EMPLOYMENT CONTRACT
Exhibit 10.42
EMPLOYMENT CONTRACT
Between:
Skype Communications Sarl
00 xxx Xxxxx-Xxxx
X-0000 Xxxxxxxxxx
Xxxxxxxxxx
represented by: Xxx Xxxxxx
hereinafter referred to as Skype or the Employer
and
Xxxxx Xxxxxxxxx
00 Xxxxxxxxx Xxxx
Xxxxxxxxx
Xx. Xxxxxx
hereinafter referred to as the Employee.
WHEREAS
Skype requires the services of a Vice President of Finance and Chief Financial Officer
AND
The Employee will provide these services
IT IS HEREBY AGREED
| 1. | DEFINITIONS |
The expression “Skype” shall be deemed unless otherwise expressly stated to refer to and to include its respective servants and agents. The “Skype Group” refers to Skype Communications Sarl. and its direct and indirect subsidiaries.
| 2. | PROVISION OF THE EMPLOYEE |
The Employee undertakes to provide Skype with the Services in accordance with the terms hereof and for the duration of this agreement.
| 3. | PERIOD |
This Agreement shall commence on 1st February 2007 for the indefinite period and is subject to a six months notice period from either party. Provisions defined in Paragraph 9.
| 4. | PLACE |
The Place of Service is at the registered address of Skype Communications in Luxembourg or other such address of the Skype Group as deemed appropriate and mutually agreed. It will be necessary to travel for business purposes.
| 5. | SERVICES OF THE EMPLOYEE |
The Employee undertakes throughout the duration of this Agreement to work an average of 40 hours per week during normal working hours between 9:00 and 18:00. The nature of the work is such that a flexible arrangement of working hours may best fir the Employer’s and Employee’s needs due to timezone differences, peak levels of work, etc. and to the extent deemed appropriate and mutually agreed a flexible working hour arrangement may be implemented.
It is expressly agreed that the Employee shall occupy an effective management position in the meaning of Section VI of the co-ordinated Luxembourg Act of December 5, 1989 on the duration of work. The hours worked in addition to those provided in the work schedule shall consequently not give rise to any additional salary nor compensatory time off.
| 6. | ABSENCE/HOLIDAYS |
| (a) | The Employee shall notify Skype of absence due to accident, sickness, holidays or |
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| unforeseeable circumstances as soon as is reasonably practicable. The Employee is entitled to full paid benefit for holidays. The number of holidays the Employee is entitled to shall be those defined under the current Labor Laws of Luxembourg. The timing of any holiday is subject to agreement by the Employer and shall take into account the Employer’s business interests. |
| (b) | The Employee shall not take holidays exceeding the number of days he is legally entitled to even in the case where the holidays taken may be ‘unpaid holidays’ unless prior written permission has been granted. |
| 7. | SALARY & BENEFITS |
| (a) | In consideration of the Services to be provided by the Employee hereunder Skype shall pay to the Employee EUR 16,667 per month, payable on the last working day of the month to the bank account indicated by the employee, after deduction of any social security contributions or income tax. |
| (b) | You will be entitled to benefits that Skype customarily makes available to employees in positions comparable to this level. |
| (c) | You will also be eligible to participate in the Skype Bonus Plan, as amended each year Your maximum bonus under the plan will be EUR 50,000 per annum; however, your participation and eligibility to receive any Bonus will be determined in accordance with the express terms of the Skype Bonus Plan. The bonus will be payable in 4 parts annually. All forms of compensation referred to in this Agreement are subject to reduction to reflect applicable payroll taxes. |
| (d) | As the Employee’s job may require traveling, the Employee hereby expressly agrees to travel whenever they may be requests. Related traveling expenses and similar out of pocket expenses reasonably and properly incurred by the Employee in or about the performances of their duties will be reimbursed to the Employee on the basis of guidelines set by the Employer and against receipts. |
| 8. | SECURITY/CONFIDENTIALITY/INVENTIONS |
| (a) | As a condition of employment, the Employee shall sign and comply with a Non-competitive and Confidentiality Agreement and an Employee Proprietary Information and Inventions Agreement concerning the non-disclosure of secret and confidential information which may come to his/her notice and concerning inventions as a result of working for Skype. |
| (b) | Upon termination or expiration of this Agreement the Employee shall return to Skype equipment, documents, brochures, books, manuals and or any other property belonging to Skype or Skype’s clients in their possession. |
| (c) | The terms of this Agreement are to be kept confidential. |
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| 9. | NOTICE PERIOD |
| (a) | Notice of Termination of this Contract Agreement shall be given in writing. In cases of gross negligence, the Employer reserves the right to terminate the Agreement immediately through oral notification. Such Termination will be confirmed in writing. |
| (b) | Subject to a notice provision of 6 months, the Employee’s and Employer’s right to terminate this Agreement are as defined in current Luxembourg law. |
| 10. | NOTICES |
All notices, consents, and like given under this Agreement shall be delivered or sent by registered or recorded delivery post addressed to the other party at its address as herein set out or to such other address as such party shall designate in writing for that purpose to the other and all such notices and consents shall be deemed to be given on the day of delivery if delivered and on the day following the date of posting if sent by registered or recorded delivery post.
