EX-10.1






EXHIBIT 10.01




 eBay Inc.




2008 Equity Incentive Award Plan

Initial Stockholder Approval on June 19, 2008




ARTICLE 1.




PURPOSE




The purpose of the eBay Inc. 2008 Equity Incentive Award Plan (the “Plan”) is to
promote the success and enhance the value of eBay Inc. (the “Company”) by linking the
personal interests of the members of the Board, Employees, and Consultants (each as defined below)
to those of Company stockholders and by providing such individuals with an incentive for
outstanding performance to generate superior returns to Company stockholders. The Plan is further
intended to provide flexibility to the Company in its ability to motivate, attract, and retain the
services of members of the Board, Employees, and Consultants upon whose judgment, interest, and
special effort the successful conduct of the Company’s operation is largely dependent.



ARTICLE 2.




DEFINITIONS AND CONSTRUCTION




Wherever the following terms are used in the Plan they shall have the meanings specified
below, unless the context clearly indicates otherwise. The singular pronoun shall include the
plural where the context so indicates.



2.1 “Award” means an Option, a Restricted Stock award, a Stock Appreciation Right
award, a Performance Share award, a Performance Stock Unit award, a Dividend Equivalents award, a
Stock Payment award, a Deferred Stock Unit award, a Restricted Stock Unit award, a Performance
Bonus Award, or a Performance-Based Award granted to a Participant pursuant to the Plan.



2.2 “Award Agreement” means any written agreement, contract, or other instrument or
document evidencing an Award, including through electronic medium.



2.3 “Board” means the Board of Directors of the Company.



2.4 “Change in Control” means and includes each of the following:




(a) A transaction or series of transactions (other than an offering of Stock to the general
public through a registration statement filed with the Securities and Exchange Commission)
whereby any “person” or related “group” of “persons” (as such terms are used in Sections 13(d)
and 14(d)(2) of the Exchange Act) (other than the Company, any of its subsidiaries, an employee
benefit plan maintained by the Company or any of its subsidiaries or a “person” that, prior to
such transaction, directly or indirectly controls, is controlled by, or is under common control
with, the Company) directly or indirectly acquires beneficial ownership (within the meaning of
Rule 13d-3 under the Exchange Act) of securities of the Company possessing more than 50% of the
total combined voting power of the Company’s securities outstanding immediately after such
acquisition; or




(b) During any period of two consecutive years, individuals who, at the beginning of such
period, constitute the Board together with any new director(s) (other than a director designated
by a person who shall have entered into an agreement with the Company to effect a transaction
described in Section 2.4(a) or Section 2.4(c)) whose election by the Board or nomination for
election by the Company’s stockholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning of the two-year period
or whose election or nomination for election was previously so approved, cease for any reason to
constitute a majority thereof; or




(c) The consummation by the Company (whether directly involving the Company or indirectly
involving the Company through one or more intermediaries) of (x) a merger, consolidation,
reorganization, or business combination or (y) a sale or other disposition of all or
substantially all of the Company’s assets in any single transaction or series of related
transactions or (z) the acquisition of assets or stock of another entity, in each case other than
a transaction:




(i) Which results in the Company’s voting securities outstanding immediately before the
transaction continuing to represent (either by remaining outstanding or by being converted into
voting securities of the Company or the person that, as a result of the transaction, controls,
directly or indirectly, the Company or owns, directly or indirectly, all or substantially all
of the Company’s assets or otherwise succeeds to the business of the Company (the Company or
such person, the “Successor Entity”)) directly or indirectly, at least a majority of
the combined voting power of the Successor Entity’s outstanding voting securities immediately
after the transaction, and




(ii) After which no person or group beneficially owns voting securities representing 50%
or more of the combined voting power of the Successor Entity; provided, however, that no person
or group shall be treated for purposes of this Section 2.4(c)(ii) as beneficially owning 50% or
more of combined voting power of the Successor Entity solely as a result of the voting power
held in the Company prior to the consummation of the transaction; or




(d) The Company’s stockholders approve a liquidation or dissolution of the Company.



In addition, if the Change in Control constitutes a payment event with respect to any Award
which provides for the deferral of compensation and is subject to Section 409A of the Code, to the
extent required, the transaction or event described in subsection (a), (b), (c) or (d) with respect
to such Award must also constitute a “change in control event” as defined in Treasury Regulation
§ 1.409A-3(i)(5). The Committee shall have full and final authority, which shall be exercised in
its discretion, to determine conclusively whether a Change in Control of the Company has occurred
pursuant to the above definition, and the date of the occurrence of such Change in Control and any
incidental matters relating thereto.



2.5 “Code” means the Internal Revenue Code of 1986, as amended.



2.6 “Committee” means the committee of the Board described in Article 13.



2.7 “Consultant” means any consultant or adviser if: (a) the consultant or adviser
renders bona fide services to the Company or any Subsidiary; (b) the services rendered by the
consultant or adviser are not in connection with the offer or sale of securities in a
capital-raising transaction and do not directly or indirectly promote or maintain a market for the
Company’s securities; and (c) the consultant or adviser is a natural person.



2.8 “Covered Employee” means an Employee who is, or could be, a “covered employee”
within the meaning of Section 162(m) of the Code.



2.9 “Deferred Stock Unit” means a right to receive a specified number of shares of
Stock during specified time periods pursuant to Section 8.5.



2.10 “Director” means a member of the Board.



2.11 “Disability” means that the Participant qualifies to receive long-term disability
payments under the Company’s long-term disability insurance program, as it may be amended from time
to time, or if Participant is otherwise ineligible to participate in the Company’s long-term
disability insurance program or resides outside the United States and no such program exists, means
that the Participant is unable to perform his or her duties with the Company or its Subsidiary by
reason of a medically determinable physical or mental impairment, as determined by a physician
acceptable to the Company, which is permanent in character or which is expected to last for a
continuous period of more than six (6) months.



2.12 “Dividend Equivalent” means a right granted to a Participant pursuant to
Section 8.3 to receive the equivalent value (in cash or Stock) of dividends paid on Stock.



2.13 “DRO” shall mean a domestic relations order as defined by the Code or Title I of
the Employee Retirement Income Security Act of 1974, as amended from time to time, or the rules
thereunder.



2.14 “Effective Date” shall have the meaning set forth in Section 14.1.



2.15 “Eligible Individual” means any person who is an Employee, a Consultant or an
Independent Director, as determined by the Committee.



2.16 “Employee” means any officer or other employee (as defined in accordance with
Section 3401(c) of the Code) of the Company or any Subsidiary.



2.17 “Equity Restructuring” shall mean a nonreciprocal transaction between the company
and its stockholders, such as a stock dividend, stock split, spin-off, rights offering or
recapitalization through a large, nonrecurring cash dividend, that affects the shares of Stock (or
other securities of the Company) or the share price of Stock (or other securities) and causes a
change in the per share value of the Stock underlying outstanding Awards.



2.18 “Exchange Act” means the Securities Exchange Act of 1934, as amended.



2.19 “Fair Market Value” means, as of any given date, (a) if Stock is traded on any
established stock exchange, the closing price of a share of Stock as reported in the Wall Street
Journal (or such other source as the Company may deem reliable for such purposes) for such date, or
if no sale occurred on such date, the first trading date immediately prior to such date during
which a sale occurred; or (b) if Stock is not traded on an exchange but is quoted on a national
market or other quotation system, the last sales price on such date, as reported in the Wall Street
Journal (or such other source as the Company may deem reliable for such purposes), or if no sales
occurred on such date, then on the date immediately prior to such date on which sales prices are
reported; or (c) if Stock is not publicly traded, the fair market value of a share of Stock as
established by the Committee acting in good faith.



2.20 “Full Value Award” means any Award other than an Option, Stock Appreciation Right
or other Award for which the Participant pays the intrinsic value existing at the date of grant
(whether directly or by forgoing a right to receive a payment from the Company or any Subsidiary).



2.21 “Incentive Stock Option” means an Option that is intended to meet the
requirements of Section 422 of the Code or any successor provision thereto.



2.22 “Independent Director” means a Director of the Company who is not an Employee.



2.23 “Non-Employee Director” means a Director of the Company who qualifies as a
“Non-Employee Director” as defined in Rule 16b-3(b)(3) under the Exchange Act, or any successor
rule.



2.24 “Non-Qualified Stock Option” means an Option that is not intended to be an
Incentive Stock Option.



2.25 “Option” means a right granted to a Participant pursuant to Article 5 of the Plan
to purchase a specified number of shares of Stock at a specified price during specified time
periods. An Option may be either an Incentive Stock Option or a Non-Qualified Stock Option.



2.26 “Participant” means any Eligible Individual who, as a member of the Board,
Consultant or Employee, has been granted an Award pursuant to the Plan.



2.27 “Performance-Based Award” means an Award granted to selected Covered Employees
pursuant to Section 8.7, but which is subject to the terms and conditions set forth in Article 9.
All Performance-Based Awards are intended to qualify as Qualified Performance-Based Compensation.



