FOURTH AMENDMENT TO RIGHTS AGREEMENT
Exhibit
4.1
FOURTH
AMENDMENT TO RIGHTS AGREEMENT
This
Amendment dated as of September 11, 2009 (this “Amendment”) between E*TRADE
Financial Corporation (formerly known as E*TRADE Group, Inc.), a Delaware
corporation (the “Company”), and American Stock
Transfer and Trust Company, as Rights Agent (the “Rights Agent”) amends the
Rights Agreement, dated as of July 9, 2001, as amended (the “Rights Agreement”), between
the Company and the Rights Agent. Capitalized terms used herein and
not defined shall have the meanings specified in the Rights
Agreement.
WHEREAS,
the Company and the Rights Agent are parties to the Rights
Agreement;
WHEREAS,
Section 27 of the Rights Agreement permits the Company to amend the Rights
Agreement on the terms set forth in this Amendment;
WHEREAS,
the Board of Directors of the Company has determined that it is in the best
interests of the Company and its shareholders to modify the terms of the Rights
Agreement to accelerate the Final Expiration Date to the close of business on
September 11, 2009; and
WHEREAS,
all acts and things necessary to make this Amendment a valid agreement,
enforceable according to its terms have been done and performed, and the
execution and delivery of this Amendment by the Company and the Rights Agent
have been in all respects duly authorized by the Company and the Rights
Agent.
NOW,
THEREFORE, in consideration of the promises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the Company and the Rights Agent hereby agree as follows:
A. Amendment of Certain
Definitions.
The
definition of “Final Expiration Date” in Section 1 of the Rights Agreement is
hereby amended to read in its entirety as follows:
““Final
Expiration Date” means the close of business on September 11,
2009.”
B. Effect of
Amendment. Except as expressly set forth herein, the Rights
Agreement shall not by implication or otherwise be supplemented or amended by
virtue of this Amendment, but shall remain in full force and effect, as amended
hereby. This Amendment shall be construed in accordance with and as a
part of the Rights Agreement, and all terms, conditions, representations,
warranties, covenants and agreements set forth in the Rights Agreement and each
other instrument or agreement referred to therein, except as herein amended, are
hereby ratified and confirmed. To the extent that there is a conflict
between the terms and provisions of the Rights Agreement and this Amendment, the
terms and provisions of this Amendment shall govern for purposes of the subject
matter of this Amendment only.
C. Waiver of
Notice. The Rights Agent and the Company hereby waive any
notice requirement with respect to each other under the Rights Agreement, if
any, pertaining to the matters covered by this Amendment.
D. Severability. If
any provision, covenant or restriction of this Amendment is held by a court of
competent jurisdiction or other authority to be invalid, illegal or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment shall remain in full force and effect and shall
in no way be effected, impaired or invalidated.
E. Governing
Law. This Amendment shall be deemed to be a contract made
under the laws of the State of Delaware and for all purposes shall be governed
by and construed in accordance with the laws of such state applicable to
contracts to be made and performed entirely within such state, except that the
rights and obligations of the Rights Agent shall be governed by the law of the
State of New York.
F. Counterparts. This
Amendment may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
G. Effective Date of
Amendment. This Amendment shall be deemed effective as of the
date first written above, as if executed on such date.
H. Descriptive
Headings. Descriptive headings appear herein for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
[Signature page
follows]
2
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date first written above.
E*TRADE
FINANCIAL CORPORATION
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By:
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/s/
Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx | |||
Title: General Counsel |
AMERICAN
STOCK TRANSFER & TRUST COMPANY
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By:
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/s/
Xxxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx | |||
Title: Vice President |
[Signature page to Fourth Amendment
to Rights Agreement]