8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of Earliest Event Reported): October 2, 2020

E*TRADE Financial, LLC

(Exact name of registrant as specified in its charter)

Delaware	001-11921	94-2844166
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)

671 N. Glebe Road, Arlington, Virginia 22203

(Address of principal executive offices, including zip code)

(646) 521-4340

(Registrant’s telephone number, including area code)

E*TRADE Financial Corporation

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common Stock, par value $0.01 per share	ETFC	The NASDAQ Stock Market LLC NASDAQ Global Select Market

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

Introductory Note

On October 2, 2020 (the “Closing Date”), pursuant to the Agreement and Plan of Merger, dated as of February 20, 2020 (the “Merger Agreement”), by and among Morgan Stanley, a Delaware corporation (“Morgan Stanley”), E*TRADE Financial Corporation, a Delaware corporation (“E*TRADE” or the “Company”), and Moon-Eagle Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Morgan Stanley (“Merger Sub”), Merger Sub merged with and into the Company, with the Company continuing as the surviving corporation (the “Merger”). Pursuant to the Merger Agreement, immediately following the effective time of the Merger (the “Effective Time”), the Company merged with and into Moon-Eagle Merger Sub II, LLC, a newly established wholly owned subsidiary of Morgan Stanley (“Second Merger Sub”), with Second Merger Sub continuing as the surviving entity with the name “E*TRADE Financial, LLC” (the “Second Merger” and, together with the Merger, the “Mergers”).

Item 2.01 Completion of Acquisition or Disposition of Assets

Pursuant to the Merger Agreement, at the Effective Time, each outstanding share of E*TRADE common stock, par value $0.01 per share (the “E*TRADE Common Stock”), issued and outstanding immediately prior to the Effective Time (other than shares of E*TRADE common stock held (1) in treasury and (2) by Morgan Stanley (other than any such shares held by Morgan Stanley (i) in its fiduciary, representative or other capacity on behalf of other persons, (ii) as a result of debts previously contracted by it, (iii) in its capacity as an underwriter or market-maker or in connection with its proprietary trading or arbitrage activities or other similar activities in the ordinary course of business, (iv) in the context of its ordinary course brokerage (including prime brokerage), asset management, private banking, wealth management, research or similar activities or (v) in connection with its transactions that are undertaken by pension funds or employee benefit programs), which were cancelled at the Effective Time) were converted into the right to receive 1.0432 shares of Morgan Stanley common stock, par value $0.01 per share (together with the cash payments in lieu of fractional shares referred to in the following sentence, such consideration, the “Common Share Consideration”). No fractional shares of Morgan Stanley common stock were issued and each former E*TRADE stockholder who would otherwise have been entitled to receive a fraction of a share of Morgan Stanley common stock in connection with the Merger is entitled to receive in lieu thereof a cash payment (together with the Common Share Consideration, the “Common Merger Consideration”), without interest and subject to any applicable withholding taxes, in accordance with the Merger Agreement.

Pursuant to the Merger Agreement, at the Effective Time, each outstanding E*TRADE restricted stock unit award that was eligible to vest solely based on continued service, restricted stock unit award that was eligible to vest based on the achievement of performance goals, restricted stock award made to directors of E*TRADE and deferred restricted stock unit award made to directors of E*TRADE vested (if unvested) and was cancelled and converted into the right to receive the Common Merger Consideration as if such award (including any shares of E*TRADE common stock in respect of dividend equivalent units credited thereon) had been settled in shares of E*TRADE common stock immediately prior to the Effective Time. In the case of restricted stock unit awards that were eligible to vest based on the achievement of performance goals, (i) with respect to any performance periods that are completed on or before the Effective Time, each such award vested at the greater of the target or actual level of performance, as determined by the Compensation Committee of E*TRADE’s board of directors prior to the Effective Time and (ii) with respect to any performance periods that are not completed on or before the Effective Time, each such award vested at the target level of performance.

Pursuant to the Merger Agreement, at the Effective Time, each share of the Company’s Fixed-to-Floating Rate Non-Cumulative Perpetual Preferred Stock, Series A, par value $0.01 per share (the “Series A Preferred Stock”), outstanding immediately before the Effective Time was converted into the right to receive one share of a newly created series of preferred stock of Morgan Stanley with such rights, preferences, privileges and voting powers, and limitations and restrictions, that, taken as a whole, are not materially less favorable to the holders thereof than the rights, preferences, privileges and voting powers of the Series A Preferred Stock, taken as a whole. Additionally, pursuant to the Merger Agreement and at the Effective Time, each share of the Company’s Fixed-to Floating Rate Non-Cumulative Perpetual Preferred Stock, Series B, par value $0.01 per share (the “Series B Preferred Stock”), outstanding immediately before the Effective Time was converted into the right to receive one share of a separate, newly created series of preferred stock of Morgan Stanley with such rights, preferences, privileges and voting powers, and limitations and restrictions, that, taken as a whole, are not materially less favorable to the holders thereof than the rights, preferences, privileges and voting powers of the Series B Preferred Stock, taken as a whole.

The foregoing description of the Mergers and the Merger Agreement does not purport to be a complete description and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is attached as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission (“SEC”) on February 21, 2020, Commission File Number 1-11921, and which is incorporated herein by reference. See Morgan Stanley’s public filings with the SEC for more information including copies of the certificates of designation for the newly created series of Morgan Stanley preferred stock described above.

The information set forth in the Introductory Note and Item 3.01 of this Current Report on Form 8-K is incorporated into this Item 2.01 by reference.

Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

On the Closing Date, in connection with the consummation of the Merger, the Company notified The NASDAQ Stock Market LLC and Nasdaq Global Select Market (collectively, “Nasdaq”) that the Merger has been consummated and requested that the trading of shares of the E*TRADE Common Stock on Nasdaq be suspended and that the listing of shares of the E*TRADE Common Stock on Nasdaq be withdrawn. In addition, the Company requested that Nasdaq file with the SEC a notification on Form 25 to report the delisting of the E*TRADE Common Stock from Nasdaq and to deregister the E*TRADE Common Stock under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Company intends to file a Form 15 with the SEC to request the termination of the registration of the E*TRADE Common Stock under Section 12(g) of the Exchange Act and to suspend the Company’s reporting obligations under Sections 13 and 15(d) of the Exchange Act as soon as practicable.

Item 3.03. Material Modification to Rights of Security Holders.

The information set forth or incorporated by reference in Items 2.01, 3.01, 5.01 and 5.03 of this Current Report on Form 8-K is incorporated into this Item 3.03 by reference.

Pursuant to the Merger Agreement and in connection with the consummation of the Merger, each share of E*TRADE Common Stock was converted into the right to receive the Common Merger Consideration.