2.28 “Performance Bonus Award” has the meaning set forth in Section 8.7.



2.29 “Performance Criteria” means the criteria that the Committee selects for purposes
of establishing the Performance Goal or Performance Goals for a Participant for a Performance
Period, determined as follows:




(a) The Performance Criteria that will be used to establish Performance Goals are limited to
the following: trading volume, users, gross merchandise volume, total payment volume, revenue,
operating income, EBITDA and/or net earnings (either before or after interest, taxes,
depreciation and amortization), net income (either before or after taxes), earnings per share,
earnings as determined other than pursuant to United States generally accepted accounting
principles (“GAAP”), multiples of price to earnings, multiples of price/earnings to
growth, return on net assets, return on gross assets, return on equity, return on invested
capital, cash flow (including, but not limited to, operating cash flow and free cash flow), net
or operating margins, economic profit, Stock price appreciation, total stockholder returns,
employee productivity, customer satisfaction metrics, any of which may be measured with respect
to the Company, or any Subsidiary, affiliate or other business unit of the Company, either in
absolute terms, terms of growth or as compared to any incremental increase, as compared to
results of a peer group.




(b) The Committee may, in its discretion, provide that one or more objectively determinable
adjustments shall be made to one or more of the Performance Goals. Such adjustments may include
one or more of the following: (i) items related to a change in accounting principle; (ii) items
relating to financing activities; (iii) expenses for restructuring or productivity initiatives;
(iv) other non-operating items; (v) items related to acquisitions; (vi) items attributable to the
business operations of any entity acquired by the Company during the Performance Period;
(vii) items related to the disposal of a business or segment of a business; (viii) items related
to discontinued operations that do not qualify as a segment of a business under GAAP; (ix) items
attributable to any stock dividend, stock split, combination or exchange of shares occurring
during the Performance Period; or (x) any other items of significant income or expense which are
determined to be appropriate adjustments; (xi) items relating to unusual or extraordinary
corporate transactions, events or developments, (xii) items related to amortization of acquired
intangible assets; (xiii) items that are outside the scope of the Company’s core, on-going
business activities; or (xiv) items relating to any other unusual or nonrecurring events or
changes in applicable laws, accounting principles or business conditions. For all Awards intended
to qualify as Qualified Performance-Based Compensation, such determinations shall be made within
the time prescribed by, and otherwise in compliance with, Section 162(m) of the Code.



2.30 “Performance Goals” means, for a Performance Period, the goals established in
writing by the Committee for the Performance Period based upon the Performance Criteria. Depending
on the Performance Criteria used to establish such Performance Goals, the Performance Goals may be
expressed in terms of overall Company performance or the performance of a division, business unit,
or an individual. The Committee, in its discretion, may, within the time prescribed by
Section 162(m) of the Code, adjust or modify the calculation of Performance Goals for such
Performance Period in order to prevent the dilution or enlargement of the rights of Participants
(a) in the event of, or in anticipation of, any unusual or extraordinary corporate item,
transaction, event, or development, or (b) in recognition of, or in anticipation of, any other
unusual or nonrecurring events affecting the Company, or the financial statements of the Company,
or in response to, or in anticipation of, changes in applicable laws, regulations, accounting
principles, or business conditions.



2.31 “Performance Period” means the one or more periods of time, which may be of
varying and overlapping durations, as the Committee may select, over which the attainment of one or
more Performance Goals will be measured for the purpose of determining a Participant’s right to,
and the payment of, a Performance-Based Award.



2.32 “Performance Share” means a right granted to a Participant pursuant to
Section 8.1, to receive Stock, the payment of which is contingent upon achieving certain
Performance Goals or other performance-based targets established by the Committee.



2.33 “Performance Stock Unit” means a right granted to a Participant pursuant to
Section 8.2, to receive Stock, the payment of which is contingent upon achieving certain
Performance Goals or other performance-based targets established by the Committee.



2.34 “Plan” means this eBay Inc. 2008 Equity Incentive Award Plan, as it may be
amended from time to time.



2.35 “Qualified Performance-Based Compensation” means any compensation that is
intended to qualify as “qualified performance-based compensation” as described in
Section 162(m)(4)(C) of the Code.



2.36 “Restricted Stock” means Stock awarded to a Participant pursuant to Article 6
that is subject to certain restrictions and may be subject to risk of forfeiture.



2.37 “Restricted Stock Unit” means an Award granted pursuant to Section 8.6.



2.38 “Securities Act” shall mean the Securities Act of 1933, as amended.



2.39 “Stock” means the common stock of the Company, par value $0.001 per share, and
such other securities of the Company that may be substituted for Stock pursuant to Article 12.



2.40 “Stock Appreciation Right” or “SAR” means a right granted pursuant to
Article 7 to receive a payment equal to the excess of the Fair Market Value of a specified number
of shares of Stock on the date the SAR is exercised over the Fair Market Value on the date the SAR
was granted as set forth in the applicable Award Agreement.



2.41 “Stock Payment” means (a) a payment in the form of shares of Stock, or (b) an
option or other right to purchase shares of Stock, as part of any bonus, deferred compensation or
other arrangement, made in lieu of all or any portion of a benefit or compensation, granted
pursuant to Section 8.4.



2.42 “Subsidiary” means any entity (other than the Company), whether domestic or
foreign, in an unbroken chain of entities beginning with the Company if, at the time of the
determination, each of the entities other than the last entity in the unbroken chain beneficially
owns securities or interests representing more than fifty percent (50%) of the total combined
voting power of all classes of securities or interests in one of the other entities in such chain.



2.43 “Substitute Award” shall mean an Option granted under the Plan upon the
assumption of, or in substitution for, outstanding equity awards previously granted by a company or
other entity in connection with a corporate transaction, such as a merger, combination,
consolidation or acquisition of property or stock; provided, however, that in no
event shall the term “Substitute Award” be construed to refer to an award made in connection with
the cancellation and repricing of an Option.



2.44 “Termination of Service” shall mean,



(a) As to a Consultant, the time when the engagement of a Participant as a Consultant to the
Company or a Subsidiary is terminated for any reason, with or without cause, including, without
limitation, by resignation, discharge, death or retirement, but excluding a termination where there
is a simultaneous commencement of employment with the Company or any Subsidiary.



(b) As to a Non-Employee Director or Independent Director, the time when a Participant who is
a Non-Employee Director or Independent Director ceases to be a Director for any reason, including,
without limitation, a termination by resignation, failure to be elected, death or retirement, but
excluding: (i) a termination where there is simultaneous employment by the Company (or a
Subsidiary) of such person and (ii) a termination which is followed by the simultaneous
establishment of a consulting relationship by the Company or a Subsidiary with such person.



(c) As to an Employee, the time when the Participant has ceased to actively be employed by or
to provide services to the Company or any Subsidiary for any reason, without limitation, including
resignation, discharge, death, disability or retirement; but excluding: (i) a termination where
there is a simultaneous reemployment or continuing employment of a Participant by the Company or
any Subsidiary, (ii) a termination which is followed by the simultaneous establishment of a
consulting relationship by the Company or a Subsidiary with the former employee, and (iii) a
termination where a Participant simultaneously becomes an Independent Director.



(d) The Committee, in its absolute discretion, shall determine the effect of all matters and
questions relating to Termination of Service, including, without limitation, questions relating to
the nature and type of Termination of Service, and all questions of whether particular leaves of
absence constitute Termination of Service; provided, however, that, with respect to
Incentive Stock Options, unless the Committee otherwise provides in the terms of the Award
Agreement, a leave of absence, change in status from an employee to an independent contractor or
other change in the employee-employer relationship shall constitute a Termination of Service if,
and to the extent that, such leave of absence, change in status or other change interrupts
employment for the purposes of Section 422(a)(2) of the Code and the then applicable regulations
and revenue rulings under said Section. For purposes of the Plan, a Participant shall be deemed to
have a Termination of Service in the event that the Subsidiary employing or contracting with such
Participant ceases to remain a Subsidiary following any merger, sale of stock or other corporate
transaction or event (including, without limitation, a spin-off).



ARTICLE 3.




SHARES SUBJECT TO THE PLAN




3.1 Number of Shares.



(a) Subject to Article 12 and Section 3.1(b), the aggregate number of shares of Stock which
may be issued or transferred pursuant to Awards under the Plan is 35,000,000 shares of Stock.



(b) To the extent that an Award terminates, expires, or lapses for any reason, or an Award is
settled in cash without delivery of shares to the Participant, then any shares of Stock subject to
the Award shall again be available for the grant of an Award pursuant to the Plan. Additionally,
any shares of Stock tendered or withheld to satisfy the grant or exercise price or tax withholding
obligation (including any shifting of employer tax liability to the Participant) pursuant to any
Award shall again be available for the grant of an Award pursuant to the Plan. To the extent
permitted by applicable law or any exchange rule, shares of Stock issued in assumption of, or in
substitution for, any outstanding awards of any entity acquired in any form of combination by the
Company or any Subsidiary shall not be counted against shares of Stock available for grant pursuant
to this Plan. The payment of Dividend Equivalents in cash in conjunction with any outstanding
Awards shall not be counted against the shares available for issuance under the Plan.
Notwithstanding the provisions of this Section 3.1(b), no shares of Stock may again be optioned,
granted or awarded if such action would cause an Incentive Stock Option to fail to qualify as an
incentive stock option under Section 422 of the Code.



