exv10w1



 







    Exhibit
    10.1



 




    FORM OF
    EARN OUT SETTLEMENT AGREEMENT



 



    THIS EARN OUT SETTLEMENT AGREEMENT (this
    “Agreement”) is made as of
    September   , 2007, by and among Skype Luxembourg
    Holdings S.A.R.L., a limited company registered under the laws
    of the Grand Duchy of Luxembourg (the
    “Obligor”), eBay Inc., a Delaware corporation
    (the “Purchaser”), Herho Holding B.V., a
    company formed under the laws of the Netherlands, in its
    capacity as the Earn Out Representative (as defined in the Earn
    Out Agreement (as defined below)) (the “Earn Out
    Representative”), and
    [     ] (the “Earn Out
    Seller”). Capitalized terms not otherwise defined
    herein are used as defined in the Earn Out Agreement, dated as
    of September 11, 2005 (the “Earn Out
    Agreement”), by and among the Purchaser, Skype
    Technologies S.A., a limited company registered under the laws
    of the Grand Duchy of Luxembourg (the
    “Company”), and the parties identified on
    Schedule I thereto (the “Earn Out
    Sellers”). Each of the Obligor, the Purchaser, the Earn
    Out Representative and the Earn Out Seller is referred to herein
    as a “Party” and, collectively, as the
    “Parties.”



 



    WHEREAS, pursuant to a Sale and Purchase Agreement, dated as of
    September 11, 2005 (the “Purchase
    Agreement”), by and among the Purchaser, the Company
    and the shareholders and warrantholders of the Company
    (collectively, the “Sellers”), the Purchaser
    and the Obligor acquired from the Sellers the entire issued
    share capital of the Company;



 



    WHEREAS, the Obligor owns all of the shares of the Company,
    except for one share that is owned by the Purchaser;



 



    WHEREAS, concurrently with the execution and delivery of the
    Purchase Agreement, the Purchaser, the Company and the Earn Out
    Sellers entered into the Earn Out Agreement to provide for
    certain rights and obligations of the Purchaser, the Company,
    the Earn Out Sellers and the Earn Out Representative in
    connection with the post-Completion management of the Company
    and the delivery by the Purchaser to the Earn Out Sellers of any
    Earn Out Election Per Share Post-Completion
    Consideration; and



 



    WHEREAS, the Parties desire: (i) to settle all Claims (as
    defined below) as described below, other than Excluded Claims
    (as defined below) and (ii) to agree to the termination of
    the Earn Out Agreement as among such parties.



 



    NOW, THEREFORE, in consideration of the promises and the mutual
    covenants and agreements set forth herein, and for other good
    and valuable consideration, the receipt and sufficiency of which
    are hereby acknowledged by the Parties, it is agreed that:



 



    1. Settlement of Claims. The Parties agree as
    follows:



 



    (a) Within three Business Days following the execution of
    this Agreement by the Parties, the Obligor shall pay an amount
    in cash (the “Payment Amount”) equal to (i)
    €375,000,000 multiplied by (ii) a fraction
    (x) the numerator of which is the aggregate number of Earn
    Out Election Shares of the Earn Out Seller, which number is set
    forth on Schedule A hereto opposite the name of the
    Earn Out Seller and (y) the denominator of which is
    395,013, being the aggregate number of Earn Out Election Shares
    of all Earn Out Sellers (such fraction, the “Payment
    Fraction”), as follows:



 



    (i) to the Earn Out Representative, an amount in cash equal
    to the sum of (A) 1.5% of the aggregate amount to be
    paid in respect of the Earn Out Election Shares of the Earn Out
    Seller pursuant to this Agreement, such amount to be retained by
    the Earn Out Representative as a fee for its services rendered
    to the Earn Out Seller in connection with the negotiation and
    implementation of this Agreement and (B) € 1,750,000,
    representing the Earn Out Representative’s good faith
    estimate of the amount required to satisfy actual and
    prospective obligations of the Earn Out Sellers under
    Section 5.1(e) of the Earn Out Agreement, Section 9 of
    this Agreement, and that certain letter labeled “costs
    letter” dated September 10, 2005 from Niklas
    Zennström to all holders of shares of the Company’s
    Series A-1
    preferred stock, Series B preferred stock,
    Series A-2
    preferred stock, and ordinary shares, and all holders of
    warrants conferring the right to acquire the Company’s
    Series A-1
    preferred stock (such letter, the “Costs
    Letter”), multiplied by the Payment Fraction
    (the sum of the amounts referred to in this
    Section 1(a)(i), subparagraphs (A) and (B) being
    referred to herein as the “Earn Out Representative
    Funding Amount”) by wire transfer of immediately
    available funds to an account designated by the Earn Out
    Representative. The Earn Out Representative shall hold the
    portion of the Earn Out Representative Funding Amount referred
    to in this Section 1(a)(i)(B) pending its application for
    the purposes referred to in Section 5.1(e) of the Earn Out
    Agreement, Section 9 of this Agreement, and the Costs
    Letter. In the event that the Earn Out Representative
    determines, in its sole discretion, that there is no reasonable
    likelihood of any further costs, expenses, losses, claims,
    damages or liabilities (or actions in respect thereof) in
    relation to which it is entitled to be indemnified under such
    provisions being incurred, paid or suffered, it will pay any
    remaining amount of the portion of the Earn Out Representative
    Funding Amount referred to in this Section 1(a)(i)(B) to
    the Earn Out Seller by wire transfer of immediately available
    funds to the account of the Earn Out Seller set forth opposite
    the Earn Out Seller’s name on Schedule A hereto
    (it being understood that neither the Obligor nor the Purchaser
    shall have any responsibility, liability or obligation
    whatsoever with respect to the Earn Out Representative Funding
    Amount once paid to the Earn Out Representative); and













