Exhibit
      10.1

     

    SEPARATION
      AGREEMENT

    AND
      GENERAL RELEASE OF CLAIMS

    


    This
      Agreement is between Mitchell H. Caplan (“Employee”) and E*TRADE Financial
      Corporation (the “Company”) (the “Parties”) and is effective as of the eighth
      day after it is signed by Employee (the “Effective Date”), provided that
      Employee has not revoked this Agreement (by written notice as set forth in
      Section 16 below) prior to that date.  The parties hereby agree that
      Employee’s employment with the Company will terminate effective December 31,
      2007 (the “Separation Date”).

     

    
      	
              1.

            	
              Consideration:  In
                consideration for the release of claims set forth below, the Company
                agrees to pay or provide Employee with the following payments and
                benefits:

            


    

     

    
      	
               

            	
              a.

            	
              A
                lump sum payment of $10.9 million, representing the sum of (x) two
                years
                of Employee’s base salary and (y) two times the bonus paid to Employee
                under the Company’s bonus plan for fiscal year 2006, to be paid within 30
                days following the Effective Date.

            


    

     

    
      	
               

            	
              b.

            	
              Reimbursement
                for the cost of medical insurance coverage at a level equivalent
                to that
                provided by the Company to Employee and his dependents immediately
                prior
                to the Separation Date and elected by Employee through COBRA (or,
                if
                Employee is no longer eligible for COBRA continuation coverage, through
                a
                lump sum payment in an amount necessary to permit Employee to obtain
                medical insurance coverage at a level equivalent to that provided
                by the
                Company immediately prior to the Separation Date, which lump sum
                payment
                shall be made to the Employee within 30 days after the second anniversary
                date of the Separation Date) and for the cost of life and disability
                insurance coverage at a level equivalent to that provided by the
                Company
                to Employee, for a period from the Separation Date through the earlier
                of
                (i) the two-year anniversary of the Separation Date or (ii) the time
                Employee begins alternative
                employment.

            


    

     

    
      
        
        

      

      
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              c.

            	
              Reimbursement
                for the reasonable attorney’s fees and expenses incurred by Employee in
                connection with the review and negotiation of this Agreement, in
                an amount
                not to exceed $10,000, such reimbursement to be paid within 30 days
                following the Effective Date.

            


    

     

    
      	
              2.

            	
              Full
                Release: In exchange for the benefits
                described in Section 1 above, Employee and his successors and assigns
                release and absolutely discharge the Company and its subsidiaries
                and
                other affiliated entities, and each of their respective shareholders,
                directors, employees, agents, attorneys, legal successors and assigns
                of
                and from any and all claims, actions and causes of action, whether
                now
                known or unknown, which Employee now has, or at any other time had,
                or
                shall or may have, against those released parties arising out of
                or
                relating to any matter, cause, fact, thing, act or omission whatsoever
                occurring or existing at any time to and including the date of execution
                of this Agreement by Employee, including, but not limited to, claims
                relating to any letter offering Employee employment with the Company,
                the
                Employment Agreement between Employee and the Company dated as of
                September 1, 2004 (as amended, the “Employment Agreement”), the parties’
                employment relationship, the termination of that relationship, the
                Employee’s purchase or right to purchase shares of the Company’s stock,
                and any claims for  breach of contract, infliction of emotional
                distress, fraud, defamation, personal injury, wrongful discharge
                or age,
                sex, race, national origin, industrial injury, physical or mental
                disability, medical condition, sexual orientation or other discrimination,
                harassment or retaliation, claims under the federal Americans with
                Disabilities Act, Title VII of the federal Civil Rights Act of 1964,
                as
                amended, the Age Discrimination in Employment Act, 42 U.S.C. Section
                1981,
                the federal Fair Labor Standards Act, the federal Employee Retirement
                Income Security Act, the federal Worker Adjustment and Retraining
                Notification Act, the federal Family and Medical Leave Act, the National
                Labor Relations Act, the Virginians with Disabilities Act and the
                Virginia
                Human Rights Act, which prevent employment discrimination, Virginia
                Code
                sections 40.1-29, et 

            


    

    
       

      
        
          
          

        

        
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                seq.;
                  or any other federal, state or local law, all as they have been
                  or may be
                  amended, and all claims for attorneys fees and/or costs, to the
                  full
                  extent that such claims may be released.  This Release does
                  not apply to (i)
                  claims which cannot be released as a matter of law, including claims
                  for indemnification under applicable state law, (ii) any right
                  Employee may have to enforce this Agreement, (iii) any right or
                  claim that
                  arises after the date of this Agreement, (iv) Employee’s eligibility for
                  indemnification and advancement of expenses in accordance with
                  applicable
                  laws or the certificate of incorporation and by-laws of Company
                  and/or its
                  subsidiaries, or any applicable insurance policy or (v) any right
                  Employee
                  may have to obtain contribution as permitted by law in the event
                  of entry
                  of judgment against Employee as a result of any act or failure
                  to act for
                  which Employee, on the one hand, and Company or any other releasee
                  hereunder, on the other hand, are jointly
                  liable.

