Annual Report — Form 10-K Filing Table of Contents
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1: 10-K Annual Report HTML 1.14M
2: EX-10.03 Material Contract HTML 67K
3: EX-10.04 Material Contract HTML 79K
4: EX-10.07 Material Contract HTML 32K
5: EX-10.09 Material Contract HTML 38K
6: EX-10.10 Material Contract HTML 70K
7: EX-10.12 Material Contract HTML 89K
8: EX-10.13 Material Contract HTML 62K
9: EX-10.15 Material Contract HTML 56K
10: EX-21.01 Subsidiaries of the Registrant HTML 75K
11: EX-23.01 Consent of Experts or Counsel HTML 11K
12: EX-31.01 Certification per Sarbanes-Oxley Act (Section 302) HTML 13K
13: EX-31.02 Certification per Sarbanes-Oxley Act (Section 302) HTML 13K
14: EX-32.01 Certification per Sarbanes-Oxley Act (Section 906) HTML 9K
15: EX-32.02 Certification per Sarbanes-Oxley Act (Section 906) HTML 9K
1. PURPOSE. The purpose of
this Plan is to provide incentives to attract, retain and
motivate eligible persons whose present and potential
contributions are important to the success of the Company, its
Parent and Subsidiaries, by offering them an opportunity to
participate in the Company’s future performance through
awards of Options, Restricted Stock and Stock Bonuses.
Capitalized terms not defined in the text are defined in
Section 24.
2. SHARES SUBJECT TO THE PLAN.
2.1 Number of
Shares Available. Subject to
Sections 2.2 and 19, the total number of Shares
reserved and available for grant and issuance pursuant to this
Plan will be
108,000,0001 Shares
plus Shares that are subject to: (a) issuance upon exercise
of an Option but cease to be subject to such Option for any
reason other than exercise of such Option; (b) an Award
granted hereunder but are forfeited or are repurchased by the
Company at the original issue price; and (c) an Award that
otherwise terminates without Shares being issued. In addition,
any authorized shares not issued or subject to outstanding
grants under the Company’s 1996 Stock Option Plan or 1997
Stock Option Plan (the “Prior Plans”) on
the Effective Date (as defined below) and any shares issued
under the Prior Plans that are forfeited or repurchased by the
Company or that are issuable upon exercise of options granted
pursuant to the Prior Plans that expire or become unexercisable
for any reason without having been exercised in full, will no
longer be available for grant and issuance under the Prior
Plans, but will be available for grant and issuance under this
Plan. At all times the Company shall reserve and keep available
a sufficient number of Shares as shall be required to satisfy
the requirements of all outstanding Options granted under this
Plan and all other outstanding but unvested Awards granted under
this Plan.
2.2 Adjustment of Shares.
(a) In the event that any dividend or other distribution,
reorganization, merger, consolidation, combination, repurchase,
or exchange of Common Stock or other securities of the Company,
or other change in the corporate structure of the Company
affecting the Company’s Common Stock (other than an Equity
Restructuring) occurs such that an adjustment is determined by
the Committee (in its sole discretion) to be appropriate in
order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan,
then the Committee shall, in such manner as it may deem
equitable, adjust the number and class of Common Stock which may
be delivered under the Plan, the number of Shares covered by
each outstanding Award, the Exercise Price per Share of each
outstanding Option, and the numerical limits of Section 2.1.
(b) In connection with the occurrence of any Equity
Restructuring, and notwithstanding anything to the contrary in
Sections 2.2(a) and 19, the number and type of
securities subject to each outstanding Award and the Exercise
Price of each outstanding Option will be equitably adjusted by
the Committee. The adjustments provided under this
Section 2.2(b) shall be nondiscretionary and shall be final
and binding on the affected Participant and the Company.
3. ELIGIBILITY. ISOs (as
defined in Section 5 below) may be granted only to
employees (including officers and directors who are also
employees) of the Company or of a Parent or Subsidiary of the
Company. All other Awards may be granted to employees, officers,
directors, consultants, independent contractors and advisors of
the Company or any Parent or Subsidiary of the Company;
provided such consultants, contractors and advisors
render bona fide services not in connection with the offer and
sale of securities in a capital-raising transaction. No person
will be eligible to receive more than
24,000,0001
Shares in any calendar year under this Plan pursuant to the
1 Denotes
that such share number reflects the stock splits of eBay’s
common stock occurring in 3/99, 5/00,
8/03, and
2/05.
grant of Awards hereunder, other than new employees of the
Company or of a Parent or Subsidiary of the Company (including
new employees who are also officers and directors of the Company
or any Parent or Subsidiary of the Company), who are eligible to
receive up to a maximum of 48,000,0001 Shares in the
calendar year in which they commence their employment. A person
may be granted more than one Award under this Plan.
