EXHIBIT 10.23
EBAY INC.
1998 EQUITY INCENTIVE PLAN
STOCK BONUS AGREEMENT
Pursuant to the Stock Bonus Grant Notice ("Grant Notice") and this Stock
Bonus Agreement (collectively, the "Award") and in consideration of your past
services, eBay Inc. (the "Company") has awarded you a stock bonus under its 1998
Equity Incentive Plan (the "Plan") for the number of Shares of the Company's
common stock subject to the Award as indicated in the Grant Notice. Defined
terms not explicitly defined in this Stock Bonus Agreement but defined in the
Plan shall have the same definitions as in the Plan.
The details of your Award are as follows:
1. VESTING. Subject to the limitations contained herein, your Award will
vest as provided in the Grant Notice, provided that vesting will cease upon your
Termination.
2. NUMBER OF SHARES. The number of Shares subject to your Award may be
adjusted from time to time for capitalization adjustments, as provided in the
Plan.
3. SECURITIES LAW COMPLIANCE. You may not be issued any Shares under your
Award unless the Shares are either (i) then registered under the Securities Act
or (ii) the Company has determined that such issuance would be exempt from the
registration requirements of the Securities Act. Your Award must also comply
with other applicable laws and regulations governing the Award, and you will not
receive such Shares if the Company determines that such receipt would not be in
material compliance with such laws and regulations.
4. FORFEITURE OF UNVESTED SHARES.
(a) Upon your Termination, you shall automatically forfeit the
Shares you received pursuant to your Award that have not as yet vested in
accordance with the Vesting Schedule on the Grant Notice (the "Unvested
Shares"), the Escrow Agent (as provided for in the Joint Escrow Instructions
attached to the Grant Notice as Attachment IV) shall transfer to the Company all
of Unvested Shares.
(b) The Shares issued under your Award shall be held in escrow
pursuant to the terms of the Joint Escrow Instructions attached to the Grant
Notice as Attachment IV. You agree to execute four (4) Assignment Separate From
Certificate forms (with date and number of shares blank) substantially in the
form attached to the Grant Notice as Attachment III and deliver the same, along
with the certificate or certificates evidencing the Shares, for use by the
Escrow Agent pursuant to the terms of the Joint Escrow Instructions.
(c) Subject to the provisions of your Award, you shall, during the
term of your Award, exercise all rights and privileges of a shareholder of the
Company with respect to the Shares deposited in escrow. You shall be deemed to
be the holder of the Shares for purposes of receiving any dividends which may be
paid with respect to such Shares and for purposes of
1.
exercising any voting rights relating to such Shares, even if some or all of
such Shares have not yet vested and are subject to forfeiture. To the extent any
dividends are paid with respect to the Shares, you shall receive such dividends
in the same manner and at the same time as the other securities holders of the
Company, without any adjustment for interest if such receipt is delayed.
(d) If, from time to time, there is any stock dividend, stock split
or other change in the character or amount of any of the outstanding stock of
the corporation the stock of which is subject to the provisions of your Award,
then in such event any and all new, substituted or additional securities to
which you are entitled by reason of your ownership of the Shares acquired under
your Award shall be immediately unvested and subject to forfeiture with the same
force and effect as the Shares were unvested and subject to forfeiture
immediately before such event and you agree to deliver any such unvested
securities to the Company's Corporate Secretary to be dealt with in accordance
with the Joint Escrow Instructions.
5. RESTRICTIVE LEGENDS. The Shares issued under your Award shall be
endorsed with appropriate legends determined by the Company.
6. AWARD NOT A SERVICE CONTRACT. Your Award is not an employment or
service contract, and nothing in your Award shall be deemed to create in any way
whatsoever any obligation on your part to continue in the employ of the Company
or an affiliate, or on the part of the Company or an affiliate to continue your
employment. In addition, nothing in your Award shall obligate the Company or an
affiliate, their respective shareholders, boards of directors, officers or
employees to continue any relationship that you might have as a director or
consultant for the Company or an affiliate.
7. WITHHOLDING OBLIGATIONS.
(a) At the time your Award is made, or at any time thereafter as
requested by the Company, you hereby authorize withholding from payroll and any
other amounts payable to you, and otherwise agree to make adequate provision for
any sums required to satisfy the federal, state, local and foreign tax
withholding obligations of the Company or an affiliate, if any, which arise in
connection with your Award.
(b) Unless the tax withholding obligations of the Company and/or any
affiliate are satisfied, the Company shall have no obligation to issue a
certificate for such Shares or release such Shares from any escrow provided for
herein.