3.2 Stock Distributed.  Any Stock distributed pursuant to an Award may consist, in
whole or in part, of authorized and unissued Stock, treasury Stock or Stock purchased on the open
market.



3.3 Limitation on Number of Shares Subject to Awards.  Notwithstanding any provision
in the Plan to the contrary, and subject to Article 12, the maximum number of shares of Stock with
respect to one or more Awards that may be granted to any one Participant during any calendar year
shall be 1,000,000 and the maximum amount that may be paid in cash during any calendar year with
respect to any Performance-Based Award (including, without limitation, any Performance Bonus Award)
shall be $3,000,000.



ARTICLE 4.




ELIGIBILITY AND PARTICIPATION




4.1 Participation.  Subject to the provisions of the Plan, the Committee may, from
time to time, and in its sole discretion, select from among all Eligible Individuals, those to whom
Awards shall be granted and shall determine the nature and amount of each Award. No Eligible
Individual shall have any right to be granted an Award pursuant to this Plan.



4.2 Foreign Participants.  Notwithstanding any provision of the Plan to the contrary,
in order to comply with the laws in other countries in which the Company and its Subsidiaries
operate or have Eligible Individuals, the Committee, in its sole discretion, shall have the power
and authority to: (i) determine which Subsidiaries shall be covered by the Plan; (ii) determine
which Eligible Individuals outside the United States are eligible to participate in the Plan;
(iii) modify the terms and conditions of any Award granted to Eligible Individuals outside the
United States to comply with applicable foreign laws; (iv) establish subplans and modify exercise
procedures and other terms and procedures, to the extent such actions may be necessary or advisable
(any such subplans and/or modifications shall be attached to this Plan as appendices); provided,
however, that no such subplans and/or modifications shall increase the share limitations contained
in Sections 3.1 and 3.3 of the Plan; and (v) take any action, before or after an Award is made,
that it deems advisable to obtain approval or comply with any necessary local governmental
regulatory exemptions or approvals. Notwithstanding the foregoing, the Committee may not take any
actions hereunder, and no Awards shall be granted, that would violate the Exchange Act, the Code,
any securities law or governing statute or any other applicable law.



ARTICLE 5.




STOCK OPTIONS




5.1 General.  The Committee is authorized to grant Options to Eligible Individuals on
the following terms and conditions:




(a) Exercise Price.  The exercise price per share of Stock subject to an Option
shall be determined by the Committee and set forth in the Award Agreement; provided, that,
subject to Section 5.2(d), the exercise price for any Option shall not be less than 100% of the
Fair Market Value of a share of Stock on the date of grant.




(b) Time and Conditions of Exercise.  The Committee shall determine the time or
times at which an Option may be exercised in whole or in part; provided that the term of any
Option granted under the Plan shall not exceed ten years. The Committee shall determine the time
period, including the time period following a Termination of Service, during which the
Participant has the right to exercise the vested Options, which time period may not extend beyond
the term of the Option. Except as limited by the requirements of Section 409A or Section 422 of
the Code and regulations and rulings thereunder, the Committee may extend the term of any
outstanding Option, and may extend the time period during which vested Options may be exercised,
in connection with any Termination of Service of the Participant, and may amend any other term or
condition of such Option relating to such a Termination of Service. The Committee shall also
determine the performance or other conditions, if any, that must be satisfied before all or part
of an Option may be exercised.




(c) Evidence of Grant.  All Options shall be evidenced by an Award Agreement between
the Company and the Participant. The Award Agreement shall include such additional provisions as
may be specified by the Committee.



5.2 Incentive Stock Options.  Incentive Stock Options shall be granted only to
Employees and the terms of any Incentive Stock Options granted pursuant to the Plan, in addition to
the requirements of Section 5.1, must comply with the provisions of this Section 5.2.



(a) Expiration.  Subject to Section 5.2(c), an Incentive Stock Option shall expire and
may not be exercised to any extent by anyone after the first to occur of the following events:




(i) Ten years from the date it is granted, unless an earlier time is set in the Award
Agreement;




(ii) Three months after the Participant’s termination of employment as an Employee; and




(iii) One year after the date of the Participant’s termination of employment or service on
account of Disability or death. Upon the Participant’s Disability or death, any Incentive Stock
Options exercisable at the Participant’s Disability or death may be exercised by the
Participant’s legal representative or representatives, by the person or persons entitled to do so
pursuant to the Participant’s last will and testament, or, if the Participant fails to make
testamentary disposition of such Incentive Stock Option or dies intestate, by the person or
persons entitled to receive the Incentive Stock Option pursuant to the applicable laws of descent
and distribution.



(b) Dollar Limitation.  The aggregate Fair Market Value (determined as of the time the
Option is granted) of all shares of Stock with respect to which Incentive Stock Options are first
exercisable by a Participant in any calendar year may not exceed $100,000 or such other limitation
as imposed by Section 422(d) of the Code, or any successor provision. To the extent that Incentive
Stock Options are first exercisable by a Participant in excess of such limitation, the excess shall
be considered Non-Qualified Stock Options.



(c) Ten Percent Owners.  An Incentive Stock Option shall be granted to any individual
who, at the date of grant, owns stock possessing more than ten percent of the total combined voting
power of all classes of Stock of the Company only if such Option is granted at a price that is not
less than 110% of Fair Market Value on the date of grant (or the date the Option is modified,
extended or renewed for purposes of Section 424(h) of the Code) and the Option is exercisable for
no more than five years from the date of grant.



(d) Notice of Disposition.  The Participant shall give the Company prompt notice of
any disposition of shares of Stock acquired by exercise of an Incentive Stock Option within (i) two
years from the date of grant of such Incentive Stock Option or (ii) one year after the transfer of
such shares of Stock to the Participant.



(e) Right to Exercise.  During a Participant’s lifetime, an Incentive Stock Option may
be exercised only by the Participant.



(f) Failure to Meet Requirements.  Any Option (or portion thereof) purported to be an
Incentive Stock Option, which, for any reason, fails to meet the requirements of Section 422 of the
Code shall be considered a Non-Qualified Stock Option.



5.3 Substitution of Stock Appreciation Rights.  The Committee may provide in the Award
Agreement evidencing the grant of an Option that the Committee, in its sole discretion, shall have
to right to substitute a Stock Appreciation Right for such Option at any time prior to or upon
exercise of such Option; provided, that such Stock Appreciation Right shall be exercisable with
respect to the same number of shares of Stock for which such substituted Option would have been
exercisable.



5.4 Substitute Awards.  Notwithstanding the foregoing provisions of this Article 5 to
the contrary, in the case of an Option that is a Substitute Award, the exercise price per share of
the shares subject to such Option may be less than the Fair Market Value per share on the date of
grant, provided, that the excess of: (a) the aggregate Fair Market Value (as of the date
such Substitute Award is granted) of the shares subject to the Substitute Award, over (b) the
aggregate exercise price thereof does not exceed the excess of: (x) the aggregate fair market value
(as of the time immediately preceding the transaction giving rise to the Substitute Award, such
fair market value to be determined by the Committee) of the shares of the predecessor entity that
were subject to the grant assumed or substituted for by the Company, over (y) the aggregate
exercise price of such shares.



ARTICLE 6.




RESTRICTED STOCK AWARDS




6.1 Grant of Restricted Stock.  



(a) The Committee is authorized to make Awards of Restricted Stock to any Eligible Individual
selected by the Committee in such amounts and subject to such terms and conditions as determined by
the Committee. All Awards of Restricted Stock shall be evidenced by an Award Agreement.



(b) The Committee shall establish the purchase price, if any, and form of payment for
Restricted Stock; provided, however, that such purchase price shall be no less than
the par value of the Stock to be purchased, unless otherwise permitted by applicable state law. In
all cases, legal consideration shall be required for each issuance of Restricted Stock.



6.2 Issuance and Restrictions.  All shares of Restricted Stock (including any shares
received by Participants thereof with respect to shares of Restricted Stock as a result of stock
dividends, stock splits or any other form of recapitalization) shall, in the terms of each
individual Award Agreement, be subject to such restrictions on transferability and other
restrictions and vesting requirements as the Committee shall provide. Such restrictions may
include, without limitation, restrictions concerning voting rights and transferability and such
restrictions may lapse separately or in combination at such times and pursuant to such
circumstances or based on such criteria as selected by the Committee, including, without
limitation, criteria based on the Participant’s duration of employment, directorship or consultancy
with the Company, Performance Criteria, Company performance, individual performance or other
criteria selected by the Committee. By action taken after the Restricted Stock is issued, the
Committee may, on such terms and conditions as it may determine to be appropriate, accelerate the
vesting of such Restricted Stock by removing any or all of the restrictions imposed by the terms of
the Award Agreement. Restricted Stock may not be sold or encumbered until all restrictions are
terminated or expire.



