CONSULTING AGREEMENT
Exhibit 10.03
This Consulting Agreement (the “Agreement”) is made as of the last date
executed by one of the parties below (the “Effective Date”) by and between eBay Inc. (“Company”), a
Delaware corporation, and Xxxxxxx X. Xxxxxx (“Consultant”).
1. Engagement of Services. Company may from time to time issue project assignments to Consultant
that may be outlined in the format displayed in Exhibit A (“Project Assignment Form”). Subject to
the terms of this Agreement, Consultant will, to the best of his ability, render the services set
forth in Project Assignment(s) accepted by Consultant (the “Project(s)”) by the completion dates
set forth therein. Consultant agrees to exercise the highest degree of professionalism, and to
utilize his expertise and creative talents in completing such Projects. In completing the
Projects, Consultant agrees to provide his own equipment, tools and other materials at his own
expense except as may be permitted under the Separation Agreement between Consultant and the Company
dated September 11, 2006. Company will make its facilities and equipment available to Consultant when necessary.
Consultant shall perform the services necessary to complete the Projects in a timely and
professional manner consistent with industry standards, and at a location, place and time that the
Consultant deems appropriate.
2. Compensation. Company will pay Consultant a fee for services rendered under this Agreement as
set forth in the Project Assignment(s). As set forth therein, Consultant will be reimbursed for
any reasonable expenses incurred in connection with the performance of services under this
Agreement provided Consultant submits verification of such expenses as Company may require.
Consultant will be reimbursed only for such expenses that are expressly provided for in each such
Project Assignment Form or which have been approved in advance in writing by Company, provided
Consultant has furnished such documentation for authorized expenses as Company may reasonably
request. Any expenses incurred by Consultant in performing services under this Agreement that are
not expressly provided for in each Project Assignment Form or pre-approved in writing by Company
shall be the borne by Consultant. Payment of Consultant’s fees, and expenses if applicable, will
be in accordance with the terms and conditions set forth in the Project Assignment(s). Upon
termination of this Agreement for any reason, Consultant will be paid fees on a proportional basis
as stated in the Project Assignment Form for work which has been completed, to and including the
effective date of such termination.
3. Disclosure of Inventions. As used herein, “Inventions” means any invention, whether or not
patentable, and all related know-how, designs, mask works, trademarks, formulae, processes,
manufacturing techniques, trade secrets, ideas, artwork, software or other copyrightable or
patentable works. Consultant agrees that any and all Inventions conceived, written, created or
first reduced to practice in the performance of work under this Agreement shall be the sole and
exclusive property of Company. Consultant agrees to disclose promptly in writing to Company, or
any person designated by Company, any Inventions that are solely or jointly conceived, made,
reduced to practice, or learned by Consultant in the course of any work performed for Company.
Consultant represents that any Inventions relating to Company’s business or any Project which
Consultant has made, conceived or reduced to practice at the time of signing this Agreement (“Prior
Invention”) has been disclosed in writing to Company and attached to this Agreement as Exhibit B.
If disclosure of any such Prior Inventions would cause Consultant to violate any prior
confidentiality agreement, Consultant understands that it is not to list such Prior Invention in
Exhibit B, but will disclose a cursory name for each such invention, the party or parties to whom
it belongs, and the fact that full disclosure as to such Prior Invention has not been made for that
reason. A space is provided in Exhibit B for such purpose. Consultant shall also specifically
describe and identify in Exhibit B all technology which is either owned solely by Consultant or
licensed to Consultant with a right to sublicense and which Consultant intends to use in performing
under this Agreement.
4. Ownership of Work Product. Whether or not the parties execute a Project Assignment Form
pursuant to this Agreement, Consultant hereby assigns and agrees to assign in the future to Company
ownership of all right, title and interest in and to any and all Work Product, including ownership
of all copyrights, trademarks,
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patents (and any goodwill associated therewith), trade secrets and other intellectual property (or
other proprietary) rights throughout the world contained therein, and any Inventions: (i) that is
created by Consultant, or to which Consultant contributes, pursuant to this Agreement; or (ii) that
is created by Consultant prior to the execution of this Agreement, which Consultant created at
Company’s request in exchange for the consideration Consultant receives under this Agreement (“Work
Product”). Consultant agrees to execute, at Company’s request and expense, all documents and other
instruments necessary to effectuate such assignment of Work Product, including without limitation,
a copyright assignment (“Assignment of Copyright”). The Company will provide Consultant with its
standard Assignment of Copyright form upon request. In the event that Consultant does not, for any
reason, execute such documents within seven (7) days of Company’s request, Consultant hereby
irrevocably appoints Company as Consultant’s attorney-in-fact for the purpose of executing such
documents on Consultant’s behalf, which appointment is coupled with an interest. Consultant
further agrees not to challenge the validity of Company’s ownership in the Work Product.
