Rajiv Dutta 19700 Montauk Ct. Saratoga, CA 95070 Dear Rajiv:
Exhibit 10.2
August 21,
2008
Xxxxx Xxxxx
00000 Xxxxxxx Xx.
Xxxxxxxx, XX 00000
Dear Rajiv:
This letter sets forth the substance of the separation agreement
(the “Agreement”) that eBay (the “Company”)
is offering to aid you with your employment transition.
1. SEPARATION. Your last day of active
employment as a full-time employee of the Company is anticipated
to be October 22, 2008 (the “Separation Date”).
You will work full time from the date hereof through
August 31, 2008 providing transition assistance to the
Marketplaces leadership team. From September 1 through the
Separation Date you will take your sabbatical and accrued PTO.
From the Separation Date until December 31, 2008 (the
“Consulting Period”), the Company will make available
to you consulting projects for 4 days per month (pro rated
for partial months) for the Consulting Period, pursuant to the
terms of a separate consulting agreement attached hereto as
Exhibit A (the “Consulting Agreement”). As of the
Separation Date, the Company will pay you all accrued salary,
subject to standard payroll deductions and withholdings, earned
through the Separation Date. As of the Separation Date, you will
also be paid all accrued and unused vacation time earned through
the Separation Date, subject to standard payroll deductions and
withholdings. You acknowledge with the payment of these sums,
with the exception of any consideration or payments due under or
described in this Agreement or the Consulting Agreement, the
Company has paid or provided you all outstanding wages, bonuses,
or other payments.
2. ADDITIONAL COMPENSATION. So long as
you remain employed through the Separation Date you will be
eligible to receive an amount equal to your eBay Incentive Plan
(eIP) bonus for 2008, if any, based on your eligible earnings
from January 1, 2008 to August 31, 2008, and
calculated for you at an individual performance score of 100;
subject to reduction, in whole or in part, to be determined by
and at the sole and absolute discretion of the Chairman of the
Company’s Compensation Committee. Such compensation, if
any, will be paid out in accordance with the standard plan
schedule and will be subject to standard payroll deductions and
withholdings.
3. STOCK OPTIONS. As an additional
benefit, the remaining restricted stock units awarded to you in
connection with the 2007 performance period under the
Company’s PBRSU Plan will be fully accelerated on
December 31, 2008 as part of this Agreement, subject to
reduction, in whole or in part, to be determined by and at the
sole and absolute discretion of the Chairman of the
Company’s Compensation Committee. The total number of
restricted stock units that shall be accelerated under this
Agreement with respect to the 2007 performance period equals
2,876. As a further additional benefit, following calculation of
the amount of restricted stock units awarded to you in
connection with the
2007-2008
performance period under the Company’s PBRSU Plan, if any,
you will be awarded
1/3
of such shares
(2/3
of
1/2),
subject to reduction, in whole or in part, to be determined by
and at the sole and absolute discretion of the Chairman of the
Company’s Compensation Committee. Other than as set forth
herein, all vesting of your equity will cease on the Separation
Date. Subject to the terms of your stock option agreements, you
are allowed to exercise your vested stock options no later than
3 months after the termination of the Consulting Agreement.
4. HEALTH INSURANCE. As provided by the
federal COBRA law and by the Company’s current group health
insurance policies, you will be eligible to continue your health
insurance following the Separation Date and, later, to convert
to an individual policy. You will be provided with a separate
notice of your COBRA rights. The Company shall pay for COBRA
coverage through December 31, 2008, or until you have
secured other employment, whichever occurs first. You are
entitled to COBRA insurance whether or not you sign this
Agreement. The Company’s obligation to make these payments
will cease immediately if you become eligible for other health
insurance benefits at the expense of another employer. You agree
to immediately provide the Company written notice of the
availability of health insurance within that time period.
5. TAX EQUALIZATION SETTLEMENT. You and
the Company agree that a tax equalization settlement will be
calculated for the 2006 and 2007 tax years by eBay’s public
accounting firm per the terms of the Company’s Tax
Equalization Policy. You and the Company agree to resolve any
outstanding obligations owing as a result of the settlement
calculation prior to the Separation Date.
6. OTHER COMPENSATION OR BENEFITS. You
acknowledge that, except as expressly provided in this
Agreement, you will not receive nor are you entitled to receive
any additional compensation, severance or benefits (other than
pursuant to the terms of any Company qualified retirement plan
in which you are a participant) after the Separation Date.
7. “AT-WILL” EMPLOYMENT. Your
employment at all times remains “at-will” and nothing
in this Agreement shall be construed as altering the at-will
relationship. Either you or the Company may terminate your
employment at any time, with or without cause or advanced notice.
