eTrade 2005 Annual Report Download - page 328

The Holder of this Treasury Units Certificate, by its acceptance hereof, authorizes the Purchase Contract Agent to enter into and
perform the related Purchase Contracts forming part of the Treasury 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 Treasury Securities underlying this Treasury 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, payments in respect to the
aggregate principal amount at maturity of the Pledged Treasury Securities 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 such 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 Treasury Units Certificate is
registered as the owner of the Treasury Units evidenced hereby for the purpose of performance of the Purchase Contracts and for all
other purposes whatsoever, whether or not any payments in respect thereof be overdue and notwithstanding any notice to the
contrary, and neither the Company, the Purchase Contract Agent nor any such agent shall be affected by notice to the contrary.
A copy of the Purchase Contract and Pledge Agreement is available for inspection at the offices of the Purchase Contract Agent.
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