eTrade 2005 Annual Report Download - page 263

(e) Promptly after the calculation of the Settlement Rate and the Applicable Market Value, the Company shall give the Purchase
Contract Agent notice thereof. All calculations and determinations of the Settlement Rate and the Applicable Market Value shall be
made by the Company or its agent based on their good faith calculations, and the Purchase Contract Agent shall have no
responsibility with respect thereto.
Section5.02
Cash Settlement; Remarketing; Payment of Purchase Price
. (a)
Cash Settlement
. (i)Unless (1)a Termination Event has
occurred, (2)a Holder effects an Early Settlement or a Cash Merger Early Settlement of the underlying Purchase Contract or (3)a Special
Event Redemption has occurred prior to the seventh Business Day immediately preceding the Purchase Contract Settlement Date, each
Holder of Corporate Units shall have the right to satisfy such Holder’s Obligations on the Purchase Contract Settlement Date in cash.
Each Holder of Corporate Units who intends to pay in cash to satisfy such Holder’s Obligations under the Purchase Contract on the
Purchase Contract Settlement Date shall notify the Purchase Contract Agent by use of a notice in substantially the form of Exhibit E
hereto of his intention to pay in cash (a “
Cash Settlement
”) the Purchase Price for the Common Stock to be purchased pursuant to
the related Purchase Contract. Such notice shall be given prior to 5:00 p.m. (New York City time) on the seventh Business Day
immediately preceding the Purchase Contract Settlement Date. Corporate Units Holders may only effect such a Cash Settlement
pursuant to this Section5.02(a) in integral multiples of 40 Corporate Units.
(ii) A Holder of a Corporate Unit who has so notified the Purchase Contract Agent of his intention to effect a Cash Settlement in
accordance with Section5.02(a)(i) above shall pay the Purchase Price to the Securities Intermediary for deposit in the Collateral
Account prior to 5:00 p.m. (New York City time) on the sixth Business Day immediately preceding the Purchase Contract Settlement
Date, in lawful money of the United States by certified or cashiers check or wire transfer in immediately available funds payable to or
upon the order of the Securities Intermediary.
(iii) If a Holder of a Corporate Unit fails to notify the Purchase Contract Agent of its intention to make a Cash Settlement in accordance
with Section5.02(a)(i), or does notify the Purchase Contract Agent as provided in Section5.02(a)(i) of its intention to pay the Purchase
Price in cash, but fails to make such payment as required by Section5.02(a)(ii), such Holder shall be deemed to have consented to the
disposition of the Subordinated Notes underlying the Pledged Applicable Ownership Interests in Subordinated Notes pursuant to
each Remarketing as described in Section5.02(b) below.
(iv) Promptly after 5:00 p.m. (New York City time) on the sixth Business Day preceding the Purchase Contract Settlement Date, the
Purchase Contract Agent, based on notices received by the Purchase Contract Agent pursuant to Section5.02(a)(i) hereof and notice
from the Securities Intermediary regarding cash received by it prior to such time, shall notify the Collateral Agent of the aggregate
number of Subordinated Notes to be remarketed in each Remarketing in a notice substantially in the form of Exhibit K hereto.
(v) Upon (1)receipt by the Collateral Agent of a notice from the Purchase Contract Agent promptly after the receipt by the Purchase
Contract Agent of a notice from a Holder of Corporate Units that such Holder has elected, in accordance with Section5.02(a)(i) to effect
a Cash Settlement and (2)the payment by such Holder of the Purchase Price in accordance with Section5.02(a)(ii) above then the
Collateral Agent shall:
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