 






    (ii) to the Earn Out Seller, an amount in cash equal to the
    Payment Amount minus the Earn Out Representative Funding
    Amount, by wire transfer of immediately available funds to the
    account of the Earn Out Seller set forth opposite the Earn Out
    Seller’s name on Schedule A hereto.



 



    (b) The Parties acknowledge and agree that the payments
    made pursuant to Section 1(a) of this Agreement, taken
    together with the Releases provided in Section 2 of this
    Agreement, shall constitute full payment for and settlement of
    all claims, demands, disputes, controversies, rights,
    liabilities, damages, debts, obligations, costs, expenses,
    attorneys’ fees and causes of action of any kind or nature
    that the Parties and their Related Parties (as defined in
    Section 1(c) below) may have had in the past, may now have
    or may have in the future, whether asserted or unasserted,
    matured or unmatured, known or unknown, suspected or
    unsuspected, contingent or actual, accrued or unaccrued, whether
    based on contract, tort or other theories (including equitable
    theories), in connection with, arising from or in any way
    relating to the Earn Out Agreement or the transactions
    contemplated thereby, including in any way relating to:
    (i) the operation or management of the business of the
    Company and any of its affiliates prior to the date hereof ;
    (ii) the interpretation of the Earn Out Agreement; and
    (iii) the negotiation and execution of this Agreement
    (collectively, “Claims”) against any of the
    other Parties and any of the Related Parties of any of the other
    Parties, except for the Claims identified on
    Schedule B hereto (the “Excluded
    Claims”).



 



    (c) For purposes of this Agreement: (i) a Party’s
    or other person’s “Related Parties” shall
    include: (1) such Party’s or person’s
    shareholders (save in relation to shareholders in a public
    company, including the Purchaser), former or present directors,
    officers, employees, consultants, partners, trustees or
    beneficiaries of a trust of which such Party or person is a
    settler or actual or potential beneficiary, affiliates,
    representatives, agents and advisors, including legal and
    financial advisors and any affiliates of the foregoing;
    (2) the shareholders (save in relation to shareholders in a
    public company, including the Purchaser), directors, officers,
    employees, consultants, partners, trustees, beneficiaries,
    representatives, agents and advisors of such Party’s or
    person’s affiliates or a trust of which such affiliate is a
    settler or actual or potential beneficiary; and (3) the
    predecessors, successors, assigns, heirs, legatees, executors,
    guardians, custodians, administrators and conservators of any of
    the persons described in clause “(1)” and
    “(2)” of this sentence; provided, however,
    that, for purposes of this Agreement, none of the Earn Out
    Seller, the Earn Out Representative or any Related Party of the
    Earn Out Seller or the Earn Out Representative shall constitute
    a Related Party of the Purchaser or of the Obligor; and
    (ii) “affiliates” means in relation to a Party or
    other person, any person that directly or indirectly, through
    one or more intermediaries, controls, is controlled by, or is
    under common control with, the relevant Party or person, and for
    these purposes a person shall be deemed to control another
    person if the first such person possesses, directly or
    indirectly, the power to direct or cause the direction of the
    management and policies of the second person, whether through
    the ownership of voting securities, control of voting rights, by
    contract or otherwise (it being understood that, for the
    avoidance of doubt, the Company is an affiliate of the
    Purchaser).



 



    (d) The Obligor shall (i) be entitled to deduct and
    withhold from any amounts payable pursuant to this Agreement
    such amounts as are required to be deducted or withheld under
    any provision of any federal, state, local or foreign Law and
    (ii) promptly after determining that any such amount is so
    required to be deducted or withheld, the Obligor shall provide
    written notice to the Earn Out Representative or the Earn Out
    Seller, as the case may be, indicating the amount that is
    required to be deducted or withheld and the applicable provision
    of law requiring such deduction or withholding. To the extent
    such amounts are so deducted or withheld, such amounts shall be
    treated for all purposes under this Agreement as having been
    paid to the person to whom such amounts would otherwise have
    been paid.



