EBay (EBAY)

SECTION 6. TERMINATION

6.1 Termination. This Agreement may be terminated:

(a) by mutual written consent of the Company and Parent;

(b) by either Parent or the Company at any time after the End Date and prior to the Acceptance Time if the Acceptance Time shall not have occurred on or prior to the End Date; provided, however, that a party shall not be permitted to terminate this Agreement pursuant to this Section 6.1(b) if: (i) the failure of the Acceptance Time to occur on or prior to the End Date is attributable to the failure of an Offer Condition to be satisfied; and (ii) the failure of such Offer Condition to be satisfied is primarily attributable to a failure on the part of such party to perform any covenant in this Agreement required to be performed by such party on or prior to the Acceptance Time;

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(c) by either Parent or the Company at any time prior to the Acceptance Time if the Offer shall have expired in accordance with the terms of this Agreement without Acquisition Sub having accepted Company Securities for payment pursuant to the Offer; provided, however, that a party shall not be permitted to terminate this Agreement pursuant to this Section 6.1(c) if: (i) the failure of Acquisition Sub to accept Company Securities for payment pursuant to the Offer is attributable primarily to the failure of an Offer Condition to be satisfied; and (ii) the failure of such Offer Condition to be satisfied is attributable to a failure, on the part of the party seeking to terminate this Agreement, to perform any covenant in this Agreement required to be performed by such party on or prior to the Acceptance Time;

(d) by either Parent or the Company if a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable Order or shall have taken any other final and nonappealable action, having the effect of: (i) permanently restraining, enjoining or otherwise prohibiting: (A) the acquisition or acceptance for payment of, or payment for, Company Securities pursuant to the Offer; (B) the Share Allocation; or (C) any other Contemplated Transaction; or (ii) making the acquisition of or payment for Company Securities pursuant to the Offer, or the consummation of the Share Allocation or the other Contemplated Transactions, illegal;

(e) by Parent if the Ian Share Purchase Agreement shall have been terminated;

(f) by Parent if: (i) the Company Shareholders Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s shareholders shall have taken a final vote on a proposal to elect the Parent Designees to the Company Board; and (ii) the Parent Designees shall not have been elected as members of the Company Board at the Company Shareholders Meeting (and shall not have been approved at any adjournment or postponement thereof);

(g) by Parent if (i) the Special Committee shall have failed to make, or shall have withdrawn or modified in a manner adverse to Parent or Acquisition Sub, the Special Committee Recommendation; (ii) the Company Board shall have failed to make the Company Board Recommendation, or shall have made a Company Adverse Recommendation Change; (iii) the Company shall have failed to include the Special Committee Recommendation and the Company Board Recommendation in the Schedule 14D-9 or the Proxy Statement or shall have amended the Schedule 14D-9 or the Proxy Statement to exclude the Special Committee Recommendation or the Company Board Recommendation; (iv) the Company or any of the Specified Representatives shall have breached in any material respect any of the provisions set forth in Section 4.3; (v) an Acquisition Proposal shall have been publicly disclosed, announced, commenced, submitted or made and, promptly (and in any event within 5 days) following a request made by Parent, the Company shall not have made a public announcement: (A) unconditionally reaffirming the Special Committee Recommendation and the Company Board Recommendation; and (B) either unconditionally rejecting or recommending that the holders of Company Securities reject such Acquisition Proposal, as applicable; or (vi) any shareholder of the Company who has executed and delivered an Agreement to Tender shall have breached in any material respect Section 3, Section 4, Section 5 or Section 9 of such Agreement to Tender;

(h) by Parent at any time prior to the Acceptance Time if: (i) any of the representations and warranties of the Company contained in this Agreement shall have been inaccurate as of the date of this Agreement or shall have become inaccurate as of a date subsequent to the date of this Agreement (as if made on such subsequent date), such that the condition set forth in clause “(a)” or clause “(b)” of Annex I would not be satisfied (it being understood that, for purposes of determining the accuracy of such representations and warranties as of the date of this Agreement or as of any subsequent