On the Closing Date, in connection with the consummation of the Mergers, the Company, Second Merger Sub, Moon-Eagle Co-Obligor, Inc., a Delaware corporation (the “Co-Obligor”), and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), entered into the Fourth Supplemental Indenture (the “Fourth Supplemental Indenture”) to the Indenture, dated August 24, 2017 between the Company and the Trustee (the “Base Indenture”), as supplemented by (i) the First Supplemental Indenture, dated August 24, 2017 (the “First Supplemental Indenture”), with respect to the Company’s 2.950% Senior Notes due 2022 (the “2022 Notes”), (ii) the Second Supplemental Indenture, dated August 24, 2017 (the “Second Supplemental Indenture”), with respect to the Company’s 3.800% Senior Notes due 2027 (the “2027 Notes”), and (iii) the Third Supplemental Indenture, dated June 20, 2018 (the “Third Supplemental Indenture” and, together with the Base Indenture, the First Supplemental Indenture and the Second Supplemental Indenture, the “Indenture”), with respect to the Company’s 4.500% Senior Notes due 2028 (the “2028 Notes” and, together with the 2022 Notes and the 2027 Notes, the “Notes”). Pursuant to the terms of the Fourth Supplemental Indenture, each of Second Merger Sub and the Co-Obligor assumed all of the Company’s obligations under the Indenture and the Notes, including, without limitation, the payment of the principal of and any premium and interest on the Notes, as applicable, and the performance of every covenant of the Indenture and the Notes on the part of the Company.

The foregoing descriptions of the Indenture and the Fourth Supplemental Indenture do not purport to be complete and are qualified in their entirety by reference to the full text of such agreements, copies of which are attached as Exhibits 4.1, 4.2 and 4.3 to the Company’s Current Report on Form 8-K filed on August 24, 2017, Commission File Number 1-11921, Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on June 20, 2018, Commission File Number 1-11921, and Exhibit 4.1 to this Current Report on Form 8-K, respectively, and are incorporated herein by reference.

Item 5.01. Changes in Control of Registrant.

The information set forth in the Introductory Note and Item 2.01 of this Current Report on Form 8-K is incorporated into this Item 5.01 by reference. As a result of the consummation of the Merger, pursuant to the Merger Agreement, a change in control of E*TRADE occurred, and E*TRADE became a wholly owned subsidiary of Morgan Stanley.

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Upon completion of the Merger on October 2, 2020, Sebastiano Visentini, who constituted the sole director of Merger Sub as of immediately prior to the Effective Time, became the sole director of the Company as of immediately following the Effective Time, and the following directors of the Company immediately prior to the Effective Time ceased to be directors of the Company pursuant to the terms of the Merger Agreement (and not because of any disagreement with the Company or its operations, policies or practices): Richard J. Carbone, Robert Chersi, Jaime W. Ellertson, James P. Healy, Kevin T. Kabat, James Lam, Rodger A. Lawson, Shelley B. Leibowitz, Michael A. Pizzi, Rebecca Saeger, Donna L. Weaver and Joshua Weinreich.

In addition, upon completion of the Merger, all of the officers of the Company immediately prior to the Effective Time ceased serving in their capacity as officers of the Company. From and after the Effective Time, until their respective successors are duly elected or appointed and qualified in accordance with applicable law, the officers of Merger Sub will be the officers of the surviving entity pursuant to the terms of the Merger Agreement.

The information set forth in the Introductory Note of this Current Report on Form 8-K is incorporated by reference herein.

Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year

At the Effective Time, the Company’s amended and restated certificate of incorporation and amended and restated bylaws were amended, respectively, to be the same form as the certificate of incorporation and bylaws of Merger Sub as in effect immediately prior to the Effective Time, which are filed herewith as Exhibits 3.1 and 3.2, respectively, to this Form 8-K and are incorporated by reference herein.

After giving effect to the Second Merger, the certificate of formation and limited liability company agreement of Second Merger Sub continued in full force and effect as the organizational documents of the surviving company in the Second Merger, which was renamed E*TRADE Financial LLC, each of which is filed herewith as Exhibits 3.3 and 3.4 respectively, to this Form 8-K and are incorporated by reference herein.

Item 8.01. Other Events

On October 2, 2020, the Company and Morgan Stanley issued a joint press release announcing the completion of the Mergers. A copy of the joint press release is filed as Exhibit 99.1 to this Form 8-K and is incorporated by reference herein.

Item 9.01. Financial Statements and Exhibits

(d) Exhibits

Exhibit No.	Description
3.1	Amended and Restated Certificate of Incorporation of E*TRADE Financial Corporation.
3.2	Amended and Restated Bylaws of E*TRADE Financial Corporation.
3.3	Certificate of Formation of Moon-Eagle Merger Sub II, LLC.
3.4	Amended and Restated Limited Liability Company Agreement of E*TRADE Financial, LLC.
4.1	Fourth Supplemental Indenture, dated as of October 2, 2020, among Moon-Eagle Merger Sub II, LLC, Moon-Eagle Co-Obligor, Inc., E*TRADE Financial Corporation and The Bank of New York Mellon Trust Company, N.A., as trustee.
99.1	Joint Press Release issued by Morgan Stanley and E*TRADE, dated October 2, 2020.
104	Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	E*TRADE FINANCIAL, LLC
Date: October 2, 2020	By:	/s/ Sebastiano Visentini
	Name:	Sebastiano Visentini
	Title:	Vice President

EX-3.1

EXHIBIT 3.1

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

E*TRADE FINANCIAL CORPORATION

October 2, 2020

E*TRADE Financial Corporation, a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:

FIRST: The name of the corporation is E*TRADE Financial Corporation (the “Corporation”).

SECOND: The address of the Corporation’s registered office in the State of Delaware is Corporation Service Company, 251 Little Falls Drive in the City of Wilmington, County of New Castle, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.

THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended (the “DGCL”).

FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is 1,000, and the par value of each such share is $0.01, amounting in the aggregate to $10.00.

FIFTH: The Board of Directors shall have the power to adopt, amend or repeal the bylaws of the Corporation.

SIXTH: Election of directors need not be by written ballot unless the bylaws of the Corporation so provide.

SEVENTH: The Corporation expressly elects not to be governed by Section 203 of the DGCL.

EIGHTH: A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (1) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) under Section 174 of the DGCL, or (4) for any transaction from which the director derived any improper personal benefit. If the DGCL is hereafter amended to authorize, with the approval of a

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corporation’s stockholders, further reductions in the liability of a corporation’s directors for breach of fiduciary duty, then a director of the Corporation shall not be liable for any such breach to the fullest extent permitted by the DGCL as so amended. Any repeal or modification of the foregoing provisions of this Article EIGHTH by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.