4. ADMINISTRATION.
4.1 Committee
Authority. This Plan will be administered by
the Committee or by the Board acting as the Committee. Subject
to the general purposes, terms and conditions of this Plan, and
to the direction of the Board, the Committee will have full
power to implement and carry out this Plan. Without limitation,
the Committee will have the authority to:
(a) construe and interpret this Plan, any Award Agreement
and any other agreement or document executed pursuant to this
Plan;
(b) prescribe, amend and rescind rules and regulations
relating to this Plan or any Award;
(c) select persons to receive Awards;
(d) determine the form and terms of Awards;
(e) determine the number of Shares or other consideration
subject to Awards;
(f) determine whether Awards will be granted singly, in
combination with, in tandem with, in replacement of, or as
alternatives to, other Awards under this Plan or any other
incentive or compensation plan of the Company or any Parent or
Subsidiary of the Company;
(g) grant waivers of Plan or Award conditions;
(h) determine the vesting, exercisability and payment of
Awards;
(i) correct any defect, supply any omission or reconcile
any inconsistency in this Plan, any Award or any Award Agreement;
(j) determine whether an Award has been earned; and
(k) make all other determinations necessary or advisable
for the administration of this Plan.
4.2 Committee
Discretion. Any determination made by the
Committee with respect to any Award will be made in its sole
discretion at the time of grant of the Award or, unless in
contravention of any express term of this Plan or Award, at any
later time, and such determination will be final and binding on
the Company and on all persons having an interest in any Award
under this Plan. The Committee may delegate to one or more
officers of the Company the authority to grant an Award under
this Plan to Participants who are not Insiders of the Company.
5. OPTIONS. The Committee
may grant Options to eligible persons and will determine whether
such Options will be Incentive Stock Options within the meaning
of the Code (“ISO”) or Nonqualified
Stock Options (“NQSOs”), the number of
Shares subject to the Option, the Exercise Price of the Option,
the period during which the Option may be exercised, and all
other terms and conditions of the Option, subject to the
following:
5.1 Form of Option
Grant. Each Option granted under this Plan
will be evidenced by an Award Agreement which will expressly
identify the Option as an ISO or an NQSO (“Stock
Option Agreement”), and will be in such form and
contain such provisions (which need not be the same for each
Participant) as the Committee may from time to time approve, and
which will comply with and be subject to the terms and
conditions of this Plan.
5.2 Date of Grant. The date
of grant of an Option will be the date on which the Committee
makes the determination to grant such Option, unless otherwise
specified by the Committee. The Stock Option Agreement and a
copy of this Plan will be delivered to the Participant within a
reasonable time after the granting of the Option.
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5.3 Exercise Period. Options
may be exercisable within the times or upon the events
determined by the Committee as set forth in the Stock Option
Agreement governing such Option; provided,
however, that no Option will be exercisable after the
expiration of ten (10) years from the date the Option is
granted; and provided further that no ISO granted to a
person who directly or by attribution owns more than ten percent
(10%) of the total combined voting power of all classes of stock
of the Company or of any Parent or Subsidiary of the Company(“Ten Percent Stockholder”) will be
exercisable after the expiration of five (5) years from the
date the ISO is granted. The Committee also may provide for
Options to become exercisable at one time or from time to time,
periodically or otherwise, in such number of Shares or
percentage of Shares as the Committee determines.
5.4 Exercise Price. The
Exercise Price of an Option will be determined by the Committee
when the Option is granted and may be not less than 85% of the
Fair Market Value of the Shares on the date of grant; provided
that: (i) the Exercise Price of an ISO will be not less
than 100% of the Fair Market Value of the Shares on the date of
grant; and (ii) the Exercise Price of any ISO granted to a
Ten Percent Stockholder will not be less than 110% of the Fair
Market Value of the Shares on the date of grant. Payment for the
Shares purchased may be made in accordance with Section 9
of this Plan.
5.5 Method of
Exercise. Options may be exercised only by
delivery to the Company of a written stock option exercise
agreement (the“Exercise Agreement”) in
a form approved by the Committee (which need not be the same for
each Participant), stating the number of Shares being purchased,
the restrictions imposed on the Shares purchased under such
Exercise Agreement, if any, and such representations and
agreements regarding Participant’s investment intent and
access to information and other matters, if any, as may be
required or desirable by the Company to comply with applicable
securities laws, together with payment in full of the Exercise
Price for the number of Shares being purchased.
5.6 Termination. Notwithstanding
the exercise periods set forth in the Stock Option Agreement,
exercise of an Option will always be subject to the following:
(a) If the Participant is Terminated for any reason except
death or Disability, then the Participant may exercise such
Participant’s Options only to the extent that such Options
would have been exercisable upon the Termination Date no later
than three (3) months after the Termination Date (or such
shorter or longer time period not exceeding five (5) years
as may be determined by the Committee, with any exercise beyond
three (3) months after the Termination Date deemed to be an
NQSO), but in any event, no later than the expiration date of
the Options.
(b) If the Participant is Terminated because of
Participant’s death or Disability (or the Participant dies
within three (3) months after a Termination other than for
Cause or because of Participant’s Disability), then
Participant’s Options may be exercised only to the extent
that such Options would have been exercisable by Participant on
the Termination Date and must be exercised by Participant (or
Participant’s legal representative or authorized assignee)
no later than twelve (12) months after the Termination Date
(or such shorter or longer time period not exceeding five
(5) years as may be determined by the Committee, with any
such exercise beyond (a) three (3) months after the
Termination Date when the Termination is for any reason other
than the Participant’s death or Disability, or
(b) twelve (12) months after the Termination Date when
the Termination is for Participant’s death or Disability,
deemed to be an NQSO), but in any event no later than the
expiration date of the Options.
