eTrade 2000 Annual Report Download - page 112

(C) which are beneficially owned, directly or indirectly, by any other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or understanding for the purposes of acquiring, holding, voting or disposing
of any shares of capital stock of the Corporation.
4. The outstanding Voting Shares shall include shares deemed owned through application of paragraph 3 above but shall not include
any other Voting Shares which may be issuable pursuant to any agreement, or upon exercise of conversion rights, warrants or options,
or otherwise.
5. “Affiliate” and “Associate” shall have the respective meanings given those terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on the date of adoption of this Certificate of Incorporation (the
“Exchange Act”).
6. “Subsidiary” shall mean any corporation of which a majority of any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Exchange Act) is owned, directly or indirectly, by the Corporation; provided , however , that
for the purposes of the definition of Interested Stockholder set forth in paragraph 2 of this section (c) the term “Subsidiary” shall mean
only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation.
(d) A majority of the directors shall have the power and duty to determine for the purposes of this Article EIGHTH on the basis of
information known to them, (1) whether a person is an Interested Stockholder, (2)the number of Voting Shares beneficially owned by
any person, (3) whether a person is an Affiliate or Associate of another, (4) whether a person has an agreement, arrangement or
understanding with another as to the matters referred to in paragraph 3 of section (c), or (5) whether the assets subject to any Business
Combination or the consideration received for the issuance or transfer of securities by the Corporation or any Subsidiary constitutes
not less than five percent of the total assets of the Corporation.
(e) Nothing contained in this Article EIGHTH shall be construed to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
(f) Notwithstanding anything contained in this Certificate of Incorporation to the contrary, the affirmative vote of the holders of at least
662 / 3 percent of the combined voting power of all shares of the Corporation entitled to vote generally in the election of directors,
voting together as a single class, shall be required to alter, change, amend, repeal or adopt any provision inconsistent with, this Article
EIGHTH.
NINTH . This Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred on stockholders herein are granted subject
to this reservation.
TENTH . A Director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a Director, except for liability (1) for any breach of the Directors’ duty of loyalty to the Corporation or its
stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3)
under Section 174 of the General Corporation Law of Delaware, or (4) for any transaction from which the Director derived any
improper personal benefit. If the General Corporation Law of Delaware is hereafter amended to authorize, with the approval of a
corporation’ s stockholders, further reductions in the liability of a corporation’ s directors for breach of fiduciary duty, then a Director
of the Corporation shall not be liable for any such breach to the fullest extent permitted by the General Corporation Law of Delaware
as so amended. Any repeal or modification of the foregoing provisions of this Article TENTH by the stockholders of the Corporation
shall not adversely affect any right or protection of a Director of the Corporation existing at the time of such repeal or modification.
2002. EDGAR Online, Inc.