Exhibit 10.3





Exhibit 10.3




SEPARATION AGREEMENT 




THIS SEPARATION AGREEMENT (this “Agreement”), is entered into as of June 17, 2011 by
and between GSI Commerce, Inc. (the “Company”) and Michael R. Conn (“you” or
“your”).



BACKGROUND




WHEREAS, the Company has entered into an Agreement and Plan of Merger (the “Merger
Agreement”), dated as of March 27, 2011, by and among the Company, eBay Inc.
(“Parent”), and Gibraltar Acquisition Corp., a wholly-owned subsidiary of Parent
(“Merger Sub”), pursuant to which Merger Sub shall be merged with and into the Company with
the Company surviving as a wholly-owned subsidiary of Parent (the “Merger”);



WHEREAS, immediately following the Effective Time (as defined in the Merger Agreement) of the
Merger, you will cease to serve as Executive Vice President, Finance and Chief Financial Officer of
the Company and your employment with the Company will be terminated (the “Termination
Date”); and



WHEREAS, in connection with your termination of employment with the Company, you and the
Company desire to evidence the terms of certain agreements that have been reached between you and
the Company regarding your employment with the Company and the termination of such employment, and
equity and other compensation and payments, on the terms and conditions set forth in this
Agreement, subject to your execution and non-revocation of a general release and waiver (the
“Release”).



NOW, THEREFORE, in consideration of the mutual promises set forth in this Agreement and of
other good and valuable consideration the sufficiency of which you acknowledge, and intending to be
legally bound hereby, you and the Company agree as follows:



1. Terms of Termination. Effective as of the Termination Date, your employment with the
Company will be terminated and you will cease to serve as Executive Vice President, Finance and
Chief Financial Officer of the Company.



(a) You will be paid your salary for all time worked for the Company up to and including the
Termination Date.



(b) Your eligibility to participate in the Company sponsored health insurance, including
medical, dental, vision and prescription drug coverage, as an employee of the Company will end on
the last day of the month in which the Termination Date occurs. However, you will be eligible to
continue to participate in this insurance, at your own expense, in accordance with a federal law
called the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), subject to COBRA’s terms,
conditions and restrictions.



(c) Your eligibility to participate in all other Company sponsored group benefits, including
group life and accidental death and dismemberment coverage, will end effective on the Termination
Date.



(d) Your eligibility to participate in all other Company sponsored benefit plans governed by
Employee Retirement Income Security Act (“ERISA”) will end effective on the Termination Date.


 


 









 





2. Separation Payments and Benefits. Subject to your non-revocation of this Agreement and
the Release, you and the Company acknowledge and agree to the following:



(a) Pursuant to Section 2.1 of the Change in Control Agreement effective August 8, 2006 by
and between you and the Company (the “Change in Control Agreement”), you shall be entitled
to full vesting of all Equity Awards (as defined in the Change in Control Agreement) upon your
termination of employment. Notwithstanding the foregoing, in connection with the Merger the
Company agrees to accelerate the vesting of all your Equity Awards immediately prior to the
Effective Time of the Merger so that your Equity Awards will be converted into the right to
receive merger consideration pursuant to the terms of Section 5.3(a) of the Merger Agreement.



(b) Pursuant to Section 2 of the Transaction Incentive Agreement dated March 29, 2011 by and
between you and the Company (the “Transaction Incentive Agreement”), you shall be entitled
to payment of an Incentive Amount (as defined in the Transaction Incentive Agreement). Pursuant
to the terms of the Transaction Incentive Agreement, your aggregate total Incentive Amount of
$5,000,000 shall be paid to you in connection with your termination of employment on the
Termination Date.



(c) The Company shall pay you on the Termination Date a lump sum in the amount of
$174,062.50, which represents accrued and unpaid bonus as of the Effective Time.



(d) The Company shall pay you within 60 days of the Termination Date a lump sum amount for
any outstanding travel and expense reimbursements due to you pursuant to the Company’s policy
governing such reimbursements.



(e) Except as set forth above, you agree to waive any and all other amounts due to you
pursuant to the terms of any other agreement or arrangement notwithstanding Sections 1(a) and (b)
of the Release attached as Exhibit A.



3. Entire Agreement, Amendment and Assignment. This Agreement together with the Release
to the Company attached as Exhibit A hereto is the sole agreement relating to the subject
matter hereof and it supersedes all prior agreements and understandings with respect thereto,
including without limitation (i) your Change in Control Agreement, and (ii) your Transaction
Incentive Agreement. No modification to any provision of this Agreement will be binding unless in
writing and signed by both you and the Company. No waiver of any rights under this Agreement will
be effective unless in writing signed by the party to be charged. All of the terms and provisions
of this Agreement will be binding upon and inure to the benefit of and be enforceable by the
respective heirs, executors, administrators, legal representatives, successors and assigns of the
parties hereto, except that the duties and responsibilities of you hereunder are of a personal
nature and will not be assignable or delegable in whole or in part.