(c) Notwithstanding the provisions in paragraph 5.6(a)
above, if a Participant is terminated for Cause, neither the
Participant, the Participant’s estate nor such other person
who may then hold the Option shall be entitled to exercise any
Option with respect to any Shares whatsoever, after termination
of service, whether or not after termination of service the
Participant may receive payment from the Company or Subsidiary
for vacation pay, for services rendered prior to termination,
for services rendered for the day on which termination occurs,
for salary in lieu of notice, or for any other benefits. In
making such determination, the Board shall give the Participant
an opportunity to present to the Board evidence on his behalf.
For the purpose of this paragraph, termination of service shall
be deemed to occur on the date when the Company dispatches
notice or advice to the Participant that his service is
terminated.
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5.7 Limitations on
Exercise. The Committee may specify a
reasonable minimum number of Shares that may be purchased on any
exercise of an Option, provided that such minimum number will
not prevent Participant from exercising the Option for the full
number of Shares for which it is then exercisable.
5.8 Limitations on ISO. The
aggregate Fair Market Value (determined as of the date of grant)
of Shares with respect to which ISO are exercisable for the
first time by a Participant during any calendar year (under this
Plan or under any other incentive stock option plan of the
Company, Parent or Subsidiary of the Company) will not exceed
$100,000. If the Fair Market Value of Shares on the date of
grant with respect to which ISO are exercisable for the first
time by a Participant during any calendar year exceeds $100,000,
then the Options for the first $100,000 worth of Shares to
become exercisable in such calendar year will be ISO and the
Options for the amount in excess of $100,000 that become
exercisable in that calendar year will be NQSOs. In the event
that the Code or the regulations promulgated thereunder are
amended after the Effective Date of this Plan to provide for a
different limit on the Fair Market Value of Shares permitted to
be subject to ISO, such different limit will be automatically
incorporated herein and will apply to any Options granted after
the effective date of such amendment.
5.9 Modification, Extension or
Renewal. The Committee may modify, extend or
renew outstanding Options and authorize the grant of new Options
in substitution therefor, provided that any such action may not,
without the written consent of a Participant, impair any of such
Participant’s rights under any Option previously granted.
Any outstanding ISO that is modified, extended, renewed or
otherwise altered will be treated in accordance with
Section 424(h) of the Code. The Committee may reduce the
Exercise Price of outstanding Options without the consent of
Participants affected by a written notice to them;
provided, however, that the Exercise Price may not
be reduced below the minimum Exercise Price that would be
permitted under Section 5.4 of this Plan for Options
granted on the date the action is taken to reduce the Exercise
Price.
5.10 No
Disqualification. Notwithstanding any other
provision in this Plan, no term of this Plan relating to ISO
will be interpreted, amended or altered, nor will any discretion
or authority granted under this Plan be exercised, so as to
disqualify this Plan under Section 422 of the Code or,
without the consent of the Participant affected, to disqualify
any ISO under Section 422 of the Code.
6. RESTRICTED STOCK. A
Restricted Stock Award is an offer by the Company to sell to an
eligible person Shares that are subject to restrictions. The
Committee will determine to whom an offer will be made, the
number of Shares the person may purchase, the price to be paid
(the “Purchase Price”), the restrictions
to which the Shares will be subject, and all other terms and
conditions of the Restricted Stock Award, subject to the
following:
6.1 Form of Restricted Stock
Award. All purchases under a Restricted Stock
Award made pursuant to this Plan will be evidenced by an Award
Agreement (“Restricted Stock Purchase
Agreement”) that will be in such form (which need
not be the same for each Participant) as the Committee will from
time to time approve, and will comply with and be subject to the
terms and conditions of this Plan. The offer of Restricted Stock
will be accepted by the Participant’s execution and
delivery of the Restricted Stock Purchase Agreement and full
payment for the Shares to the Company within thirty
(30) days from the date the Restricted Stock Purchase
Agreement is delivered to the person. If such person does not
execute and deliver the Restricted Stock Purchase Agreement
along with full payment for the Shares to the Company within
thirty (30) days, then the offer will terminate, unless
otherwise determined by the Committee.
6.2 Purchase Price. The
Purchase Price of Shares sold pursuant to a Restricted Stock
Award will be determined by the Committee on the date the
Restricted Stock Award is granted, except in the case of a sale
to a Ten Percent Stockholder, in which case the Purchase Price
will be 100% of the Fair Market Value. Payment of the Purchase
Price may be made in accordance with Section 9 of this Plan.
6.3 Terms of Restricted Stock
Awards. Restricted Stock Awards shall be
subject to such restrictions as the Committee may impose. These
restrictions may be based upon completion of a specified number
of years of service with the Company or upon completion of the
performance goals as set out in advance in the
Participant’s individual Restricted Stock Purchase
Agreement. Restricted Stock Awards may vary from Participant to
Participant and between groups of Participants. Prior to the
grant of a Restricted Stock Award,
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the Committee shall: (a) determine the nature, length and
starting date of any Performance Period for the Restricted Stock
Award; (b) select from among the Performance Factors to be
used to measure performance goals, if any; and
(c) determine the number of Shares that may be awarded to
the Participant. Prior to the payment of any Restricted Stock
Award, the Committee shall determine the extent to which such
Restricted Stock Award has been earned. Performance Periods may
overlap and Participants may participate simultaneously with
respect to Restricted Stock Awards that are subject to different
Performance Periods and having different performance goals and
other criteria.