5. Artist’s and Moral Rights. If Consultant has any rights, including without limitation “artist’s
rights” or “moral rights,” in the Work Product that cannot be assigned, Consultant agrees to
unconditionally and irrevocably waive enforcement worldwide of such rights against Company and all
claims and causes of action of any kind against Company with respect to such rights, and agrees, at
Company’s expense and request, to consent to and join in any action to enforce such rights. In the
event that Consultant has any such rights that cannot be assigned or waived, Consultant hereby
unconditionally and irrevocably grants to Company an exclusive, worldwide, irrevocable, fully paid
and royalty-free perpetual license to use, reproduce, distribute, create derivative works of,
publicly perform and publicly display the Work Product in any medium or format, whether now known
or later developed.
6. Representations and Warranties. Consultant represents and warrants that: (a) Consultant has the
right and unrestricted ability to assign the Work Product to Company as set forth in Section 4
(including without limitation the right to assign any Work Product created by Consultant’s
employees or contractors); (b) the Work Product does not and will not infringe upon any copyright,
trademark, patent, trade secret, right of publicity or privacy, or any other intellectual property
or proprietary right of any person, whether contractual, statutory or at common law; (c) Consultant
will not grant, directly or indirectly, any rights or interest whatsoever in the Work Product to
third parties; (d) neither the Work Product nor any element thereof will be subject to any
restrictions or to any mortgages, liens, pledges, security interests, encumbrances or
encroachments; (e) Consultant shall comply with all applicable laws while performing the services;
(f) Consultant shall obtain all necessary consents and authorizations prior to providing services;
(g) the services will be performed, and the goods, materials, documentation, analysis, data,
programs, and other matter contemplated in performing hereunder will be prepared and delivered, by
qualified personnel in a timely manner on a good and workmanlike best efforts basis and shall meet
all specifications as determined in eBay’s sole and exclusive discretion; (h) Consultant will take
all necessary precautions to prevent injury to any persons (including employees of Company) or
damage to property (including Company’s property) during the term of this Agreement; and (i) should
Company permit Consultant to use any of Company’s equipment, tools or facilities during the term of
this Agreement, such permission shall be gratuitous and Consultant shall be responsible for any
injury to any person (including death) or damage to property (including Company’s property) arising
out of use of such equipment, tools or facilities, whether or not such claims is based upon it
condition or on the alleged negligence of Company in permitting its use. Consultant agrees to
indemnify Company from any and all damages, costs, claims, expenses or other liability (including
reasonable attorneys’ fees) arising from or relating to the breach or alleged breach by Consultant
of the representations and warranties set forth in this Section 6.
7. Independent Contractor Relationship. Consultant’s relationship with Company will be that of an
independent contractor and nothing in this Agreement should be construed to create a partnership,
agency, joint venture, or employer-employee relationship between Company and Consultant.
Consultant is not the agent of Company and is not authorized to make any representation, contract,
or commitment on behalf of Company, unless specifically requested or authorized in writing to do so
by a Company officer. Consultant is not and will not be entitled to any of the benefits which
Company may make available to its employees, such as group insurance, profit sharing or retirement
benefits, except as otherwise provided in the separation agreement by and between Consultant and
Company dated September 11, 2006. Consultant will be solely responsible for, and will file on a
timely basis, all tax returns and payments required to be filed with or made to any federal, state
or local tax authority with respect to
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Consultant’s performance of services and receipt of fees under this Agreement. Consultant is
solely responsible for, and must maintain adequate records of, expenses incurred in the course of
performing services under this Agreement. Company will regularly report amounts paid to Consultant
by filing Form 1099-MISC with the Internal Revenue Service as required by law. Because Consultant
is an independent contractor, Company will not withhold or make payments for social security,
federal, state or any other employee payroll taxes; make unemployment insurance or disability
insurance contributions; or obtain worker’s compensation insurance on Consultant’s behalf. In
further recognition of the fact that Consultant is not an employee of Company, Consultant agrees
not to make, and waives and releases any rights to make, any claim Consultant might have against
Company that relates to or arises from any illness or injury Consultant sustains while performing
services under this Agreement that may arise pursuant to applicable workers’ compensation laws.
Consultant agrees to accept exclusive liability for complying with all applicable state and federal
laws governing self-employed individuals, including obligations such as payment of taxes, social
security, disability and other contributions based on fees paid to Consultant, its agents or
employees under this Agreement. Consultant hereby agrees to indemnify and defend Company against
any and all such taxes or contributions, including penalties and interest. Consultant is free to
enter any contract to provide services to other business entities, except any contract that would
induce Consultant to violate this Agreement.