4. Confidentiality. You agree that you have kept, and will keep, the existence and terms
of this Agreement confidential, and will not disclose them to anyone except your attorneys,
financial advisors and immediate family members, whom you will advise of this confidentiality
provision. No other disclosure will be permitted except: (a) pursuant to an action to enforce
the terms of this Agreement, in which case it will be introduced under seal to the court, (b) in
response to a request by any governmental or regulatory agency, (c) as may be required by any
state or federal law or regulation, or (d) in response to compulsory process of law. The parties
further agree that nothing in this Agreement will prohibit or restrict you from providing
information to, testifying or otherwise assisting in any investigation or proceeding
brought by, any federal, state or local regulatory agency, law enforcement agency, legislative
body, or self-regulatory organization.


 


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5. Governing Law. This Agreement will be governed by and interpreted in accordance with
laws of the Commonwealth of Pennsylvania without giving effect to any conflict of laws provisions.



6. Notices. All notices, demands or other communications to be given or delivered under
or by reason of the provisions of this Agreement will be in writing and will be deemed to have
been given when delivered personally to the recipient, 2 business days after the date when sent to
the recipient by reputable express overnight courier service (charges prepaid) or 4 business days
after the date when mailed to the recipient by certified or registered mail, return receipt
requested and postage prepaid. Such notices, demands and other communications will be sent to you
and the Company at the addresses set forth below,



	 	 	 	 	 
	 

	 	If to you:
	 	Michael Conn
	 

	 	 	 	[Intentionally omitted]
	 
	 	 	 	 
	 

	 	If to the Company:
	 	GSI Commerce, Inc.
	 

	 	 	 	935 First Avenue
	 

	 	 	 	King of Prussia, PA 19406
	 

	 	 	 	Attention: General Counsel






or to such other address or to the attention of such other person as the recipient party has
specified by prior written notice to the sending party.



7. Counterparts. This Agreement will become binding when any one or more counterparts
hereof, individually or taken together, will bear the signatures of you and the Company. This
Agreement may be executed in two or more counterparts, each of which will be deemed to be an
original as against any party whose signature appears thereon, but all of which together will
constitute but one and the same instrument.



8. Severability. If any provision of this Agreement or application thereof to anyone or
under any circumstances is adjudicated to be invalid or unenforceable in any jurisdiction, such
invalidity or unenforceability will not affect any other provision or application of this
Agreement which can be given effect without the invalid or unenforceable provision or application
and will not invalidate or render unenforceable such provision or application in any other
jurisdiction.



9. Application of Section 409A of the Internal Revenue Code. This Agreement shall be
interpreted to avoid any penalty sanctions under section 409A of the Internal Revenue Code of
1986, as amended (the “Code”). If any payment or benefit cannot be provided or made at
the time specified herein without incurring sanctions under section 409A of the Code, then such
benefit or payment shall be provided in full (to extent not paid in part at earlier date) at the
earliest time thereafter when such sanctions will not be imposed.



[SIGNATURE PAGE FOLLOWS]



 


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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this
Agreement as of the date first above written.



	 	 	 	 	 
	 	GSI COMMERCE, INC.

 	 
	 	By:  	/s/ Paul D. Cataldo
 	 
	 	 	Name:  	Paul D. Cataldo	 
	 	 	Title:  	SVP and General Counsel, Legal & Corporate Affairs	 
	 
	 	Date:  	June 17, 2011 	 
	 
	 	AGREED TO AND ACCEPTED BY:

 	 
	 	/s/ Michael R. Conn
 	 
	 	Michael R. Conn 	 
	 
	 	Date:  June 17, 2011	 



 


 








 





Exhibit A




Release and Waiver of Claims is attached.





 


 











 




RELEASE AND WAIVER OF CLAIMS




In consideration of the benefits and mutual agreements set forth in the Change in Control
Agreement dated August 8, 2006 and the Transaction Incentive Agreement dated March 29, 2011 (the
“Agreements”), between GSI Commerce, Inc. (the “Company”) and Michael R. Conn (the “Employee”),
the Employee, intending to be legally bound, agrees to the following release and waiver (“Release
and Waiver”):



