eTrade 2012 Annual Report Download - page 188

beneficial owner, if any, on whose behalf any such proposal or nomination is made, must have acted in accordance with the
representations set forth in the Solicitation Statement required by this Section 1.08(a). To be timely, a Record Stockholder’s notice
must be received by the Secretary at the principal executive offices of the corporation not later than the close of business one hundred
and twenty (120) days nor earlier than the close of business one hundred and fifty (150) days prior to the one year anniversary of the
first mailing of proxy statement relating to the preceding year’s annual meeting; provided, however, that, subject to the last sentence
of this paragraph, in the event that no annual meeting was held in the previous year or the meeting is convened more than thirty
(30) days before or after the one year anniversary of the previous year’s annual meeting, notice by the stockholder to be timely must
be so received not earlier than the close of business one hundred and fifty (150) days prior to the annual meeting and not later than the
close of business one hundred and twenty (120) days prior to the annual meeting or, in the event public announcement of the date of
such annual meeting is first made by the corporation fewer than one hundred and thirty (130) days prior to the date of the annual
meeting, the close of business on the tenth (10th) day following the day on which public announcement of the date of such meeting is
first made by the corporation. In no event shall an adjournment, or postponement of an annual meeting for which notice has been
given, commence a new time period for the giving of a Record Stockholder’s notice.
Such notice shall set forth as to each matter the Record Stockholder proposes to bring before the annual meeting: (i) a brief
description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual
meeting, the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend the
Bylaws of the corporation, the language of the proposed amendment, (ii) the name and address, as they appear on the corporation’s
books, of the stockholder and any beneficial owner, if any, on whose behalf the proposal is made proposing such business, (iii) as to
the Record Stockholder giving the notice and the beneficial owner, if any, on whose behalf the proposal is made (each, a “party”):
(A) the class, series and number of shares of the corporation which are owned beneficially and of record by each such party; (B) any
option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement
payment or mechanism at a price related to any class or series of shares of the corporation or with a value derived in whole or in part
from the value of any class or series of shares of the corporation, whether or not such instrument or right shall be subject to settlement
in the underlying class or series of capital stock of the corporation or otherwise (a “Derivative Instrument”) directly or indirectly
owned beneficially by each such party, and any other direct or indirect opportunity to profit or share in any profit derived from any
increase or decrease in the value of shares of the corporation, (C) any proxy, contract, arrangement, understanding, or relationship
pursuant to which either party has a right to vote, directly or indirectly, any shares of any security of the corporation, (D) any short
interest in any security of the corporation held by each such party (for purposes of these Bylaws, a person shall be deemed to have a
short interest in a security if such person directly or indirectly, through any contract, arrangement, understanding, relationship or
otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security), (E) any
rights to dividends on the shares of the corporation owned beneficially directly or indirectly by each such party that are separated or
separable from the underlying shares of the corporation, (F) any proportionate interest in shares of the corporation or Derivative
Instruments held, directly or indirectly, by a
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