailed notices to the Company shall be addressed as follows: 

E*TRADE Financial Corporation 

135 E. 57th St. 

New York, NY, 10022 

Attention: Executive Vice President HumanResources 

(d) *Entire Agreement*: This Agreement constitutes the entire employment agreement betweenExecutive and the Company regarding the terms and conditions of his employment and any amounts due on termination of such employment, with the exception of (i) the Agreement Regarding Employment and Proprietary Information and Inventionsbetween 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 agreementsbetween Executive and the Company to the extent not modified by this Agreement, (iii) any indemnification agreement referenced in Section 1 and (iv) the Company’s employee benefit plans referenced in Section 3(c). ThisAgreement (including the documents described in (i) through (iv) herein) supersedes all prior negotiations, representations or agreements between Executive and the Company, whether written or oral, concerning Executive’s employment byor service to the Company. 

(e) *Withholding Taxes*: All payments made under this Agreement shall besubject to reduction to reflect taxes required to be withheld by law. 

 

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(f) *Counterparts*: This Agreement may be executed by the Company andExecutive in counterparts, each of which shall be deemed an original and which together shall constitute one instrument. 

(g) *Headings*: Each and all of the headings contained in this Agreement are for reference purposes only and shall not in any manner whatsoever affect the construction or interpretation of thisAgreement or be deemed a part of this Agreement for any purpose whatsoever. 

(h) *Savings Provision*: Tothe extent that any provision of this Agreement or any paragraph, term, provision, sentence, phrase, clause or word of this Agreement shall be found to be illegal or unenforceable for any reason, such paragraph, term, provision, sentence, phrase,clause or word shall be modified or deleted in such a manner as to make this Agreement, as so modified, legal and enforceable under applicable laws. The remainder of this Agreement shall continue in full force and effect. 

(i) *Construction*: The language of this Agreement and of each and every paragraph, term and provision of this Agreementshall, in all cases, for any and all purposes, and in any and all circumstances whatsoever be construed as a whole, according to its fair meaning, not strictly for or against Executive or the Company, and with no regard whatsoever to the identity orstatus of any person or persons who drafted all or any portion of this Agreement. 

(j) *FurtherAssurances*: From time to time, at the Company’s request and without further consideration, Executive shall execute and deliver such additional documents and take all such further action as reasonably requested by the Company to be necessaryor desirable to make effective, in the most expeditious manner possible, the terms of this Agreement and to provide adequate assurance of Executive’s due performance hereunder. 

(k) *Governing Law*: Executive and the Company agree that this Agreement shall be interpreted in accordance with andgoverned by the laws of the State of New York. 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the dateand year written below. 

 
Dated:                     , 2009  E*TRADE Financial Corporation  By:     Donald H. Layton   Chairman and CEODated:                     , 2009       [Name]   
 

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