Alternatively, notices and consents may be delivered personally, whereby the recipient is required to sign and date a copy of the notice or consent as proof of receipt.
| 11. | SEVERANCE |
In the event that any provision of this Agreement is declared by any judicial or other competent authority to be unenforceable or that indication of the same are received from any relevant competent authority such provision shall be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect.
| 12. | INTERPRETATION |
In this Agreement reference to the singular number shall include the plural number and vice versa and reference to any gender shall be deemed to include all genders.
| 13. | VARIATION |
The Employer and Employee may agree to a variation or extension of the provisions herein and the Employer and Employee agree to be bound by all such varied or extended provisions. No variation to the terms of this Agreement shall be valid unless in writing and signed by the Employee and by a Director of Skype Communications Sarl.
| 14. | LUXEMBOURG LAW |
| 15. | This Agreement shall be governed by the Laws of the Grand Duchy of Luxembourg. |
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| Signed: | ||
| By: | /S/ XXX XXXXXX | |
| Name: | Xxx Xxxxxx | |
| Date: 9 January 2007 | ||
| Place: Luxembourg | ||
| For Skype Communications: Xxx Xxxxxx | ||
Position: Senior Manager Tax and Statutory Reporting
| Employee: | Xxxxx Xxxxxxxxx | |
| By: | /S/ XXXXX XXXXXXXXX | |
| Name: | Xxxxx Xxxxxxxxx | |
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NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
TO: Skype Technologies S.A., a Luxembourg corporation, including any subsidiary, mother company or affiliated company thereof (the “Corporation”)
The undersigned, in consideration of continued or anticipated employment or consulting assignment with the Corporation (“Employment”) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, hereby covenants and agrees with the Corporation as follows:
| 1. | Non-Competition. The undersigned recognizes and understands that in performing the duties and responsibilities of my Employment with the Corporation, I will occupy a position of trust and confidence, pursuant to which I will develop and acquire wide experience and knowledge with respect to all aspects of the business carried on by the Corporation and the manner in which such businesses are conducted. It is the express intent and agreement of the undersigned and the Corporation that such knowledge and experience shall be used solely and exclusively in furtherance of the business interest of the Corporation and its affiliates and not in any manner which would be detrimental to any of them. The undersigned therefore agrees that so long as I am employed or engaged by the Corporation and for a period of six months from the expiration of such Employment for any reason whatsoever, unless I obtain the prior written consent of the Corporation, I shall not directly or indirectly own any interest in a business enterprise which is in significant competition (as reasonably determined by the Corporation) with the business of the Corporation as it exists at the earlier of the date at which such ownership begins and the date of the expiration of my Employment with the Corporation. |
| 2. | Disclosure of Information. The undersigned acknowledges and understands that the Corporation has expanded and will be expanding considerable time and money in acquiring and developing as well as receiving from third parties trade secrets, products, technology, sales literature and brochures, form contracts, other form documents, customer lists, marketing or sales strategies and other information (the “confidential data”) and that the undersigned, by virtue of my position of responsibility with the Corporation will have access to such confidential data. |
The undersigned, therefore, covenants and agrees that, during the term of my Employment and any time thereafter, I will not, directly or indirectly, in any manner or for any reason whatsoever (other than in the ordinary and usual course of the Corporation’s business), disclose to any person, firm or corporation any of the confidential data, except such confidential data as you can establish was a matter of public knowledge as of the data of any such disclosure.
Upon the termination of my Employment, I agree to return to the Corporation all confidential data embodied or recorded in tangible form which is in my possession or control.