NINTH: The Corporation reserves the right to amend this Certificate of Incorporation in any manner permitted by the DGCL and all rights and powers conferred herein on stockholders, directors and officers, if any, are subject to this reserved power.

TENTH: This Amended and Restated Certificate of Incorporation shall become effective immediately upon filing with the Secretary of the State of the State of Delaware.

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EX-3.2

EXHIBIT 3.2

AMENDED AND RESTATED

BYLAWS

OF

E*TRADE FINANCIAL CORPORATION

^{* * * * *}

As of October 2, 2020

ARTICLE 1

OFFICES

Section 1.01. Registered Office. The registered office of the Corporation shall be in the City of Wilmington, County of New Castle, State of Delaware.

Section 1.02. Other Offices. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.

Section 1.03. Books. The books of the Corporation may be kept within or without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.

ARTICLE 2

MEETINGS OF STOCKHOLDERS

Section 2.01. Time and Place of Meetings. All meetings of stockholders shall be held at such place, either within or without the State of Delaware, on such date and at such time as may be determined from time to time by the Board of Directors (or the Chairman in the absence of a designation by the Board of Directors).

Section 2.02. Annual Meetings. Unless directors are elected by written consent in lieu of an annual meeting as permitted by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended (the “DGCL”), an annual meeting of stockholders shall be held for the election of directors and to transact such other business as may properly be brought before the meeting at such date and time as may be designated by the Board from time to time. Stockholders may, unless the certificate of incorporation otherwise provides, act by written consent to elect directors; provided, however, that if such consent is less than unanimous, such action by written consent may be in lieu of holding an annual meeting only if all of the directorships to which directors could be elected at an annual meeting held at the effective time of such action are vacant and are filled by such action.

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Section 2.03. Special Meetings. Special meetings of stockholders may be called by the Board of Directors or the Chairman of the Board and shall be called by the Secretary at the request in writing of holders of record of a majority of the outstanding capital stock of the Corporation entitled to vote. Such request shall state the purpose or purposes of the proposed meeting.

Section 2.04. Notice of Meetings and Adjourned Meetings; Waivers of Notice. (a)    Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by the DGCL, such notice shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to vote at such meeting. Unless these bylaws otherwise require, when a meeting is adjourned to another time or place (whether or not a quorum is present), notice need not be given of the adjourned meeting if the time, place, if any, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than 30 days, or after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

(b)    A written waiver of any such notice signed by the person entitled thereto, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

Section 2.05. Quorum. Unless otherwise provided under the certificate of incorporation or these bylaws and subject to the DGCL, the presence, in person or by proxy, of the holders of a majority of the outstanding capital stock of the Corporation entitled to vote at a meeting of stockholders shall constitute a quorum for the transaction of business. If, however, such quorum shall not be present or represented at any meeting of the stockholders, a majority in voting interest of the stockholders present in person or represented by proxy may adjourn the meeting, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified.

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Section 2.06. Voting. (a)    Unless otherwise provided in the certificate of incorporation and subject to the DGCL, each stockholder shall be entitled to one vote for each outstanding share of capital stock of the Corporation held by such stockholder. Any share of capital stock of the Corporation held by the Corporation shall have no voting rights. Except as otherwise provided by law, the certificate of incorporation or these bylaws, in all matters other than the election of directors, the affirmative vote of the majority of the shares of capital stock of the Corporation present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders.

(b)    Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to a corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, appointed by an instrument in writing, subscribed by such stockholder or by his attorney thereunto authorized, or by proxy sent by cable, telegram or by any means of electronic communication permitted by law, which results in a writing from such stockholder or by his attorney, and delivered to the secretary of the meeting. No proxy shall be voted after three (3) years from its date, unless said proxy provides for a longer period.

(c)    In determining the number of votes cast for or against a proposal or nominee, shares abstaining from voting on a matter will not be treated as a vote cast.

Section 2.07. Action by Consent. (a)     Unless otherwise provided in the certificate of incorporation and subject to the proviso in Section 2.02, any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding capital stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of stockholders to take the action were delivered to the Corporation as provided in Section 2.07(b).

(b)    Every written consent shall bear the date of signature of each stockholder who signs the consent, and no written consent shall be effective to take the corporate action referred to therein unless, within 60 days of the earliest dated consent delivered in the manner required by this section and the DGCL to the Corporation, written consents signed by a sufficient number of holders to take action are delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested.

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Section 2.08. Organization. At each meeting of stockholders, the Chairman of the Board, if one shall have been elected, or in the Chairman’s absence or if one shall not have been elected, the director designated by the vote of the majority of the directors present at such meeting, shall act as chairman of the meeting. The Secretary (or in the Secretary’s absence or inability to act, the person whom the chairman of the meeting shall appoint secretary of the meeting) shall act as secretary of the meeting and keep the minutes thereof.

Section 2.09. Order of Business. The order of business at all meetings of stockholders shall be as determined by the chairman of the meeting.

ARTICLE 3

DIRECTORS

Section 3.01. General Powers. Except as otherwise provided in the DGCL or the certificate of incorporation, the business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.

Section 3.02. Number, Election and Term of Office. (a)    The number of directors which shall constitute the whole Board shall be fixed from time to time by resolution of the Board of Directors but shall not be less than one. The directors shall be elected at the annual meeting of the stockholders by written ballot, except as provided in Section 2.02 and Section 3.12 herein, and each director so elected shall hold office until such director’s successor is elected and qualified or until such director’s earlier death, resignation or removal. Directors need not be stockholders.

(b)    Subject to the rights of the holders of any series of preferred stock to elect additional directors under specific circumstances, directors shall be elected by a plurality of the votes of the shares of capital stock of the Corporation present in person or represented by proxy at the meeting and entitled to vote on the election of directors.

Section 3.03. Quorum and Manner of Acting. Unless the certificate of incorporation or these bylaws require a greater number, a majority of the total number of directors shall constitute a quorum for the transaction of business, and the affirmative vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. When a meeting is adjourned to another time or place (whether or not a quorum is present), notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Board of Directors may transact any business which might have been transacted at the original meeting. If a quorum shall not be present at any meeting of the Board of Directors the directors present thereat shall adjourn the meeting, from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

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Section 3.04. Time and Place of Meetings. The Board of Directors shall hold its meetings at such place, either within or without the State of Delaware, and at such time as may be determined from time to time by the Board of Directors (or the Chairman in the absence of a determination by the Board of Directors).

