eTrade 2005 Annual Report Download - page 314

definition of such term) underlying such Corporate Units shall be released from the Pledge as provided in the Purchase Contract and
Pledge Agreement and the Holder shall be entitled to receive a number of shares of Common Stock on account of each Purchase
Contract forming part of a Corporate Unit as to which Cash Merger Early Settlement is effected equal to the applicable Settlement Rate.
Upon registration of transfer of this Corporate Units Certificate, the transferee shall be bound (without the necessity of any other
action on the part of such transferee, except as may be required by the Purchase Contract Agent pursuant to the Purchase Contract
and Pledge Agreement), under the terms of the Purchase Contract and Pledge Agreement and the Purchase Contracts evidenced
hereby and the transferor shall be released from the obligations under the Purchase Contracts evidenced by this Corporate Units
Certificate. The Company covenants and agrees, and the Holder, by its acceptance hereof, likewise covenants and agrees, to be bound
by the provisions of this paragraph.
The Holder of this Corporate Units Certificate, by its acceptance hereof, authorizes the Purchase Contract Agent to enter into and
perform the related Purchase Contracts forming part of the Corporate Units evidenced hereby on its behalf as its attorney-in-fact,
expressly withholds any consent to the assumption (i.e., affirmance) of the Purchase Contracts by the Company or its trustee in the
event that the Company becomes the subject of a case under the Bankruptcy Code, agrees to be bound by the terms and provisions
thereof, covenants and agrees to perform its obligations under such Purchase Contracts, consents to the provisions of the Purchase
Contract and Pledge Agreement, authorizes the Purchase Contract Agent to enter into and perform the Purchase Contract and Pledge
Agreement on its behalf as its attorney-in-fact, and consents to the Pledge of the Applicable Ownership Interests in Subordinated
Notes and the underlying Subordinated Notes or the Applicable Ownership Interests in the Treasury Portfolio (as specified in clause
(i)of the definition of such term), as the case may be, underlying this Corporate Units Certificate pursuant to the Purchase Contract and
Pledge Agreement. The Holder further covenants and agrees that, to the extent and in the manner provided in the Purchase Contract
and Pledge Agreement, but subject to the terms thereof, any payments with respect the Subordinated Notes underlying the Pledged
Applicable Ownership Interests in Subordinated Notes (other than interest payments thereon) or the Proceeds of the Applicable
Ownership Interests in the Treasury Portfolio (as specified in clause (i)of the definition of such term), as the case may be, on the
Purchase Contract Settlement Date equal to the aggregate Purchase Price for the related Purchase Contracts shall be paid by the
Collateral Agent to the Company in satisfaction of such Holder’s obligations under the related Purchase Contracts and such Holder
shall acquire no right, title or interest in such payments.
Subject to certain exceptions, the provisions of the Purchase Contract and Pledge Agreement may be amended with the consent of the
Holders of a majority of the Purchase Contracts.
The Purchase Contracts shall be governed by, and construed in accordance with, the laws of the State of New York, without giving
effect to the conflicts of law provisions thereof to the extent a different law would govern as a result.
The Purchase Contracts shall not, prior to the settlement thereof, entitle the Holder to any of the rights of a holder of shares of
Common Stock.
Prior to due presentment of this Certificate for registration of transfer, the Company, the Purchase Contract Agent and its Affiliates and
any agent of the Company or the Purchase Contract Agent may treat the Person in whose name this Corporate Units Certificate is
registered as the owner of the Corporate Units evidenced hereby for the purpose of receiving payments of interest payable on the
Subordinated Notes underlying the Applicable Ownership Interests in Subordinated Notes (subject to any applicable record date),
performance of the Purchase Contracts and for all other purposes whatsoever, whether or not
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