6.3 Repurchase or Forfeiture of Restricted Stock.  If no price was paid by the
Participant for the Restricted Stock, upon a Termination of Service the Participant’s rights in
unvested Restricted Stock then subject to restrictions shall lapse, and such Restricted Stock shall
be surrendered to the Company without consideration. If a price was paid by the Participant for the
Restricted Stock, upon a Termination of Service the Company shall have the right to repurchase from
the Participant the unvested Restricted Stock then subject to restrictions at a cash price per
share equal to the price paid by the Participant for such Restricted Stock or such other amount as
may be specified in the Award Agreement The Committee in its discretion may provide that in the
event of certain events, including a Change in Control, the Participant’s death, retirement or
disability or any other specified Termination of Service or any other event, the Participant’s
rights in unvested Restricted Stock shall not lapse, such Restricted Stock shall vest and, if
applicable, the Company shall not have a right of repurchase.



6.4 Certificates for Restricted Stock.  Restricted Stock granted pursuant to the Plan
may be evidenced in such manner as the Committee shall determine. If certificates representing
shares of Restricted Stock are registered in the name of the Participant, certificates must bear an
appropriate legend referring to the terms, conditions, and restrictions applicable to such
Restricted Stock, and the Company may, at its discretion, retain physical possession of the
certificate until such time as all applicable restrictions lapse



6.5 Section 83(b) Election.  If a Participant makes an election under Section 83(b) of
the Code to be taxed with respect to the Restricted Stock as of the date of transfer of the
Restricted Stock rather than as of the date or dates upon which the Participant would otherwise be
taxable under Section 83(a) of the Code, the Participant shall be required to deliver a copy of
such election to the Company promptly after filing such election with the Internal Revenue Service.



ARTICLE 7.




STOCK APPRECIATION RIGHTS




7.1 Grant of Stock Appreciation Rights.



(a) A Stock Appreciation Right may be granted to any Eligible Individual selected by the
Committee. A Stock Appreciation Right shall be subject to such terms and conditions not
inconsistent with the Plan as the Committee shall impose and shall be evidenced by an Award
Agreement.



(b) A Stock Appreciation Right shall entitle the Participant (or other person entitled to
exercise the Stock Appreciation Right pursuant to the Plan) to exercise all or a specified portion
of the Stock Appreciation Right (to the extent then exercisable pursuant to its terms) and to
receive from the Company an amount equal to the product of (i) the excess of (A) the Fair Market
Value of the Stock on the date the Stock Appreciation Right is exercised over (B) the Fair Market
Value of the Stock on the date the Stock Appreciation Right was granted and (ii) the number of
shares of Stock with respect to which the Stock Appreciation Right is exercised, subject to any
limitations the Committee may impose. Except as described in (c) below, the exercise price per
share of Stock subject to each Stock Appreciation Right shall be set by the Committee, but shall
not be less than 100% of the Fair Market Value on the date the Stock Appreciation Right is granted.



(c) Notwithstanding the foregoing provisions of Section 7.1(b) to the contrary, in the case of
an Stock Appreciation Right that is a Substitute Award, the price per share of the shares subject
to such Stock Appreciation Right may be less than the Fair Market Value per share on the date of
grant, provided, that the excess of: (a) the aggregate Fair Market Value (as of the date
such Substitute Award is granted) of the shares subject to the Substitute Award, over (b) the
aggregate exercise price thereof does not exceed the excess of: (x) the aggregate fair market value
(as of the time immediately preceding the transaction giving rise to the Substitute Award, such
fair market value to be determined by the Committee) of the shares of the predecessor entity that
were subject to the grant assumed or substituted for by the Company, over (y) the aggregate
exercise price of such shares.



7.2 Payment and Limitations on Exercise.



(a) Subject to Sections 7.2(b) payment of the amounts determined under Sections 7.1(b) above
shall be in cash, in Stock (based on its Fair Market Value as of the date the Stock Appreciation
Right is exercised) or a combination of both, as determined by the Committee in the Award Agreement
and subject to any tax withholding requirements.



(b) To the extent any payment under Section 7.1(b) is effected in Stock, it shall be made
subject to satisfaction of all provisions of Article 5 above pertaining to Options.



ARTICLE 8.




OTHER TYPES OF AWARDS




8.1 Performance Share Awards.  Any Eligible Individual selected by the Committee may
be granted one or more Performance Share awards which shall be denominated in a number of shares of
Stock and which may be linked to any one or more of the Performance Criteria or other specific
performance criteria determined appropriate by the Committee, in each case on a specified date or
dates or over any period or periods determined by the Committee. In making such determinations, the
Committee shall consider (among such other factors as it deems relevant in light of the specific
type of award) the contributions, responsibilities and other compensation of the particular
Participant.



8.2 Performance Stock Units.  Any Eligible Individual selected by the Committee may be
granted one or more Performance Stock Unit awards which shall be denominated in unit equivalent of
shares of Stock and/or units of value including dollar value of shares of Stock and which may be
linked to any one or more of the Performance Criteria or other specific performance criteria
determined appropriate by the Committee, in each case on a specified date or dates or over any
period or periods determined by the Committee. In making such determinations, the Committee shall
consider (among such other factors as it deems relevant in light of the specific type of award) the
contributions, responsibilities and other compensation of the particular Participant.



8.3 Dividend Equivalents.  



(a) Any Eligible Individual selected by the Committee may be granted Dividend Equivalents
based on the dividends declared on the shares of Stock that are subject to any Award, to be
credited as of dividend payment dates, during the period between the date the Award is granted and
the date the Award is exercised, vests or expires, as determined by the Committee. Such Dividend
Equivalents shall be converted to cash or additional shares of Stock by such formula and at such
time and subject to such limitations as may be determined by the Committee.



(b) Notwithstanding the foregoing, no Dividend Equivalents shall be payable with respect to
Options or SARs.



8.4 Stock Payments.  Any Eligible Individual selected by the Committee may receive
Stock Payments in the manner determined from time to time by the Committee. The number of shares
shall be determined by the Committee and may be based upon the Performance Criteria or other
specific performance criteria determined appropriate by the Committee, determined on the date such
Stock Payment is made or on any date thereafter.



8.5 Deferred Stock Units.  Any Eligible Individual selected by the Committee may be
granted an award of Deferred Stock Units in the manner determined from time to time by the
Committee. The number of shares of Deferred Stock Units shall be determined by the Committee and
may be linked to the Performance Criteria or other specific performance criteria determined to be
appropriate by the Committee, including service to the Company or any Subsidiary, in each case on a
specified date or dates or over any period or periods determined by the Committee. Stock underlying
a Deferred Stock Unit award will not be issued until the Deferred Stock Unit award has vested,
pursuant to a vesting schedule or performance criteria set by the Committee. Unless otherwise
provided by the Committee, a Participant awarded Deferred Stock Units shall have no rights as a
Company stockholder with respect to such Deferred Stock Units until such time as the Deferred Stock
Unit Award has vested and the Stock underlying the Deferred Stock Unit Award has been issued.



8.6 Restricted Stock Units.  The Committee is authorized to make Awards of Restricted
Stock Units to any Eligible Individual selected by the Committee in such amounts and subject to
such terms and conditions as determined by the Committee. At the time of grant, the Committee shall
specify the date or dates on which the Restricted Stock Units shall become fully vested and
nonforfeitable, and may specify such conditions to vesting as it deems appropriate. The Committee
shall specify, or permit the Participant to elect, the conditions and dates upon which the shares
of Stock underlying the Restricted Stock Units shall be issued, which dates shall not be earlier
than the date as of which the Restricted Stock Units vest and become nonforfeitable and which
conditions and dates shall be subject to compliance with Section 409A of the Code. On the
distribution dates, the Company shall, subject to Section 10.6(b), transfer to the Participant one
unrestricted, fully transferable share of Stock for each Restricted Stock Unit scheduled to be paid
out on such date and not previously forfeited.



8.7 Performance Bonus Awards.  Any Eligible Individual selected by the Committee may
be granted one or more Performance-Based Awards in the form of a cash bonus (a “Performance
Bonus Award”) payable upon the attainment of Performance Goals that are established by the
Committee and relate to one or more of the Performance Criteria, in each case on a specified date
or dates or over any period or periods determined by the Committee. Any such Performance Bonus
Award paid to a Covered Employee shall be based upon objectively determinable bonus formulas
established in accordance with Article 9.



8.8 Term.  Except as otherwise provided herein, the term of any Award of Performance
Shares, Performance Stock Units, Dividend Equivalents, Stock Payments, Deferred Stock Units or
Restricted Stock Units shall be set by the Committee in its discretion.



8.9 Exercise or Purchase Price.  The Committee may establish the exercise or purchase
price, if any, of any Award of Performance Shares, Performance Stock Units, Deferred Stock Units,
Stock Payments or Restricted Stock Units; provided, however, that such price shall not be less than
the par value of a share of Stock on the date of grant, unless otherwise permitted by applicable
state law.