8. RESIGNATION FROM CURRENT
POSITIONS. Prior to the Separation Date, you
agree to resign as: (i) Director, CARad, Inc.;
(ii) Director, XxxxXxx.xxx Limited; (iii) Director,
XxxxXxx.xxx (Hong Kong) Limited; (iv) Managing Director,
eBay Belgium Holdings S.A.; (v) Director, eBay KTA (UK)
Ltd.; (vi) Director, eBay Spain International S.L.;
(vii) Director, eBay Taiwan Company Ltd.; and
(viii) Director, PayPal (BVI) Holdings Inc.. You agree to
provide any resignation notices as may be needed to effect
removal from any current positions you hold as requested by the
Company.
9. EXPENSE REIMBURSEMENTS. Within ten
(10) days of the Separation Date, you will submit your
final documented expense reimbursement statement reflecting any
and all authorized business expenses you incurred through the
Separation Date for which you seek reimbursement. The Company
will reimburse you for such expenses pursuant to its regular
business practice. The Company will continue to reimburse you
for expenses incurred in fulfilling your consulting obligations
to the Company pursuant to the terms of the Consulting Agreement.
10. RETURN OF COMPANY PROPERTY. By the
Separation Date, you will return to the Company all Company
documents (and all copies thereof) and other Company property
and materials in your possession, or your control, including,
but not limited to, Company files, notes, memoranda,
correspondence, lists, drawings, records, plans and forecasts,
financial information, personnel information, customer and
customer prospect information, sales and marketing information,
product development and pricing information, specifications,
computer-recorded information, tangible property, credit cards,
entry cards, identification badges and keys; and any materials
of any kind which contain or embody any proprietary or
confidential material of the Company (and all reproductions
thereof); provided, however, that to facilitate your work in
connection with the Consulting Agreement with the Company, you
may continue to use your Company supplied laptop and PDA for
Company related business, during the term of the Consulting
Agreement.
11. PROPRIETARY INFORMATION
OBLIGATIONS. You acknowledge your continuing
obligations under your Employee Proprietary Information and
Inventions Agreement (a copy of which is attached hereto as
Exhibit B), which include but are not limited to the
obligation to refrain from any unauthorized use or disclosure of
any confidential or proprietary information of the Company.
12. NONDISPARAGEMENT. You agree not to
disparage the Company, the Company’s officers, directors,
employees, shareholders and agents, affiliates and subsidiaries
in any manner likely to be harmful to them or their business,
business reputation or personal reputation.
13. RELEASE OF CLAIMS. In consideration
for the payments and other promises and undertakings contained
in this Agreement to which you would not otherwise be entitled,
and except as otherwise set forth in this Agreement, and your
rights under your indemnification agreement with the Company and
the Company’s Directors’ and Officers’ Insurance
policies, all of which rights shall continue following the
Separation Date, you release, acquit and forever discharge the
Company, its parents and subsidiaries, and its and their
respective officers, directors, agents, servants, employees,
attorneys, shareholders, successors, assigns and affiliates, of
and from any and all claims, liabilities, demands, charges,
causes of action, costs, expenses, attorneys fees, damages,
indemnities and obligations of every kind and nature, in law,
equity, or otherwise, which you assert or could assert against
the Company at common law or under any statute, rule,
regulation, order or law, whether federal, state or local, on
any
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ground whatsoever, known and unknown, suspected and unsuspected,
disclosed and undisclosed, arising out of or in any way related
to agreements, events, acts or conduct at any time prior to and
including the date you sign this Agreement, including but not
limited to: all such claims and demands directly or indirectly
arising out of or in any way connected with your employment with
the Company or the termination of that employment; claims or
demands related to salary, bonuses, commissions, stock, stock
options, restricted stock awards, restricted stock units or any
other ownership interests in the Company, vacation or other time
off pay, sabbatical benefits, fringe benefits, expense
reimbursements, severance pay, or any other form of
compensation; any and all causes of action, including but not
limited to actions for breach of contract, express or implied,
breach of the covenant of good faith and fair dealing, express
or implied, wrongful termination in violation of public policy,
all other claims for wrongful termination and constructive
discharge, and all other tort claims, including, but not limited
to, intentional or negligent infliction of emotional distress,
invasion of privacy, negligence, negligent investigation,
negligent hiring, supervision or retention, assault and battery,
false imprisonment, defamation, intentional or negligent
misrepresentation, fraud, and any and all claims arising under
any federal, state or local law or statute, including, but not
limited to, the California Fair Employment and Housing Act;
Title VII of the Civil Rights Act of 1964; the Civil Rights
Act of 1991; the Fair Labor Standards Act; the Employee
Retirement and Income Security Act; the Americans with
Disabilities Act, 42 U.S.C. § 1981; the
Age Discrimination in Employment Act of 1967, as amended
(“ADEA”); the Family and Medical Leave Act; the
California Family Rights Act; the California Labor Code; the
California Civil Code; the California Constitution; and any and
all other laws and regulations relating to employment
termination, employment discrimination, harassment or
retaliation, claims for wages, hours, benefits, compensation,
and any and all claims for attorneys’ fees and costs,
inasmuch as is permissible by law and by the respective
governmental enforcement agencies for the above-listed laws.