8. Confidential Information. At all times during the term of this Agreement and thereafter,
Consultant agrees to hold Company’s Confidential Information, and the Confidential Information of
any of Company’s subsidiaries and affiliates, in strict confidence, and further agrees not to
disclose to any third parties or use any such Confidential Information. In the event Consultant
received Confidential Information from Company prior to executing this Agreement, in exchange for
the consideration Consultant receives pursuant to this Agreement, Consultant agrees to hold
Company’s Confidential Information in strict confidence and further agrees not to use said
Confidential Information or disclose said Confidential Information to any third parties.
“Confidential Information” as used in this Agreement shall mean any and all confidential and/or
proprietary knowledge, data, or information of Company including, without limitation, (a) trade
secrets, drawings, inventions, mask works, ideas, processes, formulas, source and object codes,
data, programs, software source documents, works of authorship, know-how, improvements,
discoveries, developments, designs and techniques, and all other work product of Company, including
but not limited to all Work Product created pursuant to this Agreement, whether or not patentable
or registrable under trademark, copyright, patent or similar laws; (b) information regarding plans
for research, development, new service offerings and/or products, marketing, advertising and
selling, distribution, business plans, business forecasts, budgets and unpublished financial
statements, licenses, prices and costs, suppliers, customers or distribution arrangements; (c) any
information regarding the skills and compensation of employees, consultants, agents, and/or
independent contractors of the Company or its subsidiaries or affiliates; (d) concepts and ideas
relating to the development and distribution of content in any medium or to the current, future and
proposed products or services of Company or its subsidiaries or affiliates; and (e) the existence
of any business discussions, negotiations or agreements between the parties. Confidential
Information also includes proprietary or confidential information of any third party who may
disclose such information to Company or Consultant in connection with or in the course of Company’s
business. Consultant’s obligations set forth in this Section 8 shall not apply with respect to any
portion of the Confidential Information that Consultant can document by competent proof that such
portion: (a) was in the public domain at the time it was communicated to Consultant by Company; (b)
entered the public domain through no fault of Consultant, subsequent to the time it was
communicated to Consultant by Company; (c) is generally known in the Company’s trade or industry,
and was not gained by breach of this Agreement; or (d) was developed by employees or agents of
Consultant independently of and without reference to any information communicated to Consultant by
Company. In addition, Consultant may disclose Company’s Confidential Information in response to a
valid order by a court or other governmental body, as otherwise required by law. All Confidential
Information furnished to Consultant by Company is the sole and exclusive property of Company and
its assigns. Upon request by Company, Consultant agrees to promptly deliver to Company the original
and any copies of all such Confidential Information.
9. No Conflict of Interest. During the term of this Agreement, Consultant will not accept work,
enter into a contract, or accept an obligation from any third party, inconsistent or incompatible
with Consultant’s obligations, or the scope of services rendered for Company, under this Agreement.
Consultant warrants that there is no other contract or duty on his part inconsistent with this
Agreement. Consultant agrees to indemnify Company from any and all loss or liability incurred by
reason of the alleged breach by Consultant of any services agreement
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with any third party. Consultant further agrees not to disclose to Company, or to bring onto
Company’s premises, or induce Company to use any confidential information that belongs to anyone
other than Company or Consultant.
10. Termination. Consultant or Company may terminate this Agreement at any time upon seven (7)
days’ prior written notice to the other party. Company may terminate this Agreement immediately in
its sole discretion upon Consultant’s material breach of Sections 8 (“Confidential Information”) or
12 (“Noninterference with Business”).
10.1 Survival. The rights and obligations contained in Sections 3 (“Disclosure of
Inventions”), 4 (“Ownership of Work Product”), 5 (“Artist’s and Moral Rights”), 6 (“Representations
and Warranties”), 8 (“Confidential Information”), 11 (“Indemnification”), and 12 (“Noninterference
with Business”) will survive any termination or expiration of this Agreement.
10.2 Return of Company Property. Upon termination of the Agreement or earlier as requested by
Company, Consultant will deliver to Company any and all drawings, notes, memoranda, specifications,
devices, formulas, and documents, together with all copies thereof, and any other material
containing or disclosing any Work Product or Confidential Information.
