exv10w02






 




    Exhibit 10.2



 


 




    August 21,
    2008
    



 



    Rajiv Dutta




    19700 Montauk Ct.




    Saratoga, CA 95070



 



    Dear Rajiv:



 



    This letter sets forth the substance of the separation agreement
    (the “Agreement”) that eBay (the “Company”)
    is offering to aid you with your employment transition.



 



    1. SEPARATION.  Your last day of active
    employment as a full-time employee of the Company is anticipated
    to be October 22, 2008 (the “Separation Date”).
    You will work full time from the date hereof through
    August 31, 2008 providing transition assistance to the
    Marketplaces leadership team. From September 1 through the
    Separation Date you will take your sabbatical and accrued PTO.
    From the Separation Date until December 31, 2008 (the
    “Consulting Period”), the Company will make available
    to you consulting projects for 4 days per month (pro rated
    for partial months) for the Consulting Period, pursuant to the
    terms of a separate consulting agreement attached hereto as
    Exhibit A (the “Consulting Agreement”). As of the
    Separation Date, the Company will pay you all accrued salary,
    subject to standard payroll deductions and withholdings, earned
    through the Separation Date. As of the Separation Date, you will
    also be paid all accrued and unused vacation time earned through
    the Separation Date, subject to standard payroll deductions and
    withholdings. You acknowledge with the payment of these sums,
    with the exception of any consideration or payments due under or
    described in this Agreement or the Consulting Agreement, the
    Company has paid or provided you all outstanding wages, bonuses,
    or other payments.



 



    2. ADDITIONAL COMPENSATION.  So long as
    you remain employed through the Separation Date you will be
    eligible to receive an amount equal to your eBay Incentive Plan
    (eIP) bonus for 2008, if any, based on your eligible earnings
    from January 1, 2008 to August 31, 2008, and
    calculated for you at an individual performance score of 100;
    subject to reduction, in whole or in part, to be determined by
    and at the sole and absolute discretion of the Chairman of the
    Company’s Compensation Committee. Such compensation, if
    any, will be paid out in accordance with the standard plan
    schedule and will be subject to standard payroll deductions and
    withholdings.



 



    3. STOCK OPTIONS.  As an additional
    benefit, the remaining restricted stock units awarded to you in
    connection with the 2007 performance period under the
    Company’s PBRSU Plan will be fully accelerated on
    December 31, 2008 as part of this Agreement, subject to
    reduction, in whole or in part, to be determined by and at the
    sole and absolute discretion of the Chairman of the
    Company’s Compensation Committee. The total number of
    restricted stock units that shall be accelerated under this
    Agreement with respect to the 2007 performance period equals
    2,876. As a further additional benefit, following calculation of
    the amount of restricted stock units awarded to you in
    connection with the
    2007-2008
    performance period under the Company’s PBRSU Plan, if any,
    you will be awarded
    1/3
    of such shares
    (2/3
    of
    1/2),
    subject to reduction, in whole or in part, to be determined by
    and at the sole and absolute discretion of the Chairman of the
    Company’s Compensation Committee. Other than as set forth
    herein, all vesting of your equity will cease on the Separation
    Date. Subject to the terms of your stock option agreements, you
    are allowed to exercise your vested stock options no later than
    3 months after the termination of the Consulting Agreement.



 



    4. HEALTH INSURANCE.  As provided by the
    federal COBRA law and by the Company’s current group health
    insurance policies, you will be eligible to continue your health
    insurance following the Separation Date and, later, to convert
    to an individual policy. You will be provided with a separate
    notice of your COBRA rights. The Company shall pay for COBRA
    coverage through December 31, 2008, or until you have
    secured other employment, whichever occurs first. You are
    entitled to COBRA insurance whether or not you sign this
    Agreement. The Company’s obligation to make these payments
    will cease immediately if you become eligible for other health
    insurance benefits at the expense of another employer. You agree
    to immediately provide the Company written notice of the
    availability of health insurance within that time period.