6.4 Termination During Performance
Period. If a Participant is Terminated during
a Performance Period for any reason, then such Participant will
be entitled to payment (whether in Shares, cash or otherwise)
with respect to the Restricted Stock Award only to the extent
earned as of the date of Termination in accordance with the
Restricted Stock Purchase Agreement, unless the Committee will
determine otherwise.
7. RESTRICTED STOCK UNITS.
7.1 Awards of Restricted Stock
Units. The Committee is authorized to make
awards of Restricted Stock Units to any eligible person selected
by the Committee in such amounts and subject to such terms and
conditions as the Committee shall deem appropriate. On the
maturity date of a Restricted Stock Unit, the Company shall
transfer to the Participant one unrestricted, fully transferable
share of Common Stock for each Restricted Stock Unit scheduled
to be paid out on such date and not previously forfeited.
7.2 Form of Restricted Stock Unit
Award. All Awards of Restricted Stock Units
made pursuant to this Plan will be evidenced by an Award
Agreement (“Restricted Stock Unit
Agreement”) that will be in such form (which need
not be the same for each Participant) as the Committee will from
time to time approve, and will comply with and be subject to the
terms and conditions of this Plan.
7.3 Terms of Restricted Stock Unit
Awards. Restricted Stock Units shall be
subject to such terms and conditions as the Committee may
impose. These terms and conditions may include restrictions
based upon completion of a specified period of service with the
Company or upon completion of the performance goals as set out
in advance in the Participant’s individual Restricted Stock
Unit Agreement. The terms of Restricted Stock Units may vary
from Participant to Participant and between groups of
Participants. Prior to the grant of a Restricted Stock Unit
Award, the Committee shall: (a) determine the nature,
length and starting date of any Performance Period for the
Restricted Stock Unit; (b) select from among the
Performance Factors to be used to measure performance goals, if
any; and (c) determine the number of Shares that may be
awarded to the Participant pursuant to such Restricted Stock
Unit. Prior to the issuance of any Shares pursuant to any
Restricted Stock Unit, the Committee shall determine the extent
to which such Restricted Stock Unit has been earned. Performance
Periods may overlap and Participants may participate
simultaneously with respect to Restricted Stock Units that are
subject to different Performance Periods and having different
performance goals and other criteria.
7.4 Termination During Performance
Period. If a Participant is Terminated during
a Performance Period for any reason, then such Participant will
be entitled to payment (whether in Shares, cash or otherwise)
with respect to the Restricted Stock Unit only to the extent
earned as of the date of Termination in accordance with the
Restricted Stock Unit Agreement, unless the Committee will
determine otherwise.
8. STOCK BONUSES.
8.1 Awards of Stock
Bonuses. A Stock Bonus is an award of Shares
(which may consist of Restricted Stock) for services rendered to
the Company or any Parent or Subsidiary of the Company. A Stock
Bonus may be awarded for past services already rendered to the
Company, or any Parent or Subsidiary of the Company pursuant to
an Award Agreement (the “Stock Bonus
Agreement”) that will be in such form (which need
not be the same for each Participant) as the Committee will from
time to time approve, and will comply with and be subject to the
terms and conditions of this Plan. A Stock Bonus may be awarded
upon satisfaction of such performance goals as are set out in
advance in the Participant’s individual Award Agreement
(the“Performance Stock Bonus
Agreement”) that will be in such form (which need
not be the same for each Participant) as the Committee will from
time to time approve, and will comply with and be subject to the
terms and conditions of this Plan. Stock Bonuses may vary from
Participant to Participant and between groups of
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Participants, and may be based upon the achievement of the
Company, Parent or Subsidiary
and/or
individual performance factors or upon such other criteria as
the Committee may determine.
8.2 Terms of Stock
Bonuses. The Committee will determine the
number of Shares to be awarded to the Participant. If the Stock
Bonus is being earned upon the satisfaction of performance goals
pursuant to a Performance Stock Bonus Agreement, then the
Committee will: (a) determine the nature, length and
starting date of any Performance Period for each Stock Bonus;
(b) select from among the Performance Factors to be used to
measure the performance, if any; and (c) determine the
number of Shares that may be awarded to the Participant. Prior
to the payment of any Stock Bonus, the Committee shall determine
the extent to which such Stock Bonuses have been earned.
Performance Periods may overlap and Participants may participate
simultaneously with respect to Stock Bonuses that are subject to
different Performance Periods and different performance goals
and other criteria. The number of Shares may be fixed or may
vary in accordance with such performance goals and criteria as
may be determined by the Committee. The Committee may adjust the
performance goals applicable to the Stock Bonuses to take into
account changes in law and accounting or tax rules and to make
such adjustments as the Committee deems necessary or appropriate
to reflect the impact of extraordinary or unusual items, events
or circumstances to avoid windfalls or hardships.
