Automatic Shelf Registration Statement for Securities of a Well-Known Seasoned Issuer — Form S-3 Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: S-3ASR Automatic Shelf Registration Statement for HTML 331K
Securities of a Well-Known Seasoned
Issuer
2: EX-4.4 Instrument Defining the Rights of Security Holders HTML 125K
3: EX-5.1 Opinion re: Legality HTML 12K
4: EX-23.1 Consent of Experts or Counsel HTML 6K
EX-4.4 — Instrument Defining the Rights of Security Holders
This Registration Rights Agreement (this “Agreement”) is being entered into as of
April 10, 2006, by and among eBay Inc., a Delaware corporation (“Purchaser”), and the
persons listed on Schedule 1 hereto (the “Investors”). The Investors and Purchaser are sometimes
referred to in this Agreement individually as a “Party” and collectively as the “Parties.” Certain
capitalized terms used in this Agreement are defined in Exhibit A.
Recitals
Whereas, pursuant to that certain Share Purchase Agreement of even date herewith (the
“Purchase Agreement”), among Purchaser, Sonorit Holding AS, certain of the Investors and Aril Resen
as the Shareholders’ Representative, and to that certain Share Purchase Agreement of even date
herewith (the “Outside Investor Purchase Agreement”) between Purchaser and the other Investors,
Purchaser is issuing shares of its common stock to the Investors; and
Whereas, in connection with the transactions contemplated by the Purchase Agreement
and the Outside Investor Purchase Agreement, Purchaser has agreed to register, under the Securities
Act, the resale of the Registrable Shares (as defined below) and to grant certain other rights to
the Investors.
Agreement
The Parties, intending to be legally bound, agree as follows:
1.Registration of the Registrable Shares; Compliance With the Securities
Act.
1.1. Registration Procedures. Purchaser shall:
(a) subject to Purchaser’s prior receipt of the information required to be furnished by the
Investors pursuant to Section 1.2(a), prepare and file with the U.S. Securities and Exchange
Commission (the “SEC”), on or prior to the date that is one business day following the date of this
Agreement, a shelf registration statement (the “Registration Statement”) on Form S-3 or other
available forms to enable the resale of the Registrable Shares by the Selling Shareholders from
time to time on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the “Securities Act”) through the automated quotation system of the Nasdaq
National Market or such other market as may be the principal market on which Purchaser Shares are
quoted or listed (for purposes of this Agreement, “Registrable Shares” shall mean the shares of
common stock of Purchaser being issued to the Investors pursuant to the Purchase Agreement and the
Outside Investor Purchase Agreement, together with any other securities of Purchaser issued or
issuable as a result of or in connection with any stock dividend, stock split, or reverse stock
split, reclassification, merger, consolidation, or similar transaction in respect of such shares;
provided, however, that: Registrable Shares shall cease to be Registrable Shares when: (i) a
registration statement covering such Registrable Shares shall have become effective under the
Securities Act, and such Registrable Shares shall have been disposed of in accordance with the
Registration Statement; or (ii) one year after the date of this Agreement);
(b) to the extent applicable, use all reasonable efforts to prepare and file with the SEC such
amendments and supplements to the Registration Statement and the prospectus forming part
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thereof (the “Prospectus”) as may be necessary to keep the Registration Statement current and
effective until the earlier of: (i) two years following the date on which the Registration
Statement first becomes effective; or (ii) the date on which all of the Registrable Shares may be
sold pursuant to Rule 144 under the Securities Act (“Rule 144”) without regard to any volume
limitations;
(c) furnish to the Investors such number of copies of the Registration Statement, the
Prospectus, preliminary prospectuses, prospectus supplements or periodic or current reports
incorporated into such Registration Statement identifying the Investors as selling stockholders (an
“Identifying Report”), as applicable in conformity with the requirements of the Securities Act and
such other documents as the Investors may reasonably request, in order to facilitate the public
sale or other disposition of all or any of the Registrable Shares by the Investors; and
(d) notify the Investors promptly after it shall receive notice or obtain knowledge of the
issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration
Statement or of the initiation or threat of any proceeding for that purpose and promptly use all
reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such
stop order should be issued.