 






    5. TAX EQUALIZATION SETTLEMENT.  You and
    the Company agree that a tax equalization settlement will be
    calculated for the 2006 and 2007 tax years by eBay’s public
    accounting firm per the terms of the Company’s Tax
    Equalization Policy. You and the Company agree to resolve any
    outstanding obligations owing as a result of the settlement
    calculation prior to the Separation Date.



 



    6. OTHER COMPENSATION OR BENEFITS.  You
    acknowledge that, except as expressly provided in this
    Agreement, you will not receive nor are you entitled to receive
    any additional compensation, severance or benefits (other than
    pursuant to the terms of any Company qualified retirement plan
    in which you are a participant) after the Separation Date.



 



    7. “AT-WILL” EMPLOYMENT.  Your
    employment at all times remains “at-will” and nothing
    in this Agreement shall be construed as altering the at-will
    relationship. Either you or the Company may terminate your
    employment at any time, with or without cause or advanced notice.



 



    8. RESIGNATION FROM CURRENT
    POSITIONS.  Prior to the Separation Date, you
    agree to resign as: (i) Director, CARad, Inc.;
    (ii) Director, EachNet.com Limited; (iii) Director,
    EachNet.com (Hong Kong) Limited; (iv) Managing Director,
    eBay Belgium Holdings S.A.; (v) Director, eBay KTA (UK)
    Ltd.; (vi) Director, eBay Spain International S.L.;
    (vii) Director, eBay Taiwan Company Ltd.; and
    (viii) Director, PayPal (BVI) Holdings Inc.. You agree to
    provide any resignation notices as may be needed to effect
    removal from any current positions you hold as requested by the
    Company.



 



    9. EXPENSE REIMBURSEMENTS.  Within ten
    (10) days of the Separation Date, you will submit your
    final documented expense reimbursement statement reflecting any
    and all authorized business expenses you incurred through the
    Separation Date for which you seek reimbursement. The Company
    will reimburse you for such expenses pursuant to its regular
    business practice. The Company will continue to reimburse you
    for expenses incurred in fulfilling your consulting obligations
    to the Company pursuant to the terms of the Consulting Agreement.



 



    10. RETURN OF COMPANY PROPERTY.  By the
    Separation Date, you will return to the Company all Company
    documents (and all copies thereof) and other Company property
    and materials in your possession, or your control, including,
    but not limited to, Company files, notes, memoranda,
    correspondence, lists, drawings, records, plans and forecasts,
    financial information, personnel information, customer and
    customer prospect information, sales and marketing information,
    product development and pricing information, specifications,
    computer-recorded information, tangible property, credit cards,
    entry cards, identification badges and keys; and any materials
    of any kind which contain or embody any proprietary or
    confidential material of the Company (and all reproductions
    thereof); provided, however, that to facilitate your work in
    connection with the Consulting Agreement with the Company, you
    may continue to use your Company supplied laptop and PDA for
    Company related business, during the term of the Consulting
    Agreement.



 



    11. PROPRIETARY INFORMATION
    OBLIGATIONS.  You acknowledge your continuing
    obligations under your Employee Proprietary Information and
    Inventions Agreement (a copy of which is attached hereto as
    Exhibit B), which include but are not limited to the
    obligation to refrain from any unauthorized use or disclosure of
    any confidential or proprietary information of the Company.



 



    12. NONDISPARAGEMENT.  You agree not to
    disparage the Company, the Company’s officers, directors,
    employees, shareholders and agents, affiliates and subsidiaries
    in any manner likely to be harmful to them or their business,
    business reputation or personal reputation.



