eTrade 2008 Annual Report Download - page 259

(b) “Change in Control” shall mean the occurrence of any of the following events:
(i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended) becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the
Company representing more than fifty percent (50%) of the total combined voting power represented by the Company’s then
outstanding voting securities;
(ii) the Company is party to a merger or consolidation which results in the holders of the voting securities of the
Company outstanding immediately prior thereto failing to retain immediately after such merger or consolidation direct or indirect
beneficial ownership of more than fifty percent (50%) of the total combined voting power of the securities entitled to vote generally
in the election of directors of the Company or the surviving entity outstanding immediately after such merger or consolidation;
(iii) a change in the composition of the Board occurring within a period of twenty-four (24) consecutive months, as a
result of which fewer than a majority of the directors are Incumbent Directors;
(iv) effectiveness of an agreement for the sale, lease or disposition by the Company of all or substantially all of the
Company’s assets; or
(v) a liquidation or dissolution of the Company.
The Incumbent Directors shall have the right to determine whether multiple sales or exchanges of the voting stock of the Company,
which, in the aggregate, would result in a Change of Control, are related, and its determination shall be final, binding and conclusive.
(c) “Change in Control Period” shall mean the period commencing on the earlier of: (i) sixty (60) days prior to the date of
consummation of the Change in Control; (ii) the date of the first public announcement of a definitive agreement that would result in a
Change in Control (even though still subject to approval by the Company’s stockholders and other conditions and contingencies); or
(iii) the date of the public announcement of a tender offer that is not approved by the Incumbent Directors and ending on the two year
anniversary date of the consummation of the Change in Control.
(d) “Good Reason” shall mean any of the following conditions:
(i) a decrease in Executive’s Base Salary and/or a decrease in Executive’s Target Bonus (as a multiple of
Executive’s Base Salary) under the Performance Bonus Plan or employee benefits;
(ii) a material, adverse change in Executive’s title, authority, responsibilities or duties, as measured against
Executive’s title, authority, responsibilities or