1.2. Investor Obligations.
(a) Each Investor shall: (i) furnish such information as Purchaser may reasonably request in
connection with the preparation of the Registration Statement and the Prospectus, any prospectus
supplement or Identifying Report in order to permit Purchaser to comply with all applicable
securities laws and requirements of the SEC, which information shall be complete and accurate; and
(ii) accurately complete, execute, acknowledge and/or deliver such questionnaires and other
documents, certificates and instruments as are reasonably required by Purchaser in connection with
any offering under this Agreement (it being understood that Purchaser shall have no obligation to
register an Investor’s Registrable Shares for resale pursuant to the Registration Statement
referred to in Section 1.1(a) until such Investor has complied with sich Investor’s obligations in
this Section 1.2(a)).
(b) Each Investor shall promptly notify Purchaser of any changes known to such Investor in the
information set forth in the Registration Statement and the Prospectus, any prospectus supplement
or Identifying Report regarding such Investor or its plan of distribution. No Investor shall use,
distribute or otherwise disseminate any free writing prospectus, as defined in Rule 405 under the
Securities Act, in connection with the sale of Registrable Shares under the Registration Statement,
without the prior written consent of Purchaser.
1.3. Amendments to Registration Statement; Suspension; Sales of Registrable Shares under the
Registration Statement.
(a) Except in the event that Section 1.3(b) or Section 1.3(c) applies, Purchaser shall: (i)
if required under applicable law, prepare and file from time to time with the SEC a post-effective
amendment to the Registration Statement or a supplement or amendment to the Prospectus or any
prospectus supplement or a supplement or amendment to any document incorporated therein by
reference or file any other required report or document so that neither such Registration Statement
nor Prospectus, as amended or supplemented, will contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading; (ii) provide the
Investors with copies of any documents filed pursuant to this Section 1.3(a); and (iii) inform the
Investors that Purchaser has complied with its obligations in this Section 1.3(a).
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(b) Purchaser shall not be obligated to effect a registration pursuant to Section 1.1, or to
file any amendment to the Registration Statement (or any report incorporated therein) or any or
supplement or amendment to the Prospectus or any prospectus supplement, and may suspend the
Investors’ rights to make sales pursuant to an effective registration pursuant to Section 1.1, at
any time when Purchaser, in the good faith judgment of its Board of Directors, reasonably believes
that the filing thereof, or the offering of securities pursuant thereto, would: (i) materially and
adversely affect a pending or proposed acquisition, merger, recapitalization, consolidation,
reorganization or similar transaction, or negotiations, discussions or pending proposals related
thereto; or (ii) be seriously detrimental to Purchaser and its stockholders, in which event (under
clause “(i)” or clause “(ii)” above) Purchaser shall have the right to defer filing of a
registration statement and prospectus or prospectus supplement or Identifying Report (or to suspend
the Investors’ rights to make sales pursuant to an effective registration pursuant to Section 1.1)
for a period of not more than 45 days; provided, however, that Purchaser shall not utilize the
right described in this Section 1.3(b) on more than two occasions of not more than 60 days in any
twelve month period. As of the date of this Agreement, Purchaser is not aware of any event that
has occurred that would require Purchaser to invoke the right described in this Section 1.3(b)
within 30 days following the Closing.
(c) In the event: (i) of any request by the SEC or any other federal or state governmental
authority during the period of effectiveness of the Registration Statement for amendments or
supplements to the Registration Statement or prospectus or for additional information; (ii) of the
issuance by the SEC or any other federal or state governmental authority of any stop order
suspending the effectiveness of the Registration Statement or the initiation of any proceedings for
that purpose; (iii) of the receipt by Purchaser of any notification with respect to the suspension
of the qualification or exemption from qualification of any of the Registrable Shares for sale in
any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) of any
event or circumstance which, upon the advice of Purchaser’s counsel, necessitates the making of any
changes in the Registration Statement, prospectus or any prospectus supplement, or any document
incorporated or deemed to be incorporated therein by reference, so that neither the Registration
Statement nor the Prospectus or, if applicable, prospectus supplement will contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading; or (v) of any event or circumstance of the type described in Section 1.3(b),
then Purchaser shall promptly deliver a certificate in writing to the Investors (the “Suspension
Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, each Investor
shall: (A) immediately discontinue disposition of the Registrable Shares pursuant to the
Registration Statement covering such shares (a “Suspension”) until such Investor’s receipt of
copies of a supplemented or amended prospectus prepared and filed by Purchaser, or until it is
advised in writing by Purchaser that the Suspension is no longer in effect; and (B) if so directed
by Purchaser, deliver to Purchaser all copies of the Prospectus and any prospectus supplement or
Identifying Report covering such Registrable Shares in such Investor’s possession at the time of
receipt of such notice.