 



    13. RELEASE OF CLAIMS.  In consideration
    for the payments and other promises and undertakings contained
    in this Agreement to which you would not otherwise be entitled,
    and except as otherwise set forth in this Agreement, and your
    rights under your indemnification agreement with the Company and
    the Company’s Directors’ and Officers’ Insurance
    policies, all of which rights shall continue following the
    Separation Date, you release, acquit and forever discharge the
    Company, its parents and subsidiaries, and its and their
    respective officers, directors, agents, servants, employees,
    attorneys, shareholders, successors, assigns and affiliates, of
    and from any and all claims, liabilities, demands, charges,
    causes of action, costs, expenses, attorneys fees, damages,
    indemnities and obligations of every kind and nature, in law,
    equity, or otherwise, which you assert or could assert against
    the Company at common law or under any statute, rule,
    regulation, order or law, whether federal, state or local, on
    any




    

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    ground whatsoever, known and unknown, suspected and unsuspected,
    disclosed and undisclosed, arising out of or in any way related
    to agreements, events, acts or conduct at any time prior to and
    including the date you sign this Agreement, including but not
    limited to: all such claims and demands directly or indirectly
    arising out of or in any way connected with your employment with
    the Company or the termination of that employment; claims or
    demands related to salary, bonuses, commissions, stock, stock
    options, restricted stock awards, restricted stock units or any
    other ownership interests in the Company, vacation or other time
    off pay, sabbatical benefits, fringe benefits, expense
    reimbursements, severance pay, or any other form of
    compensation; any and all causes of action, including but not
    limited to actions for breach of contract, express or implied,
    breach of the covenant of good faith and fair dealing, express
    or implied, wrongful termination in violation of public policy,
    all other claims for wrongful termination and constructive
    discharge, and all other tort claims, including, but not limited
    to, intentional or negligent infliction of emotional distress,
    invasion of privacy, negligence, negligent investigation,
    negligent hiring, supervision or retention, assault and battery,
    false imprisonment, defamation, intentional or negligent
    misrepresentation, fraud, and any and all claims arising under
    any federal, state or local law or statute, including, but not
    limited to, the California Fair Employment and Housing Act;
    Title VII of the Civil Rights Act of 1964; the Civil Rights
    Act of 1991; the Fair Labor Standards Act; the Employee
    Retirement and Income Security Act; the Americans with
    Disabilities Act, 42 U.S.C. § 1981; the
    Age Discrimination in Employment Act of 1967, as amended
    (“ADEA”); the Family and Medical Leave Act; the
    California Family Rights Act; the California Labor Code; the
    California Civil Code; the California Constitution; and any and
    all other laws and regulations relating to employment
    termination, employment discrimination, harassment or
    retaliation, claims for wages, hours, benefits, compensation,
    and any and all claims for attorneys’ fees and costs,
    inasmuch as is permissible by law and by the respective
    governmental enforcement agencies for the above-listed laws.
    This release does not extend to any claim or cause of action
    that is not subject to dismissal as a matter of law, including
    specifically but not exclusively, all indemnification
    obligations that the Company owes to you. This release does not
    extend to any obligations incurred under this Agreement.



 



    14. RELEASE OF UNKNOWN CLAIMS.  You
    acknowledge that you have read and understand Section 1542
    of the California Civil Code, which reads as follows: “A
    general release does not extend to claims which the creditor
    does not know or suspect to exist in his favor at the time of
    executing the release, which if known by him must have
    materially affected his settlement with the debtor.” You
    hereby knowingly, intentionally, and expressly waive and
    relinquish all rights and benefits under that section and any
    law of any jurisdiction of similar effect with respect to your
    release of any unknown or unsuspected claims you may have
    against the Company.



