eTrade 2009 Annual Report Download - page 226

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(a) Any “person” (as that term is used in Section 13 and 14(d)(2) of the Securities Exchange Act of 1934 (“Exchange Act”))
becomes the beneficial owner (as that term is used in Section 13(d) of the Exchange Act), directly or indirectly, of fifty
percent (50%) or more of the Company’s capital stock entitled to vote in the election of directors;
(b) During any period of not more than two consecutive years, not including any period prior to the adoption of this Plan,
individuals who, at the beginning of such period constitute the board of directors of the Company, and any new director
(other than a director designated by a person who has entered into an agreement with the Company to effect a transaction
described in clause (a), (c), (d) or (e) of this definition) whose election by the board of directors, or nomination for election
by the Company’s stockholders, was approved by a vote of at least three-fourths (3/4ths) of the directors then still in office,
who either were directors at the beginning of the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute at least a majority thereof;
(c) The shareholders of the Company approve any consolidation or merger of the Company, other than a consolidation or
merger of the Company in which the holders of the common stock of the Company immediately prior to the consolidation
or merger hold more than fifty percent (50%) of the common stock of the surviving corporation immediately after the
consolidation or merger;
(d) The shareholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; or
(e) The shareholders of the Company approve the sale or transfer of all, or substantially all, of the assets of the Company to
parties that are not within a “controlled group of corporations” (as defined in Code section 1563) in which the Company is
a member.
11.8 “Claiman
t
” shall have the meaning set forth in Section 7.1.
11.9 “Code” shall mean the Internal Revenue Code of 1986, as it may be amended from time- to-time.
11.10“Commissions” shall mean, for a Participant, the cash compensation directly relating to sales performance during any calendar
year, whether or not paid in such calendar year or included on the Federal Income Tax Form W-2 for such calendar year,
excluding salary, bonuses (including discretionary bonuses based in whole or in part on sales commissions), overtime, fringe
benefits, stock options, relocation expenses, incentive payments, non- monetary awards, directors fees and other fees,
automobile and other allowances paid to a Participant for employment services rendered (whether or not such allowances are
included in the Employee’s gross income). Commissions shall be calculated before reduction for compensation voluntarily
deferred, or