8.3 Form of Payment. The
earned portion of a Stock Bonus may be paid currently or on a
deferred basis with such interest or dividend equivalent, if
any, as the Committee may determine. Payment may be made in the
form of cash or whole Shares or a combination thereof, either in
a lump sum payment or in installments, all as the Committee will
determine.
9. PAYMENT FOR SHARE PURCHASES.
9.1 Payment. Payment for
Shares purchased pursuant to this Plan may be made in cash (by
check) or, where expressly approved for the Participant by the
Committee and where permitted by law:
(a) by cancellation of indebtedness of the Company to the
Participant;
(b) by surrender of shares that either: (1) have been
owned by Participant for more than six (6) months and have
been paid for within the meaning of SEC Rule 144 (and, if
such shares were purchased from the Company by use of a
promissory note, such note has been fully paid with respect to
such shares); or (2) were obtained by Participant in the
public market;
(c) by tender of a full recourse promissory note having
such terms as may be approved by the Committee and bearing
interest at a rate sufficient to avoid imputation of income
under Sections 483 and 1274 of the Code; provided,
however, that Participants who are not employees or
directors of the Company will not be entitled to purchase Shares
with a promissory note unless the note is adequately secured by
collateral other than the Shares;
(d) by waiver of compensation due or accrued to the
Participant for services rendered;
(e) with respect only to purchases upon exercise of an
Option, and provided that a public market for the Company’s
stock exists:
(1) through a “same day sale” commitment from the
Participant and a broker-dealer that is a member of the National
Association of Securities Dealers (an “NASD
Dealer”) whereby the Participant irrevocably elects
to exercise the Option and to sell a portion of the Shares so
purchased to pay for the Exercise Price, and whereby the NASD
Dealer irrevocably commits upon receipt of such Shares to
forward the Exercise Price directly to the Company; or
(2) through a “margin” commitment from the
Participant and a NASD Dealer whereby the Participant
irrevocably elects to exercise the Option and to pledge the
Shares so purchased to the NASD Dealer in a margin account as
security for a loan from the NASD Dealer in the amount of the
Exercise Price, and whereby the NASD Dealer irrevocably commits
upon receipt of such Shares to forward the Exercise Price
directly to the Company; or
(f) by any combination of the foregoing.
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9.2 Loan Guarantees. The
Committee may help the Participant pay for Shares purchased
under this Plan by authorizing a guarantee by the Company of a
third-party loan to the Participant.
10. WITHHOLDING TAXES.
10.1 Withholding
Generally. Whenever Shares are to be issued
in satisfaction of Awards granted under this Plan, the Company
may require the Participant to remit to the Company an amount
sufficient to satisfy federal, state and local withholding tax
requirements prior to the delivery of any certificate or
certificates for such Shares. Whenever, under this Plan,
payments in satisfaction of Awards are to be made in cash, such
payment will be net of an amount sufficient to satisfy federal,
state, and local withholding tax requirements.
10.2 Stock
Withholding. When, under applicable tax laws,
a Participant incurs tax liability in connection with the
exercise or vesting of any Award that is subject to tax
withholding and the Participant is obligated to pay the Company
the amount required to be withheld, the Committee may in its
sole discretion allow the Participant to satisfy the minimum
withholding tax obligation by electing to have the Company
withhold from the Shares to be issued that number of Shares
having a Fair Market Value equal to the minimum amount required
to be withheld, determined on the date that the amount of tax to
be withheld is to be determined. All elections by a Participant
to have Shares withheld for this purpose will be made in
accordance with the requirements established by the Committee
and be in writing in a form acceptable to the Committee.
11. PRIVILEGES OF STOCK OWNERSHIP.
11.1 Voting and
Dividends. No Participant will have any of
the rights of a stockholder with respect to any Shares until the
Shares are issued to the Participant. After Shares are issued to
the Participant, the Participant will be a stockholder and have
all the rights of a stockholder with respect to such Shares,
including the right to vote and receive all dividends or other
distributions made or paid with respect to such Shares;
provided, that if such Shares are Restricted Stock, then
any new, additional or different securities the Participant may
become entitled to receive with respect to such Shares by virtue
of a stock dividend, stock split or any other change in the
corporate or capital structure of the Company will be subject to
the same restrictions as the Restricted Stock; provided,
further, that the Participant will have no right to
retain such stock dividends or stock distributions with respect
to Shares that are repurchased at the Participant’s
Purchase Price or Exercise Price pursuant to Section 13.
11.2 Financial
Statements.The Company will provide
financial statements to each Participant prior to such
Participant’s purchase of Shares under this Plan, and to
each Participant annually during the period such Participant has
Awards outstanding; provided, however, the Company
will not be required to provide such financial statements to
Participants whose services in connection with the Company
assure them access to equivalent information.
12. TRANSFERABILITY. Awards
granted under this Plan, and any interest therein, will not be
transferable or assignable by Participant, and may not be made
subject to execution, attachment or similar process, otherwise
than by will or by the laws of descent and distribution or as
determined by the Committee and set forth in the Award Agreement
with respect to Awards that are not ISOs. During the lifetime of
the Participant an Award will be exercisable only by the
Participant, and any elections with respect to an Award may be
made only by the Participant unless otherwise determined by the
Committee and set forth in the Award Agreement with respect to
Awards that are not ISOs.