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| 3. | Non-Solicitation. I agree that for a period of six months following the expiration of my Employment, I shall not, directly or indirectly, contact any of the persons, clients, companies or institutions which I have contacted on behalf of the Corporation during the course of my Employment for the purpose or intent of competing with the Corporation. |
I further agree that for a period of six months following the expiration of my Employment I shall not solicit orders for any product similar to or capable of being used in place of the products distributed and sold by the Corporation to any person or company to whom the Corporation has sold such products at any time during the one year period preceding the expiration of my employment or supply any such product to any such person.
| 4. | Hiring Corporation Employees: The undersigned covenants and agrees that during the term of my Employment and for a period of one year after the termination of such Employment I will not, directly or indirectly, in any manner or for any reason whatsoever, offer to agree to hire any employee of the Corporation or induce any or conspire to induce any employee of the Corporation to break his or her contract of employment with the Corporation or to leave the employment of the Corporation under conditions that are contrary to the terms of his or her employment. |
| 5. | Ownership of Work. The undersigned expressly acknowledges that all proprietary interests, including intellectual property interests, resulting from the services carried out by the undersigned, directly or indirectly resulting from my duties and obligations as an employee or consultant of the Corporation, shall be the property of the Corporation or such party as the Corporation may direct in writing and I agree to sign such documentation as requested by the Corporation to confirm such ownership. Without limitation, all working papers, notes and memoranda which are made or obtained in relation to this letter agreement shall be the property of the Corporation or such party as the Corporation may direct in writing and will accordingly be provided to the Corporation upon termination of this Agreement or at such earlier time as the Corporation may direct in writing. |
| 6. | Waiver and Moral Rights. The undersigned hereby expressly and irrevocably waives any and all moral rights or at common law that you, as author, have with respect limitation, the right to attribution of authorship, the right to restrain any distortion, mutilation or other modification of any such work and the right to prohibit any use of any such work in association with a product, service, cause or institution that might be prejudicial to your honour or reputation. |
| 7. | Further assistance. The undersigned agrees that upon the written request of the Corporation, I will do all such acts and execute all such further documents, conveyances, deeds, assignments, transfer and the like, and will cause the doing of all such acts and will cause the execution of all such further documents as are within your power to cause the doing or execution of, as the Corporation may from time to time reasonably request be done and/or executed as may be necessary or desirable to give effect to this agreement. |
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| 8. | Term of Agreement. This agreement shall survive the termination of my employment with the Corporation. |
TO WITNESS THIS AGREEMENT, the undersigned has duly signed and sealed the Non-Competition and Confidentiality Agreement on day of , 2007.
| By: | /S/ XXXXX XXXXXXXXX |
Xxxxx Xxxxxxxxx |
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| Name: | Xxxxx Xxxxxxxxx | Name: | (Print) | |||||||
| Witness | ||||||||||
| By: | /S/ (ILLEGIBLE) |
|||||||||
| Name: | ||||||||||
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Skype Communications Sarl
EMPLOYEE PROPRIETARY INFORMATION
In consideration of my employment by Skype Communications Sarl. (the “Company”), and the compensation paid to me, I hereby agree as follows:
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EXHIBIT A
TO: Skype Communications Sarl.
FROM: XXXXX XXXXXXXXX
DATE: 9/1/2007
SUBJECT: Previous Inventions
1. Except as listed in Section 2 below, the following is a complete list of all inventions or improvements relevant to the subject matter of my employment by Skype Communications Sarl. (the “Company”) that have been made or conceived or first reduced to practice by me alone or jointly with others prior to my engagement by the Company:
| X | No inventions or improvements. |
See below:
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Additional sheets attached.
2. Due to a prior confidentiality agreement, I cannot complete the disclosure under Section 1 above with respect to inventions or improvements generally listed below, the proprietary rights and duty of confidentiality with respect to which I owe to the following party(ies):
| Invention or Improvement |
Party(ies) |
Relationship | ||||
| 1. |
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| 2. |
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| 3. |
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Additional sheets attached.
Skype (logo)
2nd January 2007
Dear Xxxxx,
Congratulations on your new position with Skype!
Graebel Relocations Services Worldwide has been selected to coordinate and administer your relocation benefits package. Graebel Relocations Services Worldwide will be contacting you to explain your relocation package in further detail and help you make the best use of the services and support available within the structure of the Skype relocation policy.