1. In exchange for the consideration provided to the Employee by the Agreements that the
Employee is not otherwise entitled to receive and the other commitments of the Company in the
Agreements, the Employee and his heirs, representatives, agents and attorneys hereby generally and
completely release the Company and its directors, officers, employees, shareholders, partners,
agents, attorneys, predecessors, successors, parent and subsidiary entities, insurers, affiliates
and assigns from any and all claims, liabilities and obligations, both known and unknown, that
arise out of or are in any way related to events, acts, conduct or omissions occurring prior to the
Employee signing this Release and Waiver. This Release and Waiver includes, but is not limited to:
(1) all claims arising out of or in any way related to the Employee’s employment with the Company
or the termination of that employment; (2) all claims related to the Employee’s compensation or
benefits from the Company, including, but not limited to, salary, bonuses, commissions, vacation
pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other
ownership interests in the Company; (3) all claims for breach of contract, wrongful termination,
and breach of the implied covenant of good faith and fair dealing; (4) all tort claims, including,
but not limited to, claims for fraud, defamation, emotional distress, and discharge in violation of
public policy; and (5) all federal, state, and local statutory claims, including, but not limited
to, claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising
under the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities
Act of 1990, the federal Age Discrimination in Employment Act of 1967 (as amended) (“ADEA”), the
Pennsylvania Human Relations Act, the Pennsylvania Minimum Wage Act, and the Pennsylvania Wage
Payment and Collection Law. Notwithstanding the foregoing, this Release and Waiver specifically
excludes any and all claims that the Employee may have in regard to (a) any severance or employment
obligations of the Company or any of its subsidiaries to the Employee under the Agreements or any
other written agreement or arrangement between the Company or any of its subsidiaries and the
Employee arising as a result of the Employee’s termination of employment in connection with the
closing of the merger contemplated by that certain Agreement and Plan of Merger between the
Company, eBay Inc. and Gibraltar Acquisition Corp (the “Merger”), including any bonus plan, benefit
plan and other agreement or arrangement, (b) any obligations of the Company or any of its
subsidiaries to the Employee arising as a result of the Employee’s termination of employment in
connection with the Merger under any written stock option agreement, restricted stock award
agreement, restricted stock unit award agreement or other equity award agreement evidencing an
option or other equity award granted or awarded by the Company to the Employee, (c) any
indemnification obligations of Employer to the Employee as a former director (and in the case of
Intershop Communications, AG, a current director), officer and/or employee of the Company or any of
its subsidiaries pursuant to the Company’s or any of its subsidiaries’ certificate of incorporation
or bylaws or any indemnification or other written
agreement, and (d) any rights the Employee may have under any directors and officers liability
insurance policy of the Company.


 


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The Employee also acknowledges that he has read and understands 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.” The Employee hereby expressly
waives and relinquishes all rights and benefits under that section and any law of any jurisdiction
of similar effect with respect to any claims he may have against the Company.



The Employee acknowledges that, among other rights, he is waiving and releasing any rights he
may have under ADEA, that this Release and Waiver is knowing and voluntary, and that the
consideration given for this Release and Waiver is in addition to anything of value to which he was
already entitled as an employee of the Company. The Employee further acknowledges that he has been
advised, as required by the Older Workers Benefit Protection Act, that: (a) the release and waiver
granted herein does not relate to claims under the ADEA which may arise after this Release and
Waiver is executed; (b) he should consult with an attorney prior to executing this Release and
Waiver; (c) he has twenty-one (21) days in which to consider this Release and Waiver (although he
may choose voluntarily to execute this Release and Waiver earlier); (d) he has seven (7) days
following the execution of this Release and Waiver to revoke his consent to this Release and
Waiver; and (e) this Release and Waiver shall not be effective until the eighth day after he
executes this Release and Waiver and the revocation period has expired.



Notwithstanding the seven (7) day revocation period set forth above, the Company shall pay all
amounts described in Sections 2(a), (b) and (c) of the Separation Agreement between the Company and
the Employee, dated June 17, 2011 (the “Separation Agreement”), on the Termination Date (as defined
in the Separation Agreement) or on the next payroll date immediately following the Termination Date
(which the parties acknowledge is prior to the date on which this Release and Waiver will become
effective and enforceable), and if the Employee revokes this Release and Waiver prior to the date
on which this Release and Waiver becomes effective and enforceable, the Employee will be obligated
to immediately return the amounts received pursuant to Sections 2(a), (b) and (c) of the Separation
Agreement and the Employee further agrees that in the event the Employee fails to immediately
repay such amounts, the Company shall be permitted to offset any amount due to it pursuant to
Sections 2(a), (b) and (c) of the Separation Agreement against other amounts owed to the Employee
by the Company.



2. This Release and Waiver, including any referenced documents, constitute the complete, final
and exclusive embodiment of the entire agreement between the Company and the Employee with regard
to the subject matter hereof. The Employee is not relying on any promise or representation by the
Company that is not expressly stated herein. This Release and Waiver may only be modified by a
writing signed by both the Employee and a duly authorized member of the Board of Directors of the
Company.


 


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	Date:          
                    
            	By:  	 	 
	 	 	Michael R. Conn 	 



[Signature Page to Release and Waiver of Claims]