8.10 Exercise upon Termination of Service.  An Award of Performance Shares,
Performance Stock Units, Dividend Equivalents, Deferred Stock Units, Stock Payments and Restricted
Stock Units shall only be exercisable or payable while the Participant is an Employee, Consultant
or Director, as applicable; provided, however, that the Committee in its sole and absolute
discretion may provide that an Award of Performance Shares, Performance Stock Units, Dividend
Equivalents, Stock Payments, Deferred Stock Units or Restricted Stock Units may be exercised or
paid subsequent to a Termination of Service, as applicable, or following a Change in Control of the
Company, or because of the Participant’s retirement, death or disability, or otherwise; provided,
however, that any such provision with respect to Performance Shares or Performance Stock Units
shall be subject to the requirements of Section 162(m) of the Code that apply to Qualified
Performance-Based Compensation.



8.11 Form of Payment.  Payments with respect to any Awards granted under this
Article 8 shall be made in cash, in Stock or a combination of both, as determined by the Committee.



8.12 Award Agreement.  All Awards under this Article 8 shall be subject to such
additional terms and conditions as determined by the Committee and shall be evidenced by an Award
Agreement.



ARTICLE 9.




PERFORMANCE-BASED AWARDS




9.1 Purpose.  The purpose of this Article 9 is to provide the Committee the ability to
qualify Awards other than Options and SARs and that are granted pursuant to Articles 6 and 8 as
Qualified Performance-Based Compensation. If the Committee, in its discretion, decides to grant a
Performance-Based Award to a Covered Employee, the provisions of this Article 9 shall control over
any contrary provision contained in the Plan; provided, however, that the Committee may in its
discretion grant Awards to Covered Employees that are based on Performance Criteria or Performance
Goals but that do not satisfy the requirements of this Article 9.



9.2 Applicability.  This Article 9 shall apply only to those Covered Employees
selected by the Committee to receive Performance-Based Awards. The designation of a Covered
Employee as a Participant for a Performance Period shall not in any manner entitle the Participant
to receive an Award for the period. Moreover, designation of a Covered Employee as a Participant
for a particular Performance Period shall not require designation of such Covered Employee as a
Participant in any subsequent Performance Period and designation of one Covered Employee as a
Participant shall not require designation of any other Covered Employees as a Participant in such
period or in any other period.



9.3 Types of Awards.  Notwithstanding anything in the Plan to the contrary, the
Committee may grant any Award to a Covered Employee intended to qualify as Performance-Based
Compensation, including, without limitation, Restricted Stock the restrictions with respect to
which lapse upon the attainment of specified Performance Goals and any other performance or
incentive Awards that vest or becomes exercisable or payable upon the attainment of one or more
specified Performance Goals.



9.4 Procedures with Respect to Performance-Based Awards.  To the extent necessary to
comply with the Qualified Performance-Based Compensation requirements of Section 162(m)(4)(C) of
the Code, with respect to any Award granted under Articles 6 or 8 which may be granted to one or
more Covered Employees, no later than ninety (90) days following the commencement of any fiscal
year in question or any other designated fiscal period or period of service (or such other time as
may be required or permitted by Section 162(m) of the Code), the Committee shall, in writing,
(a) designate one or more Covered Employees, (b) select the Performance Criteria applicable to the
Performance Period, (c) establish the Performance Goals, and amounts of such Awards, as applicable,
which may be earned for such Performance Period, and (d) specify the relationship between
Performance Criteria and the Performance Goals and the amounts of such Awards, as applicable, to be
earned by each Covered Employee for such Performance Period. Following the completion of each
Performance Period, the Committee shall certify in writing whether the applicable Performance Goals
have been achieved for such Performance Period. In determining the amount earned by a Covered
Employee, the Committee shall have the right to reduce or eliminate (but not to increase) the
amount payable at a given level of performance to take into account additional factors that the
Committee may deem relevant to the assessment of individual or corporate performance for the
Performance Period.



9.5 Payment of Performance-Based Awards.  Unless otherwise provided in the applicable
Award Agreement, a Participant must be employed by the Company or a Subsidiary on the day a
Performance-Based Award for such Performance Period is paid to the Participant. Furthermore, a
Participant shall be eligible to receive payment pursuant to a Performance-Based Award for a
Performance Period only if the Performance Goals for such period are achieved. In determining the
amount earned under a Performance-Based Award, the Committee may reduce or eliminate the amount of
the Performance-Based Award earned for the Performance Period, if in its sole and absolute
discretion, such reduction or elimination is appropriate.



9.6 Additional Limitations.  Notwithstanding any other provision of the Plan, any
Award which is granted to a Covered Employee and is intended to constitute Qualified
Performance-Based Compensation shall be subject to any additional limitations set forth in
Section 162(m) of the Code (including any amendment to Section 162(m) of the Code) or any
regulations or rulings issued thereunder that are requirements for qualification as qualified
performance-based compensation as described in Section 162(m)(4)(C) of the Code, and the Plan and
the applicable Award Agreement shall be deemed amended to the extent necessary to conform to such
requirements.



ARTICLE 10.




PROVISIONS APPLICABLE TO AWARDS




10.1 Stand-Alone and Tandem Awards.  Awards granted pursuant to the Plan may, in the
discretion of the Committee, be granted either alone, in addition to, or in tandem with, any other
Award granted pursuant to the Plan. Awards granted in addition to or in tandem with other Awards
may be granted either at the same time as or at a different time from the grant of such other
Awards.



10.2 Award Agreement.  Awards under the Plan shall be evidenced by Award Agreements
that set forth the terms, conditions and limitations for each Award which may include the term of
an Award, the provisions applicable in the event the Participant’s employment or service
terminates, and the Company’s authority to unilaterally or bilaterally amend, modify, suspend,
cancel or rescind an Award.



10.3 Payment.  The Committee shall determine the methods by which payments by any
Participant with respect to any Awards granted under the Plan may be paid, the form of payment,
including, without limitation: (i) cash, (ii) shares of Stock (including, in the case of payment of
the exercise price of an Award, shares of Stock issuable pursuant to the exercise of the Award)
held for such period of time as may be required by the Committee in order to avoid adverse
accounting consequences and having a Fair Market Value on the date of delivery equal to the
aggregate payments required, or (iii) other property acceptable to the Committee (including through
the delivery of a notice that the Participant has placed a market sell order with a broker with
respect to shares of Stock then issuable upon exercise or vesting of an Award, and that the broker
has been directed to pay a sufficient portion of the net proceeds of the sale to the Company in
satisfaction of the aggregate payments required; provided that payment of such proceeds is then
made to the Company upon settlement of such sale). The Committee shall also determine the methods
by which shares of Stock shall be delivered or deemed to be delivered to Participants.
Notwithstanding any other provision of the Plan to the contrary, no Participant who is a Director
or an “executive officer” of the Company within the meaning of Section 13(k) of the Exchange Act
shall be permitted to pay the exercise price of an Option with a loan from the Company or a loan
arranged by the Company in violation of Section 13(k) of the Exchange Act.



10.4 Limits on Transfer.  



(a) Except as otherwise provided in Section 10.4(b):




(i) No Award under the Plan may be sold, pledged, assigned or transferred in any manner
other than by will or the laws of descent and distribution or, subject to the consent of the
Committee, pursuant to a DRO, unless and until such Award has been exercised, or the shares
underlying such Award have been issued, and all restrictions applicable to such shares have
lapsed;




(ii) No Award or interest or right therein shall be liable for the debts, contracts or
engagements of the Participant or his successors in interest or shall be subject to disposition
by transfer, alienation, anticipation, pledge, hypothecation, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including
bankruptcy), and any attempted disposition thereof shall be null and void and of no effect,
except to the extent that such disposition is permitted by the preceding sentence; and




(iii) During the lifetime of the Participant, only the Participant may exercise an Award (or
any portion thereof) granted to him under the Plan, unless it has been disposed of pursuant to a
DRO; after the death of the Participant, any exercisable portion of an Award may, prior to the
time when such portion becomes unexercisable under the Plan or the applicable Award Agreement, be
exercised by his personal representative or by any person empowered to do so under the deceased
Participant’s will or under the then applicable laws of descent and distribution.



(b) Notwithstanding Section 10.4(a), the Committee, in its sole discretion, may determine to
permit a Participant to transfer an Award other than an Incentive Stock Option to any one or more
Permitted Transferees (as defined below), subject to the following terms and conditions: (i) an
Award transferred to a Permitted Transferee shall not be assignable or transferable by the
Permitted Transferee other than by will or the laws of descent and distribution; (ii) an Award
transferred to a Permitted Transferee shall continue to be subject to all the terms and conditions
of the Award as applicable to the original Participant (other than the ability to further transfer
the Award); and (iii) the Participant and the Permitted Transferee shall execute any and all
documents requested by the Committee, including, without limitation documents to (A) confirm the
status of the transferee as a Permitted Transferee, (B) satisfy any requirements for an exemption
for the transfer under applicable federal, state and foreign securities laws and (C) evidence the
transfer. For purposes of this Section 10.4(b), “Permitted Transferee” shall mean, with
respect to a Participant, any “family member” of the Participant, as defined under the instructions
to use of the Form S-8 Registration Statement under the Securities Act, or any other transferee
specifically approved by the Committee after taking into account any state, federal, local or
foreign tax and securities laws applicable to transferable Awards.