Section 3.05. Annual Meeting. The Board of Directors shall meet for the purpose of organization, the election of officers and the transaction of other business, as soon as practicable after each annual meeting of stockholders, on the same day and at the same place where such annual meeting shall be held. Notice of such meeting need not be given. In the event such annual meeting is not so held, the annual meeting of the Board of Directors may be held at such place either within or without the State of Delaware, on such date and at such time as shall be specified in a notice thereof given as hereinafter provided in Section 3.07 herein or in a waiver of notice thereof signed by any director who chooses to waive the requirement of notice.

Section 3.06. Regular Meetings. After the place and time of regular meetings of the Board of Directors shall have been determined and notice thereof shall have been once given to each member of the Board of Directors, regular meetings may be held without further notice being given.

Section 3.07. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board or the President and shall be called by the Chairman of the Board, President or Secretary on the written request of any of the directors. Notice of special meetings of the Board of Directors shall be given to each director at least one calendar day before the date of the meeting in such manner as is determined by the Board of Directors.

Section 3.08. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to any of the following matters: (a) approving or adopting, or recommending to the stockholders, any action or matter (other than the election or removal of directors) expressly required by the DGCL to be submitted to the stockholders for approval or (b) adopting, amending or repealing any bylaw of the Corporation. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required.

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Section 3.09. Action by Consent. Unless otherwise restricted by the certificate of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions, are filed with the minutes of proceedings of the Board or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

Section 3.10. Telephonic Meetings. Unless otherwise restricted by the certificate of incorporation or these bylaws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or such committee, as the case may be, by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.

Section 3.11. Resignation. Any director may resign at any time by giving notice in writing or by electronic transmission to the Board of Directors or to the Secretary of the Corporation. The resignation of any director shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

Section 3.12. Vacancies. Unless otherwise provided in the certificate of incorporation, vacancies and newly created directorships resulting from any increase in the authorized number of directors elected by all the stockholders having the right to vote as a single class may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director. Whenever the holders of any class or classes of stock or series thereof are entitled to elect one or more directors by the certificate of incorporation, vacancies and newly created directorships of such class or classes or series may be filled by a majority of directors elected by such class or classes or series thereof then in office, or by a sole remaining director so elected. Each director so chosen shall hold office until his or her successor is elected and qualified, or until his or her earlier death, resignation or removal. If there are no directors in office, then an election of directors may be held in accordance with the DGCL. Unless otherwise provided in the certificate of incorporation, when one or more directors shall resign from the Board, effective at a future date, a majority of the directors then in office shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as provided in the filling of other vacancies.

Section 3.13. Removal. Any director or the entire Board of Directors may be removed, with or without cause, at any time by the affirmative vote of the holders of a majority of the outstanding capital stock of the Corporation then entitled to vote at any election of directors and the vacancies thus created may be filled in accordance with Section 3.12 herein.

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Section 3.14. Compensation. Unless otherwise restricted by the certificate of incorporation or these bylaws, the Board of Directors shall have authority to fix the compensation of directors, including fees and reimbursement of expenses.

ARTICLE 4

OFFICERS

Section 4.01. Principal Officers. The principal officers of the Corporation shall be a President, one or more Vice Presidents, a Treasurer and a Secretary who shall have the duty, among other things, to record the proceedings of the meetings of stockholders and directors in a book kept for that purpose. The Corporation may also have such other principal officers, including one or more Controllers, as the Board may in its discretion appoint. One person may hold the offices and perform the duties of any two or more of said offices, except that no one person shall hold the offices and perform the duties of President and Secretary.

Section 4.02. Election, Term of Office and Remuneration. The principal officers of the Corporation shall be elected annually by the Board of Directors at the annual meeting thereof. Each such officer shall hold office until his or her successor is elected and qualified, or until his or her earlier death, resignation or removal. The remuneration of all officers of the Corporation shall be fixed by the Board of Directors. Any vacancy in any office shall be filled in such manner as the Board of Directors shall determine.

Section 4.03. Subordinate Officers. In addition to the principal officers enumerated in Section 4.01 herein, the Corporation may have one or more Assistant Treasurers, Assistant Secretaries and Assistant Controllers and such other subordinate officers, agents and employees as the Board of Directors may deem necessary, each of whom shall hold office for such period as the Board of Directors may from time to time determine. The Board of Directors may delegate to any principal officer the power to appoint and to remove any such subordinate officers, agents or employees.

Section 4.04. Removal. Except as otherwise permitted with respect to subordinate officers, any officer may be removed, with or without cause, at any time, by resolution adopted by the Board of Directors.

Section 4.05. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors (or to a principal officer if the Board of Directors has delegated to such principal officer the power to appoint and to remove such officer). The resignation of any officer shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

Section 4.06. Powers and Duties. The officers of the Corporation shall have such powers and perform such duties incident to each of their respective offices and such other duties as may from time to time be conferred upon or assigned to them by the Board of Directors.

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ARTICLE 5

CAPITAL STOCK

Section 5.01. Certificates for Stock; Uncertificated Shares. The shares of the Corporation shall be uncertificated, provided that the Board of Directors of the Corporation may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be represented by certificates. Except as otherwise provided by law, the rights and obligations of the holders of uncertificated shares and the rights and obligations of the holders of shares represented by certificates of the same class and series shall be identical. Any holder of stock represented by certificates shall be entitled to have a certificate signed by, or in the name of the Corporation by the Chairman or Vice Chairman of the Board of Directors, or the President or Vice President, and by the Treasurer or an assistant Treasurer, or the Secretary or an assistant Secretary of the Corporation representing the number of shares registered in certificate form. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue. The Corporation shall not have power to issue a certificate in bearer form.

Section 5.02. Transfer of Shares. Shares of the stock of the Corporation may be transferred on the record of stockholders of the Corporation by the holder thereof or by such holder’s duly authorized attorney upon surrender of a certificate therefor properly endorsed or upon receipt of proper transfer instructions from the registered holder of uncertificated shares or by such holder’s duly authorized attorney and upon compliance with appropriate procedures for transferring shares in uncertificated form, unless waived by the Corporation.

Section 5.03. Authority for Additional Rules Regarding Transfer. The Board of Directors shall have the power and authority to make all such rules and regulations as they may deem expedient concerning the issue, transfer and registration of certificated or uncertificated shares of the stock of the Corporation, as well as for the issuance of new certificates in lieu of those which may be lost or destroyed, and may require of any stockholder requesting replacement of lost or destroyed certificates, bond in such amount and in such form as they may deem expedient to indemnify the Corporation, and/or the transfer agents, and/or the registrars of its stock against any claims arising in connection therewith.

ARTICLE 6

GENERAL PROVISIONS

Section 6.01. Fixing the Record Date. (a)    In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than 60 nor less than

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10 days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided that the Board of Directors may fix a new record date for the adjourned meeting.