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date; (A) all “Company Material Adverse Effect” qualifications and other materiality qualifications limiting the scope of such representations and warranties shall be disregarded; and (B) any update of or modification to the Company Disclosure Schedule made or purported to have been made on or after the date of this Agreement shall be disregarded); or (ii) any of the Company’s covenants or obligations in this Agreement shall have been breached such that the condition set forth in clause “(c)” of Annex I would not be satisfied; provided, however, that if an inaccuracy in any of the Company’s representations and warranties as of a date subsequent to the date of this Agreement or a breach of a covenant or obligation by the Company is curable by the Company within 30 days after the date that Parent gives the Company notice of such inaccuracy or breach and the Company is continuing to exercise reasonable efforts to cure such inaccuracy or breach, then Parent may not terminate this Agreement under this Section 6.1(h) on account of such inaccuracy or breach unless such inaccuracy or breach shall remain uncured for a period of 30 days commencing on the date that Parent gives the Company notice of such inaccuracy or breach;

(i) by the Company at any time prior to the Acceptance Time if: (i) any of Parent’s representations and warranties shall be inaccurate as of the date of this Agreement or shall have become inaccurate as of a date subsequent to the date of this Agreement (as if made on such subsequent date), and the inaccuracies in such representations and warranties, taken together, have a material adverse effect on Acquisition Sub’s ability to purchase and pay for the Company Securities validly tendered pursuant to the Offer or to consummate the Share Allocation; or (ii) any of Parent’s covenants or obligations contained in this Agreement shall have been breached and such breaches, taken together, have a material adverse effect on Acquisition Sub’s ability to purchase and pay for the Company Securities validly tendered pursuant to the Offer; provided, however, that if an inaccuracy in any of Parent’s representations and warranties or a breach of a covenant or obligation by Parent is curable by Parent within 30 days after the date that the Company gives Parent notice of such inaccuracy or breach and Parent is continuing to exercise reasonable efforts to cure such inaccuracy or breach, then the Company may not terminate this Agreement under this Section 6.1(i) on account of such inaccuracy or breach unless such inaccuracy or breach shall remain uncured for a period of 30 days commencing on the date that the Company gives Parent notice of such inaccuracy or breach; or

(j) by the Company, at any time prior to the Acceptance Time, in order to accept a Superior Offer and enter into the Specified Definitive Acquisition Agreement setting forth the terms of such Superior Offer, if: (i) the Company shall have complied with the provisions of Section 4.3(d); (ii) each of the Special Committee and the Company Board shall have authorized the Company to enter into such Specified Definitive Acquisition Agreement; (iii) the Company shall have delivered to Parent a copy of such Specified Definitive Acquisition Agreement at least five business days prior to the date of termination of this Agreement pursuant to this Section 6.1(j); (iv) the Company prior to, or substantially contemporaneously with, such termination pays to Parent in immediately available funds the fee required to be paid pursuant to Section 6.3(b); and (v) the Company and the other party thereto enter into such Specified Definitive Acquisition Agreement as promptly as practicable following (but in any event on the same day as) such termination.

6.2 Effect of Termination. In the event of the termination of this Agreement as provided in Section 6.1, this Agreement shall be of no further force or effect; provided, however, that: (a) this Section 6.2, 6.3 and Section 7 shall survive the termination of this Agreement and shall remain in full force and effect; (b) subject to Section 7.4, the Confidentiality Agreements shall survive the termination of this Agreement and shall remain in full force and effect in accordance with their terms; (c) the termination of this Agreement shall not relieve any party from any liability for any intentional or willful breach of any covenant or obligation or for any material breach of any representation or warranty contained in this Agreement occurring prior to such termination (including, in the case of a claim by the Company, claims

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for damages based on the consideration that would have otherwise been payable to the shareholders of the Company); and (d) no termination of this Agreement shall in any way affect any of the parties’ rights or obligations with respect to any Company Securities accepted for payment pursuant to the Offer prior to such termination.