eBAY INC. 2003 DEFERRED STOCK UNIT PLAN ELECTING DIRECTOR AWARD AGREEMENT
Exhibit 10.02
This award agreement (this “Award Agreement”) sets forth the terms and conditions of an award
(this “Award”) of deferred stock units (“DSUs”) granted to you under the eBay Inc. 2003 Deferred
Stock Unit Plan (the “Plan”) and pursuant to your election to defer your Annual Retainer.
1. The Plan. This Award is made pursuant to the Plan, the terms of which are
incorporated in this Award Agreement. Capitalized terms used in this Award Agreement that are not
defined in this Award Agreement have the meanings as used or defined in the Plan.
2. Award. The number of DSUs subject to this Award is set forth at the end of this
Award Agreement. Each DSU constitutes an unfunded and unsecured promise of eBay to deliver (or
cause to be delivered) to you, subject to the terms of this Award Agreement, one share of Common
Stock (the “Share” or the “Shares” as the context requires) (or, in the sole discretion of the
Committee, cash, securities or other property equal to the Fair Market Value thereof) as soon as
practicable but in no case more than 10 days following the Delivery Date as provided herein. You
shall also be entitled to receive an amount in cash equal to the sum of any declared dividends on
the Shares which the record date therefor occurred after the date of grant and prior to delivery
(the “dividend equivalent rights”). Except as otherwise provided herein, until the Delivery Date,
you have only the rights of a general unsecured creditor, and no rights as a stockholder, of eBay.
THIS AWARD IS SUBJECT TO ALL TERMS, CONDITIONS AND PROVISIONS OF THE PLAN AND THIS AWARD AGREEMENT,
INCLUDING, WITHOUT LIMITATION, THE ARBITRATION AND CHOICE OF FORUM PROVISIONS SET FORTH IN
PARAGRAPH 15.
3. Vesting. You shall be vested in 100% of this grant of DSUs on the Date of Grant
specified at the end of this Award Agreement.
4. DSU Account.
A bookkeeping account will be established for you which shall be credited with all DSUs and
any dividend equivalent rights that have been granted to you.
5. Delivery of Shares/DSU Payments.
(a) Except as provided in this Paragraph 5 and in Paragraphs 6, 8 and 9, the Shares underlying
the DSUs and any dividend equivalent rights corresponding to the DSUs shall
be delivered as soon as practicable but in no case more than 10 days following the Delivery
Date specified at the end of this Award Agreement. The Company may, at its option, deliver cash,
securities or other property in lieu of all or any portion of the Shares otherwise deliverable.
Such payment shall be equal in value to the product of the number of Shares to be delivered on the
Delivery Date and the Fair Market Value of one Share of Common Stock on the Delivery Date.
You
shall be deemed the beneficial owner of the Shares at the close of business on the Delivery Date
and shall be entitled to any dividend or distribution that has not already been made with respect
to such Shares if the record date for such dividend or distribution is after the close of business
on the Delivery Date. Notwithstanding the foregoing, if the Delivery Date occurs at a time when
you are considered by the Company to be one of its “covered employees” within the meaning of
Section 162(m) of the Code and/or if you are considered to be one of the Company’s “specified
employees” within the meaning of Section 409A(a)(2)(B) of the Code and applicable Treasury
regulations and guidance issued from time to time thereunder (including, without limitation, any
regulations and guidance setting forth the time period with respect to which the determination
whether you are a “specified employee” must be made), then, unless the Committee determines
otherwise, delivery of the Shares (or cash) automatically shall be deferred until six months after
you have ceased to be an employee of the Company or have otherwise separated from service with the
Company. Such deferral shall not affect the number of shares or the amount of cash to be
delivered.
