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This excerpt taken from the EBAY 10-K filed Feb 28, 2007. AGREEMENT
1. Grant of the RSUs. As
set forth in the Notice of Grant, the Company hereby grants the
Participant RSUs in exchange for past and future services to the
Company subject to all the terms and conditions in this
Agreement, the Grant Notice and the Plan. However, no Shares
shall be issued to the Participant until the time set forth in
Section 2. Prior to actual payment of any Shares, such RSUs
will represent an unsecured obligation of the Company, payable
only from the general assets of the Company.
2. Issuance of
Stock. Shares shall be issued to the
Participant on or as soon as administratively practicable
following each vesting date as set forth in the Grant Notice
(and in no event later than
21/2 months
following each such vesting date), provided that the Participant
has not experienced a Termination on or prior to such date (the
“Vesting Date”). After each such date
the Company shall promptly cause to be issued (either in
book-entry form or otherwise) to the Participant or the
Participant’s beneficiaries, as the case may be, Shares
with respect to RSUs that are becoming vested on such Vesting
Date. No fractional Shares shall be issued under this Agreement.
In the event a Participant is Terminated, the RSUs shall cease
vesting immediately upon such cessation of service and the
unvested RSUs awarded by this Agreement shall be forfeited.
3. Taxes. Notwithstanding
anything to the contrary in this Agreement, the Company shall be
entitled to require payment to the Company or any of its
Subsidiaries any sums required by federal, state or local tax
law to be withheld with respect to the issuance of the
Restricted Stock Units, the distribution of Shares with respect
thereto, or any other taxable event related to the Restricted
Stock Units. The Company may permit the Participant to make such
payment in one or more of the forms specified below:
(a) by cash or check made payable to the Company;
(b) by the deduction of such amount from other compensation
payable to Participant;
(c) in the sole discretion of the Company, by requesting
that the Company withhold a net number of vested Shares
otherwise issuable having a then current Fair Market Value not
exceeding the amount necessary to satisfy the withholding
obligation of the Company and its Subsidiaries based on the
minimum applicable statutory withholding rates for federal,
state, local and foreign income tax and payroll tax
purposes; or
(d) in any combination of the foregoing.
At any time during the life of the RSUs, in the event
Participant provides services in a country other than the US, to
the extent that such services result in taxable income in the
non-US location Participant shall be considered an
“Internationally Mobile Participant” until such time
as the RSUs are fully vested.
Internationally Mobile Participants shall not be permitted to
make payment of taxes in accordance with clause (c) above.
At the time of a taxable event, Internationally Mobile
Participant authorizes the Company or an Affiliate to have the
Company-designated broker to sell on the market a portion of the
Shares that have an aggregate market value sufficient to pay the
Tax-Related Items (a “Sell to Cover”). Any Sell
to Cover arrangement shall be pursuant to terms specified by the
Company from time to time.
No fractional Shares will be withheld, sold to cover the any or
all income tax, social insurance, payroll tax, payment on
account or other tax-related withholding (“Tax-Related
Items”) or issued pursuant to the grant of RSUs and the
issuance of Shares thereunder; unless determined otherwise by
the Company, any additional withholding for Tax-Related Items
necessary for this reason will be done by the Company or an
Affiliate, in its sole discretion, through Internationally
Mobile Participant’s paycheck or other cash compensation
paid to Internationally Mobile Participant by the Company
and/or an
Affiliate or through direct payment by Internationally Mobile
Participant to the Company in the form of cash, check or other
cash equivalent.
In the event Participant fails to provide timely payment of all
sums required by the Company pursuant to this Section 3,
the Company shall have the right and option, but not obligation,
to treat such failure as an election by Participant or
Internationally Mobile Participant to satisfy all or any portion
of his or her required payment obligation by means of requesting
the Company to withhold vested Shares otherwise issuable in
accordance with either clause (c) above or Sell to Cover,
as applicable.
The Company shall not be obligated to deliver any new
certificate representing Shares issuable with respect to the
Restricted Stock Units to Participant or Participant’s
legal representative unless and until Participant or
Participant’s legal representative shall have paid or
otherwise satisfied in full the amount of all federal, state,
local and foreign taxes applicable to the taxable income of
Participant resulting from the grant of the Restricted Stock
Units, the distribution of the Shares issuable with respect
thereto, or any other taxable event related to the Restricted
Stock Units.