10.5 Beneficiaries.  Notwithstanding Section 10.4 and unless otherwise provided in the
applicable Award Agreement, a Participant may, in the manner determined by the Committee, designate
a beneficiary to exercise the rights of the Participant and to receive any distribution with
respect to any Award upon the Participant’s death. A beneficiary, legal guardian, legal
representative, or other person claiming any rights pursuant to the Plan is subject to all terms
and conditions of the Plan and any Award Agreement applicable to the Participant, except to the
extent the Plan and Award Agreement otherwise provide, and to any additional restrictions deemed
necessary or appropriate by the Committee. If the Participant is married and resides in a community
property state, a designation of a person other than the Participant’s spouse as his or her
beneficiary with respect to more than 50% of the Participant’s interest in the Award shall not be
effective without the prior written consent of the Participant’s spouse. If no beneficiary has been
designated or survives the Participant, payment shall be made to the person entitled thereto
pursuant to the Participant’s will or the laws of descent and distribution. Subject to the
foregoing, a beneficiary designation may be changed or revoked by a Participant at any time
provided the change or revocation is filed with the Committee.



10.6 Stock Certificates; Book Entry Procedures.  



(a) Notwithstanding anything herein to the contrary, the Company shall not be required to
issue or deliver any certificates or make any book entries evidencing shares of Stock pursuant to
the exercise of any Award, unless and until the Board has determined, with advice of counsel, that
the issuance and delivery of such shares is in compliance with all applicable laws, regulations of
governmental authorities and, if applicable, the requirements of any exchange on which the shares
of Stock are listed or traded. All Stock certificates delivered pursuant to the Plan are subject to
any stop-transfer orders and other restrictions as the Committee deems necessary or advisable to
comply with federal, state, or foreign jurisdiction, securities or other laws, rules and
regulations and the rules of any national securities exchange or automated quotation system on
which the Stock is listed, quoted, or traded. The Committee may place legends on any Stock
certificate to reference restrictions applicable to the Stock. In addition to the terms and
conditions provided herein, the Board may require that a Participant make such reasonable
covenants, agreements, and representations as the Board, in its discretion, deems advisable in
order to comply with any such laws, regulations, or requirements. The Committee shall have the
right to require any Participant to comply with any timing or other restrictions with respect to
the settlement or exercise of any Award, including a window-period limitation, as may be imposed in
the discretion of the Committee.



(b) Notwithstanding any other provision of the Plan, unless otherwise determined by the
Committee or required by any applicable law, rule or regulation, the Company shall not deliver to
any Participant certificates evidencing shares of Stock issued in connection with any Award and
instead such shares of Stock shall be recorded in the books of the Company (or, as applicable, its
transfer agent or stock plan administrator).



10.7 Paperless Administration.  In the event that the Company establishes, for itself
or using the services of a third party, an automated system for the documentation, granting or
exercise of Awards, such as a system using an internet website or interactive voice response, then
the paperless documentation, granting or exercise of Awards by a Participant may be permitted
through the use of such an automated system.



10.8 Prohibition on Repricing.  Subject to Section 12.1, the Committee shall not,
without the approval of the stockholders of the Company, authorize the amendment of any outstanding
Award to reduce its price per share. Furthermore, subject to Section 12.1, no Award shall be
canceled and replaced with the grant of an Award having a lesser price per share without the
further approval of stockholders of the Company. Subject to Section 12.1, the Committee shall have
the authority, without the approval of the stockholders of the Company, to amend any outstanding
award to increase the price per share or to cancel and replace an Award with the grant of an Award
having a price per share that is greater than or equal to the price per share of the original
Award.



10.9 Full Value Award Vesting Limitations.  Notwithstanding any other provision of the
Plan to the contrary, Full Value Awards made to Employees or Consultants shall become vested over a
period of not less than three years (or, in the case of vesting based upon the attainment of
Performance Goals or other performance-based objectives, over a period of not less than one year
measured from the commencement of the period over which performance is evaluated) following the
date the Award is made; provided, however, that, notwithstanding the foregoing, Full Value Awards
that result in the issuance of an aggregate of up to 5% of the shares of Stock available pursuant
to Section 3.1(a) may be granted to any one or more Participants without respect to such minimum
vesting provisions.



ARTICLE 11.




INDEPENDENT DIRECTOR AWARDS




11.1 The Board may grant Awards to Independent Directors, subject to the limitations of the
Plan, pursuant to a written non-discretionary formula established by the Committee, or any
successor committee thereto carrying out its responsibilities on the date of grant of any such
Award (the “Independent Director Equity Compensation Policy”). The Independent Director
Equity Compensation Policy shall set forth the type of Award(s) to be granted to Independent
Directors, the number of shares of Stock to be subject to Independent Director Awards, the
conditions on which such Awards shall be granted, become exercisable and/or payable and expire, and
such other terms and conditions as the Committee (or such other successor committee as described
above) shall determine in its discretion



ARTICLE 12.




CHANGES IN CAPITAL STRUCTURE




12.1 Adjustments.  



(a) In the event of any stock dividend, stock split, combination or exchange of shares,
merger, consolidation or other distribution (other than normal cash dividends) of Company assets to
stockholders, or any other change affecting the shares of Stock or the share price of the Stock
other than an Equity Restructuring, the Committee shall make such equitable adjustments, if any, as
the Committee in its discretion may deem appropriate to reflect such change with respect to (i) the
aggregate number and kind of shares that may be issued under the Plan (including, but not limited
to, adjustments of the limitations in Sections 3.1 and 3.3); (ii) the number and kind of shares (or
other securities or property) subject to outstanding Awards; (iii) the terms and conditions of any
outstanding Awards (including, without limitation, any applicable performance targets or criteria
with respect thereto); and (iv) the grant or exercise price per share for any outstanding Awards
under the Plan. Any adjustment affecting an Award intended as Qualified Performance-Based
Compensation shall be made consistent with the requirements of Section 162(m) of the Code.



(b) In the event of any transaction or event described in Section 12.1 or any unusual or
nonrecurring transactions or events affecting the Company, any affiliate of the Company, or the
financial statements of the Company or any affiliate, or of changes in applicable laws, regulations
or accounting principles, the Committee, in its sole and absolute discretion, and on such terms and
conditions as it deems appropriate, either by the terms of the Award or by action taken prior to
the occurrence of such transaction or event and either automatically or upon the Participant’s
request, is hereby authorized to take any one or more of the following actions whenever the
Committee determines that such action is appropriate in order to prevent dilution or enlargement of
the benefits or potential benefits intended to be made available under the Plan or with respect to
any Award under the Plan, to facilitate such transactions or events or to give effect to such
changes in laws, regulations or principles:




(i) To provide for either (A) termination of any such Award in exchange for an amount of
cash, if any, equal to the amount that would have been attained upon the exercise of such Award
or realization of the Participant’s rights (and, for the avoidance of doubt, if as of the date of
the occurrence of the transaction or event described in this Section 12.1 the Committee
determines in good faith that no amount would have been attained upon the exercise of such Award
or realization of the Participant’s rights, then such Award may be terminated by the Company
without payment) or (B) the replacement of such Award with other rights or property selected by
the Committee in its sole discretion;




(ii) To provide that such Award be assumed by the successor or survivor corporation, or a
parent or subsidiary thereof, or shall be substituted for by similar options, rights or awards
covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof,
with appropriate adjustments as to the number and kind of shares and prices;




(iii) To make adjustments in the number and type of shares of Stock (or other securities or
property) subject to outstanding Awards, and in the number and kind of outstanding Restricted
Stock or Deferred Stock Units and/or in the terms and conditions of (including the grant or
exercise price), and the criteria included in, outstanding options, rights and awards and
options, rights and awards which may be granted in the future;




(iv) To provide that such Award shall be exercisable or payable or fully vested with respect
to all shares covered thereby, notwithstanding anything to the contrary in the Plan or the
applicable Award Agreement; and




(v) To provide that the Award cannot vest, be exercised or become payable after such event.



(c) In connection with the occurrence of any Equity Restructuring, and notwithstanding
anything to the contrary in Sections 12.1(a) and 12.1(b):




(i) The number and type of securities subject to each outstanding Award and the exercise
price or grant price thereof, if applicable, will be equitably adjusted. The adjustments provided
under this Section 12.1(c)(i) shall be nondiscretionary and shall be final and binding on the
affected Participant and the Company.




(ii) The Committee shall make such equitable adjustments, if any, as the Committee in its
discretion may deem appropriate to reflect such Equity Restructuring with respect to the
aggregate number and kind of shares that may be issued under the Plan (including, but not limited
to, adjustments of the limitations in Sections 3.1 and 3.3).