              


      

       

    

    
      	
              3.

            	
              Resignations:
                As of the Separation Date, Employee hereby resigns  (and the
                Company hereby accepts such resignations) from the Company’s Board of
                Directors and from any and all other director, manager or officer
                positions he may hold with the Company, its subsidiaries and any
                of its
                affiliates.

            


    

     

    
      	
              4.

            	
              All
                Claims Waived:  Employee understands
                that he is releasing claims that he may not know about.  That is
                Employee’s knowing and voluntary intent even though he recognizes that
                someday he may regret having signed this
                Agreement.  Nevertheless, by signing this Agreement, Employee
                agrees that he is assuming that risk, and he agrees that this Agreement
                shall remain effective in all respects in any such
                case.  Employee expressly waives all rights he may have under
                any law that is intended to protect him from waiving unknown
                claims.

            


    

     

    
      	
              5.

            	
              Reimbursements: Employee
                will be reimbursed for outstanding business expenses incurred prior
                to the
                date Employee ceased being the Company’s chief executive officer (“Covered
                Business Expenses”) in accordance with the Company’s standard
                procedures.  Employee
                will

            


    

    
       

      
        
          
          

        

        
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                have
                  45 days from the Separation Date to submit all outstanding Covered
                  Business Expenses, if any, with appropriate documentation for
                  reimbursement by the Company.  Failure to submit documented
                  Covered Business Expenses for reimbursement within this time period
                  will
                  be considered a representation by Employee that he has been reimbursed
                  for
                  all business expenses.

              


      

       

    

    
      	
              6.

            	
              Vested
                and Accrued Benefits: Employee
                understands and acknowledges that he shall be entitled to no benefits
                from
                the Company other than those expressly set forth in Section 1 and
                any
                vested and accrued benefits earned under employee benefit plans through
                the Separation Date, which shall be paid or provided by the Company
                to
                Employee in accordance with the terms and conditions of such
                plans.  All provisions of the stock option and restricted stock
                agreements applicable to any stock option or restricted stock grant
                shall
                remain in full force and effect.  All unvested stock options and
                all shares of unvested restricted stock shall terminate as of the
                Separation Date.  Employee understands that he will receive no
                bonus payment for the 2007 fiscal
                year.

            


    

     

    
      	
              7.

            	
              Tax
                Matters:  All amounts referenced in Section 1 and
                elsewhere in this Agreement shall be subject to any required tax
                withholding by the Company.  Notwithstanding any other provision
                in this Agreement to the contrary, all expenses eligible for reimbursement
                hereunder shall be paid to Employee promptly in accordance with the
                Company’s customary practices (if any)  applicable to the
                reimbursement of expenses of such type,  but in any event by no
                later than March 15 of the calendar year following the calendar year
                in
                which such expenses were incurred.
                The  expenses  incurred by Employee in any calendar
                year that are eligible for reimbursement under this Agreement shall
                not
                affect the expenses incurred by Employee in any other calendar year
                that
                are eligible for reimbursement hereunder. Employee’s right to receive any
                reimbursement hereunder shall not be subject to liquidation or exchange
                for any other benefit.  The parties acknowledge that they
                believe in good faith that Employee’s termination of employment is an
                “involuntary separation from service”


            


    

    
       

      
        
          
          

        

        
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                for
                  purposes of Section 409A of the Internal Revenue Code of 1986,
                  as amended,
                  and the regulations promulgated
                  thereunder.

              


      

       

    

    
      	
              8.

            	
              No
                Admission: This Agreement constitutes a
                mutually acceptable vehicle for effecting Employee’s departure from the
                Company and shall not be used or treated or deemed to be an admission
                of
                liability or responsibility on the part of any released person or
                entity.

            


    

     

    
      	
              9.

