eTrade 2000 Annual Report Download - page 111

(B) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of related transactions) to
or with, or proposed by or on behalf of, any Interested
Stockholder or any Affiliate or Associate of any Interested Stockholder, of any assets of the Corporation or any Subsidiary constituting
not less than five percent of the total assets of the Corporation, as reported in the consolidated balance sheet of the Corporation as of
the end of the most recent quarter with respect to which such balance sheet has been prepared; or
(C) the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to, or proposed by or on behalf of, any Interested Stockholder or any Affiliate or
Associate of any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) constituting not
less than five percent of the total assets of the Corporation, as reported in the consolidated balance sheet of the Corporation as of the
end of the most recent quarter with respect to which such balance sheet has been prepared; or
(D) the adoption of any plan or proposal for the liquidation or dissolution of the Corporation, or any spin-off or split-up of any kind of
the Corporation or any Subsidiary, proposed by or on behalf of an Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder; or
(E) any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any similar transaction (wither or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the percentage of the outstanding shares
of (i) any class of equity securities of the Corporation or any Subsidiary or (ii) any class of securities of the Corporation or any
Subsidiary convertible into equity securities of the Corporation or any Subsidiary, represented by securities of such class which are
directly or indirectly owned by any Interested Stockholder or any Affiliate or Associate of any Interested Stockholder.
(b) The provisions of section (a) of this Article EIGHTH shall not be applicable to any particular Business Combination, and such
Business Combination shall require only such affirmative vote as is required by law and any other provision of this Certificate of
Incorporation, if such Business Combination has been approved by two-thirds of the whole Board of Directors.
(c) For the purpose of this Article EIGHTH:
1. A “person” shall mean any individual, firm, corporation or other entity.
2. “Interested Stockholder” shall mean, in respect of any Business Combination, any person (other than the Corporation or any
Subsidiary) who or which, as of the record date for the determination of stockholders entitled to notice of and to vote on such Business
Combination, or immediately prior to the consummation of any such transaction
(A) is or was, at any time within two years prior thereto, the beneficial owners, directly or indirectly, of 10 percent or more of the then
outstanding Voting Shares, or
(B) is an Affiliate or Associate of the Corporation and at any time within two years prior thereto was the beneficial owner, directly or
indirectly, of 10 percent or more of the then outstanding Voting Shares, or
(C) is an assignee of or has otherwise succeeded to any shares of capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested Stockholder, if such assignment or succession shall have occurred in the
course of a transaction, or series of transactions, not involving a public offering within the meaning of the Securities Act of 1933, as
amended.
3. A “person” shall be the “beneficial owner” of any Voting Shares
(A) which such person or any of its Affiliates and Associates (as hereinafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i) the right to acquire (whether such right is exercisable immediately
or only after 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 (ii) the right to vote pursuant to any agreement, arrangement or understanding, or
2002. EDGAR Online, Inc.