11. Indemnification. Consultant shall indemnify and hold harmless Company, its subsidiaries and
affiliates, their respective directors, officers, employees, sublicensees, customers, agents,
attorneys, affiliates, successors, and assigns from any and all claims, losses, liabilities,
damages, suits, actions, government procedures, taxes, penalties or interest, associated auditing
and legal expenses and other costs incurred by Company (including reasonable attorneys’ fees and
costs of suit) arising from Consultant’s, its agents’, subcontractors’ or personnel’s: (a)
performance of the Services or his other obligations under this Agreement; (b) misrepresentation or
breach of any representation, warranty, obligation or covenant of this Agreement; (c) violation of
a third party’s rights by use of the Work for Hire or other work product of Consultant or any third
party; (d) unauthorized use of Company’s or a third party’s trademarks or other intellectual
property; (e) failure to pay withholding or other taxes resulting in determination by a government
agency that Consultant is not an independent contractor; and (f) negligence or willful misconduct,
errors or omissions resulting in bodily injury or property damages to Consultant or Company
personnel or any third party, except to the extent Company personnel caused such injury or damage
by their negligence or misconduct. Company shall have the right to withhold from any payments due
Consultant under this Agreement the amount of any defense costs, plus additional reasonable amounts
as security for Consultant’s obligations under this Section 11.
11.1 Consultant further agrees, at his own expense, to defend or settle any claim brought
against Company for patent, copyright, trade secret or trademark infringement in connection with
any Work for Hire. Company shall provide Consultant with prompt written notice of the claim,
authority to proceed and full information and assistance to defend or settle the claim. At his
sole option and expense, Consultant may procure for Company the right to use the Work for Hire,
replace the Work for Hire with a non-infringing substitute or suitably modify the Work for Hire so
that it is non-infringing. Notwithstanding the foregoing, Consultant assumes no liability for
infringement claims arising from combination of Consultant’s work with products not provided by
Consultant personnel, if such claim would not exist in the operation or use of Consultant’s work or
in the Work for Hire itself; or modification of the Work for Hire, unless Consultant personnel made
such modification.
12. Noninterference with Business. During this Agreement, and for a period of two years immediately
following its termination, Consultant agrees not to interfere with the business of Company in any
manner. By way of example and not of limitation, Consultant agrees not to solicit or induce any
employee, independent contractor or other personnel to terminate or breach an employment,
contractual or other relationship with Company and its subsidiaries.
13. Government or Third Party Contracts.
13.1 Government Contracts. In the event that Consultant shall perform services under this
Agreement in connection with any Government contract in which Company may be the prime contractor
or subcontractor, Consultant agrees to abide by all laws, rules and regulations relating thereto.
To the extent that any
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such law, rule or regulation requires that a provision or clause be included in this
Agreement, Consultant agrees that such provision or clause shall be added to this Agreement and the
same shall then become a part of this Agreement.
13.2 Security. In the event the services of the Consultant should require Consultant to have
access to Department of Defense classified material, or other classified material in the possession
of Company’s facility, such material shall not be removed from Company’s facility. Consultant
agrees that all work performed under this Agreement by Consultant which involves the use of
classified material mentioned above shall be performed in a secure fashion (consistent with
applicable law and regulations for the handling of classified material) and only at Company’s
facility.
13.3 Ownership. Consultant also agrees to assign all of its right, title and interest in and
to any Work Product to a Third Party, including without limitation the United States, as directed
by Company.
14. Export. Consultant agrees not to export, directly or indirectly, any U.S. source technical
data acquired from Company or any products utilizing such data to countries outside the United
States, which export may be in violation of the United States export laws or regulations.
15. Successors and Assigns. This Agreement may not be assigned by Consultant without Company’s
consent, and any such attempted assignment shall be void and of no effect. Subject to the
foregoing, this Agreement will be for the benefit of Company’s successors and assigns, and will be
binding on Consultant’s assignees.
16. Notices. Any notices, requests and other communications required or permitted by this Agreement
shall be in writing and shall be delivered as follows with notice deemed given as indicated: (a) by
personal delivery when delivered personally; (b) by overnight courier upon written verification of
receipt; (c) by telecopy or facsimile transmission upon acknowledgment of receipt of electronic
transmission; or (d) by certified or registered mail, return receipt requested, upon verification
of receipt. Notice shall be sent to the addresses set forth below or such other address as either
party may specify in writing by notice as provided by this section.
17. Governing Law. This Agreement shall be governed in all respects by the laws of the United
States of America and by the laws of the State of California, as such laws are applied to
agreements entered into and to be performed entirely within California between California
residents. Consultant hereby expressly consents to the personal jurisdiction of the state and
federal courts located in Santa Xxxxx County, California for any lawsuit filed there against
Consultant by Company arising from or related to this Agreement.