13. RESTRICTIONS ON
SHARES. At the discretion of the Committee,
the Company may reserve to itself
and/or its
assignee(s) in the Award Agreement a right to repurchase a
portion of or all Unvested Shares held by a Participant
following such Participant’s Termination at any time within
ninety (90) days after the later of Participant’s
Termination Date and the date Participant purchases Shares under
this Plan, for cash
and/or
cancellation of purchase money indebtedness, at the
Participant’s Exercise Price or Purchase Price, as the case
may be.
14. CERTIFICATES. All
certificates for Shares or other securities delivered under this
Plan will be subject to such stock transfer orders, legends and
other restrictions as the Committee may deem necessary or
advisable,
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including restrictions under any applicable federal, state or
foreign securities law, or any rules, regulations and other
requirements of the SEC or any stock exchange or automated
quotation system upon which the Shares may be listed or quoted.
15. ESCROW; PLEDGE OF
SHARES. To enforce any restrictions on a
Participant’s Shares, the Committee may require the
Participant to deposit all certificates representing Shares,
together with stock powers or other instruments of transfer
approved by the Committee, appropriately endorsed in blank, with
the Company or an agent designated by the Company to hold in
escrow until such restrictions have lapsed or terminated, and
the Committee may cause a legend or legends referencing such
restrictions to be placed on the certificates. Any Participant
who is permitted to execute a promissory note as partial or full
consideration for the purchase of Shares under this Plan will be
required to pledge and deposit with the Company all or part of
the Shares so purchased as collateral to secure the payment of
Participant’s obligation to the Company under the
promissory note; provided, however, that the
Committee may require or accept other or additional forms of
collateral to secure the payment of such obligation and, in any
event, the Company will have full recourse against the
Participant under the promissory note notwithstanding any pledge
of the Participant’s Shares or other collateral. In
connection with any pledge of the Shares, Participant will be
required to execute and deliver a written pledge agreement in
such form as the Committee will from time to time approve. The
Shares purchased with the promissory note may be released from
the pledge on a pro rata basis as the promissory note is paid.
16. EXCHANGE AND BUYOUT OF
AWARDS. The Committee may, at any time or
from time to time, authorize the Company, with the consent of
the respective Participants, to issue new Awards in exchange for
the surrender and cancellation of any or all outstanding Awards.
The Committee may at any time buy from a Participant an Award
previously granted with payment in cash, Shares (including
Restricted Stock) or other consideration, based on such terms
and conditions as the Committee and the Participant may agree.
17. SECURITIES LAW AND OTHER REGULATORY
COMPLIANCE. An Award will not be effective
unless such Award is in compliance with all applicable federal
and state securities laws, rules and regulations of any
governmental body, and the requirements of any stock exchange or
automated quotation system upon which the Shares may then be
listed or quoted, as they are in effect on the date of grant of
the Award and also on the date of exercise or other issuance.
Notwithstanding any other provision in this Plan, the Company
will have no obligation to issue or deliver certificates for
Shares under this Plan prior to: (a) obtaining any
approvals from governmental agencies that the Company determines
are necessary or advisable;
and/or
(b) completion of any registration or other qualification
of such Shares under any state or federal law or ruling of any
governmental body that the Company determines to be necessary or
advisable. The Company will be under no obligation to register
the Shares with the SEC or to effect compliance with the
registration, qualification or listing requirements of any state
securities laws, stock exchange or automated quotation system,
and the Company will have no liability for any inability or
failure to do so.
18. NO OBLIGATION TO
EMPLOY. Nothing in this Plan or any Award
granted under this Plan will confer or be deemed to confer on
any Participant any right to continue in the employ of, or to
continue any other relationship with, the Company or any Parent
or Subsidiary of the Company or limit in any way the right of
the Company or any Parent or Subsidiary of the Company to
terminate Participant’s employment or other relationship at
any time, with or without cause.
19. CORPORATE TRANSACTIONS.
19.1 Assumption or Replacement of Awards by
Successor. In the event of (a) a
dissolution or liquidation of the Company, (b) a merger or
consolidation in which the Company is not the surviving
corporation (other than a merger or consolidation with a
wholly-owned subsidiary, a reincorporation of the Company in a
different jurisdiction, or other transaction in which there is
no substantial change in the stockholders of the Company or
their relative stock holdings and the Awards granted under this
Plan are assumed, converted or replaced by the successor
corporation, which assumption will be binding on all
Participants), (c) a merger in which the Company is the
surviving corporation but after which the stockholders of the
Company immediately prior to such merger (other than any
stockholder that merges, or which owns or controls another
corporation that merges, with the Company in such merger) cease
to own their shares or other equity interest in the Company,
(d) the sale of substantially all of the assets of the
Company, or (e) the
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acquisition, sale, or transfer of more than 50% of the
outstanding shares of the Company by tender offer or similar
transaction, any or all outstanding Awards may be assumed,
converted or replaced by the successor corporation (if any),
which assumption, conversion or replacement will be binding on
all Participants. In the alternative, the successor corporation
may substitute equivalent Awards or provide substantially
similar consideration to Participants as was provided to
stockholders (after taking into account the existing provisions
of the Awards). The successor corporation may also issue, in
place of outstanding Shares of the Company held by the
Participant, substantially similar shares or other property
subject to repurchase restrictions no less favorable to the
Participant. In the event such successor corporation (if any)
refuses to assume or substitute Awards, as provided above,
pursuant to a transaction described in this
Subsection 19.1, such Awards will expire on such
transaction at such time and on such conditions as the Committee
will determine. Notwithstanding anything in this Plan to the
contrary, the Committee may, in its sole discretion, provide
that the vesting of any or all Awards granted pursuant to this
Plan will accelerate upon a transaction described in this
Section 19. If the Committee exercises such discretion with
respect to Options, such Options will become exercisable in full
prior to the consummation of such event at such time and on such
conditions as the Committee determines, and if such Options are
not exercised prior to the consummation of the corporate
transaction, they shall terminate at such time as determined by
the Committee.