Skype will cover up to US$10,000.00 of the following:
| • | Visa assistance |
| • | Temporary Accommodation |
| • | Storage of belongings for 30 days |
| • | Shipment of home contents |
| • | An economy airfare for the Skype employee and their immediate family |
| • | Tax Consultation |
When you are working with the relocation vendor, you will need to determine what costs/items you want covered. For example, you may choose temporary housing; economy transportation and a tax consultation and forego the shipment of household goods and storage. Or, you may take shipment of goods and temporary storage (using your entire budget); and you will be responsible for your temporary accommodation. If the items you choose cost less than US$10K, you do not get the difference in cash.
The total cannot exceed US$10,000.
In acceptance to receiving this benefit package, please sign the Relocation Agreement below.
We wish you the best in your new location and continued success!
Skype HR
Skype (Logo)
RELOCATION AGREEMENT
In consideration for my employment, and the agreement by Skype, to provide for the above mentioned relocation expenses and other expenses as determined by Skype policy, I agree to the following:
1. Should my employment with eBay terminate for reasons of cause or resignation within two years of my start date, this moving allowance must be repaid according to the following schedule: payment in full if termination occurs within one year; 50% repayment if termination occurs between one and two years. No repayment would be required for termination after two years of employment.
2. I authorize Skype, to withhold from any monies due to me at the time of termination necessary to satisfy this obligation, above those sums exempt from attachment under Federal and State laws.
| PRINT NAME: | Xxxxx Xxxxxxxxx |
| SIGNATURE: | /S/ XXXXX XXXXXXXXX | |
| Name: Xxxxx Xxxxxxxxx | ||
| Date: | 09/01/07 | |
eBay Inc.
0000 Xxxxxxxx Xxx.
Xxx Xxxx, XX 00000
xxx.xxxx.xxx
29 November 2006
Xxxxx Xxxxxxxxx
54 Carysfort Part
Blackrock
Co Dublin
Re: Stock Options of eBay Inc.
Dear Xxxxx:
We are pleased to welcome you to the family of eBay Inc. (“eBay”) companies. As a new member of the eBay family and an employee of Skype Technologies SA (the “Company”), it will be proposed to the Board of Directors of eBay to award to you a one-time grant of stock options totaling 11,025 shares. The exercise price will be determined on the date of grant. The option will be subjected to the terms of the applicable stock option plan and will vest and become exercisable (assuming your continued employment with an eBay Inc. company) at the rate of 25% of the shares on your first anniversary as an employee of an eBay Inc. company and the remaining shares will vest ratably 1/48th per month thereafter.
You acknowledge that your participation in the stock option plan of eBay is voluntary and that the benefits under any grant and the underlying stock option plan will not be part of your employment contract with the Company, your salary or other remuneration for any purposes, including for purposes of computing payment during the notice period, payment in lieu of notice, severance pay or other termination compensation or indemnity (if any). The benefits under the plan will be available to you only during the course of your employment with an eBay company, and the vesting of any option will cease upon termination of employment for any reason, in accordance with the terms and conditions of the plan. eBay reserves the absolute right in its sole discretion to suspend, modify, cancel or terminate its stock option plan at any time without compensation to you. You acknowledge, by participating in the eBay Inc. option program, that:
| (i) | the grant of the above-mentioned option grant will be a voluntary and discretionary benefit which will not create any contractual or other right to receive future grants of options, or benefits in lieu of options, even if options have been granted repeatedly in the past; |
| (ii) | all decisions with respect to any future grants not referred to in this letter, including, but not limited to, the times when options will be granted, the number of shares subject to each option, the option price, and the time or times when each option will be exercisable, will be at the sole discretion of eBay; |
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| (iii) | the future value of the underlying shares of eBay’s common stock is unknown and cannot be predicted with certainty; and |
| (iv) | if the underlying shares do not increase in value, the option will have no value. |
Additionally, you will be responsible for complying with any applicable legal requirements in connection with your participation in the stock option plan of eBay Inc. and for any taxes or social insurance contribution obligations arising from the grant, vesting or exercise of your options, sale of shares or dividends on shares (regardless of any tax withholding and/or reporting obligation of eBay or the Company), and you agree to seek advice from your personal accountant or tax advisor at your own expense regarding the tax implications of any stock option grant to you.