 



    2. Release.



 



    (a) Each of the Parties, on behalf of itself and its
    Related Parties, hereby fully, irrevocably and unconditionally
    releases and forever discharges each other Party and each of
    such other Party’s Related Parties (including the Purchaser
    and the Purchaser’s Related Parties) from any and all
    Claims, other than in all cases the Excluded Claims, which
    Excluded Claims shall remain in full force and effect and are
    neither released nor discharged pursuant to this Agreement.



 



    (b) Each of the Parties, on behalf of itself and its
    Related Parties, with respect to the Claims against the other
    Parties and the Related Parties of the other Parties, in any
    case: (i) has been fully advised by his attorney of the
    contents of Section 1542 of the Civil Code of the State of
    California, United States of America, and (ii) hereby
    expressly waives the benefits thereof and any rights such person
    may have thereunder (it being acknowledged that
    Section 1542 of the Civil Code of the State of California
    provides 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.”)



 



    (c) Each Party, on behalf of itself and its Related
    Parties, with respect to the Claims against the other Parties
    and the Related Parties of the other Parties, hereby waives the
    benefits of, and any rights such Party (or any of their Related
    Parties) may have under, any statute or common law principle
    having any effect similar to the effect of Section 1542 of
    the Civil Code of the State of California in any jurisdiction.



 



    3. Warranties. Each Party hereby warrants as
    follows:



 



    (a) such Party has the legal capacity and the requisite
    right, power and authority to execute and deliver this Agreement
    and to consummate the transactions contemplated hereby. Except
    with respect to a Party that is an individual, the execution and
    delivery of, and













 






    the performance by such Party of its obligations under, this
    Agreement have been duly authorized by all necessary action on
    the part of such Party. This Agreement has been duly and validly
    executed by such Party.



 



    (b) assuming this Agreement has been duly and validly
    authorized, executed and delivered by the other Parties, this
    Agreement constitutes a valid and binding agreement of such
    Party, enforceable against such Party in accordance with its
    terms;



 



    (c) there is no action, suit, proceeding, dispute,
    litigation, claim, complaint or investigation by or before any
    court or Governmental Entity or agency pending or, to the best
    of the knowledge of such Party, threatened against such Party or
    any of such Party’s Related Parties that challenges or
    would challenge the execution and delivery of this Agreement or
    the taking of any of the actions required to be taken by such
    Party under this Agreement; and



 



    (d) the execution and delivery of, and the performance by
    such Party of its obligations under, this Agreement will not, so
    far as applicable to it: (i) result in a breach of any
    provision of the constitutional documents of such Party, if
    applicable, (ii) result in a breach of, or constitute a
    default under, any instrument to which such Party is a party or
    by which such Party is bound, (iii) result in a breach of
    any permit, concession, franchise, license, ordinance, rule or
    regulation, order, judgment or decree of any court or
    Governmental Entity or agency to which such Party is a party, by
    which such Party is bound or which is applicable to such Party,
    (iv) result in a breach of any Laws applicable to such
    Party, or (v) require the authorization, consent or
    approval of such Party’s shareholders or of any other
    person.



 


			
	 	    4. 
	
    Additional Warranties and Agreements 




 



    (a) If, on or prior to March 31, 2008, the Purchaser
    directly or indirectly sells or transfers (in a single
    transaction or through a series of related transactions) to any
    third party (other than a direct or indirect wholly owned
    Subsidiary of the Purchaser (disregarding directors’
    qualifying shares and similar arrangements for purposes of
    determining whether a Subsidiary is wholly owned by the
    Purchaser for this purpose), provided that (A) such
    Subsidiary assumes all of the Purchaser’s obligations under
    this Agreement and (B) the Purchaser remains liable for any
    breach of this Agreement by such Subsidiary):
    (1) securities representing greater than 50% of the
    outstanding voting power, or economic interest in, the Company
    (whether by way of a sale of securities, merger or otherwise),
    or (2) all or substantially all of the assets of the
    Company and its Subsidiaries, taken as a whole (it being
    understood that such a sale by the Purchaser of the outstanding
    securities of a wholly owned Subsidiary held by the Purchaser
    (disregarding directors’ qualifying shares and similar
    arrangements for purposes of determining whether a Subsidiary is
    wholly owned by the Purchaser for this purpose) shall constitute
    a direct or indirect sale of all or substantially all of the
    assets of such Subsidiary), then the Purchaser or the Obligor
    shall pay to the Earn Out Seller an amount equal to the Payment
    Fraction multiplied by the lesser of (i)
    €138,411,300, and (ii) 60% multiplied by the
    amount by which the Gross Sale Proceeds (as defined below)
    exceeds Past Consideration (as defined below).
    Notwithstanding anything to the contrary contained in this
    Agreement: (x) this Section 4(a) shall not apply to
    (1) a sale of any or all shares of the Purchaser (whether
    by way of merger, consolidation or otherwise); (2) a sale
    of substantially all of the assets of the Purchaser (including
    the shares of the Purchaser’s Subsidiaries); or (3) a
    sale of substantially all of the assets of the Purchaser (other
    than the shares of the Purchaser’s Subsidiaries)
    accompanied by a sale of substantially all of the assets of the
    Purchaser’s Subsidiaries; and (y) for the avoidance of
    doubt, “directly or indirectly sells or transfers”
    shall mean actually consummates a sale or transfer and shall not
    include the commencement of a process intended to result in a
    sale or transfer or the execution by the Purchaser or any of the
    Purchaser’s Related Parties of a definitive agreement with
    respect to a sale or transfer.



