eTrade 2005 Annual Report Download - page 275

each Holder will receive, in lieu of shares of Common Stock, on the Purchase Contract Settlement Date or any Early Settlement Date
with respect to each Purchase Contract forming a part thereof, the kind and amount of securities, cash and other property receivable
upon such Reorganization Event (without any interest thereon, and without any right to dividends or distribution thereon if such
dividends or distributions have a record date that is prior to the Purchase Contract Settlement Date) by a Holder of one share of
Common Stock (the “
Exchange Property
”), multiplied by the applicable Settlement Rate. The kind and amount of Exchange Property
will be determined assuming such holder of one Share of Common Stock is not a Person with which the Company consolidated or into
which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be (any
such Person, a “
Constituent Person
”), or an Affiliate of a Constituent Person to the extent such Reorganization Event provides for
different treatment of Common Stock held by Affiliates of the Company and non-affiliates and such Holder failed to exercise its rights
of election, if any, as to the kind or amount of securities, cash and other property receivable upon such Reorganization Event (
provided
that if the kind or amount of securities, cash and other property receivable upon such Reorganization Event is not the same
for each share of Common Stock held immediately prior to such Reorganization Event by a Person other than a Constituent Person or
an Affiliate thereof and in respect of which rights of election shall not have been exercised (“
non-electing share
”), then for the
purpose of this Section5.04(b)(i) the kind and amount of securities, cash and other property receivable upon such Reorganization
Event shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares).
For purposes of determining the applicable Settlement Rate under this Section5.04(b)(i) and Section5.04(b)(ii), the term “Applicable
Market Value” shall be deemed to refer to the “Applicable Market Value” of the Exchange Property, and such value shall be determined
(A)with respect to any publicly traded securities that compose all or part of the Exchange Property, based on the Closing Price of such
securities, (B)in the case of any cash that composes all or part of the Exchange Property, based on the amount of such cash and (C)in
the case of any other property that composes all or part of the Exchange Property, based on the value of such property, as determined
by a nationally recognized independent investment banking firm retained by the Company for this purpose;
provided
that prior to the
separation of the Rights or any similar stockholder rights from the Common Stock, such Rights or similar stockholder rights shall be
deemed to have no value. For the purposes of this paragraph only, the term “Closing Price” shall be deemed to refer to the closing sale
price, last quoted bid price or mid-point of the last bid and ask prices, as the case may be, of any publicly traded securities that
comprise all or part of the Exchange Property and the term “Trading Day” shall be deemed to refer to any publicly traded securities that
comprise all or part of the Exchange Property.
In the event of such a Reorganization Event, the Person formed by such consolidation, merger or exchange or the Person that acquires
the assets of the Company or, in the event of a liquidation, dissolution or termination of the Company, the Company or a liquidating
trust created in connection therewith, shall execute and deliver to the Purchase Contract Agent an agreement supplemental hereto
providing that each Holder of an Outstanding Unit shall have the rights provided by this Section5.04(b)(i). Such supplemental
agreement shall provide for adjustments which, for events subsequent to the effective date of such supplemental agreement, shall be,
in the sole judgment of the parties executing such agreement, as nearly equivalent as may be practicable to the adjustments provided
for in this Section5.04. The above provisions of this Section5.04 shall similarly apply to successive Reorganization Events.
(ii) In the event, prior to the Purchase Contract Settlement Date, of a consolidation or merger of the Company with or into another
Person, any merger of
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2006. EDGAR Online, Inc.