(d) Provided that a Suspension is not then in effect, each Investor may sell the Registrable
Shares under the Registration Statement as long as, to the extent required by law, it arranges for
delivery of a current prospectus and, if applicable, prospectus supplement or report, to the
transferee of such Registrable Shares.
(e) In the event of a sale of any Registrable Shares by an Investor pursuant to the
Registration Statement, such Investor shall deliver to Purchaser’s transfer agent, with a copy to
Purchaser, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A
so that the Registrable Shares may be properly transferred. Assuming timely delivery to
Purchaser’s transfer agent of one or more stock certificates representing the Registrable Shares in
proper form for transfer and
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assuming compliance by the Investor with the terms of this Agreement, Purchaser’s transfer
agent will issue and make appropriate delivery of one or more stock certificates in the name of the
buyer so as to permit timely compliance by the Investor with applicable settlement requirements.
2.Miscellaneous
2.1. Notices. All notices, requests, demands and other communications under this Agreement
shall be in writing and shall be deemed to have been duly given or made as follows: (a) if sent by
registered or certified mail in the United States return receipt requested, upon receipt; (b) if
sent designated for overnight delivery by nationally recognized overnight air courier (such as DHL
or Federal Express), three business days after delivery to such courier; (c) if sent by facsimile
transmission before 5:00 p.m. in California, when transmitted and receipt is confirmed; (d) if sent
by facsimile transmission after 5:00 p.m. in California and receipt is confirmed, on the following
business day; and (e) if otherwise actually personally delivered, when delivered, provided that
such notices, requests, demands and other communications are delivered to the address set forth
below, or to such other address as any Party shall provide by like notice to the other parties to
this Agreement:
if to Purchaser, to the address for notices to Purchaser under the Purchase
Agreement.
if to an Investor, to the address set forth in Exhibit B to the Purchase Agreement
or Exhibit A to the Outside Investor Purchase Agreement, as the case may be.
2.2. Governing Law. This Agreement shall be construed in accordance with, and governed in all
respects by, the laws of the State of California (without giving effect to principles of conflicts
of law).
2.3. Parties in Interest. None of the provisions of this Agreement is intended to provide any
rights or remedies to any person or entity other than the Parties and their respective successors
and assigns (if any).
2.4. Entire Agreement. This Agreement and the other agreements referred to herein constitute
the whole and only agreement among the Parties relating to the matters provided for herein. In
entering into this Agreement, the Parties acknowledge that they are not relying upon any
pre-contractual statement that is not expressly set out herein.
2.5. Amendments. This Agreement may not be amended, modified, altered or supplemented other
than by means of a written instrument duly executed and delivered by Purchaser and Investors
holding at least a majority of the Registrable Shares at the time of the amendment, modification,
alteration or supplement (it being understood that upon such execution and delivery, such
amendment, modification, alteration or supplement shall be binding on all Investors).
2.6. Counterparts and Exchanges by Electronic Transmission or Facsimile. This Agreement may
be executed in several counterparts, each of which shall constitute an original and all of which,
when taken together, shall constitute one agreement. The exchange of a fully executed Agreement
(in counterparts or otherwise) by electronic transmission or facsimile shall be sufficient to bind
the Parties to the terms and conditions of this Agreement.
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In Witness Whereof, the Parties have caused this Agreement to be executed and
delivered as of the date first set forth above.
We have been requested to act as broker or dealer by the Seller in connection with the sale of the
following shares of eBay Inc.:
Selling Stockholder:
No. of Shares Sold:
Registration Statement:
333-
Date of Prospectus:
April ___, 2006
Trade Date(s):
In connection therewith, the undersigned hereby certifies that the number of shares sold, as
indicated above, have been sold for the account of the registered owner and pursuant to, and in
compliance with, the above-referenced prospectus dated April ___, 2006. A copy of said
prospectus was properly delivered in accordance with the prospectus delivery requirements of
Section 5(b)(2) of the Securities Act of 1933.
Please authorize the transfer of said shares without further restriction.
Thank you for your assistance in this matter.
Very truly yours,
By:
Print Name:
Title:
cc:
Dates Referenced Herein and Documents Incorporated by Reference