Once again, we are pleased to welcome you to the eBay family and we look forward to a mutually beneficial employment relationship.
| Sincerely, |
| Xxx Xxxxxxx |
| President and CEO eBay Inc. |
| ACKNOWLEDGED AND AGREED: | ||
| By: | /s/ XXXXX XXXXXXXXX | |
| Name: | Xxxxx Xxxxxxxxx | |
| Date: | 09/01/2007 | |
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Skype employees in Luxembourg
| Re: | Xxxxxxx Xxxxxxx Policy for employees in Luxembourg. |
Dear All:
Enclosed is a copy of the eBay’s Xxxxxxx Xxxxxxx Policy. PLEASE READ IT VERY CAREFULLY. As it indicates, the consequences of insider dealing can be very serious to both you and the Company.
To show that you have read the Xxxxxxx Xxxxxxx Policy and agree to be bound by them, please sign and return the attached copy of this letter to Maikao Grarc.
| Yours truly, |
| Xxxxxx Xxxxxxxxx, CEO |
| Skype |
CERTIFICATION
I certify that I have read, understand and agree to comply with the Xxxxxxx Xxxxxxx Policy of eBay Inc. (the “Company”) and its subsidiaries, including Skype Communications S.a.r.l (Skype). I agree that I will be subject to sanctions, including, for employees, termination of employment, for violation of the Company’s policy, and that the Company may give stop-transfer and other instructions to the Company’s transfer agent against the transfer of Company securities by myself in a transaction that the Company considers to be in contravention of its policy.
| By: | /S/ XXXXX XXXXXXXXX | |
| (Signature) | ||
| Name: | Xxxxx Xxxxxxxxx |
| Printed name: | Xxxxx Xxxxxxxxx | |
| Date signed: | 09/02/2007 | |
eBay Inc.
XXXXXXX XXXXXXX POLICY For Employees in Luxembourg.
Effective Date: June 1, 2005
PURPOSE
This policy is designed to prevent actual or apparent violations of securities laws governing (1) trading any securities related to eBay Inc. (together with its majority-owned subsidiaries, “eBay”) while having material non-public and/or inside information concerning eBay and (2) tipping or disclosing material non-public and/or inside information to outsiders and also to ensure compliance with Luxembourg laws.
SCOPE
This policy covers all eBay directors, officers, employees, consultants and contractors, as well as members of their families and others living in their households as well as any other entities (such as trusts, partnerships and corporations) over which eBay directors, officers, employees, consultants or contractors have or share voting or investment control (collectively referred to herein as “you”,). You must ensure that your families and other members of your household, as well as any entities over which you may exercise voting or investment control, comply with these policies.
For purposes of this policy, eBay has established the following categories:
| • | Section 16 Parties: Exhibit A lists the people subject to the reporting provisions and trading restrictions under Section 16 of the Securities Exchange Act of 1934, as amended, or “Section 16.” |
| • | Level 1 and Level 2 Insiders: Exhibit B lists additional persons who may have access to material non-public information in the normal course of their duties for eBay, or also referred to collectively as “Insiders,” and lists certain Insiders as “Level 1 Insiders” and others as “Level 2 Insiders.” |
DEFINITION OF “MATERIAL NON-PUBLIC INFORMATION” OR “INSIDE INFORMATION”
“MATERIAL” INFORMATION. Information about eBay is “material” if it would be something someone might want to know before buying or selling eBay’s stock or other securities. Both positive and negative information may be material. Examples include: financial results or projections; significant changes in financial performance or liquidity; potential mergers and acquisitions, joint ventures or material sales of eBay assets or subsidiaries; significant pricing changes; significant litigation exposure or developments; stock splits, securities/debt offerings, significant new services; and major changes in senior management.
“NON-PUBLIC” INFORMATION. Information is “public” only after eBay has formally disclosed it or it is otherwise widely available to the general public, and the public has had
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reasonable opportunity to digest it. eBay considers information as public after the close of trading on the second full trading day following eBay’s widespread public release of the information.
“INSIDE” INFORMATION. Information is inside information if it (a) relates to eBay stock or other securities or its business prospects rather than to securities or companies generally; (b) is specific or precise; (c) has not been “made public”; and (d) were made public would be likely to have a significant affect on the price of eBay stock or other securities. For these purposes information has been “made public” if it is published under the rules of a regulated market (such as NASDAQ) to inform investors and professional advisors; is contained in public records; can easily be obtained by those likely to deal in securities; or is derived from information which has been made public. The circumstances in which information has been “made public” are similar to the circumstances in which non-public information becomes public.