18. Severability. In case any one or more of the provisions contained in this Agreement shall, for
any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect the other provisions of this Agreement, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been
contained herein. If moreover, any one or more of the provisions contained in this Agreement shall
for any reason be held to be excessively broad as to duration, geographical scope, activity or
subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent
compatible with the applicable law as it shall then appear.
19. Waiver. The waiver by Company of a breach of any provision of this Agreement by Consultant
shall not operate or be construed as a waiver of any other or subsequent or preceding breach by
Consultant. No waiver by Company of any right under this Agreement shall be construed as a waiver
of any other right. Company shall not be required to give notice to enforce strict adherence to
all terms of this Agreement.
20. Injunctive Relief for Breach. Consultant’s obligations under this Agreement are of a unique
character that gives them particular value; breach of any of such obligations will result in
irreparable and continuing damage to Company for which there will be no adequate remedy at law;
and, in the event of such breach, Company will be entitled to injunctive relief and/or a decree for
specific performance, and such other and further relief as may be proper (including monetary
damages if appropriate).
21. Entire Agreement. This Agreement constitutes the entire agreement between the parties relating
to this subject matter and supersedes all prior or contemporaneous oral or written agreements
concerning such
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subject matter. The terms of this Agreement will govern all services undertaken by Consultant for
Company; any terms contained in the Project Assignment(s) which are inconsistent with this
Agreement are invalid. This Agreement may only be changed by mutual agreement of authorized
representatives of the parties in writing. No modification of or amendment to this Agreement, nor
any waiver of any rights under this Agreement, will be effective unless in writing and signed by
the authorized representative of the party to be charged.
In Witness Whereof, the parties have executed this Agreement as of the date last written
below.
Company: | Consultant: | |||||
eBay Inc. | Xxxxxxx X. Xxxxxx | |||||
0000 Xxxxxxxx Xxxxxx | ||||||
Xxx Xxxx, XX 00000 | ||||||
By:
|
/s/ Xxxxxxx Xxxxxxxx | By: | /s/ Xxxxxxx Xxxxxx | |||
Name:
|
Xxxxxxx Xxxxxxxx | Name: | Xxxxxxx Xxxxxx | |||
Title:
|
Senior Vice President, Legal
Affairs, General Counsel and Secretary |
|||||
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Exhibit A
FORM OF PROJECT ASSIGNMENT # 1
UNDER CONSULTING AGREEMENT
UNDER CONSULTING AGREEMENT
Project:
Subject to the terms of the Consulting Agreement signed by the parties on the Effective Date
thereof, Consultant shall render such services as Company may from time to time request in
connection with certain issues related to the strategy for Marketplaces and Product. Specific
direction regarding the services to be provided will be given by the President, Marketplaces. It
is expected that Consultant shall provide approximately 4-6 days of services each month. The initial
assignment is expected to involve strategy for Marketplaces Product group on a one-day a week basis.
Schedule of Work:
The work will commence in September, 2006, and shall be completed by March, 2007.
The work will commence in September, 2006, and shall be completed by March, 2007.
Fees:
Fee: $5,000 per day.
Payment terms: net thirty (30) days from receipt of invoice. Company will be invoiced on the first
day of each month for expenses incurred during the previous month.
Note:
This Project Assignment is governed by the terms of the Consulting Agreement in effect between Company and Consultant. Any item in this Project Assignment which is inconsistent with that Agreement is invalid.
This Project Assignment is governed by the terms of the Consulting Agreement in effect between Company and Consultant. Any item in this Project Assignment which is inconsistent with that Agreement is invalid.
In Witness Whereof, the parties have executed this Project Assignment as of the date first
written above.
Company: | Consultant: | |||||
EBAY INC. | Xxxxxxx X. Xxxxxx | |||||
By:
|
By: | |||||
Name:
|
Name: | |||||
Title:
|
Title: | |||||
Date:
|
Date: | |||||
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Exhibit B
FORM OF PRIOR WORK PRODUCT DISCLOSURE
Of XXXXXXX X. XXXXXX
Of XXXXXXX X. XXXXXX
1. Except as listed in Section 2 below, the following is a complete list of all Prior Work
Product that have been made or conceived or first reduced to practice by Consultant alone or
jointly with others prior to my engagement by Company:
No inventions or improvements.
See below:
Additional sheets attached.
2. Due to a prior confidentiality agreement, Consultant cannot complete the disclosure under
Section 1 above with respect to inventions or improvements generally listed below, the proprietary
rights and duty of confidentiality with respect to which Consultant owes to the following
party(ies):
Invention or Improvement | Party(ies) | Relationship | ||||
1. |
||||||
2. |
||||||
3. |
||||||
Additional sheets attached.