 



    (b) For the purposes of this Section 4 and this
    Agreement:



 



    (1) “Gross Sale Proceeds” shall have the
    meaning given to it in the Earn Out Agreement.



 



    (2) “Past Consideration” shall mean
    €2,516,980,476.



 



    (3) a “Subsidiary” shall mean, with
    respect to any person, any entity in which such person, directly
    or indirectly owns, beneficially or of record, an amount of
    voting securities or other interests in such entity that is
    sufficient to enable such person to elect at least a majority of
    the members of such entity’s board of directors or other
    governing body, or at least 50% of the outstanding equity,
    voting or financial interests in such entity.



 



    (c) The Earn Out Seller hereby warrants to and for the
    benefit of the Purchaser and its Related Parties, and agrees, as
    follows:



 



    (1) The information contained on Schedule A
    hereto, regarding the wire transfer information and the number
    of Earn Out Election Shares of the Earn Out Seller, is accurate.



 



    (2) The Earn Out Seller has not assigned, transferred,
    conveyed or otherwise disposed of (or granted a security
    interest in or otherwise encumbered): (A) any Claim against
    the Purchaser or any of the Purchaser’s Related Parties, or
    any interest in any such Claim, in whole or in part; or
    (B) any rights in or interests under the Earn Out Agreement.



 



    (3) To the best of the Earn Out Seller’s knowledge, no
    other person has any interest in any of the Claims being
    released hereunder.













 






    (d) Upon the execution and delivery of this Agreement by
    the Parties and payment of the Payment Amount to the Earn Out
    Seller (including the payment of the Earn Out Representative
    Funding Amount to the Earn Out Representative), the Earn Out
    Agreement (except for Section 5.1(e) thereof as it relates
    to the rights of the Earn Out Representative) shall cease to
    have any further force or effect with respect to the Earn Out
    Seller and, upon receipt by the Purchaser of executed agreements
    similar to this Agreement from all Earn Out Sellers (as defined
    in the Earn Out Agreement), the Earn Out Seller agrees that Earn
    Out Agreement shall automatically be terminated and shall cease
    to have any further force or effect.



 



    (e) The Purchaser unconditionally and irrevocably
    guarantees the performance of the Obligor’s obligations of
    payment and performance under this Agreement. The Purchaser
    waives any and all notice of the creation, renewal, extension or
    accrual of any such obligation and waives diligence,
    presentment, protest, demand for payment and notice of default
    or nonpayment with respect to such obligations.



 



    5. Indemnification. If any Party or any of its
    Related Parties: (i) shall fail to observe, perform or
    abide by, or shall breach, any restriction, covenant,
    obligation, warranty or other provision contained in this
    Agreement, or (ii) shall assert or purport to assert any
    Claim released hereby, that Party shall indemnify and hold
    harmless each other Party and each of such other Party’s
    Related Parties against and from any loss, damage, injury, harm,
    detriment, lost opportunity, liability, exposure, claim, demand,
    settlement, judgment, award, fine, penalty, tax, fee, charge or
    expense (including attorneys’ fees) (collectively the
    “Loss”) that is suffered or incurred at any
    time by such other Party or by any of such other Party’s
    Related Parties, or to which such other Party or any of such
    other Party’s Related Parties otherwise becomes subject at
    any time, provided that such Loss arises out of the
    circumstances described in clauses “(i)” or
    “(ii)” of this Section 5. Nothing in this
    Section 5 in any way limits any of the rights or remedies
    otherwise available to the Party or Related Party suffering,
    incurring or becoming subject to the Loss, provided that no
    Party shall be entitled to rescind or repudiate this Agreement.
    Notwithstanding anything to the contrary contained in this
    Agreement, none of the Purchaser or any of its Related Parties
    shall have any obligation or liability under this Section 5
    in connection with, arising from or in any way relating to any
    claim by any Earn Out Seller or any Related Party of any Earn
    Out Seller or the Earn Out Representative or any Related Party
    of the Earn Out Representative against any other Earn Out Seller
    or any Related Party of any Earn Out Seller or against the Earn
    Out Representative or any Related Party of the Earn Out
    Representative (it being understood that for purposes of this
    sentence only, the term Earn