(b) Notwithstanding the foregoing, all DSUs and any dividend equivalent rights shall become
payable immediately upon a Change in Control. “Change in Control” means (a) a dissolution or
liquidation of eBay, (b) a merger or consolidation in which eBay is not the surviving corporation
(other than a merger or consolidation with a wholly-owned subsidiary, a reincorporation of eBay in
a different jurisdiction, or other transaction in which there is no substantial change in the
stockholders of eBay or their relative stock holdings and the Awards granted under this Plan are
assumed, converted or replaced by the successor corporation, which assumption, conversion or
replacement will be binding on all grantees), (c) merger in which eBay is the surviving
corporation but after which the stockholders of eBay (other than any stockholder which merges (or
which owns or controls another corporation which merges) with eBay in such merger) cease to own
their shares or other equity interests in eBay, (d) the sale of substantially all of the assets of
eBay, or (e) the acquisition, sale or transfer of more than 50% of the outstanding shares of eBay
by tender offer or similar transaction; provided, however, that in no event will a
“Change of Control” be deemed to have occurred for purposes of this Award Agreement if such event
would not constitute a change in the ownership or effective control of eBay, or in the ownership of
a substantial portion of the assets of eBay for purposes of Section 409A of the Code and applicable
Treasury regulations and guidance issued from time to time thereunder.
(c) “Delivery Date” means the date of your termination of service with the Board.
6. Disability and Death.
(a) Notwithstanding any other provision of this Award Agreement, if your service with the
Company is terminated by reason of disability (as defined in Section
409A(a)(2)(C) of the Code and as determined in the sole discretion of the Committee), Shares
(or, in the sole discretion of the Committee, cash, securities or other property in lieu of all or
any part thereof) corresponding to your outstanding DSUs and any dividend equivalent rights shall
be delivered to you as soon as practicable.
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(b) In the event of your death, Shares (or, in the sole discretion of the Committee, cash,
securities or other property in lieu of all or any part thereof) corresponding to your outstanding
DSUs and any dividend equivalent rights shall be delivered to the representative of your estate as
soon as practicable after the date of death and after such documentation as may be requested by the
Committee is provided to the Committee.
7. Non-transferability. Except as otherwise may be provided by the Committee, the
limitations set forth in Section 3.4 of the Plan shall apply. Any assignment in violation of the
provisions of this Paragraph 7 shall be null and void.
8. Withholding, Consents and Legends.
(a) The delivery of Shares is conditioned on your satisfaction of any applicable withholding
taxes (in accordance with Section 3.2 of the Plan).
(b) Your rights in respect of your DSUs are conditioned on the receipt to the full
satisfaction of the Committee of any required consents (as defined in Section 3.3 of the Plan) that
the Committee may determine to be necessary or advisable (including, without limitation, your
consenting to deductions from your wages, or another arrangement satisfactory to the Committee, to
reimburse the Company for advances made on your behalf to satisfy any withholding and other tax
obligations in connection with this Award).
(c) eBay may affix to certificates representing Shares issued pursuant to this Award Agreement
any legend that the Committee determines to be necessary or advisable (including to reflect any
restrictions to which you may be subject under a separate agreement with eBay). eBay may advise
the transfer agent to place a stop transfer order against any legended Shares.
9. Right of Offset. The Company shall have the right to offset against the obligation
to deliver Shares under this Award Agreement any outstanding amounts (including, without
limitation, travel and entertainment or advance account balances, loans, or amounts repayable to
the Company pursuant to other director programs) you then owe to the Company and any amounts the
Committee otherwise deems appropriate.
10. No Rights to Continued Service. Nothing in this Award Agreement or the Plan shall
be construed as giving you any right to continued service with the Company or affect any right that
the Company may have to terminate your service with the Company or alter the terms and conditions
of your employment.
11. Successors and Assigns of eBay. The terms and conditions of this Award Agreement
shall be binding upon, and shall inure to the benefit of, eBay and its successor entities (as
defined in Section 3.5 of the Plan).
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12. Committee Discretion. The Committee shall have full discretion with respect to
any actions to be taken or determinations to be made in connection with this Award Agreement, and
its determinations shall be final, binding and conclusive.
13. Amendment. The Committee reserves the right at any time to amend the terms and
conditions set forth in this Award Agreement, and the Board may amend the Plan in any respect;
provided, that, notwithstanding the foregoing and Sections 1.3.1(i), 1.3.1(ii) and 3.1 of the Plan,
no such amendment shall materially adversely affect your rights and obligations under this Award
Agreement without your consent, except that the Committee reserves the right to accelerate the
delivery of the Shares and in its discretion provide that such Shares may not be transferable until
the Delivery Date on which such Shares otherwise would have been delivered (and that in respect of
such Shares you will remain obligated to return the Shares and any dividend equivalents to the
Company in the circumstances under which the Shares would not have been delivered pursuant to
Paragraph 4 or Paragraph 5); provided further, that, such acceleration of delivery of Shares shall
not occur if such acceleration would cause the holder of an Award to be subject to an excise tax
under Section 409A of the Code. Any amendment of this Award Agreement shall be in writing signed
by an authorized member of the Committee or a person or persons designated by the Committee.
