Common use of Exceptions to Non-Compete Clause in Contracts

Exceptions to Non-Compete. Notwithstanding anything to the contrary set forth in Section 14.2 or 14.3: (a) Nothing in this Agreement shall prohibit, preclude or in any way restrict eBay and its controlled Affiliates, on the one hand, or PayPal and its controlled Affiliate, on the other hand, from: (i) purchasing or acquiring, or being the holder or beneficial owner of, up to the greater of five percent (5%) or $100 million of the outstanding equity securities of any Person; (ii) acquiring and, after such acquisition, owning an interest in any Person (or its successor) that is engaged in a business activity that would otherwise violate Section 14.2 or Section 14.3, as applicable, (a “Competing Business”) if the annual revenue generated by such Competing Business in the last completed fiscal year of such Person did not exceed the greater of (A) ten percent (10%) of such Person’s consolidated annual revenues for such fiscal year and (B) the lesser of fifty percent (50%) of such Person’s consolidated annual revenues for such fiscal year and $500 million. (b) Nothing in this Agreement shall prohibit, preclude or in any way restrict any director of eBay or PayPal from, whether in such director’s personal capacity or as a manager, partner, director, officer or other control person of an investment fund, investing in, participating in or directing the investment in, serving on the board of directors or similar governing body of, receiving information rights in or participating in other customary activities related to investments in, any Person that is engaged in the Competing Business. (c) If the restrictions set forth in Section 14.2 are not enforceable for any portion of the Term or with respect to any portion of the eBay Restricted Business in any jurisdiction under the antitrust/competition laws of such jurisdiction, the Parties shall negotiate in good faith and agree upon a suitable and equitable alternative that, to the fullest extent permitted under the antitrust/competition laws of such jurisdiction, effects the original intent of Section 14.2. If the restrictions set forth in Section 14.3 are not enforceable for any portion of the Term or with respect to any portion of the PayPal Restricted Business in any jurisdiction under the antitrust/competition laws of such jurisdiction, the Parties shall negotiate in good faith and agree upon a suitable and equitable alternative that, to the fullest extent permitted under the antitrust/competition laws of such jurisdiction, effects the original intent of Section 14.3. Any such alternative agreed upon by the Parties pursuant to this Section 14.4 may include the payment of a fee or other lump sum amount by one Party to the other Party.