    Out Seller shall have the meaning given to it in the Earn Out
    Agreement, rather than the meaning given to it in this
    Agreement).



 



    6. Nullity of Agreement.  If the Purchaser
    does not execute this Agreement by countersigning it on or
    before 30 calendar days of the date on which the Earn Out Seller
    has signed this Agreement, this Agreement shall be null and
    void, and the Earn Out Seller shall have no obligation hereunder
    or relating hereto.



 



    7. Notices to Parties.  All notices and
    other communications under this Agreement shall be effective
    upon receipt if hand delivered, on the first Business Day after
    being sent by facsimile transmission (to the extent that the
    sending Party has received electronic confirmation of
    transmission) and on the first Business Day after being sent by
    recognized “overnight” delivery service (or, in the
    case of international delivery by a recognized international
    delivery service, such number of days after being sent as such
    delivery service guarantees delivery) to the addresses stated
    below, or to such other addresses as to which a Party shall have
    previously notified the other Parties in writing. Any such
    notice not contemplated above shall be effective upon receipt.
    For the purposes of this Section 7, the addresses of the
    Parties shall be as follows:



 



    If to the Obligor:



 



    Skype Luxembourg Holdings S.A.R.L.




    7, Val Ste. Croix,




    L-1371




    Luxembourg




    Attention: President



 



    with a copy to:



 



    eBay Inc.




    2145 Hamilton Avenue




    San Jose, California 95125




    Attention: General Counsel




    Fax: +1
    (408) 376-7514



 



    If the Purchaser:



 



    eBay Inc.




    2145 Hamilton Avenue




    San Jose, California 95125




    Attention: General Counsel




    Fax: +1
    (408) 376-7514













 





 



    If to the Earn Out Representative:



 



    Herho Holdings B.V.




    Hornweg 50




    1721 CV Broek op Langedijk




    The Netherlands




    Fax: +31 20 890 7697



 



    If to the Earn Out Seller, to the address specified on
    Schedule A hereto.



 



    8. Entire Agreement.  Each Party on behalf
    of itself and as agent for each of its Related Parties
    acknowledges and agrees with each other Party (each such Party
    acting on behalf of itself and as agent for each of its Related
    Parties) that:



 



    (a)  this Agreement and the Confidentiality Agreement
    dated as of August 14, 2007, between the Earn Out
    Representative and the Earn Out Seller constitutes the entire
    and only agreement and understanding among the Parties and their
    respective Related Parties relating to the subject matter of
    this Agreement and supersedes all previous agreements
    understandings or arrangements (in particular the Earn Out
    Agreement except as specified in Section 4(d) of this
    Agreement) whether oral or in writing, among the Parties or
    their Related Parties relating to the subject matter hereof;



 



    (b)  neither it nor any of its Related Parties has
    been induced to enter (or is entering) into this Agreement in
    reliance upon, nor have they been given, nor do they rely upon,
    any warranty, representation, statement, assurance,
    understanding, covenant, agreement, undertaking, indemnity or
    commitment of any nature whatsoever (in any case whether
    written, oral or implied and whether relating to the business of
    the Company or any of its affiliates, the possibility or
    likelihood that any payments are or would become due under the
    Earn Out Agreement, the meaning of any provision of the Earn Out
    Agreement or any dispute relating thereto or otherwise)
    (together defined as “Representation” for the purpose
    of this Section 8), other than as are expressly set out in
    this Agreement;



 



    (c)  the Parties and their Related Parties may have
    information which they have not disclosed to some or all of the
    other Parties and their Related Parties and none of the Parties
    nor any of their Related Parties is under any obligation to
    disclose any such information to any of the other Parties or
    their Related Parties;



 



    (d)  without limiting any other provision of this
    Agreement, it is understood and agreed that the facts relating
    to this Agreement and each Party’s decision to enter into
    this Agreement may prove to be other than or different from the
    facts in that respect now known or believed by each Party to be
    true; and with such understanding and agreement, each Party, on
    behalf of itself and its Related Parties, expressly accepts and
    assumes the risk of facts being other than or different from the
    assumptions and perceptions as of any date prior to and
    including the date hereof, and each Party, on behalf of itself
    and its Related Parties, agrees that this Agreement shall be in
    all respects effective and shall not be subject to termination
    or rescission by reason of any such difference in facts;