14. Adjustment. The provisions of Section 1.6.2 of the Plan shall apply in the event
the Committee desires to make such equitable adjustments, designed to protect dilution or
enlargement of rights, as it may deem appropriate, in the number and kind of Shares covered by the
DSUs subject to this Award Agreement.
15. Arbitration; Choice of Forum.
(a) Any dispute, controversy or claim between the Company and you, arising out of or relating
to or concerning the Plan or this Award Agreement, shall be finally settled by arbitration in San
Jose, California before, and in accordance with the rules then in effect of, the American
Arbitration Association (the “AAA”) in accordance with the commercial arbitration rules of the AAA.
Prior to arbitration, all claims maintained by you must first be submitted to the Committee in
accordance with claims procedures determined by the Committee. This Paragraph is subject to the
provisions of Paragraphs 15(b) and (c) below.
(b) THE COMPANY AND YOU HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE
OR FEDERAL COURT LOCATED IN THE CITY OF SAN JOSE, CALIFORNIA OVER ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO OR CONCERNING THE PLAN OR THIS AWARD AGREEMENT THAT IS NOT OTHERWISE
ARBITRATED OR RESOLVED ACCORDING TO PARAGRAPH 15(a) OF THIS AWARD AGREEMENT. This includes any
suit, action or proceeding to compel arbitration or to enforce
an arbitration award. The Company and you acknowledge that the forum designated by this
Paragraph 15(b) has a reasonable relation to the Plan, this Award Agreement, and to your
relationship with the Company. Notwithstanding the foregoing, nothing herein shall preclude the
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Company from bringing any action or proceeding in any other court for the purpose of enforcing the
provisions of this Paragraph 15.
(c) The agreement by you and the Company as to forum is independent of the law that may be
applied in the action, and you and the Company agree to such forum even if the forum may under
applicable law choose to apply non-forum law. You and the Company hereby waive, to the fullest
extent permitted by applicable law, any objection which you or the Company now or hereafter may
have to personal jurisdiction or to the laying of venue of any such suit, action or proceeding in
any court referred to in Paragraph 15(b). You and the Company undertake not to commence any
action, suit or proceeding arising out of or relating to or concerning this Award Agreement in any
forum other than a forum described in this Paragraph 15. You and (subject to the last sentence of
Paragraph 15(a)) the Company agree that, to the fullest extent permitted by applicable law, a final
and non-appealable judgment in any such suit, action or proceeding in any such court shall be
conclusive and binding upon you and the Company.
(d) You irrevocably appoint the Secretary of eBay as your agent for service of process in
connection with any action, suit or proceeding arising out of or relating to or concerning this
Award Agreement which is not arbitrated pursuant to the provisions of Paragraph 15(a), who shall
promptly advise you of any such service of process.
(e) You hereby agree to keep confidential the existence of, and any information concerning, a
dispute described in this Paragraph 15, except that you may disclose information concerning such
dispute to the arbitrator or court that is considering such dispute or to your legal counsel
(provided that such counsel agrees not to disclose any such information other than as necessary to
the prosecution or defense of the dispute).
16. Governing Law. THIS AWARD SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
17. Headings. The headings in this Award Agreement are for the purpose of convenience
only and are not intended to define or limit the construction of the provisions hereof.
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IN WITNESS WHEREOF, eBAY INC. has caused this Award Agreement to be duly executed and
delivered as of the Date of Grant.
| eBay Inc. | ||||||
| By | ||||||
| Title: | ||||||
Recipient: |
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Number of DSUs: |
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Date of Grant: |
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Delivery Date:
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Termination of service as a Director of the Company for any reason. Also, I understand that DSUs may be delivered to me prior to such time pursuant to the terms of the Plan and this Agreement. |
I have read the Plan and this Award Agreement and I agree to these terms.
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