19.2 Other Treatment of
Awards. Subject to any greater rights granted
to Participants under the foregoing provisions of this
Section 19, in the event of the occurrence of any
transaction described in Section 19.1, any outstanding
Awards will be treated as provided in the applicable agreement
or plan of merger, consolidation, dissolution, liquidation, or
sale of assets.
19.3 Assumption of Awards by the
Company.The Company, from time to time, also
may substitute or assume outstanding awards granted by another
company, whether in connection with an acquisition of such other
company or otherwise, by either; (a) granting an Award
under this Plan in substitution of such other company’s
award; or (b) assuming such award as if it had been granted
under this Plan if the terms of such assumed award could be
applied to an Award granted under this Plan. Such substitution
or assumption will be permissible if the holder of the
substituted or assumed award would have been eligible to be
granted an Award under this Plan if the other company had
applied the rules of this Plan to such grant. In the event the
Company assumes an award granted by another company, the terms
and conditions of such award will remain unchanged
(except that the exercise price and the number and nature
of Shares issuable upon exercise of any such option will be
adjusted appropriately pursuant to Section 424(a) of the
Code). In the event the Company elects to grant a new Option
rather than assuming an existing option, such new Option may be
granted with a similarly adjusted Exercise Price.
20. ADOPTION AND STOCKHOLDER
APPROVAL. This Plan will become effective on
the date on which the registration statement filed by the
Company with the SEC under the Securities Act registering the
initial public offering of the Company’s Common Stock is
declared effective by the SEC (the “Effective
Date”). This Plan shall be approved by the
stockholders of the Company (excluding Shares issued pursuant to
this Plan), consistent with applicable laws, within twelve
(12) months before or after the date this Plan is adopted
by the Board. Upon the Effective Date, the Committee may grant
Awards pursuant to this Plan; provided, however,
that: (a) no Option may be exercised prior to initial
stockholder approval of this Plan; (b) no Option granted
pursuant to an increase in the number of Shares subject to this
Plan approved by the Board will be exercised prior to the time
such increase has been approved by the stockholders of the
Company; (c) in the event that initial stockholder approval
is not obtained within the time period provided herein, all
Awards granted hereunder shall be cancelled, any Shares issued
pursuant to any Awards shall be cancelled and any purchase of
Shares issued hereunder shall be rescinded; and (d) in the
event that stockholder approval of such increase is not obtained
within the time period provided herein, all Awards granted
pursuant to such increase will be cancelled, any Shares issued
pursuant to any Award granted pursuant to such increase will be
cancelled, and any purchase of Shares pursuant to such increase
will be rescinded.
21. TERM OF PLAN/GOVERNING
LAW. Unless earlier terminated as provided
herein, this Plan will terminate ten (10) years from the
date this Plan is adopted by the Board or, if earlier, the date
of stockholder approval. This Plan and all agreements thereunder
shall be governed by and construed in accordance with the laws
of the State of California.
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22. AMENDMENT OR TERMINATION OF
PLAN. The Board may at any time terminate or
amend this Plan in any respect, including without limitation
amendment of any form of Award Agreement or instrument to be
executed pursuant to this Plan; provided, however,
that the Board will not, without the approval of the
stockholders of the Company, amend this Plan in any manner that
requires such stockholder approval.
23. NONEXCLUSIVITY OF THE
PLAN. Neither the adoption of this Plan by
the Board, the submission of this Plan to the stockholders of
the Company for approval, nor any provision of this Plan will be
construed as creating any limitations on the power of the Board
to adopt such additional compensation arrangements as it may
deem desirable, including, without limitation, the granting of
stock options and bonuses otherwise than under this Plan, and
such arrangements may be either generally applicable or
applicable only in specific cases.
24. DEFINITIONS. As used in
this Plan, the following terms will have the following meanings:
“Award” means any award under this Plan,
including any Option, Restricted Stock, Restricted Stock Unit or
Stock Bonus.
“Award Agreement” means, with respect to each
Award, the signed written agreement between the Company and the
Participant setting forth the terms and conditions of the Award.
“Board” means the Board of Directors of the
Company.