 



    (e)  none of Niklas Zennström, Janus Friis
    Degnbol, Geoffrey Prentice or the Earn Out Representative has
    had (or has) any authority on behalf of the Purchaser or any of
    its Related Parties to make any Representation;



 



    (f)  no Party and no Related Party of any Party shall
    have any liability to any other Party or any Related Party of
    any other Party (based on contract, tort or other theories,
    including equitable theories, or under the Misrepresentation Act
    1967 or otherwise) for any Representation that is not expressly
    stated in this Agreement; and



 



    (g)  any statutory or common law warranties,
    representations or conditions that are not expressly set out or
    referred to in this Agreement and which might otherwise be
    implied in respect of the subject matter of this Agreement are
    expressly excluded.



 



    PROVIDED THAT the provisions of this Section 8 shall not
    exclude any liability of any person in respect of any
    Representation made by such person which is determined in a
    court judgment which is not subject to a right of appeal or in
    respect of which all rights of appeal have been exhausted or
    have expired, or is agreed by the relevant person, to have been
    made fraudulently by such person prior to the execution of this
    Agreement.



 



    9. Independent Advice.  In deciding to
    execute this Agreement, each Party has relied entirely on its
    own judgment and entered into this Agreement in the exercise of
    that judgment and in the absence of duress or coercion, and has
    taken all advice that it considers to be necessary in connection
    with this Agreement. Each Party has had the opportunity to
    consult individually with legal and other relevant professional
    advisers of its own choosing.



 



    10. Earn Out Representative.  The Earn Out
    Seller and its Related Parties shall severally indemnify and
    hold harmless the Earn Out Representative, together with its
    Related Parties (collectively the “Indemnified
    Parties” and each of them an “Indemnified
    Party”) from and against any and all costs, expenses,
    losses, claims, damages or liabilities (or actions in respect
    thereof) related to or arising out of this Agreement or the Earn
    Out Agreement and the transactions contemplated hereby or
    thereby and the performance of its function as Earn Out
    Representative, including participation by the Earn Out
    Representative in the negotiation and execution of this
    Agreement, and will reimburse each Indemnified Party for all
    expenses (including legal expenses) as they are incurred in
    connection with investigating, preparing or defending any such
    action or claim, whether or not in connection with pending or
    threatened litigation in which such













 






    Indemnified Party is a party, save only to the extent that, in
    the case of any Indemnified Party, it is determined in a court
    judgment which is not subject to a right of appeal or in respect
    of which all rights of appeal have been exhausted or have
    expired, or it is agreed by such Indemnified Party, that such
    costs, expenses, losses, claims, damages or liabilities have
    resulted solely from the fraud or dishonesty of such Indemnified
    Party. No Indemnified Party shall have any liability (whether
    direct or indirect, in contract or in tort or otherwise) to the
    Earn Out Seller or any of its Related Parties related to or
    arising out of this Agreement or the Earn Out Agreement or the
    transactions contemplated hereby or thereby or the Earn Out
    Representative’s performance of its function as Earn Out
    Representative, including participation by the Earn Out
    Representative in the negotiation and execution of this
    Agreement, save only to the extent that it is determined in a
    court judgment which is not subject to a right of appeal or in
    respect of which all rights of appeal have been exhausted or
    have expired, or it is agreed by such Indemnified Party, that
    such costs, expenses, losses, claims, damages or liabilities
    have resulted solely from the fraud or dishonesty of such
    Indemnified Party. Notwithstanding anything to the contrary
    contained in this Agreement, neither the Purchaser nor any
    Related Party of the Purchaser shall have any obligation or
    liability under this Section 10.



 



    11. Governing Law; Consent to
    Jurisdiction.  This Agreement shall be governed by
    and construed in accordance with English law. The courts of
    England are to have exclusive jurisdiction to settle any dispute
    arising out of or in connection with this Agreement. Nothing in
    this Agreement shall preclude any Party from seeking interim
    relief in any court of competent jurisdiction. Each Party waives
    (and agrees not to raise) any objection, on the ground of
    forum non conveniens or on any other ground, to the
    jurisdiction of the English courts. Each Party also agrees that
    a judgment against it in any proceedings or action arising out
    of or in connection with this Agreement brought in England shall
    be conclusive and binding upon it and may be enforced in any
    other jurisdiction. Each Party irrevocably submits and agrees to
    submit to the jurisdiction of the English courts.



 



    12. Expenses. Except as otherwise specifically
    provided herein, each Party shall pay its own legal fees and
    expenses, accounting fees and other costs and expenses incurred
    in connection with the negotiation, making, execution, delivery
    and performance of this Agreement.



