Exhibit 10.33
eBAY INC.
2003 DEFERRED STOCK UNIT PLAN
NEW DIRECTOR AWARD AGREEMENT
This award
agreement (this “ Award Agreement ”) sets
forth the terms and conditions of an award (this “
Award ”) of deferred stock units (“
DSUs ”) granted to you under the eBay Inc. 2003
Deferred Stock Unit Plan (the “ Plan
”).
1. The
Plan . This Award is made pursuant to the Plan, the terms of
which are incorporated in this Award Agreement. Capitalized terms
used in this Award Agreement that are not defined in this Award
Agreement have the meanings as used or defined in the
Plan.
2.
Award . The number of DSUs subject to this Award is set
forth at the end of this Award Agreement. Each DSU constitutes an
unfunded and unsecured promise of eBay to deliver (or cause to be
delivered) to you, subject to the terms of this Award Agreement,
one share of Common Stock (the “ Share ”
or the “ Shares ” as the context
requires) (or, in the sole discretion of the Committee, cash,
securities or other property equal to the Fair Market Value
thereof) as soon as practicable but in no case more than
10 days following the Delivery Date as provided herein. You
shall also be entitled to receive an amount in cash equal to the
sum of any declared dividends on the Shares which the record date
therefor occurred after the date of grant and prior to delivery
(the “ dividend equivalent rights ”). Until such
delivery, you have only the rights of a general unsecured creditor,
and no rights as a stockholder, of eBay. THIS AWARD IS SUBJECT
TO ALL TERMS, CONDITIONS AND PROVISIONS OF THE PLAN AND THIS AWARD
AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE ARBITRATION AND
CHOICE OF FORUM PROVISIONS SET FORTH IN PARAGRAPH 15
.
3.
Vesting . Except as provided in this Paragraph 3 and in
Paragraph 6, you shall become vested in 25% of this grant of
DSUs on the first anniversary of the Date of Grant specified at the
end of this Award Agreement and in 2.0833% of this grant of DSUs
each month thereafter. Except as provided in Paragraph 6, if
your service terminates for any reason prior to full vesting,
including due to failure to be nominated or re-elected as a member
of the Board, your rights in respect of all of your unvested DSUs
shall terminate, and no Shares (or cash) shall be delivered in
respect of such unvested DSUs.
4. DSU
Account .
A
bookkeeping account will be established for you which shall be
credited with all DSUs and any dividend equivalent rights that have
been granted to you.
5.
Delivery of Shares/DSU Payments .
(a) Except as
provided in this Paragraph 5 and in Paragraphs 6, 8 and 9, the
Shares underlying the vested DSUs and any dividend equivalent
rights corresponding to those vested DSUs shall be delivered as
soon as practicable but in no case more than 10 days
following
the Delivery Date specified at
the end of this Award Agreement. The Company may, at its option,
deliver cash, securities or other property in lieu of all or any
portion of the Shares otherwise deliverable. Such payment shall be
equal in value to the product of the number of Shares to be
delivered on the Delivery Date and the Fair Market Value of one
Share of Common Stock on the Delivery Date. You shall be deemed the
beneficial owner of the Shares at the close of business on the
Delivery Date and shall be entitled to any dividend or distribution
that has not already been made with respect to such Shares if the
record date for such dividend or distribution is after the close of
business on the Delivery Date. Notwithstanding the foregoing, if
the Delivery Date occurs at a time when you are considered by the
Company to be one of its “covered employees” within the
meaning of Section 162(m) of the Code and/or if you are considered
to be one of the Company’s “specified employees”
within the meaning of Section 409A(a)(2)(B) of the Code and
applicable Treasury regulations and guidance issued from time to
time thereunder (including, without limitation, any regulations and
guidance setting forth the time period with respect to which the
determination whether you are a “specified employee”
must be made), then, unless the Committee determines otherwise,
delivery of the Shares (or cash) automatically shall be deferred
until six months after you have ceased to be an employee of the
Company. Such deferral shall not affect the number of shares or the
amount of cash to be delivered.
(b) Notwithstanding
the foregoing, all DSUs and any dividend equivalent rights shall
vest and shall become payable immediately upon a Change in Control.
“ Change in Control ” means (a) a
dissolution or liquidation of eBay, (b) a merger or
consolidation in which eBay is not the surviving corporation (other
than a merger or consolidation with a wholly-owned subsidiary, a
reincorporation of eBay in a different jurisdiction, or other
transaction in which there is no substantial change in the
stockholders of eBay or their relative stock holdings and the
Awards granted under this Plan are assumed, converted or replaced
by the successor corporation, which assumption, conversion or
replacement will be binding on all grantees), (c) merger in
which eBay is the surviving corporation but after which the
stockholders of eBay (other than any stockholder which merges (or
which owns or controls another corporation which merges) with eBay
in such merger) cease to own their shares or other equity interests
in eBay, (d) the sale of substantially all of the assets of
eBay, or (e) the acquisition, sale or transfer of more than
50% of the outstanding shares of eBay by tender offer or similar
transaction; provided , however , that in no event
will a “Change of Control” be deemed to have occurred
for purposes of this Award Agreement if such event would not
constitute a change in the ownership or effective control of eBay,
or in the ownership of a substantial portion of the assets of eBay
for purposes of Section 409A of the Code and applicable
Treasury regulations and guidance issued from time to time
thereunder.
(c) "
Delivery Date ” means the date of your
termination of service with the Board.
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