eTrade 2012 Annual Report Download - page 187

majority of the voting power of that class present in person or represented by proxy and entitled to vote on the subject matter) shall
decide any matter to be voted upon by the stockholders at such meeting, except when a different vote is required by express provision
of any stock exchange upon which the corporation’s securities are listed, Delaware Law, the Certificate of Incorporation or these
Bylaws.
(b) Subject to the rights of the holders of any series of Preferred Stock, or any other series or class of stock as set forth in the
Certificate of Incorporation, to elect directors under specified circumstances and except as otherwise provided in paragraph (d) of this
Section 1.07, each director shall be elected by the majority of the votes cast with respect to the director’s election at any meeting for
the election of directors at which a quorum is present. For purposes of paragraphs (b) and (c) of this Section 1.07, a majority of votes
cast means that the number of votes “for” a director’s election must exceed 50% of the votes cast with respect to that director’s
election. Any vote “against” a director’s election or “withheld” with respect to a director’s election will count as a vote cast; however,
all “abstentions” and “broker non-votes” will be excluded from the calculation of votes cast with respect to that director’s election.
(c) The Governance Committee of the Board of Directors shall establish procedures under which any director who is not elected
by the majority of the votes cast with respect to the director’s election in an election governed by paragraph (b) of this Section 1.07
shall offer to tender his or her resignation to the Board of Directors.
(d) If, on the last day by which stockholders may submit notice to nominate a person for election as a director pursuant to
Section 1.08(b) of this Article 1, the number of nominees for any election of directors exceeds the number of directors to be elected,
each director shall be elected by the plurality of the votes cast with respect to the director’s election.
Section 1.08. Advance Notice of Stockholder Nominees and Stockholder Business.
(a) At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before
the meeting. To be properly brought before an annual meeting, business must be: (A) specified in the proxy materials for the meeting
(or any supplement thereto) given by or at the direction of the Board of Directors, (B) otherwise properly brought before the meeting
by or at the direction of the Board of Directors, or (C) otherwise properly brought before the meeting by a stockholder of record of the
corporation (a “Record Stockholder”) at the time of the giving of the notice required in the following paragraph, who is entitled to
vote at the meeting and who has complied with the notice procedures set forth in this Section 1.08(a). For the avoidance of doubt, the
foregoing clause (C) shall be the exclusive means for a stockholder to propose business (other than business included in the
corporation’s proxy materials pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended (such act, and the rules
and regulations promulgated thereunder, the “1934 Act”)) at an annual meeting of stockholders.
For business to be properly brought before an annual meeting by a Record Stockholder pursuant to this Section 1.08(a), (a) the
Record Stockholder must have given timely notice thereof in writing to the Secretary of the corporation, (b) any such business must
be a proper matter for stockholder action under Delaware law, and (c) the Record Stockholder and the
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