            	
              Continuing
                Agreements:  Employee acknowledges and agrees that
                he shall continue to be bound by and comply with the Company’s Employee
                Inventions and Proprietary Rights Assignment Agreement, which is
                attached
                hereto as Exhibit A.  Without limiting the foregoing, Employee
                agrees that for a period of one year after the Separation Date, he
                shall
                not, either directly or indirectly, solicit the services, or attempt
                to
                solicit the services, of any employee of the Company to any other
                person
                or entity.  Anything to the contrary notwithstanding, the
                Company agrees that the following shall not be deemed a violation
                of this
                Section 9:  (i) Employee’s responding to an unsolicited request
                for an employment reference regarding any  former employee of
                the Company from such  former employee, or from a third party,
                by providing a reference setting forth his personal views about
                such  former employee, or (ii) if an entity with which Employee
                is associated hires or engages any employee of the Company or any
                of its
                subsidiaries, if Employee was not, directly or indirectly, involved
                in
                hiring or identifying such person as a potential recruit or assisting
                in
                the recruitment of such employee. For purposes hereof, Employee shall
                only
                be deemed to have been involved "indirectly" in soliciting, hiring
                or
                identifying an employee if Employee (x) directs a third party to
                solicit
                or hire the employee, (y) identifies an employee to a third party
                as a
                potential recruit or (z) aids, assists or participates with a third
                party
                in soliciting or hiring an
                employee.

            


    

     

    
      	
              10.

            	
              Agreement
                Not to Compete; Return of Company
                Property: Employee agrees that he shall
                not compete with the Company in any unfair manner, including, without
                limitation, using any

            


    

    
       

      
        
          
          

        

        
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                confidential
                  or proprietary information of the Company to compete with the Company
                  in
                  any way.  Employee represents that he has returned to the
                  Company all documents, property, and other records of the Company
                  or any
                  affiliate of the Company, and all copies thereof, within Employee’s
                  possession, custody or control.  Anything to the contrary
                  notwithstanding, Employee shall be entitled to retain (i) papers
                  and other
                  materials of a personal nature, including, but not limited to,
                  photographs, correspondence, personal diaries, calendars and rolodexes,
                  personal files and phone books, (ii) information showing his
                  compensation or relating to reimbursement of expenses,
                  (iii) information that he reasonably believes may be needed for tax
                  purposes, (iv) copies of plans, programs and agreements relating to his
                  employment, or termination thereof, with the Company and (v) copies
                  of
                  minutes, presentation materials and personal notes from any meeting
                  of the
                  Board of Directors of the Company or any of its subsidiaries, or
                  any
                  committee thereof, while he was a member of any such Board of Directors
                  or
                  committee thereof.

              


      

       

    

    
      	
              11.

            	
              Non-Disparagement;
                Disclosure of Agreement: Employee agrees
                that he shall not disparage the Company or any of its former, current
                or
                future officers, directors, employees, products or services, and
                the
                Company agrees that it will not (and will cause each of its subsidiaries
                not to) disparage Employee in the course of any authorized internal
                or
                external communication. Notwithstanding the foregoing, nothing contained
                in this Agreement shall prohibit Employee 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 Employee or the
                Company.  Employee and the Company acknowledge that the Company
                will be required to disclose this Agreement and its terms in its
                public
                filings with the SEC.

            


    

     

    
      
        
        

      

      
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              12.

            	
              Cooperation
                Clause:  Employee agrees that, as
                requested by the Company or its counsel, he will fully cooperate
                with the
                Company and its counsel in any internal review, investigation, or
                audit;
                and any formal or informal inquiry, investigation, disciplinary or
                other
                proceeding initiated by any government, regulatory or law enforcement
                agency (including without limitation the Securities and Exchange
                Commission, FINRA, formerly the National Association of Securities,
                Inc.,
                or the Office of Thrift Supervision). Employee further agrees to
                fully
                cooperate with the Company and its counsel in both the pursuit or
                prosecution of any claim or right the Company may hold against others
                for
                damages or relief and in defending the Company against any pending
                or
                future claims, complaints or actions brought against the Company,
                including but not limited regulatory actions, administrative proceedings,
                arbitration claims, or lawsuits. In this regard, Employee agrees
                that he
                will promptly provide all information or documents he may possess
                relevant
                to the subject matter of any inquiry, and that he will testify truthfully
                and with complete candor in connection with any such regulatory,
                administrative or legal action or proceeding.  To the extent
                possible, the Company will try to limit Employee’s participation to
                regular business hours.  Any request for cooperation by the
                Company hereunder will take into account, to the extent practicable,
                Employee's reasonable, good faith personal commitments and business
                commitments.  The Company agrees to provide Employee reasonable
                notice, to the extent practicable, in the event his assistance is
                required.  The Company will reimburse Employee for reasonable
                travel expenses (including lodging and meals) incurred by him in
                connection with providing such assistance and for legal fees to the
                extent
                Employee reasonably believes that separate representation is warranted,
                in
                either case within 30 days of the submission of the appropriate
                documentation to the Company.  Employee’s entitlement to such
                reimbursement, including legal fees, pursuant to this Section 12,
                shall in
                no way affect Employee’s rights to be indemnified and/or advanced expenses
                in accordance with the Company’s or any of its subsidiaries’ corporate or
                other organizational documents, or any applicable insurance
                policy.