(b)    In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than 10 days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by the DGCL, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by the DGCL, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.

(c)    In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

Section 6.02. Dividends. Subject to limitations contained in the DGCL and the certificate of incorporation, the Board of Directors may declare and pay dividends upon the shares of capital stock of the Corporation, which dividends may be paid either in cash, in property or in shares of the capital stock of the Corporation.

Section 6.03. Year. The fiscal year of the Corporation shall commence on January 1 and end on December 31 of each year.

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Section 6.04. Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal, Delaware.” The seal may be used by causing it or a facsimile thereof to be impressed, affixed or otherwise reproduced.

Section 6.05. Voting of Stock Owned by the Corporation. The Board of Directors may authorize any person, on behalf of the Corporation, to attend, vote at and grant proxies to be used at any meeting of stockholders of any corporation (except this Corporation) in which the Corporation may hold stock.

Section 6.06. Amendments. These bylaws or any of them may be altered, amended or repealed, or new bylaws may be made, by the stockholders entitled to vote thereon at any annual or special meeting thereof or by the Board of Directors.

^{*         *        *         *        *}

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EX-3.3

EXHIBIT 3.3

CERTIFICATE OF FORMATION

OF

MOON-EAGLE MERGER SUB II, LLC

This Certificate of Formation of Moon-Eagle Merger Sub II, LLC (the “Company”) is being duly executed and filed by Morgan Stanley, as an authorized person, to form a limited liability company pursuant to the provisions of the Delaware Limited Liability Company Act (6 Del. C. §18-201, et seq.).

FIRST: The name of the limited liability company formed hereby is Moon-Eagle Merger Sub II, LLC.

SECOND: The address of the registered office of the Company in the State of Delaware is c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801.

THIRD: The name and address of the registered agent for service of process on the Company in the State of Delaware is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801.

[Remainder of Page Intentionally Left Blank; Signature Page Follows]

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IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation this 24th day of February, 2020.

MORGAN STANLEY
By:	/s/ Sebastiano Visentini
Name:	Sebastiano Visentini
Title:	Managing Director

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EX-3.4

Exhibit 3.4

AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

E*TRADE FINANCIAL, LLC

October 2, 2020

This Limited Liability Company Agreement (this “Agreement”) of E*TRADE Financial, LLC, a Delaware limited liability company (the “Company”), is entered into by Morgan Stanley, a Delaware corporation, as the sole member of the Company (the “Member”).

The Member, has previously formed the Company pursuant to and in accordance with the Delaware Limited Liability Company Act (6 Del. C. Sec. 18-101, et seq.), as amended from time to time (the “Act”), and, by execution of this Agreement, hereby agrees as follows:

1.    Name. The name of the limited liability company is E*TRADE Financial, LLC.

2.    Filing of Certificates. The Member, as an authorized person, within the meaning of the Act, shall execute, deliver and file, or cause the execution, delivery and filing of, all certificates required or permitted by the Act to be filed in the Office of the Secretary of State of the State of Delaware and any other certificates, notices or documents required or permitted by law for the Company to qualify to do business in any jurisdiction in which the Company may wish to conduct business.

3.    Purposes. The purpose of the Company is to engage in any lawful act or activity for which limited liability companies may be formed under the Act.

4.    Powers. In furtherance of its purposes, but subject to all of the provisions of this Agreement, the Company shall have and may exercise all the powers now or hereafter conferred by Delaware law on limited liability companies formed under the Act. The Company shall have the power to do any and all acts necessary, appropriate, proper, advisable, incidental or convenient to or for the protection and benefit of the Company, and shall have, without limitation, any and all of the powers that may be exercised on behalf of the Company by the Member.

5.    Principal Business Office. The principal business office of the Company shall be located at such location as may hereafter be determined by the Member.

6.    Registered Office; Registered Agent. The address of the registered office of the Company in the State of Delaware is c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801. The name and address of the registered agent of the Company in the State of Delaware is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801.

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7.    Member. The name and the mailing address of the Member are as follows: Morgan Stanley, 1585 Broadway, New York, NY 10036.

8.    Limited Liability. Except as required by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Member, Director or Officer shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a member of the Company or holding such office or title, as applicable.

9.    Capital Contributions. The Member is deemed admitted as the member of the Company upon its execution and delivery of this Agreement. The Member may, but is not obligated to make any capital contribution to the Company.

10.    Allocation of Profits and Losses. The Company’s profits and losses shall be allocated solely to the Member.

11.    Distributions. Subject to the limitations of Section 18-607 of the Act and any other applicable law, distributions shall be made to the Member at the times and in the aggregate amounts determined by the Board of Directors.

12.    Management.

(a)    General Authority. Subject to the terms, conditions and limitations set forth herein:

(i)    the business and affairs of the Company shall be managed by, or under the direction of, a board of directors (the “Board of Directors”);

(ii)    the Board of Directors shall have all power and authority to manage and to direct the management of the business and affairs of the Company and to make all decisions to be made by or on behalf of the Company;

(iii)    the powers of the Board of Directors shall include all powers, statutory or otherwise, possessed by or permitted to managers of a limited liability company under the Laws of the State of Delaware and the Act;

(iv)    the Board of Directors shall have full, exclusive and complete discretion, power and authority to do all things deemed reasonably necessary or desirable to manage, control and conduct the business and affairs of the Company; provided, however, that the Board of Directors may delegate the day-to-day operation and control of the Company to the Company’s Officers;

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(v)    approval by, consent of or action taken by the Board of Directors shall constitute approval or action by the Company and shall be binding on the Company and the Member (in its capacity as the Member); and

(vi)    notwithstanding the provisions of Section 18-407 of the Act, no Director may delegate to any other Person that Director’s rights and obligations to participate in and vote at any meeting of the Board of Directors.

(b)    The Board of Directors.

(i)    The Board of Directors shall consist of a number of directors (each a “Director”, and collectively, the “Directors”) determined by the Member in its sole and absolute discretion. The Member shall appoint and remove Directors in its sole and absolute discretion.

(ii)    The Directors constituting the Board of Directors shall be the “managers” of the Company for all purposes of the laws of the State of Delaware and the Act.

(iii)    Each Director shall hold office from the time he or she is appointed as such by the Member until such individual resigns, dies or is removed from such office by the Member. For the avoidance of doubt, any Director may be removed with or without cause by the Member at any time in its sole and absolute discretion. A Director may resign by written notice to the Company, which resignation shall not require acceptance and, unless otherwise specified in the resignation notice, shall be effective upon receipt by the Company.

