eTrade 2005 Annual Report Download - page 251

such term), as applicable, and performance of the Purchase Contracts and for all other purposes whatsoever in connection with such
Units, whether or not such payment, distribution, or performance shall be overdue and notwithstanding any notice to the contrary, and
neither the Company nor the Purchase Contract Agent, nor any agent of the Company or the Purchase Contract Agent, shall be
affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Certificate, nothing contained herein shall prevent the Company, the
Purchase Contract Agent or any agent of the Company or the Purchase Contract Agent, from giving effect to any written certification,
proxy or other authorization furnished by the Depositary (or its nominee), as a Holder, with respect to such Global Certificate, or impair,
as between such Depositary and the related Beneficial Owner, the operation of customary practices governing the exercise of rights of
the Depositary (or its nominee) as Holder of such Global Certificate. None of the Company, the Purchase Contract Agent or any agent
of the Company or the Purchase Contract Agent will have any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Certificate or maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Section3.12
Cancellation
. All Certificates surrendered for delivery of shares of Common Stock on or after the Purchase Contract
Settlement Date or in connection with an Early Settlement or a Cash Merger Early Settlement or for delivery of the Subordinated Notes
underlying the Applicable Ownership Interests in Subordinated Notes, the Applicable Ownership Interests in the Treasury Portfolio or
Treasury Securities, as the case may be, after the occurrence of a Termination Event or pursuant to a Cash Settlement, an Early
Settlement or a Cash Merger Early Settlement, a Collateral Substitution, or upon the registration of transfer or exchange of a Unit, shall,
if surrendered to any Person other than the Purchase Contract Agent, be delivered to the Purchase Contract Agent along with
appropriate written instructions regarding the cancellation thereof and, if not already cancelled, shall be promptly cancelled by it. The
Company may at any time deliver to the Purchase Contract Agent for cancellation any Certificates previously authenticated, executed
and delivered hereunder that the Company may have acquired in any manner whatsoever, and all Certificates so delivered shall, upon
an Issuer Order, be promptly cancelled by the Purchase Contract Agent. No Certificates shall be authenticated, executed on behalf of
the Holder and delivered in lieu of or in exchange for any Certificates cancelled as provided in this Section3.12, except as expressly
permitted by this Agreement. All cancelled Certificates held by the Purchase Contract Agent shall be disposed of in accordance with
its customary practices.
If the Company or any Affiliate of the Company shall acquire any Certificate, such acquisition shall not operate as a cancellation of
such Certificate unless and until such Certificate is delivered to the Purchase Contract Agent cancelled or for cancellation.
Section3.13
Creation of Treasury Units by Substitution of Treasury Securities
. (a)Unless Applicable Ownership Interests in the
Treasury Portfolio have replaced the Applicable Ownership Interests in Subordinated Notes as a component of the Corporate Units,
and subject to the conditions set forth in this Agreement, a Holder of Corporate Units may, at any time from and after the date of this
Agreement and prior to 5:00 p.m. (New York City time) on the seventh Business Day immediately preceding the Purchase Contract
Settlement Date, effect a Collateral Substitution and separate the Subordinated Notes underlying Applicable Ownership Interests in
Subordinated Notes in respect of such Holder’s Corporate Units by substituting for such Applicable Ownership Interests in
Subordinated Notes, Treasury Securities in an aggregate principal amount at maturity equal to the aggregate principal amount of the
Subordinated Notes underlying the Applicable Ownership Interests in Subordinated Notes
; provided
that Holders may make
Collateral Substitutions only in integral multiples of 40 Corporate Units. To effect such substitution, the Holder must:
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