This release does not extend to any claim or cause of action
that is not subject to dismissal as a matter of law, including
specifically but not exclusively, all indemnification
obligations that the Company owes to you. This release does not
extend to any obligations incurred under this Agreement.
14. RELEASE OF UNKNOWN CLAIMS. You
acknowledge that you have read and understand Section 1542
of the California Civil Code, which reads 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.” You
hereby knowingly, intentionally, and expressly waive and
relinquish all rights and benefits under that section and any
law of any jurisdiction of similar effect with respect to your
release of any unknown or unsuspected claims you may have
against the Company.
15. MISCELLANEOUS. This Agreement,
including all exhibits, constitutes the complete, final and
exclusive embodiment of the entire agreement between you and the
Company with regard to this subject matter, with the exception
of the Indemnity Agreement between you and the Company, which
shall survive and is hereby incorporated by reference. It is
entered into without reliance on any promise or representation,
written or oral, other than those expressly contained herein,
and it supersedes any other such promises, warranties or
representations, prior agreements and communications, whether
oral or written, as to the specific subjects of this letter by
and between you and the Company. This Agreement may not be
modified or amended except in writing signed by both you and a
duly authorized officer of the Company. This Agreement will bind
the heirs, personal representatives, successors and assigns of
both you and the Company, and inure to the benefit of both you
and the Company, their heirs, successors and assigns. If any
provision of this Agreement is determined to be invalid or
unenforceable, in whole or in part, this determination will not
affect any other provision of this Agreement and the provision
in question will be modified by the court so as to be rendered
enforceable. No waiver by the Company of any right under this
Agreement shall be construed as a waiver of any other right, nor
shall any waiver by the Company of any breach of this Agreement
be a waiver of any preceding or succeeding breach. This
Agreement will be deemed to have been entered into and will be
construed and enforced in accordance with the laws of the State
of California as applied to contracts made and to be performed
entirely within California.
16. I ACKNOWLEDGE THAT I HAVE BEEN ADVISED BY THIS
WRITING, AS REQUIRED BY THE AGE DISCRIMINATION IN
EMPLOYMENT ACT (ADEA) AND THE OLDER WORKERS’ BENEFIT
PROTECTION ACT (OWBPA), THAT: (a) MY WAIVER AND RELEASE DO
NOT APPLY TO ANY RIGHTS OR CLAIMS THAT MAY ARISE AFTER THE
EXECUTION DATES OF THIS AGREEMENT; (b) I HAVE BEEN ADVISED
HEREBY THAT I HAVE THE RIGHT TO CONSULT
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WITH AN ATTORNEY PRIOR TO EXECUTING THIS AGREEMENT;
(c) I HAVE TWENTY-ONE (21) DAYS TO CONSIDER THIS
AGREEMENT (ALTHOUGH I MAY CHOOSE TO VOLUNTARILY EXECUTE THIS
AGREEMENT EARLIER); (d) I HAVE SEVEN (7) DAYS
FOLLOWING THE EXECUTION OF THIS AGREEMENT TO REVOKE THE
AGREEMENT; AND (e) THIS AGREEMENT WILL NOT BE EFFECTIVE
UNTIL THE DATE UPON WHICH THE RESPECTIVE REVOCATION PERIOD HAS
EXPIRED, WHICH WILL BE THE EIGHTH DAY AFTER THIS AGREEMENT IS
EXECUTED AND SUBSEQUENTLY RE-EXECUTED BY ME, PROVIDED THAT THE
COMPANY HAS ALSO EXECUTED THIS AGREEMENT BY THAT DATE.
Upon acceptance of this Agreement, please sign below within the
timeframe specified above and return the executed original to
me. Upon your signature below, this will become our binding
agreement with respect to your separation from the Company and
its terms merging and superceding in their entirety all other or
prior agreements and communications, whether written or oral, by
you and eBay as to the specific subjects of this Agreement.
| By: |
/s/ Xxxxxxx
Xxxxxxxx
|
Xxxxxxx Xxxxxxxx
Senior Vice President & General Counsel
I UNDERSTAND AND AGREE TO THE TERMS CONTAINED IN THIS
AGREEMENT AND INTEND, BY MY SIGNATURE BELOW, TO BE LEGALLY BOUND
BY THOSE TERMS. I AM SIGNING THIS RELEASE KNOWINGLY, WILLINGLY
AND VOLUNTARILY IN EXCHANGE FOR THE SEVERANCE BENEFITS DESCRIBED
ABOVE:
/s/ Xxxxx Xxxxx
Xxxxx Xxxxx
Date: September 2, 2008
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Please re-execute below on your Separation Date.
I HAVE READ AND AGREE TO THE FOREGOING RELEASE OF CLAIMS AS
OF THE DATE SET FORTH BELOW:
/s/ Xxxxx Xxxxx
Xxxxx Xxxxx
Date:
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