STATEMENT OF EBAY’S POLICY AND PROCEDURES
Please remember that anyone scrutinizing your transactions will be doing so after the fact, and with the benefit of hindsight. As a practical matter, before engaging in trading in any securities related to eBay, you should carefully consider how enforcement authorities and others might view the transaction in hindsight.
PROHIBITED ACTIVITIES
Trading - US Rules
| • | “Restricted Activities” include either (1) establishing, amending or terminating a binding plan, contract or instruction regarding transactions in eBay securities that meets the requirements necessary to establish an affirmative defense to xxxxxxx xxxxxxx liability established by Rule l0b5-1 under the Securities Exchange Act of 1934, as amended, and the related rules of the U.S. Securities and Exchange Commission (a “Written Plan”) or (2) buying or selling any securities relating to eBay (including stock, derivatives, and economic equivalents) that are not made under a Written Plan. Refer to “— 10b5-1 Written Plans” for more details. |
| • | No Restricted Activities During Blackout Periods. You may not engage in a Restricted Activity outside of the applicable trading windows (described in the next section) or during any special blackout periods that the eBay’s Compliance Officer (as defined below) may designate. You may not disclose to any outside third party that a special blackout period has been designated. |
| • | You may never engage in a Restricted Activity while possessing material non-public information, even if the “trading window” is otherwise open. It does not matter whether you have an independent, justifiable reason for a purchase or sale. |
| • | No Section 16 Party may engage in a Restricted Activity at any time unless the activity has been approved by eBay’s Compliance Officer in accordance with the procedures described below under “—Procedures for Approving Trades for Section 16 Parties” or “—10b5-1 |
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| Written Plans”. eBay’s Compliance Officer will not permit a Section 16 Party to engage in a Restricted Activity outside the applicable “trading window” described below under “—Trading Windows and Blackout Periods” or during any special trading blackout periods that may be designated by eBay’s Compliance Officer. |
Trading – Luxembourg Rules
| • | No Dealing. When in possession of inside information, you must not deal in price affected eBay stock or securities (as principal or agent). Again, as set out above, this applies even if a “trading window” is otherwise open or if you have an objective justifiable reason for the purchase or sale. You must not do this whether the dealing takes place on the market (e.g. NASDAQ) or through a professional intermediary such as a broker. Before undertaking any such dealing activities, you need to contact and obtain the approval of eBay’s Compliance Officer. |
| • | Dealing under the Luxembourg rules covers both acquisition and disposal; acquisition includes agreeing to acquire or entering into a contract to create a security and disposal covers agreeing to dispose of or bring to an end a contract which created the security. You will also deal if you procure, directly or indirectly, an acquisition or disposal by another person. |
| • | Encouragement. You must not encourage any other person to deal in price affected eBay stock or securities whilst you are in possession of inside information. |
No Disclosure of Material Non-Public or Inside information. You may not disclose material non-public or inside information concerning eBay to any outside person (including family members, analysts, individual investors, or members of the investment community and news media), unless required as part of your regular duties for eBay or authorized by eBay’s Compliance Officer.
No Trading Advice. You should generally not give trading advice of any kind about eBay to others, and may never do so when you have material non-public or inside information about eBay.
No Futures. Derivatives, Etc. You may not trade in any instrument relating to the future price of eBay’s securities, such as a put, call, futures contract, short sale (including a short sale “against the box”) or collar. If you have any doubt as to whether you can engage in potential transactions, consult your Business Ethics Officer or eBay’s Compliance Officer in advance.
Other Companies’ Information. You may not (1) trade the securities of any other public company while you have material non-public or inside information about that company obtained through your work for eBay, (2) “tip” or disclose such information, or (3) give trading advice of any kind to anyone concerning such other public company while you have such information.
Certain Gifts and Other Non-Sale Transfers Permitted. When you are not permitted to engage in a Restricted Activity, you may not transfer eBay-related securities, except for (1) charitable gifts that have been pre-approved by eBay’s Compliance Officer or (2) non-sale transfers that
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have been pre-approved by eBay’s Compliance Officer and where the transferee agrees not to trade until the transferor may engage in a Restricted Activity.
TRADING WINDOWS AND BLACKOUT PERIODS
Trading Window for Section 16 Parties and Level 1 Insiders. Section 16 Parties (after obtaining approval as set forth below) and Level 1 Insiders may engage in Restricted Activities only between the third trading day after eBay’s release of quarterly or year-end earnings and the 20th day of the second month of the then-current quarter. (This restriction does not apply to sales deemed to be made by non-employee members of eBay’s board of directors for purposes of Rule 144 under the Securities Act of 1933, as amended, that are not deemed to be made by such individuals under Section 16 and that are made pursuant to a Written Plan).