 



    15. MISCELLANEOUS.  This Agreement,
    including all exhibits, constitutes the complete, final and
    exclusive embodiment of the entire agreement between you and the
    Company with regard to this subject matter, with the exception
    of the Indemnity Agreement between you and the Company, which
    shall survive and is hereby incorporated by reference. It is
    entered into without reliance on any promise or representation,
    written or oral, other than those expressly contained herein,
    and it supersedes any other such promises, warranties or
    representations, prior agreements and communications, whether
    oral or written, as to the specific subjects of this letter by
    and between you and the Company. This Agreement may not be
    modified or amended except in writing signed by both you and a
    duly authorized officer of the Company. This Agreement will bind
    the heirs, personal representatives, successors and assigns of
    both you and the Company, and inure to the benefit of both you
    and the Company, their heirs, successors and assigns. If any
    provision of this Agreement is determined to be invalid or
    unenforceable, in whole or in part, this determination will not
    affect any other provision of this Agreement and the provision
    in question will be modified by the court so as to be rendered
    enforceable. No waiver by the Company of any right under this
    Agreement shall be construed as a waiver of any other right, nor
    shall any waiver by the Company of any breach of this Agreement
    be a waiver of any preceding or succeeding breach. This
    Agreement will be deemed to have been entered into and will be
    construed and enforced in accordance with the laws of the State
    of California as applied to contracts made and to be performed
    entirely within California.



 



    16. I ACKNOWLEDGE THAT I HAVE BEEN ADVISED BY THIS
    WRITING, AS REQUIRED BY THE AGE DISCRIMINATION IN
    EMPLOYMENT ACT (ADEA) AND THE OLDER WORKERS’ BENEFIT
    PROTECTION ACT (OWBPA), THAT: (a) MY WAIVER AND RELEASE DO
    NOT APPLY TO ANY RIGHTS OR CLAIMS THAT MAY ARISE AFTER THE
    EXECUTION DATES OF THIS AGREEMENT; (b) I HAVE BEEN ADVISED
    HEREBY THAT I HAVE THE RIGHT TO CONSULT 




    

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    WITH AN ATTORNEY PRIOR TO EXECUTING THIS AGREEMENT;
    (c) I HAVE TWENTY-ONE (21) DAYS TO CONSIDER THIS
    AGREEMENT (ALTHOUGH I MAY CHOOSE TO VOLUNTARILY EXECUTE THIS
    AGREEMENT EARLIER); (d) I HAVE SEVEN (7) DAYS
    FOLLOWING THE EXECUTION OF THIS AGREEMENT TO REVOKE THE
    AGREEMENT; AND (e) THIS AGREEMENT WILL NOT BE EFFECTIVE
    UNTIL THE DATE UPON WHICH THE RESPECTIVE REVOCATION PERIOD HAS
    EXPIRED, WHICH WILL BE THE EIGHTH DAY AFTER THIS AGREEMENT IS
    EXECUTED AND SUBSEQUENTLY RE-EXECUTED BY ME, PROVIDED THAT THE
    COMPANY HAS ALSO EXECUTED THIS AGREEMENT BY THAT DATE.



 



    Upon acceptance of this Agreement, please sign below within the
    timeframe specified above and return the executed original to
    me. Upon your signature below, this will become our binding
    agreement with respect to your separation from the Company and
    its terms merging and superceding in their entirety all other or
    prior agreements and communications, whether written or oral, by
    you and eBay as to the specific subjects of this Agreement.



 



    eBay Inc.



 


			
	 	    By: 
	
    /s/  Michael
    Jacobson









    Michael Jacobson




    Senior Vice President & General Counsel



 



    I UNDERSTAND AND AGREE TO THE TERMS CONTAINED IN THIS
    AGREEMENT AND INTEND, BY MY SIGNATURE BELOW, TO BE LEGALLY BOUND
    BY THOSE TERMS. I AM SIGNING THIS RELEASE KNOWINGLY, WILLINGLY
    AND VOLUNTARILY IN EXCHANGE FOR THE SEVERANCE BENEFITS DESCRIBED
    ABOVE:



 



    /s/ Rajiv Dutta







    Rajiv Dutta



 



    Date: September 2, 2008




    

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    Please re-execute below on your Separation Date.



 



    I HAVE READ AND AGREE TO THE FOREGOING RELEASE OF CLAIMS AS
    OF THE DATE SET FORTH BELOW:



 



    /s/ Rajiv Dutta







    Rajiv Dutta



 



    Date:




    

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