(iii) To the extent that such equitable adjustments result in tax consequences to the
Participant, the Participant shall be responsible for payment of such taxes and shall not be
compensated for such payments by the Company or its Subsidiaries.



(d) The existence of the Plan, the Award Agreement and the Awards granted hereunder shall not
affect or restrict in any way the right or power of the Company or the stockholders of the Company
to make or authorize any adjustment, recapitalization, reorganization or other change in the
Company’s capital structure or its business, any merger or consolidation of the Company, any issue
of stock or of options, warrants or rights to purchase stock or of bonds, debentures, preferred or
prior preference stocks whose rights are superior to or affect the Stock or the rights thereof or
which are convertible into or exchangeable for Stock, or the dissolution or liquidation of the
company, or any sale or transfer of all or any part of its assets or business, or any other
corporate act or proceeding, whether of a similar character or otherwise.



12.2 Acceleration Upon a Change in Control.  Notwithstanding Section 12.1, and except
as may otherwise be provided in any applicable Award Agreement or other written agreement entered
into between the Company and a Participant, if a Change in Control occurs and a Participant’s
Awards are not converted, assumed, or replaced by a successor entity, then immediately prior to the
Change in Control such Awards shall become fully exercisable and all forfeiture restrictions on
such Awards shall lapse. Upon, or in anticipation of, a Change in Control, the Committee may cause
any and all Awards outstanding hereunder to terminate at a specific time in the future, including
but not limited to the date of such Change in Control, and shall give each Participant the right to
exercise such Awards during a period of time as the Committee, in its sole and absolute discretion,
shall determine. In the event that the terms of any agreement between the Company or any Company
subsidiary or affiliate and a Participant contains provisions that conflict with and are more
restrictive than the provisions of this Section 12.2, this Section 12.2 shall prevail and control
and the more restrictive terms of such agreement (and only such terms) shall be of no force or
effect. Further, to the extent that there are tax consequences to the Participant as a result of
the acceleration or lapsing of forfeiture restriction upon a Change in Control, the Participant
shall be responsible for payment of such taxes and shall not be compensated for such payment by the
Company or its Subsidiaries.



12.3 No Other Rights.  Except as expressly provided in the Plan, no Participant shall
have any rights by reason of any subdivision or consolidation of shares of stock of any class, the
payment of any dividend, any increase or decrease in the number of shares of stock of any class or
any dissolution, liquidation, merger, or consolidation of the Company or any other corporation.
Except as expressly provided in the Plan or pursuant to action of the Committee under the Plan, no
issuance by the Company of shares of stock of any class, or securities convertible into shares of
stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect
to, the number of shares of Stock subject to an Award or the grant or exercise price of any Award.



ARTICLE 13.




ADMINISTRATION




13.1 Committee.  Unless and until the Board delegates administration of the Plan to a
Committee as set forth below, the Plan shall be administered by the full Board, and for such
purposes the term “Committee” as used in this Plan shall be deemed to refer to the Board. The
Board, at its discretion or as otherwise necessary to comply with the requirements of
Section 162(m) of the Code, Rule 16b-3 promulgated under the Exchange Act or to the extent required
by any other applicable rule or regulation, may delegate administration of the Plan to a Committee
consisting of two or more members of the Board. Unless otherwise determined by the Board, the
Committee shall consist solely of two or more members of the Board each of whom is an “outside
director,” within the meaning of Section 162(m) of the Code, a Non-Employee Director and an
“independent director” under the rules of the Nasdaq Stock Market (or other principal securities
market on which shares of Stock are traded); provided that any action taken by the Committee shall
be valid and effective, whether or not members of the Committee at the time of such action are
later determined not to have satisfied the requirements for membership set forth in this
Section 13.1 or otherwise provided in any charter of the Committee. Notwithstanding the foregoing:
(a) the full Board, acting by a majority of its members in office, shall conduct the general
administration of the Plan with respect to all Awards granted to Independent Directors and for
purposes of such Awards the term “Committee” as used in this Plan shall be deemed to refer to the
Board and (b) the Committee may delegate its authority hereunder to the extent permitted by
Section 13.5. In its sole discretion, the Board may at any time and from time to time exercise any
and all rights and duties of the Committee under the Plan except with respect to matters which
under Rule 16b-3 under the Exchange Act or Section 162(m) of the Code, or any regulations or rules
issued thereunder, are required to be determined in the sole discretion of the Committee. Except as
may otherwise be provided in any charter of the Committee, appointment of Committee members shall
be effective upon acceptance of appointment; Committee members may resign at any time by delivering
written notice to the Board; and vacancies in the Committee may only be filled by the Board.



13.2 Action by the Committee.  Unless otherwise established by the Board or in any
charter of the Committee, a majority of the Committee shall constitute a quorum and the acts of a
majority of the members present at any meeting at which a quorum is present, and acts approved in
writing by a majority of the Committee in lieu of a meeting, shall be deemed the acts of the
Committee. Each member of the Committee is entitled to, in good faith, rely or act upon any report
or other information furnished to that member by any officer or other employee of the Company or
any Subsidiary, the Company’s independent certified public accountants, or any executive
compensation consultant or other professional retained by the Company to assist in the
administration of the Plan.



13.3 Authority of Committee.  Subject to any specific designation in the Plan, the
Committee has the exclusive power, authority and discretion to:




(a) Designate Participants to receive Awards;




(b) Determine the type or types of Awards to be granted to each Participant;




(c) Determine the number of Awards to be granted and the number of shares of Stock to which
an Award will relate;




(d) Determine the terms and conditions of any Award granted pursuant to the Plan, including,
but not limited to, the exercise price, grant price, or purchase price, any restrictions or
limitations on the Award, any schedule for vesting, lapse of forfeiture restrictions or
restrictions on the exercisability of an Award, and accelerations or waivers thereof, any
provisions related to non-competition and recapture of gain on an Award, based in each case on
such considerations as the Committee in its sole discretion determines; provided, however, that
the Committee shall not have the authority to accelerate the vesting or waive the forfeiture of
any Performance-Based Awards;




(e) Determine whether, to what extent, and pursuant to what circumstances an Award may be
settled in, or the exercise price of an Award may be paid in, cash, Stock, other Awards, or other
property, or an Award may be canceled, forfeited, or surrendered;




(f) Prescribe the form of each Award Agreement, which need not be identical for each
Participant;




(g) Decide all other matters that must be determined in connection with an Award;




(h) Establish, adopt, or revise any rules and regulations as it may deem necessary or
advisable to administer the Plan;




(i) Interpret the terms of, and any matter arising pursuant to, the Plan or any Award
Agreement; and




(j) Make all other decisions and determinations that may be required pursuant to the Plan or
as the Committee deems necessary or advisable to administer the Plan.



13.4 Decisions Binding.  The Committee’s interpretation of the Plan, any Awards
granted pursuant to the Plan, any Award Agreement and all decisions and determinations by the
Committee with respect to the Plan are final, binding, and conclusive on all parties.



13.5 Delegation of Authority.  To the extent permitted by applicable law, the Board
may from time to time delegate to a committee of one or more members of the Board or one or more
officers of the Company the authority to grant or amend Awards to Participants other than
(a) Employees who are subject to Section 16 of the Exchange Act, (b) Covered Employees, or
(c) officers of the Company (or Directors) to whom authority to grant or amend Awards has been
delegated hereunder. Any delegation hereunder shall be subject to the restrictions and limits that
the Board specifies at the time of such delegation, and the Board may at any time rescind the
authority so delegated or appoint a new delegatee. At all times, the delegatee appointed under this
Section 13.5 shall serve in such capacity at the pleasure of the Board.



ARTICLE 14.




EFFECTIVE AND EXPIRATION DATE




14.1 Effective Date.  The Plan is effective as of the date the Plan is approved by the
Company’s stockholders (the “Effective Date”). The Plan will be deemed to be approved by
the stockholders if it is approved either:




(a) By a majority of the votes cast at a duly held stockholder’s meeting at which a quorum
representing a representing a majority of outstanding voting stock is, either in person or by
proxy, present and voting on the plan; or




(b) By a method and in a degree that would be treated as adequate under Delaware law in the
case of an action requiring stockholder approval.



14.2 Expiration Date.  The Plan will expire on, and no Award may be granted pursuant
to the Plan after the tenth anniversary of the Effective Date, except that no Incentive Stock
Options may be granted under the Plan after the earlier of the tenth anniversary of (a) the date
the Plan is approved by the Board or (b) the Effective Date. Any Awards that are outstanding on the
tenth anniversary of the Effective Date shall remain in force according to the terms of the Plan
and the applicable Award Agreement.



ARTICLE 15.