(c)    Action on Behalf of the Company; Signing Authority. No Director in his, her or its capacity as such or by virtue of being a Director is an agent of the Company or has the authority or power to act for or on behalf of the Company in any manner or way, to bind the Company, or do any act that would be (or could be construed as) binding on the Company, in any manner or way, or to make any expenditures on behalf of the Company, unless such specific authority and power has been expressly granted to and not revoked from such Director by the Board of Directors. This Section 12 supersedes any authority granted to Directors pursuant to the Act.

(d)    Regular Meetings. Regular meetings of the Board of Directors shall be held at such dates, times and places as the Board of Directors shall from time to time determine. Meetings of the Board of Directors shall be presided over by the chair, or in his or her absence by a chair chosen at the meeting. The chair of the meeting may appoint any person to act as secretary of the meeting.

(e)    Special Meetings. Special meetings of the Board of Directors may be called at any time by any Director. Each special meeting shall be held at such date, time and place, as shall be fixed by the Person or Persons calling the meeting.

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(f)    Notice of Meetings and Business to be Discussed. Written notice of each meeting of the Board of Directors shall be given to each Director which shall state the date, time and place of the meeting. The written notice of any meeting shall be given at least one (1) day prior to such meeting, which notice may be waived in writing or by a Director attending such meeting.

(g)    Telephonic Meetings Permitted. Directors, or members of any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or of such committee, by means of conference telephone or similar communication equipment by means of which all persons participating in the meeting can hear each other, and participation in the meeting pursuant to this Agreement shall constitute presence in person at such meeting.

(h)    Written Consent. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if a written consent setting forth the action so taken shall be signed by the Directors or members of such committee, as the case may be, holding not less than the minimum votes that would be necessary to authorize or take such action at a meeting at which all Directors or members of such committee were present and voted, and the writing or writings are filed with the minutes of the proceedings of the Board of Directors.

(i)    Quorum; Vote Required for Action. Each Director shall have one vote and shall be entitled to count for quorum purposes. At all meetings of the Board of Directors or any committee thereof, members entitled to cast a majority of the votes of the entire Board of Directors or any committee thereof, as the case may be, shall constitute a quorum for the transaction of business and the act of members entitled to cast a majority of the votes present at any meeting at which there is a quorum shall be the act of the Board of Directors or committee thereof. If a quorum shall not be present at any such meeting, then the Directors present thereat may adjourn the meeting from time to time until a quorum shall be present.

(j)    Delegation of Authority. The Board of Directors may, from time to time, delegate to one or more persons (including any Director or Officer and including through the creation and establishment of one or more other Board of Directors committees) such authority and duties as the Board of Directors may deem advisable. Any delegation pursuant to this Section 12(j) may be revoked at any time by the Board of Directors in its sole and absolute discretion.

13.    Officers. The Board of Directors may, from time to time as it deems advisable, select natural persons who are employees or agents of the Company and designate them as officers of the Company (the “Officers”) and assign titles (including, without limitation, President, Vice President, Secretary, and Treasurer) to any such person. Unless the Board of Directors decides otherwise, if the title is one commonly used for officers of a business corporation formed under the Delaware General Corporation Law, the assignment of such title shall constitute the delegation to such person of

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the authorities and duties that are normally associated with that office. Any delegation pursuant to this Section 12 may be revoked at any time by the Board of Directors. An Officer may be removed with or without cause by the Board of Directors.

14.    Other Business. The Member may engage in or possess an interest in other business ventures of every kind and description, independently or with others. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

15.    Exculpation and Indemnification.

(a)    To the fullest extent permitted by the laws of the State of Delaware and except in the case of bad faith, gross negligence or willful misconduct, no Member, Director or Officer shall be liable to the Company or any other Member, Director or Officer for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Member, Director or Officer in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Member, Director or Officer by this Agreement.

(b)    Except in the case of bad faith, gross negligence or willful misconduct, each person (and the heirs, executors or administrators of such person) who was or is a party or is threatened to be made a party to, or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a Member, Director or Officer, shall be indemnified and held harmless by the Company to the fullest extent permitted by the laws of the State of Delaware for directors and officers of corporations organized under the laws of the State of Delaware. Any indemnity under this Section 15 shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

16.    Assignments. The Member may at any time assign in whole or in part its limited liability company interest in the Company. If the Member transfers any of its interest in the Company pursuant to this Section 16, the transferee shall be admitted to the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement. Such admission shall be deemed effective immediately prior to the transfer, and, immediately following such admission, the transferor Member shall cease to be a member of the Company.

17.    Resignation of the Member. The Member may at any time resign from the Company. If the Member resigns pursuant to this Section 17, an additional Member shall be admitted to the Company, subject to Section 18 hereof, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement. Such admission shall be deemed effective immediately prior to the resignation, and, immediately following such admission, the resigning Member shall cease to be a member of the Company.

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18.    Admission of Additional Members. One or more additional members of the Company may be admitted to the Company with the written consent of the Member.

19.    Dissolution.

(a)    The Company shall dissolve and its affairs shall be wound up upon the first to occur of: (i) the written consent of the Member or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act.

(b)    In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets or proceeds from the sale of the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act.

20.    Separability of Provisions. If any provision of this Agreement or the application thereof is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable to any extent, the remainder of this Agreement and the application of such provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated.

21.    Entire Agreement. This Agreement constitutes the entire agreement with respect to the subject matter hereof.

22.    Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware (without regard to conflict of laws principles).

23.    Amendments. This Agreement may not be modified, altered, supplemented or amended except pursuant to a written agreement executed and delivered by the Member.

24.    Sole Benefit of Member. Other than any provisions hereof that are intended for the benefit of Directors and Officers (including Section 15), the provisions of this Agreement are intended solely to benefit the Member and, to the fullest extent permitted by applicable law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor shall be a third-party beneficiary of this Agreement), and the Member shall have no duty or obligation to any creditor of the Company to make any contributions or payments to the Company.

25.    Effectiveness. This Agreement shall become effective when the Member shall have executed and delivered this Agreement to the Company.

[Remainder of Page Intentionally Left Blank; Signature Page Follows]

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Exhibit 3.4

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the date first set forth above.

MORGAN STANLEY
By:	/s/ Sebastiano Visentini
Name:	Sebastiano Visentini
Title:	Authorized Officer

[Signature Page to A&R LLC Agreement – E*TRADE Financial, LLC]

EX-4.1

EXHIBIT 4.1

Moon-Eagle Merger Sub II, LLC,

Moon-Eagle Co-Obligor, Inc.,

E*TRADE Financial Corporation

and

The Bank of New York Mellon Trust Company, N.A.