 



    13. Binding Agreement; Successors; Amendment. This
    Agreement shall be binding upon, inure to the benefit of and be
    enforceable by the Parties and their respective successors and
    assigns. No Party may assign any of its rights or delegate any
    of its duties or obligations hereunder without the consent of
    the other Parties. This Agreement may not be amended, modified,
    altered or supplemented other than by means of a written
    instrument duly executed and delivered by each Party whose
    rights, liabilities or obligations may be affected by such
    amendment, modification, alteration or supplement.



 



    14. Headings. The section headings herein are for
    reference purposes only and shall not affect in any way the
    meaning or interpretation of this Agreement, nor are they deemed
    to constitute a part of this Agreement.



 



    15. Counterparts. This Agreement may be executed in
    two or more counterparts, each of which shall be deemed to be an
    original, but all of which together shall constitute one and the
    same instrument, which shall be effective upon the execution
    hereof by all of the Parties. A complete set of counterparts
    shall be made available to each Party.



 



    16. Time of the Essence. Time shall be of the
    essence of this Agreement and of each and every part thereof.



 



    17. Severability. If any provision of this Agreement
    or the application of any such provision shall be held invalid,
    illegal or unenforceable in any respect by a court of competent
    jurisdiction, such invalidity, illegality or unenforceability
    shall not affect any other provision hereof. In lieu of any such
    invalid, illegal or unenforceable provision, the Parties shall
    use all reasonable efforts to replace such invalid, illegal or
    unenforceable provision with a valid and enforceable substitute
    provision the effect of which is as similar to the intended
    effect of such invalid, illegal or unenforceable provision as
    may be possible.



 



    18. Legal Expenses. In any action or proceeding
    brought to enforce any provision of this Agreement, or where any
    provision hereof is validly asserted as a defense, the
    successful Party shall be entitled to recover its costs and
    expenses, including legal expenses, incurred in connection
    therewith, in addition to any other available remedy.



 



    19. Third Party Rights. Any Related Party may
    enforce the terms of this Agreement pursuant to the Contracts
    (Rights of Third Parties) Act 1999 (the “Act”).
    Save as aforesaid, a person who is not a party to this Agreement
    shall have no right under this Agreement or the Act to enforce
    any of its terms. The Parties may agree to vary or modify the
    terms of this Agreement without having obtained the consent of
    any person that is not a Party to this Agreement.



 



    20. Miscellaneous. Notwithstanding anything to the
    contrary contained in this Agreement including, without
    limitation, Section 5, the Earn Out Seller (on behalf of
    itself and on behalf of its Related Parties) agrees that none of
    the Purchaser or any Related Party of the Purchaser shall have
    any obligation or liability under this Agreement: (a) to
    indemnify or hold harmless any Party or any Related Party of
    such Party in connection with or arising from the StreamCast
    Litigation; or (b) to make any payment to any person in
    connection with the matters referred to in
    clause ‘‘(a)” of this sentence. For purposes
    of this Agreement, the “StreamCast Litigation” shall
    mean: (i) the proceedings captioned StreamCast Networks,
    Inc. v. Niklas Zennstrom, et al., Case No. BC 371519,
    Superior Court of the State of California, County of Los
    Angeles; or (ii) any other proceedings brought by one or
    more of the same claimants based on substantially the same
    underlying facts as the proceedings referred to in clause
    “(i)” of this sentence.













 






    21. Interpretation.



 



    (a) Each Party has participated in the drafting and
    preparation of this Agreement, and, accordingly, in any
    construction or interpretation of this Agreement, the same shall
    not be construed against any Party by reason of the source of
    drafting.



 



    (b) The Parties agree that any rule of construction to the
    effect that ambiguities are to be resolved against the drafting
    party shall not be applied in the construction or interpretation
    of this Agreement.



 



    (c) Except as otherwise indicated, all references in this
    Agreement to “Sections” and “Schedules” are
    intended to refer to Sections of this Agreement and Schedules to
    this Agreement.



 



    (d) The words “herein,” “hereof,”
    “herewith,” “hereby,” “hereunder”
    and “hereto” and other words of similar import refer
    to this Agreement as a whole and not to any particular Section,
    section or other subdivision.



 



    (e) As used in this Agreement, the words
    “include” and “including,” and variations
    thereof, shall not be deemed to be terms of limitation, and
    shall be deemed to be followed by the words “without
    limitation.”



 



    (f) The term “person” as used in this Agreement
    shall be broadly interpreted to include, without limitation, any
    corporation, entity, trust, group, company, partnership, limited
    liability company or individual.



 



    (g) For purposes of this Agreement, whenever the context
    requires the singular shall include the plural, and vice versa.



