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EBay 10-Q 2008 Documents found in this filing:
Exhibit 10.01
and Award Agreement
Award Number:
Plan:
Type:
Effective ,
you (the Participant) have been granted an award
of deferred
stock units. These units are restricted stock units and are
restricted until the vest date(s) shown below, at which time you
will receive shares of eBay Inc. (the Company) common stock.
The award will vest in increments on the date(s) shown.
By Participant’s signature and the Company’s signature
below, Participant agrees to be bound by the terms and
conditions of the Plan, the Restricted Stock Unit Agreement, and
this Grant Notice. Participant has reviewed the Plan, Restricted
Stock Unit Agreement, and this Grant Notice in their entirety,
has had an opportunity to obtain the advice of counsel prior to
executing this Grant Notice and fully understands all provisions
of the Plan, the Restricted Stock Unit Agreement, and this Grant
Notice. Participant hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the
Company upon any questions arising under the Plan, the
Restricted Stock Unit Agreement, and this Grant Notice.
Pursuant to the Restricted Stock Unit Award Grant Notice (the
“Grant Notice”) to which this Restricted
Stock Unit Award Agreement (the
“Agreement”) is attached, eBay Inc., a
Delaware corporation (the “Company”) has
granted to Participant the right to receive the number of
restricted stock units (the “RSUs”)
under the 2003 Deferred Stock Unit Plan, as amended from time to
time (the “Plan”), as set forth in the
Grant Notice.
1. Definitions. All capitalized terms
used in this Agreement without definition shall have the
meanings ascribed in the Plan and the Grant Notice.
2. Incorporation of Terms of Plan. The
Award is subject to the terms and conditions of the Plan which
are incorporated herein by reference. In the event of any
inconsistency between the Plan and this Agreement, the terms of
the Plan shall control.
1. Grant of the RSUs. As set forth in the
Grant Notice, 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 of Common Stock (the
“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 2-1/2 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 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.
For purposes of this Agreement,
“Terminated” means that the Participant
has for any reason ceased to provide services as an employee,
officer, director, consultant, independent contractor, or
advisor to the Company or any subsidiary of the Company. The
Participant will not be deemed to have ceased to provide
services in the case of (i) sick leave, (ii) military
leave, or (iii) any other leave of absence approved by the
Committee, provided, that such leave is for a period of not more
than 90 days, unless reemployment upon the expiration of
such leave is guaranteed by contract or statute or unless
provided otherwise pursuant to formal policy adopted from time
to time by the Company and issued and promulgated to employees
in writing. In the case of any employee on an approved leave of
absence, the Committee may make such provisions respecting
suspension of vesting of the RSU while on leave from the employ
of the Company or a Subsidiary as it may deem appropriate. The
Committee will have sole discretion to determine whether the
Participant has ceased to provide services and the effective
date on which the Participant ceased to provide services.
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 RSUs, the distribution of
Shares with respect thereto, or any other taxable event related
to the RSUs. 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
RSUs 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 RSUs, the distribution of the Shares issuable
with respect thereto, or any other taxable event related to the
RSUs.
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 RSUs are
intended to comply with Section 409A of the Code and the
Treasury Regulations thereunder
(“Section 409A”) and shall be
interpreted in a manner consistent with that intention.
Notwithstanding any other provision of this Agreement, the
Company reserves the right, to the extent the Company deems
necessary or advisable, in its sole discretion, to unilaterally
amend the Plan
and/or this
Agreement to ensure that all RSUs are awarded in a manner that
qualifies for exemption from or complies with Section 409A,
provided, however, that the Company makes no representations
that the RSUs will comply with or be exempt from
Section 409A and makes no undertaking to preclude
Section 409A from applying to this RSU award.
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