AMENDMENT, MODIFICATION, AND TERMINATION




15.1 Amendment, Modification, and Termination.  Subject to Section 16.15, with the
approval of the Board, at any time and from time to time, the Committee may terminate, amend or
modify the Plan; provided, however, that (a) to the extent necessary and desirable to comply with
any applicable law, regulation, or stock exchange rule, the Company shall obtain stockholder
approval of any Plan amendment in such a manner and to such a degree as required, and
(b) stockholder approval shall be required for any amendment to the Plan that (i) increases the
number of shares available under the Plan (other than any adjustment as provided by Article 12),
(ii) permits the Committee to grant Options with an exercise price that is below Fair Market Value
on the date of grant, or (iii) permits the Committee to extend the exercise period for an Option
beyond ten years from the date of grant.



15.2 Awards Previously Granted.  Except with respect to amendments made pursuant to
Section 16.15, no termination, amendment, or modification of the Plan shall adversely affect in any
material way any Award previously granted pursuant to the Plan without the prior written consent of
the Participant.



ARTICLE 16.




GENERAL PROVISIONS




16.1 No Rights to Awards.  No Eligible Individual or other person shall have any claim
to be granted any Award pursuant to the Plan, and neither the Company nor the Committee is
obligated to treat Eligible Individuals, Participants or any other persons uniformly.



16.2 No Stockholders Rights.  Except as otherwise provided herein, a Participant shall
have none of the rights of a stockholder with respect to shares of Stock covered by any Award until
the Participant becomes the record owner of such shares of Stock.



16.3 Withholding.  The Company or any Subsidiary shall have the authority and the
right to deduct or withhold, or require a Participant to remit to the Company or a Subsidiary, an
amount sufficient to satisfy federal, state, local and foreign taxes (including the Participant’s
employment tax obligations) required by law to be withheld and any employer tax liability shifted
to a Participant with respect to any taxable event concerning a Participant arising as a result of
this Plan. The Committee may in its discretion and in satisfaction of the foregoing requirement
allow a Participant to elect to have the Company withhold shares of Stock otherwise issuable under
an Award (or allow the return of shares of Stock) having a Fair Market Value equal to the sums
required to be withheld. Notwithstanding any other provision of the Plan, the number of shares of
Stock which may be withheld with respect to the issuance, vesting, exercise or payment of any Award
(or which may be repurchased from the Participant of such Award within six months (or such other
period as may be determined by the Committee) after such shares of Stock were acquired by the
Participant from the Company) in order to satisfy the Participant’s federal, state, local and
foreign income and payroll tax liabilities with respect to the issuance, vesting, exercise or
payment of the Award shall be limited to the number of shares which have a Fair Market Value on the
date of withholding or repurchase equal to the aggregate amount of such liabilities based on the
minimum statutory withholding rates for federal, state, local and foreign income tax and payroll
tax purposes that are applicable to such supplemental taxable income.



16.4 No Right to Employment or Services.  Nothing in the Plan or any Award Agreement
shall interfere with or limit in any way the right of the Company or any Subsidiary to terminate
any Participant’s employment or services at any time, nor confer upon any Participant any right to
continue in the employ or service of the Company or any Subsidiary.



16.5 Unfunded Status of Awards.  The Plan is intended to be an “unfunded” plan for
incentive compensation. With respect to any payments not yet made to a Participant pursuant to an
Award, nothing contained in the Plan or any Award Agreement shall give the Participant any rights
that are greater than those of a general creditor of the Company or any Subsidiary.



16.6 Indemnification.  To the extent allowable pursuant to applicable law, each member
of the Committee or of the Board shall be indemnified and held harmless by the Company from any
loss, cost, liability, or expense that may be imposed upon or reasonably incurred by such member in
connection with or resulting from any claim, action, suit, or proceeding to which he or she may be
a party or in which he or she may be involved by reason of any action or failure to act pursuant to
the Plan and against and from any and all amounts paid by him or her in satisfaction of judgment in
such action, suit, or proceeding against him or her; provided he or she gives the Company an
opportunity, at its own expense, to handle and defend the same before he or she undertakes to
handle and defend it on his or her own behalf. The foregoing right of indemnification shall not be
exclusive of any other rights of indemnification to which such persons may be entitled pursuant to
the Company’s Certificate of Incorporation or Bylaws, as a matter of law, or otherwise, or any
power that the Company may have to indemnify them or hold them harmless.



16.7 Relationship to Benefits.  No payment pursuant to the Plan shall be taken into
account in determining any benefits pursuant to any severance, resignation, termination,
redundancy, end of service payments, long-term service awards, pension, retirement, savings, profit
sharing, group insurance, welfare or benefit plan of the Company or any Subsidiary except to the
extent otherwise expressly provided in writing in such other plan or an agreement thereunder.



16.8 Effect of Plan upon Compensation Plans.  The adoption of the Plan shall not
affect any compensation or incentive plans in effect for the Company or any Subsidiary. Nothing in
the Plan shall be construed to limit the right of the Company or any Subsidiary: (a) to establish
any forms of incentives or compensation for Employees, Directors or Consultants of the Company or
any Subsidiary, or (b) to grant or assume options or other rights or awards otherwise than under
the Plan in connection with any proper corporate purpose including without limitation, the grant or
assumption of options in connection with the acquisition by purchase, lease, merger, consolidation
or otherwise, of the business, stock or assets of any corporation, partnership, limited liability
company, firm or association.



16.9 Expenses.  The expenses of administering the Plan shall be borne by the Company
and its Subsidiaries.



16.10 Titles and Headings.  The titles and headings of the Sections in the Plan are
for convenience of reference only and, in the event of any conflict, the text of the Plan, rather
than such titles or headings, shall control.



16.11 Fractional Shares.  No fractional shares of Stock shall be issued and the
Committee shall determine, in its discretion, whether cash shall be given in lieu of fractional
shares or whether such fractional shares shall be eliminated by rounding up or down as appropriate.



16.12 Limitations Applicable to Section 16 Persons.  Notwithstanding any other
provision of the Plan, the Plan, and any Award granted or awarded to any Participant who is then
subject to Section 16 of the Exchange Act, shall be subject to any additional limitations set forth
in any applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to
Rule 16b-3 under the Exchange Act) that are requirements for the application of such exemptive
rule. To the extent permitted by applicable law, the Plan and Awards granted or awarded hereunder
shall be deemed amended to the extent necessary to conform to such applicable exemptive rule.



16.13 Compliance with Laws.  The Plan, the granting and vesting of Awards under the
Plan and the issuance and delivery of shares of Stock and the payment of money under the Plan or
under Awards granted or awarded hereunder are subject to compliance with all applicable federal,
state, local and foreign laws, rules and regulations (including but not limited to state, federal
and foreign securities law and margin requirements) and to such approvals by any listing,
regulatory or governmental authority as may, in the opinion of counsel for the Company, be
necessary or advisable in connection therewith. The Company shall have no obligation to issue or
deliver shares of Stock prior to obtaining any approvals from listing, regulatory or governmental
authority that the Company determines are necessary or advisable. Any securities delivered under
the Plan shall be subject to such restrictions, and the person acquiring such securities shall, if
requested by the Company, provide such assurances and representations to the Company as the Company
may deem necessary or desirable to assure compliance with all applicable legal requirements. The
Company shall be under no obligation to register pursuant to the Securities Act, as amended, any of
the shares of Stock paid pursuant to the Plan. To the extent permitted by applicable law, the Plan
and Awards granted or awarded hereunder shall be deemed amended to the extent necessary to conform
to such laws, rules and regulations.



16.14 Governing Law.  The Plan and all Award Agreements shall be construed in
accordance with and governed by the laws of the State of Delaware, without regard to the principles
of conflict of laws of that State.



16.15 Section 409A.  To the extent that the Committee determines that any Award
granted under the Plan is subject to Section 409A of the Code, the Award Agreement evidencing such
Award shall incorporate the terms and conditions required by Section 409A of the Code. To the
extent applicable, the Plan and Award Agreements shall be interpreted in accordance with Section
409A of the Code and Department of Treasury regulations and other interpretive guidance issued
thereunder, including without limitation any such regulations or other guidance that may be issued
after the Effective Date. Notwithstanding any provision of the Plan to the contrary, in the event
that following the Effective Date the Committee determines that any Award may be subject to
Section 409A of the Code and related Department of Treasury guidance (including such Department of
Treasury guidance as may be issued after the Effective Date), the Committee may adopt such
amendments to the Plan and the applicable Award Agreement or adopt other policies and procedures
(including amendments, policies and procedures with retroactive effect), or take any other actions,
that the Committee determines are necessary or appropriate to (a) exempt the Award from
Section 409A of the Code and/or preserve the intended tax treatment of the benefits provided with
respect to the Award, or (b) comply with the requirements of Section 409A of the Code and related
Department of Treasury guidance and thereby avoid the application of any penalty taxes under such
Section.



* * * * *




I hereby certify that the foregoing Plan was duly adopted by the Board of Directors of eBay
Inc. on March 26, 2008.



* * * * *




I hereby certify that the foregoing Plan was approved by the stockholders of eBay Inc. on June
19, 2008.



Executed on this 23rd day of June, 2008.




/s/ Michael R. Jacobson

Corporate Secretary