Trading Window for Xxxxx 0 Xxxxxxxx. Xxxxx 2 Insiders may engage in Restricted Activities only between the third trading day after eBay’s release of quarterly or year-end earnings, and the 10th day of the third month of the then-current quarter.
Trading Window for all Other Employees. All other employees may engage in Restricted Activities only between the third trading day after eBay’s release of quarterly or year-end earnings, and the last day of the then-current quarter.
Under no circumstances may you engage in any trades relating eBay securities (even under a Written Plan) between the first day of a quarter and the end of the second trading day following eBay’s release of quarterly or year-end earnings for the prior quarter.
PROCEDURES FOR APPROVING TRADES FOR SECTION 16 PARTIES
No Section 16 Party may trade in eBay’s securities, or adopt, amend or terminate a Written Plan, until the Compliance Officer has approved the amount and nature of the proposed trade(s), or the adoption, amendment or termination of the Written Plan.
BENEFIT PLANS
Employee Stock Purchase Plan and Deferred Stock Unit Plan: This policy does not apply to decisions regarding level of participation and the purchase of shares under eBay’s 1998 Employee Stock Purchase Plan, or ESPP, nor does it apply to the grant or acquisition of units under eBay’s 2003 Deferred Stock Unit Plan, or DSU Plan. However, any sale of securities acquired under the ESPP or the DSU Plan is subject to the prohibitions and restrictions of this policy.
Stock Option Plans: The trading prohibitions and restrictions of this policy apply to all sales of securities acquired through the exercise of stock options granted by eBay, but not to the acquisition of securities through such exercises.
10b5-1 WRITTEN PLANS
A. Overview. Rule 10b5-1 allows you, at a time when you neither possess material non-public information, to: (1) enter into a binding contract to purchase or sell eBay
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securities; (2) instruct another person to purchase or sell eBay securities for your account; or (3) to establish a written plan for trading eBay securities. Any such contract, instruction or plan must: (1) specify the amount of securities to be purchased or sold and the price at which and the date on which the securities are to be purchased or sold or include a written formula for determining the amount of securities to be purchased or sold and the price at which and the date on which the securities are to be purchased or sold; and (2) not permit you to exercise any subsequent influence over how, when or whether to effect purchases or sales. Moreover, any person who, pursuant to the contract, instruction or plan does exercise such influence must not be aware of the material non-public information when doing so. In addition, any such contract, instruction or plan must be given or entered into in good faith and not as part of a plan or scheme to evade the prohibitions of this policy.
B. Entering Into, Amending or Terminating a Written Plan. Because entering into, amending or terminating a Written Plan (as defined under “— Prohibited Activities” above) is a Restricted Activity under this policy, no Section 16 Party, Level 1 Insider or Level 2 Insider may do so while possessing material non-public information. In addition, your Written Plan: (1) must be entered into, amended or terminated during your applicable “trading window”; and (2) may not permit you to engage in any trades relating eBay securities (even under a Written Plan) between the first day of a quarter and the third trading day following eBay’s release of quarterly or year-end earnings for the prior quarter.
| • | Additional Requirements for Section 16 Parties. Prior to entering into or amending a Written Plan, Section 16 Parties must submit the plan or amendment to eBay’s Compliance Officer for review. A Section 16 Party may not enter into, amend or terminate a Written Plan without the prior approval of eBay’s Compliance Officer. |
| • | Additional Requirements for Level 1 and Level 2 Insiders. Promptly after entering into a Written Plan, Level 1 Insiders and Level 2 Insiders must certify to eBay’s Compliance Officer that the Written Plan is a valid 10b5-1 plan that meets the requirements of this policy. This certification must be made no later than two business days after the Written Plan has been entered into, amended or terminated. |
C. Specific Requirements for Written Plans.
| • | First Transaction Under the Written Plan. No Section 16 Party, Level 1 Insider or Level 2 Insider may enter into a transaction under a Written Plan during the same trading window during which he or she adopted the Written Plan. |
| • | Limitations On Number of Transactions Pursuant to a Written Plan. No Section 16 Party may engage in more than 20 transactions pursuant to a Written Plan during any twelve-month period. |
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COMPLIANCE OFFICER
eBay has designated eBay’s General Counsel, or any designee(s) of eBay’s General Counsel, as this policy’s Compliance Officer. Such officer will review and either approve or prohibit all proposed Restricted Activities by Section 16 Parties in accordance with the procedures described above under the headings “—Procedures for Approving Trades for Section 16 Parties” and “—l0b5-1 Written Plans”, except that with respect to the Compliance Officer, any Restricted Activities must be approved by eBay’s Chief Financial Officer.