4. Rights as
Stockholder. Neither the Participant
nor any person claiming under or through the Participant will
have any of the rights or privileges of a stockholder of the
Company in respect of any Shares deliverable hereunder unless
and until certificates representing such Shares (which may be in
book entry form) will have been issued and recorded on the
records of the Company or its transfer agents or registrars, and
delivered to the Participant (including through electronic
delivery to a brokerage account). After such issuance,
recordation and delivery, the Participant will have all the
rights of a stockholder of the Company with respect to voting
such Shares and receipt of dividends and distributions on such
Shares.
5. Conditions to Issuance of
Certificates. Notwithstanding any
other provision of this Agreement, the Company shall not be
required to issue or deliver any certificate or certificates for
any Shares prior to the fulfillment of all of the following
conditions: (a) the admission of the Shares to listing on
all stock exchanges on which such Shares is then listed,
(b) the completion of any registration or other
qualification of the Shares under any state or federal law or
under rulings or regulations of the Securities and Exchange
Commission or other governmental regulatory body, which the
Company shall, in its sole and absolute discretion, deem
necessary and advisable, (c) the obtaining of any approval
or other clearance from any state or federal governmental agency
that the Company shall, in its absolute discretion, determine to
be necessary or advisable and (d) the lapse of any such
reasonable period of time following the date the RSUs vest as
the Company may from time to time establish for reasons of
administrative convenience.
6. Plan Governs. This
Agreement is subject to all terms and provisions of the Plan. In
the event of a conflict between one or more provisions of this
Agreement and one or more provisions of the Plan, the provisions
of the Plan will govern.
7. Award Not
Transferable. This grant and the
rights and privileges conferred hereby will not be transferred,
assigned, pledged or hypothecated in any way (whether by
operation of law or otherwise) and will not be subject to sale
under execution, attachment or similar process. Upon any attempt
to transfer, assign, pledge, hypothecate or otherwise dispose of
this grant, or any right or privilege conferred hereby, or upon
any attempted sale under any execution, attachment or similar
process, this grant and the rights and privileges conferred
hereby immediately will become null and void.
8. Rights as
Stockholder. Until Shares are issued
in respect of the RSUs the Participant shall have no rights of a
stockholder with respect to the RSUs.
9. Not a Contract of
Employment. Nothing in this Agreement
or in the Plan shall confer upon the Participant any right to
continue to serve as an Employee or other service provider of
the Company or any of its subsidiaries.
10. Governing Law. The laws
of the State of California shall govern the interpretation,
validity, administration, enforcement and performance of the
terms of this Agreement regardless of the law that might be
applied under principles of conflicts of laws.
11. Conformity to Securities
Laws. The Participant acknowledges
that the Plan and this Agreement are intended to conform to the
extent necessary with all provisions of the Securities Act and
the Exchange Act, and any and all regulations and rules
promulgated thereunder by the Securities and Exchange
Commission, including without limitation
Rule 16b-3
under the Exchange Act. Notwithstanding anything herein to the
contrary, the Plan shall be administered, and the Awards are
granted, only in such a manner as to conform to such laws, rules
and regulations. To the extent permitted by applicable law, the
Plan and this Agreement shall be deemed amended to the extent
necessary to conform to such laws, rules and regulations.
12. Amendment, Suspension and
Termination. To the extent permitted
by the Plan, this Agreement may be wholly or partially amended
or otherwise modified, suspended or terminated at any time or
from time to time by the Committee or the Board, provided, that,
except as may otherwise be provided by the Plan, no amendment,
modification, suspension or termination of this Agreement shall
adversely effect the Award in any material way without the prior
written consent of the Participant.
13. Notices. Notices
required or permitted hereunder shall be given in writing and
shall be deemed effectively given upon personal delivery or upon
deposit in the United States mail by certified mail, with
postage and fees prepaid, addressed to the Participant to his
address shown in the Company records, and to the Company at its
principal executive office.
14. Successors and
Assigns. The Company may assign any of
its rights under this Agreement to single or multiple assignees,
and this Agreement shall inure to the benefit of the successors
and assigns of the Company. Subject to the restrictions on
transfer herein set forth, this Agreement shall be binding upon
Participant and his or her heirs, executors, administrators,
successors and assigns.
15. Compliance in Form and
Operation. This Agreement and the
Restricted Stock Units are intended to comply with
Section 409A of the Code and the Treasury Regulations
thereunder and shall be interpreted in a manner consistent with
that intention.
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