eTrade 2005 Annual Report Download - page 250

protected purchaser, the Company shall execute and deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall
authenticate, execute on behalf of the Holder, and deliver to the Holder, in lieu of any such destroyed, lost or stolen Certificate, a new
Certificate, evidencing the same number of Corporate Units or Treasury Units, as the case may be, and bearing a Certificate number not
contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be obligated to execute and deliver to the Purchase Contract Agent, and the
Purchase Contract Agent shall not be obligated to authenticate, execute on behalf of the Holder, and deliver to the Holder, a Certificate
on or after the Business Day immediately preceding the earliest of any Early Settlement Date with respect to such lost or mutilated
Certificate, any Cash Merger Early Settlement Date with respect to such lost or mutilated Certificate, the Purchase Contract Settlement
Date or the Termination Date. In lieu of delivery of a new Certificate, upon satisfaction of the applicable conditions specified above in
this Section and receipt of appropriate registration or transfer instructions from such Holder, the Purchase Contract Agent shall:
(i) if the Purchase Contract Settlement Date (including upon any Cash Settlement) or an Early Settlement Date or a Cash Merger Early
Settlement Date with respect to such lost, stolen, destroyed or mutilated Certificate has occurred, deliver the shares of Common Stock
issuable in respect of the Purchase Contracts forming a part of the Units evidenced by such Certificate; and
(ii) if a Termination Event, Cash Merger Early Settlement or an Early Settlement with respect to such lost or mutilated Certificate shall
have occurred prior to the Purchase Contract Settlement Date or a Cash Settlement shall have occurred, transfer the Subordinated
Notes, the Treasury Securities or the Applicable Ownership Interests in the Treasury Portfolio, as the case may be, underlying such
Certificate, in each case subject to the applicable conditions and in accordance with the applicable provisions of Section3.15 and
Article 5 hereof.
Upon the issuance of any new Certificate under this Section, the Company and the Purchase Contract Agent may require the payment
by the Holder of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other
fees and expenses (including, without limitation, the fees and expenses of the Purchase Contract Agent) connected therewith.
Every new Certificate issued pursuant to this Section in lieu of any destroyed, lost or stolen Certificate shall constitute an original
additional contractual obligation of the Company and of the Holder in respect of the Units evidenced thereby, whether or not the
destroyed, lost or stolen Certificate (and the Units evidenced thereby) shall be at any time enforceable by anyone, and shall be entitled
to all the benefits and be subject to all the obligations of this Agreement equally and proportionately with any and all other Certificates
delivered hereunder.
The provisions of this Section are exclusive and shall preclude, to the extent lawful, all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Certificates.
Section3.11
Persons Deemed Owners
. Prior to due presentment of a Certificate for registration of transfer, the Company and the
Purchase Contract Agent, and any agent of the Company or the Purchase Contract Agent, may treat the Person in whose name such
Certificate is registered as the owner of the Units evidenced thereby for purposes of (subject to any applicable record date) any
payment or distribution with respect to the Applicable Ownership Interests in Subordinated Notes, or on the Applicable Ownership
Interests in the Treasury Portfolio (as specified in clause (ii)of the definition of
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