LIMIT OR OTHERWISE AFFECT ANY OF THE PROVISIONS HEREOF.
WHERE A REFERENCE IN THIS AGREEMENT IS MADE TO A SECTION OR EXHIBIT, SUCH
REFERENCE SHALL BE TO A SECTION OF OR EXHIBIT TO THIS AGREEMENT UNLESS OTHERWISE
INDICATED.
WHENEVER THE WORDS "INCLUDE," "INCLUDES" OR "INCLUDING" ARE USED IN
THIS AGREEMENT, THEY SHALL BE DEEMED TO BE FOLLOWED BY THE WORDS "WITHOUT
LIMITATION."
9.13.
ASSIGNMENT.
THIS AGREEMENT SHALL NOT BE ASSIGNABLE BY OPERATION OF
LAW OR OTHERWISE; PROVIDED, HOWEVER, THAT AT ANY TIME PRIOR TO THE STOCKHOLDERS
MEETING, PARENT MAY DESIGNATE, BY WRITTEN NOTICE TO THE COMPANY, ANOTHER
WHOLLY-OWNED DIRECT OR INDIRECT SUBSIDIARY TO BE A CONSTITUENT CORPORATION IN
LIEU OF MERGER SUB, IN WHICH EVENT THE PARTIES HERETO SHALL TAKE SUCH ACTIONS AS
ARE NECESSARY TO EFFECT SUCH ASSIGNMENT AND ALL REFERENCES HEREIN TO MERGER SUB
SHALL BE DEEMED REFERENCES TO SUCH OTHER SUBSIDIARY, EXCEPT THAT ALL
REPRESENTATIONS AND WARRANTIES MADE HEREIN WITH RESPECT TO MERGER SUB AS OF THE
DATE OF THIS AGREEMENT SHALL BE DEEMED REPRESENTATIONS AND WARRANTIES MADE WITH
RESPECT TO SUCH OTHER SUBSIDIARY AS OF THE DATE OF SUCH DESIGNATION.
-50-
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
duly authorized officers of the parties hereto as of the date first written
above.
PAYPAL, INC.
By
Name:
Peter A. Thiel
Title:
Chief Executive Officer and President
EBAY INC.
By
Name:
Margaret C. Whitman
Title:
President, Chief Executive Officer and Director
VAQUITA ACQUISITION CORP.
By
Name:
Michael R. Jacobson
Title:
Chairman of the Board and Secretary
-51-
DEFINED TERMS
Terms
Section
2001 Equity Incentive Plan
5.1(b)
2001 ESPP
5.1(b)
Acquisition Proposal
6.2
Advisers Act
5.1(j)(iii)
Affiliates Letter
6.8
Agreement
Preamble
Asset Management Company
5.1(j)(iii)
Audit Date
5.1(f)
Bankruptcy and Equity Exception
5.1(c)(i)
Benefit Plans
5.1(h)(i)
Business Intellectual Property
5.1(q)
Business Trade Secrets
5.1(q)(ix)
By-laws
2.2
Certificate
4.1(a)
Charter
2.1
Claims
6.13(a)
Closing
1.2
Closing Date
1.2
Code
Recitals
Company
Preamble
Company Acquisition Agreement
8.5(c)
Company Disclosure Letter
5.1
Company Material Adverse Effect
5.1(a)
Company Option
5.1(b)
Company Reports
5.1(e)
Company Requisite Vote
5.1(c)(i)
Company Warrants
5.1(b)
Confidentiality Agreement
9.7
Confinity 1999 Plan
5.1(b)
Constituent Corporations
Preamble
Contracts
5.1(d)(iii)
Copyrights
5.1(q)
Costs
6.13(a)
Current Premium
6.13(c)
D&O Insurance
6.13(c)
Delaware Certificate of Merger
1.3
DGCL
1.1
Effective Time
1.3
Employees
5.1(h)(i)
Employment Agreements
Recitals
Environmental Laws
5.1(l)
A-1
ERISA
5.1(h)(i)
ERISA Affiliate
5.1(h)(iii)
ERISA Plans
5.1(h)(ii)
Excess Shares
4.2(d)
Exchange Act
5.1(c)(ii)
Exchange Agent
4.2(a)
Exchange Fund
4.2(a)
Exchange Ratio
4.1(a)
Excluded Share
4.1(a)
Excluded Shares
4.1(a)
Extending Party
8.2
GAAP
5.1(e)
Governmental Entity
5.1(d)(i)
HSR Act
5.1(d)(i)
Indemnified Parties
6.13(a)
Intellectual Property
5.1(q)
Intellectual Property Contracts
5.1(q)
IRS
5.1(h)(ii)
IT Assets
5.1(q)
Laws
5.1(d)(ii)
Licensed Intellectual Property
5.1(q)
Material Contracts
5.1(d)(ii)
Merger
Recitals
Merger Sub
Preamble
Non-Extending Party
8.2
Order
7.1(c)
Owned Intellectual Property
5.1(q)
Parent
Preamble
Parent Audit Date
5.2(f)
Parent Business Intellectual Property
5.2(m)
Parent Common Stock
4.1(a)
Parent Companies
4.1(a)
Parent Disclosure Letter
5.2
Parent Intellectual Property Contracts
5.2(m)
Parent Material Adverse Effect
5.2(b)
Parent Owned