8. TAX CONSEQUENCES. The acquisition and vesting of the Shares may have
adverse tax consequences to you that may avoided or mitigated by filing an
election under Section 83(b) the Code. Such election must be filed within thirty
(30) days after the date of your Award. YOU ACKNOWLEDGE THAT IT IS YOUR OWN
RESPONSIBILITY, AND NOT THE COMPANY'S, TO FILE A TIMELY ELECTION UNDER CODE
SECTION 83(b), EVEN IF YOU REQUEST THE COMPANY TO MAKE THE FILING ON YOUR
BEHALF.
9. NOTICES. Any notices provided for in your Award or the Plan shall be
given in writing and shall be deemed effectively given upon receipt or, in the
case of notices delivered by
2.
the Company to you, five (5) days after deposit in the United States mail,
postage prepaid, addressed to you at the last address you provided to the
Company.
10. MISCELLANEOUS.
(a) The rights and obligations of the Company under your Award shall
be transferable to any one or more persons or entities, and all covenants and
agreements hereunder shall inure to the benefit of, and be enforceable by the
Company's successors and assigns. Your rights and obligations under your Award
may not be assigned or transferred.
(b) You agree upon request to execute any further documents or
instruments necessary or desirable in the sole determination of the Company to
carry out the purposes or intent of your Award.
(c) You acknowledge and agree that you have reviewed your Award in
its entirety, have had an opportunity to obtain the advice of counsel prior to
executing and accepting your Award and fully understand all provisions of your
Award.
11. GOVERNING PLAN DOCUMENT. Your Award is subject to all the provisions
of the Plan, the provisions of which are hereby made a part of your Award, and
is further subject to all interpretations, amendments, rules and regulations
which may from time to time be promulgated and adopted pursuant to the Plan. In
the event of any conflict between the provisions of your Award and those of the
Plan, the provisions of the Plan shall control.
3.
JOINT ESCROW INSTRUCTIONS
[Date]
Corporate Secretary
eBay Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sir/Madam:
As Escrow Agent for both eBay Inc., a Delaware corporation (the
"Company"), and the undersigned recipient of common stock of the Company
("Participant"), you are hereby authorized and directed to hold the documents
delivered to you pursuant to the terms of that certain Stock Bonus Grant Notice
(the "Grant Notice"), dated ____________to which a copy of these Joint Escrow
Instructions is attached as Attachment IV, and pursuant to the terms of that
certain Stock Bonus Agreement ("Agreement"), which is Attachment I to the Grant
Notice, in accordance with the following instructions:
1. In the event Participant ceases to render services to the Company or an
affiliate of the Company during the vesting period set forth in the Grant
Notice, the Company or its assignee will notify you that the Unvested Shares (as
defined in the Agreement) shall be transferred to the Company. Participant and
the Company hereby irrevocably authorize and direct you to close the transaction
contemplated by such notice in accordance with the terms of said notice. At such
closing you are directed (a) to date any stock assignments necessary for the
transfer in question, (b) to fill in the number of shares being transferred, and
(c) to deliver same, together with the certificate (as appropriate) evidencing
the shares of stock to be transferred to the Company.
2. Participant irrevocably authorizes the Company to deposit with you any
certificates evidencing shares of stock to be held by you hereunder and any
additions and substitutions to said shares as specified in the Agreement.
Participant does hereby irrevocably constitute and appoint you as Participant's
attorney-in-fact and agent for the term of this escrow to execute with respect
to such securities and other property all documents of assignment and/or
transfer and all stock certificates necessary or appropriate to make all
securities negotiable and complete any transaction herein contemplated.
3. This escrow shall terminate with respect to the vested shares upon
vesting of such shares or upon the earlier return of the shares to the Company.
4. If at the time of termination of this escrow you should have in your
possession any documents, securities, or other property belonging to
Participant, you shall deliver all of same to any pledgee entitled thereto or,
if none, to Participant and shall be discharged of all further obligations
hereunder.
1.
5. Your duties hereunder may be altered, amended, modified or revoked only
by a writing signed by all of the parties hereto.
6. You shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in relying or
refraining from acting on any instrument reasonably believed by you to be
genuine and to have been signed or presented by the proper party or parties or
their assignees. You shall not be personally liable for any act you may do or
omit to do hereunder as Escrow Agent or as attorney-in-fact for Participant
while acting in good faith and any act done or omitted by you pursuant to the
advice of your own attorneys shall be conclusive evidence of such good faith.