Fourth Supplemental Indenture

Dated as of October 2, 2020

to

Indenture dated as of August 24, 2017

between

E*TRADE Financial Corporation

and The Bank of New York Mellon Trust Company, N.A.

	TABLE OF CONTENTS
		Page
	ARTICLE 1
	DEFINITIONS
Section 1.01.	Definitions		2
	ARTICLE 2
	ASSUMPTION OF OBLIGATIONS
Section 2.01.	Assumption of Obligations by the Successor Company		2
Section 2.02.	Assumption of Obligations by the Co-Obligor		3
	ARTICLE 3
	MISCELLANEOUS		3
Section 3.01.	Effective Date		3
Section 3.02.	Confirmation of Indenture		3
Section 3.03.	Counterparts; Effectiveness		3
Section 3.04.	Governing Law		3
Section 3.05.	Waiver of Jury Trial		3
Section 3.06.	Trustee Disclaimer		4

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FOURTH SUPPLEMENTAL INDENTURE, dated as of October 2, 2020 (this “Supplemental Indenture”), among Moon-Eagle Merger Sub II, LLC, a Delaware limited liability company (the “Successor Company”), Moon-Eagle Co-Obligor, Inc., a Delaware corporation (the “Co-Obligor”), E*TRADE Financial Corporation (the “Predecessor Company”) and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), to the Indenture, dated as of August 24, 2017 (as amended, modified or supplemented from time to time in accordance therewith, other than with respect to a particular series of debt securities, the “Indenture”), by and between the Predecessor Company and the Trustee.

Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders from time to time of the Securities:

WHEREAS, the Predecessor Company and the Trustee are parties to the Indenture, as supplemented by the First Supplemental Indenture, dated as of August 24, 2017, the Second Supplemental Indenture, dated as of August 24, 2017, and the Third Supplemental Indenture, dated as of June 20, 2018, pursuant to which the Predecessor Company has issued (i) a series of its Securities in the aggregate principal amount of $600,000,000 and designated as its 2.950% Senior Notes due 2022, (ii) a series of its Securities in the aggregate principal amount of $400,000,000 and designated as its 3.800% Senior Notes due 2027 and (iii) a series of its Securities in the aggregate principal amount of $420,000,000 and designated as its 4.500% Senior Notes due 2028, which three series of Securities are the only Securities outstanding under the Indenture on the date hereof;

WHEREAS, the Predecessor Company proposes to merge with and into the Successor Company, with the Successor Company being the Surviving Entity (the “Merger”);

WHEREAS, Section 5.01 of the Indenture provides, inter alia, that the Predecessor Company will not consolidate or combine with or merge with or into any Person unless the Surviving Entity shall expressly assume, by a supplemental indenture, all of the Predecessor Company’s obligations under the Indenture and the Securities;

WHEREAS, Section 5.01 of the Indenture further provides, inter alia, that if the Surviving Entity shall not be a corporation, such entity shall organize or have a wholly-owned subsidiary in the form of a corporation organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia, and shall cause such corporation to expressly assume, as a party to the supplemental indenture referenced above, as a co-obligor, each of such Surviving Entity’s obligations under the Indenture and the Securities, and the Successor Company has had the Co-Obligor organized for such purpose;

WHEREAS, this Supplemental Indenture is being executed and delivered pursuant to Section 5.01 of the Indenture as a condition under the Indenture to the Merger;

WHEREAS, at or promptly after the Second Effective Time (as defined in the Agreement and Plan of Merger, dated as of February 20, 2020, by and among Morgan Stanley, Moon-Eagle Merger Sub, Inc. and the Predecessor Company (the “Merger Agreement”)), the Successor Company’s name will be changed to E*TRADE Financial, LLC and the Co-Obligor’s name will be changed to E*TRADE Co-Obligor, Inc.;

WHEREAS, each of the Successor Company, the Co-Obligor and the Predecessor Company has duly authorized the execution and delivery, and each of them desires and has requested the Trustee to join each of them in the execution and delivery, of this Supplemental Indenture;

WHEREAS, Article IX of the Indenture provides that a supplemental indenture may be entered into by the parties for the purposes referenced above without the consent of any Holder provided certain conditions are met;

WHEREAS, the conditions set forth in the Indenture for the execution and delivery of this Supplemental Indenture have been met; and

WHEREAS, all things necessary to make this Supplemental Indenture a valid agreement of the parties, in accordance with its terms, and a valid amendment of, and supplement to, the Indenture have been done;

NOW, THEREFORE:

ARTICLE 1

DEFINITIONS

Section 1.01.    Definitions. Capitalized terms used herein and not otherwise defined herein have the meanings assigned to them in the Indenture. The words “herein,” “hereof’ and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.

ARTICLE 2

ASSUMPTION OF OBLIGATIONS

Section 2.01.    Assumption of Obligations by the Successor Company.

(a)    Pursuant to Section 5.01 of the Indenture, the Successor Company hereby assumes all of the Predecessor Company’s obligations under the Indenture and the Securities, including, without limitation, the due and punctual payment of the principal of, premium, if any, and interest, if any, on all the Securities and the performance of every covenant of the Indenture and the Securities on the part of the Predecessor Company to be performed or observed.

(b)    Pursuant to Section 5.02 of the Indenture, the Successor Company succeeds to, and is substituted for, the Predecessor Company under the Indenture with the same effect as if the Successor Company had originally been named as the Company therein.

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Section 2.02.    Assumption of Obligations by the Co-Obligor. Pursuant to Section 5.01 of the Indenture, the Co-Obligor hereby assumes, as a co-obligor, each of the Successor Company’s obligations under the Indenture and the Securities, including, without limitation, the due and punctual payment of the principal of, premium, if any, and interest, if any, on all the Securities and the performance of every covenant of the Indenture and the Securities on the part of the Successor Company to be performed or observed.

ARTICLE 3

MISCELLANEOUS

Section 3.01.    Effective Date. This Supplemental Indenture shall be effective as of the Second Effective Time (as defined in the Merger Agreement).

Section 3.02.    Confirmation of Indenture. The Indenture, as supplemented and amended by this Supplemental Indenture and all other indentures supplemental thereto, is in all respects ratified and confirmed, and the Indenture, this Supplemental Indenture and all indentures supplemental thereto shall be read, taken and construed as one and the same instrument, and each Holder of Securities heretofore or hereafter authenticated and delivered shall be bound thereby.

Section 3.03.    Counterparts; Effectiveness. The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement. Counterparts may be delivered via facsimile, electronic mail (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective as delivery of a manually executed counterpart of this Supplemental Indenture. Each of the parties represents that it has undertaken commercially reasonable steps to verify the identity of each individual person executing any such counterparts via electronic signature on behalf of such party and has and will maintain sufficient records of the same.