            


    

     

    
      
        
        

      

      
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              13.

            	
              Dispute
                Resolution:  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), Employee and the Company agree that
                all
                such disputes shall be fully and finally resolved by binding arbitration
                conducted through the American Arbitration Association in Arlington,
                Virginia in accordance with its National Employment Dispute Resolution
                rules.  The Parties acknowledge that by accepting this
                arbitration provision that they are  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 born
                in a
                court proceeding.

            


    

     

    
      	
              14.

            	
              Prevailing
                Party: The prevailing party shall be
                entitled to recover from the  losing party its attorneys’ fees
                and costs incurred in any action or proceeding brought to enforce
                any
                right arising out of this
                Agreement.

            


    

     

    
      	
              15.

            	
              Entire
                Agreement:  This Agreement, any confidentiality,
                proprietary rights and dispute resolution agreement between Employee
                and
                the Company, and any agreement concerning any stock options and other
                equity awards issued to Employee, 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,
                including without limitation the Employment Agreement.  This
                Agreement may not be altered or amended except by a written document
                signed by Employee and an authorized representative of the Company.
                This
                Agreement shall be governed by the internal laws of the State of
                New
                York.

            


    

     

    
      	
              16.

            	
              Older
                Workers Benefit Protection Act:  In accordance with
                the Older Workers Benefit Protection Act, Employee understands and
                acknowledges that he has been advised to consult an attorney before
                accepting this Agreement.  Employee further understands and
                acknowledges that he has up to 21 days from the date this Agreement
                is
                presented to Employee to accept this Agreement by dating and signing
                a
                copy of this Agreement and returning it to the Company, although
                it may be
                accepted at any time within such period.  Employee further
                understands that,

            


    

    
       

      
        
          
          

        

        
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                once
                  having accepted this Agreement, Employee will have an additional
                  seven (7)
                  days within which to revoke his acceptance, by delivering written
                  notice
                  of execution of the Agreement to Christine Wolf, Managing Director,
                  Human
                  Resources.  If Employee revokes this Agreement during the
                  seven-day period, Employee will not be eligible for and will be
                  required
                  to return all consideration received under this
                  Agreement.

              


      

       

    

    
      	
              17.

            	
              Indemnification: Nothing
                herein shall affect or otherwise limit any indemnification of Employee
                provided by the Company’s (or its subsidiaries’) bylaws, charter or other
                corporate or organizational
                documents.

            


    

     

    EMPLOYEE
      UNDERSTANDS THAT HE IS ENTITLED TO CONSULT WITH, AND HAS CONSULTED WITH, AN
      ATTORNEY PRIOR TO SIGNING THIS AGREEMENT AND THAT HE IS GIVING UP ANY LEGAL
      CLAIMS HE HAS AGAINST THE PARTIES RELEASED ABOVE BY SIGNING THIS
      AGREEMENT.  EMPLOYEE IS SIGNING THIS AGREEMENT KNOWINGLY, WILLINGLY
      AND VOLUNTARILY IN EXCHANGE FOR THE BENEFITS DESCRIBED IN SECTION
      1.

     

     

    
      	Dated:	December
              27, 2007	Employee
	 	 	 	 
	 	 	/s/
              Mitchell H. Caplan
	 	 	Mitchell
              H. Caplan
	 	 	 	 
	Dated:	December
              27, 2007	E*TRADE
              Financial Corporation
	 	 	 	 
	 	 	 	 
	 	 	/s/
              Donald H. Layton
	 	 	 	 
	 	 	By:	Donald
              H. Layton
	 	 	 	Chairman
              of the Board of Directors
	 	 	 	 
	 	 	 	 


    

     

     

     

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