 




    [signature
    pages follow]













 







    Signature
    Page



 



    IN WITNESS WHEREOF, the Parties have duly executed and delivered
    this Agreement on the day and year first above written.



 



    Skype Luxembourg Holdings S.A.R.L.



 


			
	 	    By: 
	
        









    Name:     



			
	 	    Title: 
	





 



    eBay Inc.



 


			
	 	    By: 
	
        









    Name:     



			
	 	    Title: 
	





 



    Herho Holding B.V.,

    in its capacity as the “Earn Out Representative”
    under the Earn Out Agreement



 


			
	 	    By: 
	
        









    Name:     



			
	 	    Title: 
	





 



    Name of Earn Out Seller:



 


			
	 	    By: 
	
        









    Name:     



			
	 	    Title: 
	





 



    Skype Technologies S.A.



 


			
	 	    By: 
	
        









    Name:     



			
	 	    Title: 
	















 







    Schedule A



 




    WIRE
    TRANSFER INFORMATION



 



    Earn Out Seller Name & Phone #
    ­
    ­



 



    Earn Out Seller Mailing Address
    ­
    ­



 



    Account No./IBAN *
    ­
    ­



 



    Bank Name
    ­
    ­



 



    City, State & Country
    ­
    ­



 



    ABA/BIC (SWIFT) *
    ­
    ­



 



    Other (ABA, BLZ, Sort code etc....)
    ­
    ­



 




    INTERMEDIARY
    BANK (if required)



 



    Bank Name
    ­
    ­



 



    BIC (SWIFT) *
    ­
    ­



 



    City, State & Country
    ­
    ­



 



    Reference
    ­
    ­



 




    EARN OUT
    INFORMATION



 



    Total Number of Earn Out Shares
    ­
    ­



 



    Number of Earn Out Shares of Earn Out Seller
    ­
    ­



 



    Percentage Earn Out Holding of Earn Out Seller
    ­
    ­(Being
    Earn Out Seller’s percentage share of total Earn Out Shares)



 



    Gross Earn Out Settlement Amount due Earn Out Seller
    ­
    ­(€375 million
    prorated based upon Percentage Earn Out Holding)



 



    LESS Estimated Costs and Fees of Earn Out Representative
    ­
    ­



 



    NET EARN OUT SETTLEMENT AMOUNT DUE TO EARN OUT SELLER
    ­
    ­



 





 





    * Denotes as mandatory field for International Wire Payments













 







    Schedule B



 




    EXCLUDED
    CLAIMS



 



    1. Any and all Claims by the Earn Out Representative
    against the Earn Out Seller under Section 5.1(e) of the
    Earn Out Agreement or the Costs Letter, any and all rights of
    the Earn Out Representative against any Earn Out Seller under
    Section 5.1(e) of the Earn Out Agreement or the Costs
    Letter and any and all obligations of the Earn Out Sellers under
    Section 5.1(e) of the Earn Out Agreement or the Costs
    Letter.



 



    2. Any and all Claims that the Earn Out Seller may have
    against the Purchaser and its Related Parties under the Purchase
    Agreement as a holder of the Escrow Shares with respect to such
    Escrow Shares.



 



    3. If the Earn Out Agreement is not terminated as of the
    date of this Agreement, any and all Claims by, for or for the
    benefit of either the Purchaser or the Earn Out Representative
    relating to the reimbursement by the other of any fees or
    expenses to be paid by the other pursuant to the terms of the
    Earn Out Agreement in connection with any dispute under the Earn
    Out Agreement after the date of this Agreement.



 



    4. Any and all Claims under this Agreement.



 



    5. Any and all Claims of, by, or for the benefit of the
    Purchaser or any of its Related Parties against the Earn Out
    Seller or any of its Related Parties or the Earn Out
    Representative or any of its Related Parties in connection with,
    arising from or in any way relating to:



 



    a. the Purchase Agreement.



 



    b. any action taken (or any failure to act) in any capacity
    other than as an Earn Out Seller or Earn Out Representative, as
    the case may be, including in such person’s capacity as (or
    while such person was serving as, or purporting to serve as) an
    officer, director or employee of, or a consultant or advisor to,
    the Purchaser, the Company
    and/or any
    of the Purchaser’s other Related Parties; or



 



    c. any breach by such Party of any confidentiality
    agreement, noncompetition agreement, nonsolicitation agreement
    or other agreement (other than the Earn Out Agreement) with the
    Purchaser, the Company
    and/or any
    of the Purchaser’s other Related Parties.



 



    It being understood that solely for the purposes of this
    Clause 5, the Earn out Agreement shall not be referred to
    by the words “in connection with, arising from or in any
    way relating to ... the Purchase Agreement”.