Section 3.04.    Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

Section 3.05.    Waiver of Jury Trial. EACH OF THE SUCCESSOR COMPANY, THE CO-OBLIGOR, THE PREDECESSOR COMPANY, THE HOLDERS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 3.06.    Trustee Disclaimer. The Trustee shall have no responsibility for the validity or sufficiency of this Supplemental Indenture or for the recitals contained herein.

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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the day and year first written above.

MOON-EAGLE MERGER SUB II, LLC
By:	/s/ Sebastiano Visentini
	Name: Sebastiano Visentini
	Title: President

MOON-EAGLE CO-OBLIGOR, INC.
By:	/s/ Sebastiano Visentini
	Name: Sebastiano Visentini
	Title: President

E*TRADE FINANCIAL CORPORATION
By:	/s/ Sebastiano Visentini
	Name: Sebastiano Visentini
	Title: Vice President

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee
By:	/s/ Lawrence M. Kusch
	Name: Lawrence M. Kusch
	Title: Vice President

[Signature Page to Supplemental Indenture]

EX-99.1

Exhibit 99.1

October 2, 2020 – FOR IMMEDIATE RELEASE

Morgan Stanley Closes Acquisition of E*TRADE

NEW YORK & ARLINGTON – Morgan Stanley (NYSE: MS) announced today that it has completed the acquisition of E*TRADE Financial Corporation (E*TRADE) in an all-stock transaction. E*TRADE common stockholders are entitled to receive 1.0432 Morgan Stanley common shares for each E*TRADE common share.

“The addition of E*TRADE positions us as an industry leader in Wealth Management across all channels and segments, and significantly increases the scale and breadth of our Wealth Management franchise, which now oversees $3.3 trillion in assets,” said James P. Gorman, Chairman and Chief Executive Officer of Morgan Stanley. “E*TRADE has built a best-in-class, direct-to-consumer digital channel and a strong brand over the past 38 years. The addition of their premier offering will provide enhanced capabilities to all our clients and Financial Advisors.”

Michael Pizzi, CEO of E*TRADE, joins Morgan Stanley and will lead E*TRADE’s direct-to-consumer, digital self-directed business that will operate under the E*TRADE brand, and will co-lead the equity administration business. He also joins the Morgan Stanley Operating and Management Committees.

In addition, today Shelley Leibowitz, one of E*TRADE’s independent directors, has joined the Morgan Stanley Board of Directors. “Ms. Leibowitz brings a wealth of financial technology and management expertise. We welcome her to the Board and look forward to working with her,” said Ray Wilkins, Chair of the Board’s Nominating and Governance Committee.

Morgan Stanley is a leading global financial services firm providing investment banking, securities, wealth management and investment management services. With offices in more than 41 countries, the Firm’s employees serve clients worldwide including corporations, governments, institutions and individuals. For further information about Morgan Stanley, please visit www.morganstanley.com.

This press release may contain forward-looking statements, including the attainment of certain financial and other targets, objectives and goals. Readers are cautioned not to place undue reliance on forward-looking statements, which speak only as of the date on which they are made, which reflect management’s current estimates, projections, expectations, assumptions, interpretations or beliefs and which are subject to risks and uncertainties that may cause actual results to differ materially. Morgan Stanley does not undertake any obligation to update any forward-looking statements. For a discussion of risks and uncertainties that may affect the future results of the Firm, please see “Forward-Looking Statements” immediately preceding Part I, Item 1, “Competition” and “Supervision and Regulation” in Part I, Item 1, “Risk Factors” in Part I, Item 1A, “Legal Proceedings” in Part I, Item 3, “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in Part II, Item 7 and “Quantitative and Qualitative Disclosures about Market Risk” in Part II, Item 7A in the Firm’s Annual Report on Form 10-K for the year ended December 31, 2019 and other items throughout the Form 10-K, the Firm’s Quarterly Reports on Form 10-Q and the Firm’s Current Reports on Form 8-K, including the Current Report filed with the SEC on April 16, 2020 and the additional risk factors under “Risk Factors” in the Registration Statement on Form S-4 filed with the SEC on April 17, 2020, as amended.

# # #

Note to Editors:

Shelley B. Leibowitz

Shelley B. Leibowitz was on the Board of Directors at E*TRADE from December 2014 to September 2020.

Ms. Leibowitz is President of SL Advisory, a firm she founded in 2016 that focuses on technology strategy, digital transformation, IT portfolio and risk management, information security, performance metrics, and governance. From 2009 through 2012, Ms. Leibowitz served as Group Chief Information Officer for the World Bank, where she was responsible for the technology services and capabilities that underlie the work of delivering quality knowledge and financing products to the Bank Group’s clients across the globe. Ms. Leibowitz managed the Bank Group’s cybersecurity program and served as a member of the Bank Group’s Pension Investment Committee. Previously, Ms. Leibowitz held Chief Information Officer positions at Morgan Stanley, Greenwich Capital Markets and Barclays Capital.

In prior years, Ms. Leibowitz served on the board of Endgame, foremost provider of cybersecurity capabilities to the U.S. intelligence and defense communities, acquired by Elastic NV in 2019, and on the board of Alliance Bernstein Holding LP, where she served on the Audit and Risk Committee. Ms. Leibowitz is currently on the board of directors of Massachusetts Mutual Life Insurance Company, where she serves on the Investment Committee and the Technology & Governance Committee. She is also a member of the Council on Foreign Relations and on the Visiting Committee of the Center for Development Economics at Williams College. Ms. Leibowitz is a Board Leadership Fellow at the National Association of Corporate Directors, where she is a frequent speaker and has achieved Directorship Certification and the CERT Certificate in Cybersecurity Oversight.

Ms. Leibowitz graduated Phi Beta Kappa from Williams College with a BA in Mathematics.

XML

Document and Entity Information	Oct. 02, 2020
Cover [Abstract]
Current Fiscal Year End Date	--12-31
Entity Registrant Name	E TRADE FINANCIAL CORP
Amendment Flag	false
Entity Central Index Key	0001015780
Document Type	8-K
Document Period End Date	Oct. 02, 2020
Entity Incorporation, State or Country Code	DE
Entity File Number	001-11921
Entity Tax Identification Number	94-2844166
Entity Address, Address Line One	671 N. Glebe Road
Entity Address, City or Town	Arlington
Entity Address, State or Province	VA
Entity Address, Postal Zip Code	22203
City Area Code	646
Local Phone Number	521-4340
Entity Information, Former Legal or Registered Name	E*TRADE Financial Corporation
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock, par value $0.01 per share
Trading Symbol	ETFC
Security Exchange Name	NASDAQ
Entity Emerging Growth Company	false