eTrade 2005 Annual Report Download - page 282

ARTICLE 6
RIGHTS AND REMEDIES OF HOLDERS
Section6.01
Unconditional Right of Holders to Purchase Shares of Common Stock
. Each Holder of a Unit shall have the right, which
is absolute and unconditional, except upon and following a Termination Event, to purchase shares of Common Stock pursuant to such
Purchase Contract and, in each such case, to institute suit for the enforcement of any such right to purchase shares of Common Stock,
and such rights shall not be impaired without the consent of such Holder.
Section6.02
Restoration of Rights and Remedies
. If any Holder has instituted any proceeding to enforce any right or remedy under
this Agreement and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to such
Holder, then and in every such case, subject to any determination in such proceeding, the Company and such Holder shall be restored
severally and respectively to their former positions hereunder, and thereafter all rights and remedies of such Holder shall continue as
though no such proceeding had been instituted.
Section6.03
Rights and Remedies Cumulative
. Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Certificates in the last paragraph of Section3.10, no right or remedy herein conferred upon or reserved to the
Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section6.04
Delay or Omission Not Waiver
. No delay or omission of any Holder to exercise any right upon a default or remedy upon a
default shall impair any such right or remedy or constitute a waiver of any such right. Every right and remedy given by this Article 6 or
by law to the Holders may be exercised from time to time, and as often as may be deemed expedient, by such Holders.
Section6.05
Undertaking for Costs
. All parties to this Agreement agree, and each Holder of a Unit, by its acceptance of such Unit
shall be deemed to have agreed, that any court of competent jurisdiction may in its discretion require, in any suit for the enforcement of
any right or remedy under this Agreement, or in any suit against the Purchase Contract Agent for any action taken, suffered or omitted
by it as Purchase Contract Agent, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and costs against any party litigant in
such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant;
provided
that the
provisions of this Section shall not apply to any suit instituted by the Purchase Contract Agent, to any suit instituted by any Holder,
or group of Holders, holding in the aggregate more than 10% of the Outstanding Units, or to any suit instituted by any Holder for the
enforcement of interest on any Subordinated Notes owed pursuant to such Holder’s Applicable Ownership Interests in Subordinated
Notes on or after the respective Payment Date therefor in respect of any Unit held by such Holder, or for enforcement of the right to
purchase shares of Common Stock under the Purchase Contracts constituting part of any Unit held by such Holder.
Section6.06
Waiver of Stay or Extension Laws
. The Company covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Agreement; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law
55

2006. EDGAR Online, Inc.