SPIRIT OF THE POLICY
You may not attempt to circumvent the purpose or spirit of this policy through investment transactions that have substantially similar economic substance to transactions that would be prohibited under this policy. If you have any doubt as to whether you can engage in potential transactions, consult your Business Ethics Officer or eBay’s Compliance Officer in advance.
POST-TERMINATION TRANSACTIONS
The prohibition on “Prohibited Activities” described above continues to apply to transactions in eBay securities even after you have terminated employment. If you are in possession of material non-public and/or inside information when your employment terminates, you may not engage in a Restricted Activity or dealing until such material non-public and/or inside information has become public or is no longer material.
INDIVIDUAL RESPONSIBILITY
You have the individual responsibility to comply with this policy against xxxxxxx xxxxxxx, regardless of whether your trading window is “open”. Exercise appropriate judgment in connection with any transaction in eBay’s securities.
CONSEQUENCES OF VIOLATIONS
Any violation of the laws against xxxxxxx xxxxxxx or tipping could subject you and eBay to severe civil and criminal liability, potentially including jail sentences. Note that the Securities Exchange Commission, the stock exchanges, and the National Association of Securities Dealers (NASD) use sophisticated electronic surveillance techniques to uncover xxxxxxx xxxxxxx. eBay employees who violate this policy are also subject to disciplinary action up to and including termination.
INQUIRIES
Please direct all inquiries regarding any of the provisions or procedures of this policy to the Compliance Officer (or a member of his or her staff) or your Business Ethics Officer.
This policy supersedes in its entirety eBay’s prior xxxxxxx xxxxxxx policy in effect prior to June 1, 2005.
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EXHIBIT A
Section 16 Parties
(As of April 1, 2005)
eBay will amend this Exhibit A from time to time as necessary to reflect the addition, and, in the case of individuals, the resignation or departure, of Section 16 Parties. Each Section 16 Party will notify eBay’s Compliance Officer in writing when such Section 16 Party believes that he, she or it no longer is subject to the reporting provisions and trading restrictions of Section 16 of the Exchange Act. If eBay agrees that such Section 16 Party no longer is so subject, or if eBay determines independently that such Section 16 Party no longer is so subject, then such Section 16 Party automatically will be deemed to be removed from Exhibit A effective upon the date when such Section 16 Party is determined no longer to be subject to the reporting provisions and trading restrictions of Section 16 of the Exchange Act. eBay will promptly notify any Section 16 Party in writing if eBay independently determines that such Section 16 Party no longer legally is subject to the reporting provisions and trading restrictions of Section 16 of the Exchange Act.
A current list of Section 16 Parties is available on eBay’s intranet @
xxxx://xxxx.xxxx.xxxx.xxx/Xxxxx/Xxxxxxxxx/Xxxxxxxx/XxxxxxxxXxxxxxxxxxXxxxxxxxxx.xxx
DIRECTORS:
EXECUTIVE OFFICERS:
| Name |
Title |
EXHIBIT B
Level 1 and Level 2 Insiders
(As of April 1, 2005)
eBay will amend Exhibit B from time to time as necessary to reflect the addition and the resignation, departure or change of status of Insiders. eBay will promptly notify any Insider in writing if eBay independently determines that such Insiders no longer has access to material non-public information about eBay.
ADDITIONAL LEVEL 1 INSIDERS (i.e. in addition to the Section 16 Parties on Exhibit A):
A current list of Level 1 Insiders is available on eBay’s intranet @
xxxx://xxxx.xxxx.xxxx.xxx/Xxxxx/Xxxxxxxxx/Xxxxxxxx/XxxxxxxxXxxxxxxxxxXxxxxxxxxx.xxx
LEVEL 2 INSIDERS:
A current list of Level 2 Insiders is available on eBay’s intranet @
xxxx://xxxx.xxxx.xxxx.xxx/Xxxxx/Xxxxxxxxx/Xxxxxxxx/XxxxxxxxXxxxxxxxxxXxxxxxxxxx.xxx