7. You are hereby expressly authorized to disregard any and all warnings
given by any of the parties hereto or by any other person or corporation,
excepting only orders or process of courts of law, and are hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court. In
case you obey or comply with any such order, judgment or decree of any court,
you shall not be liable to any of the parties hereto or to any other person,
firm or corporation by reason of such compliance, notwithstanding any such
order, judgment or decree being subsequently reversed, modified, annulled, set
aside, vacated or found to have been entered without jurisdiction.
8. You shall not be liable in any respect on account of the identity,
authority or rights of the parties executing or delivering or purporting to
execute or deliver the Grant Notice or any documents or papers deposited or
called for hereunder.
9. You shall not be liable for the outlawing of any rights under any
statute of limitations with respect to these Joint Escrow Instructions or any
documents deposited with you.
10. You shall be entitled to employ such legal counsel, including but not
limited to ▇▇▇▇▇▇ Godward LLP, and other experts as you may deem necessary
properly to advise you in connection with your obligations hereunder, may rely
upon the advice of such counsel, and may pay such counsel reasonable
compensation therefor.
11. Your responsibilities as Escrow Agent hereunder shall terminate if you
shall cease to be Secretary of the Company or if you shall resign by written
notice to each party. In the event of any such termination, the Company may
appoint any officer or assistant officer of the Company as successor ▇▇▇▇▇▇
Agent and Participant hereby confirms the appointment of such successor or
successors as his attorney-in-fact and agent to the full extent of your
appointment.
12. If you reasonably require other or further instruments in connection
with these Joint Escrow Instructions or obligations in respect hereto, the
necessary parties hereto shall join in furnishing such instruments.
13. It is understood and agreed that should any dispute arise with respect
to the delivery and/or ownership or right of possession of the securities, you
may (but are not obligated to) retain in your possession without liability to
anyone all or any part of said securities until such dispute shall have been
settled either by mutual written agreement of the parties concerned or by a
final order, decree or judgment of a court of competent jurisdiction after the
time for
2.
appeal has expired and no appeal has been perfected, but you shall be under no
duty whatsoever to institute or defend any such proceedings.
14. Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given upon personal delivery or upon deposit in
any United States Post Box, by registered or certified mail with postage and
fees prepaid, addressed to each of the other parties hereunto entitled at the
following addresses, or at such other addresses as a party may designate by ten
(10) days' written notice to each of the other parties hereto:
COMPANY: eBay Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Senior Vice President, Legal Affairs
PARTICIPANT: __________________________________________
__________________________________________
__________________________________________
__________________________________________
ESCROW AGENT: eBay Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Corporate Secretary
15. Defined terms not explicitly defined in these Joint Escrow
Instructions but defined in the Company's 1998 Equity Incentive Plan (the
"Plan") or the Agreement shall have the same definition as in the Plan or
Agreement
16. By signing these Joint Escrow Instructions you become a party hereto
only for the purpose of said Joint Escrow Instructions; you do not become a
party to the Grant Notice.
17. This instrument shall be binding upon and inure to the benefit of the
parties hereto, and their respective successors and permitted assigns. It is
understood and agreed that references to "you" or "your" herein refer to the
original Escrow Agent and to any and all successor Escrow Agents. It is
understood and agreed that the Company may at any time or from time to time
assign its rights under the Grant Notice and these Joint Escrow Instructions in
whole or in part.
Very truly yours,
EBAY INC.
By:_______________________________________
3.
PARTICIPANT
__________________________________________
Name:_____________________________________
ESCROW AGENT:
_______________________________
4.
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Stock Bonus Grant Notice
and Stock Bonus Agreement (the "Award"), [PARTICIPANT'S NAME] hereby sells,
assigns and transfers unto eBay Inc., a Delaware corporation (the "Company"),
_________________________ (__________) shares of the common stock of the
Company, standing in the undersigned's name on the books of the Company
represented by Certificate No. _____ herewith and does hereby irrevocably
constitute and appoint [ESCROW AGENT] as attorney-in-fact to transfer the said
stock on the books of the Company with full power of substitution in the
premises. This Assignment may be used only in accordance with and subject to the
terms and conditions of the Award, in connection with the reacquisition of
shares of common stock of the Company issued to the undersigned pursuant to the
Award, and only to the extent that such shares remain unvested and subject to
forfeiture under the Award.
Dated:_____________________
Signature:_____________________________________
[PARTICIPANT'S NAME], PARTICIPANT
[INSTRUCTION: Please do not fill in any blanks other than the signature line.
The purpose of this Assignment is to enable the Company to reacquire the
unvested shares upon your termination as set forth in the Award without
requiring additional signatures on your part.]