eTrade 2012 Annual Report Download - page 190

Notwithstanding anything in the preceding sentence to the contrary, in the event that the number of directors to be elected to the
Board of Directors is increased and there has been no public announcement naming all of the nominees for director or indicating the
increase in the size of the Board of Directors made by the corporation at least ten (10) days before the last day a Record Stockholder
may deliver a notice of nomination in accordance with the preceding sentence, a Record Stockholder’s notice required by this
Section 1.08(b) shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it
shall be received by the Secretary at the principal executive offices of the corporation not later than the close of business on the tenth
(10 ) day following the day on which such public announcement is first made by the corporation. In no event shall an adjournment, or
postponement of an annual meeting for which notice has been given, commence a new time period for the giving of a Record
Stockholder’s notice.
Such Record Stockholder’s notice shall set forth: (1) as to each person whom the stockholder proposes to nominate for election
or re-election as a director: (A) the name, age, business address and residence address of such person, (B) the principal occupation or
employment of such person, (C) the class, series and number of shares of the corporation which are beneficially owned by such
person, (D) a description of all arrangements or understandings between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nominations are to be made by the stockholder, and (E) any other
information relating to such person that is required to be disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the 1934 Act (including without limitation such person’s written consent to
being named in the proxy statement, if any, as a nominee and to serving as a director if elected), and (2) as to such Record
Stockholder or beneficial owner, if any, on whose behalf the nomination is being made, the information required to be provided
pursuant to clauses (ii) and (iii) of the second paragraph of Section 1.08(a), and (3) a statement whether or not the Record Stockholder
or beneficial owner, if any, will deliver a proxy statement and form of proxy to holders of at least the percentage of voting power of
all of the shares of capital stock of the corporation reasonably believed by the Record Stockholder or beneficial holder, as the case
may be, to be sufficient to elect the nominee or nominees proposed to be nominated by the Record Stockholder (such statement, a
“Nomination Solicitation Statement”). At the request of the Board of Directors, any person nominated by a stockholder for election as
a director shall furnish to the Secretary of the corporation that information required to be set forth in the stockholder’s notice of
nomination which pertains to the nominee. No person shall be eligible for election as a director of the corporation unless nominated in
accordance with the procedures set forth in this Section 1.08(b). The chairman of the meeting shall, if the facts warrant, determine and
declare at the meeting that a nomination was not made in accordance with the procedures prescribed by these Bylaws, and if he or she
should so determine, such chairman shall so declare at the meeting, and the defective nomination shall be disregarded. Any nominee
also must submit a statement that, if elected, the director intends to tender, promptly following such person’s election or reelection, an
irrevocable resignation effective upon such person’s failure to receive the required vote for reelection at the next meeting at which
such person would face reelection and upon acceptance of such resignation by the Board of Directors, in accordance with the policies
and procedures adopted by the Governance Committee of the Board of Directors for such purpose pursuant to Section 1.07(c) of this
Article 1.
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