eTrade 2005 Annual Report Download - page 508

(6) Investments acquired as a capital contribution to, or in exchange for, or out of the proceeds of a substantially concurrent offering
of, Capital Stock (other than Disqualified Stock) of the Company;
(7) the repurchase of Capital Stock deemed to occur upon the exercise of options or warrants if such Capital Stock represents all or a
portion of the exercise price thereof;
(8) the repurchase, redemption or other acquisition of the Company’s Capital Stock (or options, warrants or other rights to acquire
such Capital Stock) from Persons who are, or were formerly, employees of the Company and their Affiliates, heirs and executors;
provided
that the aggregate amount of all such repurchases pursuant to this clause (8)shall not exceed $50 million;
(9) the repurchase of Common Stock of the Company, or the declaration or payment of dividends on Common Stock (other than
Disqualified Stock) of the Company;
provided
that the aggregate amount of all such declarations, payments or repurchases pursuant
to this clause (9)shall not exceed $100 million in any fiscal year;
provided further
that at the time of declaration of such dividend or at
the time of such repurchase (x)no Default or Event of Default has occurred and is continuing, and (y)the Company is able to Incur at
least an additional $1.00 of Indebtedness pursuant to the first paragraph of Section4.03; or
(10) the repurchase, redemption or other acquisition of the Outstanding Convertible Notes,
provided
that, except in the case of clause (1), no Default or Event of Default (excluding, in each case, clause (i)of Section6.01) shall
have occurred and be continuing or occur as a consequence of the actions or payments set forth therein.
(c) Each Restricted Payment permitted pursuant to the preceding paragraph (other than the Restricted Payment referred to in clause
(10)thereof, clause (2)thereof, an exchange of Capital Stock for Capital Stock or Indebtedness referred to in clause (3)or (4)thereof, an
Investment acquired as a capital contribution or in exchange for Capital Stock referred to in clause (6)thereof, the repurchase of Capital
Stock referred to in clause (7)thereof, the repurchase of Common Stock referred to in clause (9)thereof), and the Net Cash Proceeds
from any issuance of Capital Stock referred to in clause (3), (4)or (6), shall be included in calculating whether the conditions of clause
(D)of the first paragraph of this Section4.04 have been met with respect to any subsequent Restricted Payments. If the proceeds of an
issuance of Capital Stock of the Company are used for the redemption, repurchase or other acquisition of the Notes, or Indebtedness
that is pari passu with the Notes or any Note Guarantee, then the Net Cash Proceeds of such issuance shall be included in clause (D)of
the first paragraph of this Section4.04 only to the extent such proceeds are not used for such redemption, repurchase or other
acquisition of Indebtedness.
45

2006. EDGAR Online, Inc.