eTrade 2008 Annual Report Download - page 270

“Change in Control” means the first of the following events to occur:
(i) (A) 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, other than the acquisition of the Company’s Common Stock by a Company-sponsored employee benefit plan
or through the issuance of shares sold directly by the Company to a single acquiror; or (B) 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 less than fifty percent (50%) of the
total combined voting power represented by the Company’s then outstanding voting securities, but in connection with the
person’s acquisition of securities the person acquires the right to terminate the employment of all or a portion of the Company’s
management team;
(ii) the consummation of a merger or consolidation to which the Company is a party 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 Company’s Board of Directors occurring within a period of 12 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 in Control, are related, and its determination shall be final, binding
and conclusive.
“Change in Control Period” shall mean the period commencing on the date of a Change in Control and ending on the two-year
anniversary date of the consummation of the Change in Control.
“Date of Termination” means the date of termination of Employee’s employment with the Company.
“Exchange Act” means the Securities and Exchange Act of 1934, as amended.
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