“Cause” means the commission of an act of
theft, embezzlement, fraud, dishonesty or a breach of fiduciary
duty to the Company or a Parent or Subsidiary of the Company.
“Code” means the Internal Revenue Code of 1986,
as amended.
“Committee” means the Compensation Committee of
the Board.
“Company” means eBay Inc. or any successor
corporation.
“Disability” means a disability, whether
temporary or permanent, partial or total, as determined by the
Committee.
“Equity Restructuring” means a non-reciprocal
transaction (i.e. a transaction in which the Company does not
receive consideration or other resources in respect of the
transaction approximately equal to and in exchange for the
consideration or resources the Company is relinquishing in such
transaction) between the Company and its stockholders, such as a
stock split, spin-off, rights offering, nonrecurring stock
dividend or recapitalization through a large, nonrecurring cash
dividend, that affects the shares of the Company’s Common
Stock (or other securities of the Company) or the share price of
the Company’s Common Stock (or other securities) and causes
a change in the per share value of the Shares underlying
outstanding Awards.
“Exchange Act” means the Securities Exchange
Act of 1934, as amended.
“Exercise Price” means the price at which a
holder of an Option may purchase the Shares issuable upon
exercise of the Option.
“Fair Market Value” means, as of any date, the
value of a share of the Company’s Common Stock determined
as follows:
(a) if such Common Stock is then quoted on the Nasdaq
National Market, its closing price on the Nasdaq National Market
on the date of determination as reported in The Wall Street
Journal;
(b) if such Common Stock is publicly traded and is then
listed on a national securities exchange, its closing price on
the date of determination on the principal national securities
exchange on which the Common Stock is listed or admitted to
trading as reported in The Wall Street Journal;
(c) if such Common Stock is publicly traded but is not
quoted on the Nasdaq National Market nor listed or admitted to
trading on a national securities exchange, the average of the
closing bid and asked prices on the date of determination as
reported in The Wall Street Journal;
(d) in the case of an Award made on the Effective Date, the
price per share at which shares of the Company’s Common
Stock are initially offered for sale to the public by the
Company’s underwriters in
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the initial public offering of the Company’s Common Stock
pursuant to a registration statement filed with the SEC under
the Securities Act; or
(e) if none of the foregoing is applicable, by the
Committee in good faith.
“Insider” means an officer or director of the
Company or any other person whose transactions in the
Company’s Common Stock are subject to Section 16 of
the Exchange Act.
“Option” means an award of an option to
purchase Shares pursuant to Section 5.
“Parent” means any corporation (other than the
Company) in an unbroken chain of corporations ending with the
Company if each of such corporations other than the Company owns
stock possessing 50% or more of the total combined voting power
of all classes of stock in one of the other corporations in such
chain.
“Participant” means a person who receives an
Award under this Plan.
“Performance Factors” means the factors
selected by the Committee from among the following measures to
determine whether the performance goals established by the
Committee and applicable to Awards have been satisfied:
(a) Net revenue
and/or net
revenue growth;
(b) Earnings before income taxes and amortization
and/or
earnings before income taxes and amortization growth;
(c) Operating income
and/or
operating income growth;
(d) Net income
and/or net
income growth;
(e) Earnings per share
and/or
earnings per share growth;
(f) Total stockholder return
and/or total
stockholder return growth;
(g) Return on equity;
(h) Operating cash flow return on income;
(i) Adjusted operating cash flow return on income;
(j) Economic value added; and
(k) Individual confidential business objectives.
“Performance Period” means the period of
service determined by the Committee, not to exceed five years,
during which years of service or performance is to be measured
for Restricted Stock Awards. Restricted Stock Units or Stock
Bonuses.
“Plan” means this eBay Inc. 1998 Equity
Incentive Plan, as amended from time to time.
“Restricted Stock Award” means an award of
Shares pursuant to Section 6.
“Restricted Stock Unit” means an Award granted
pursuant to Section 7.
“SEC” means the Securities and Exchange
Commission.
“Securities Act” means the Securities Act of
1933, as amended.
“Shares” means shares of the Company’s
Common Stock reserved for issuance under this Plan, as adjusted
pursuant to Sections 2 and 19, and any successor
security.
“Stock Bonus” means an award of Shares, or cash
in lieu of Shares, pursuant to Section 8.
“Subsidiary” means any corporation (other than
the Company) in an unbroken chain of corporations beginning with
the Company if each of the corporations other than the last
corporation in the unbroken chain owns stock possessing 50% or
more of the total combined voting power of all classes of stock
in one of the other corporations in such chain.
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“Termination” or “Terminated”
means, for purposes of this Plan with respect to a Participant,
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 a Parent or
Subsidiary of the Company. An employee 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
Award while on leave from the employ of the Company or a
Subsidiary as it may deem appropriate, except that in no event
may an Option be exercised after the expiration of the term set
forth in the Option agreement. The Committee will have sole
discretion to determine whether a Participant has ceased to
provide services and the effective date on which the Participant
ceased to provide services (the “Termination
Date”).
“Unvested Shares” means “Unvested
Shares” as defined in the Award Agreement.
“Vested Shares” means “Vested Shares”
as defined in the Award Agreement.
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Dates Referenced Herein and Documents Incorporated by Reference