eTrade 2005 Annual Report Download - page 326

(REVERSE OF TREASURY UNIT CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase Contract and Pledge Agreement, dated as of November22, 2005
(as may be supplemented from time to time, the “
Purchase Contract and Pledge Agreement
”) between the Company and The Bank of
New York, as Collateral Agent, as Custodial Agent, as Securities Intermediary, as Purchase Contract Agent and as attorney-in-fact for
the holders of Corporate Units and Treasury Units from time to time, to which Purchase Contract and Pledge Agreement and
supplemental agreements thereto reference is hereby made for a description of the respective rights, limitations of rights, obligations,
duties and immunities thereunder of the Purchase Contract Agent, the Company and the Holders and of the terms upon which the
Treasury Units Certificates are, and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this Treasury Units Certificate to purchase, and the Company to sell,
on the Purchase Contract Settlement Date at a price equal to the Stated Amount, a number of newly issued shares of Common Stock
equal to the Settlement Rate, unless an Early Settlement, a Cash Merger Early Settlement or a Termination Event with respect to the
Unit of which such Purchase Contract is a part shall have occurred. The Settlement Rate is subject to adjustment as described in the
Purchase Contract and Pledge Agreement.
No fractional shares of Common Stock will be issued upon settlement of Purchase Contracts, as provided in Section5.08 of the
Purchase Contract and Pledge Agreement.
Each Purchase Contract evidenced hereby that is settled through Early Settlement or Cash Merger Early Settlement shall obligate the
Holder of the related Treasury Units to purchase at the Purchase Price and the Company to sell, a number of newly issued shares of
Common Stock equal to the Minimum Settlement Rate (in the case of an Early Settlement) or applicable Settlement Rate (in the case of a
Cash Merger Early Settlement).
In accordance with the terms of the Purchase Contract and Pledge Agreement, the Holder of this Treasury Unit shall pay the Purchase
Price for the shares of the Common Stock to be purchased pursuant to each Purchase Contract evidenced hereby either by effecting an
Early Settlement or, if applicable, a Cash Merger Early Settlement of each such Purchase Contract or by applying the proceeds of the
Pledged Treasury Securities underlying such Holder’s Treasury Unit equal to the Purchase Price for such Purchase Contract to the
purchase of the Common Stock.
The Company shall not be obligated to issue any shares of Common Stock in respect of a Purchase Contract or deliver any certificates
therefor to the Holder unless it shall have received payment of the aggregate Purchase Price for the shares of Common Stock to be
purchased thereunder in the manner set forth in the Purchase Contract and Pledge Agreement.
Each Purchase Contract evidenced hereby and all obligations and rights of the Company and the Holder thereunder, shall terminate if a
Termination Event shall occur. Upon the occurrence of a Termination Event, the Company shall give written notice to the Purchase
Contract Agent and the Holders, at their addresses as they appear in the Security Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Treasury Securities underlying each Treasury Unit from the Pledge. A
Treasury Unit shall thereafter represent the right to receive the Treasury Security underlying such Treasury Unit, in accordance with
the terms of the Purchase Contract and Pledge Agreement.
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2006. EDGAR Online, Inc.