-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Et/xadOEggTI3gbH0F4DKOISnyPPk24RmLJ26JqA++Px1F8LwRDDR80WBVh2D63M vSqLidOou084qfND70NODg== 0001012870-98-002470.txt : 19980925 0001012870-98-002470.hdr.sgml : 19980925 ACCESSION NUMBER: 0001012870-98-002470 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980924 EFFECTIVENESS DATE: 19980924 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: EBAY INC CENTRAL INDEX KEY: 0001065088 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 770430924 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-64179 FILM NUMBER: 98714259 BUSINESS ADDRESS: STREET 1: 2005 HAMILTON AVE STREET 2: STE 350 CITY: SAN JOSE STATE: CA ZIP: 95125 MAIL ADDRESS: STREET 1: 2005 HAMILTON AVE STREET 2: STE 350 CITY: SAN JOSE STATE: CA ZIP: 95125 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on September 24, 1998 Registration No. 333-_______ - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 EBAY INC. (Exact Name of Registrant as Specified in Its Charter) DELAWARE 77-0430924 (State or Other Jurisdiction (I.R.S. Employer of Incorporation or Organization) Identification No.) 2005 HAMILTON AVENUE, SUITE 350 SAN JOSE, CALIFORNIA 95125 (Address of Principal Executive Offices, including Zip Code) 1996 STOCK OPTION PLAN 1997 STOCK OPTION PLAN 1998 EQUITY INCENTIVE PLAN 1998 DIRECTORS STOCK OPTION PLAN 1998 EMPLOYEE STOCK PURCHASE PLAN NON-PLAN STOCK OPTION GRANTS (Full Title of the Plans) GARY F. BENGIER CHIEF FINANCIAL OFFICER AND VICE PRESIDENT OPERATIONS EBAY INC. 2005 HAMILTON AVENUE, SUITE 350 SAN JOSE, CALIFORNIA 95125 (408) 369-4830 (Name, Address and Telephone Number of Agent For Service) COPIES TO: Laird H. Simons III, Esq. Jeffrey R. Vetter, Esq. Tyler R. Cozzens, Esq. Fenwick & West LLP Two Palo Alto Square Palo Alto, CA 94306 CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------ AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION TITLE OF SECURITIES TO BE REGISTERED REGISTERED SHARE PRICE FEE - ------------------------------------------------------------------------------------------------------------------------------ Common Stock, $0.001 par value 5,007,748 (1) $18.00 (2) $ 90,139,464 (2) $26,592 Common Stock, $0.001 par value 3,124,914 (3) 10.88 (4) 33,999,065 10,030 - ------------------------------------------------------------------------------------------------------------------------------ TOTAL 8,132,662 $124,138,529 $36,622 - -----------------------------------------------------------------------------------------------------------------------------
(1) Shares available for grant as of September 24, 1998 under the 1998 Equity Incentive Plan and the 1998 Directors Stock Option Plan and available for issuance under the 1998 Employee Stock Purchase Plan. (2) Estimated as of September 23, 1998 pursuant to Rule 457(c) solely for the purpose of calculating the registration fee. (3) Shares subject to outstanding options as of September 24, 1998 under the 1996 Stock Option Plan and the 1997 Stock Option Plan and pursuant to Non- Plan Stock Option Grants. (4) Weighed average exercise price for such outstanding options pursuant to Rule 457(h)(1). EBAY INC. REGISTRATION STATEMENT ON FORM S-8 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. - ------ --------------------------------------- The following documents filed with the Securities and Exchange Commission (the "Commission") are incorporated herein by reference: (a) The Registrant's prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the "Securities Act"), that contains audited financial statements of the Registrant for the years ended December 31, 1996 and 1997. (b) The description of the Registrant's Common Stock contained in the Registrant's Registration Statement on Form 8-A filed under Section 12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), including any amendment or report filed for the purpose of updating such description. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post- effective amendment which indicates that all securities registered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed incorporated by reference herein and to be a part hereof from the date of the filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES. - ------- ------------------------- Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. - ------ -------------------------------------- Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS AND LIMITATION OF LIABILITY. - ------ --------------------------------------------------------------------- Section 145 of the Delaware General Corporation Law ("DGCL") authorizes a court to award, or a corporation's board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act. As permitted by the DGCL, the Registrant's Amended and Restated Certificate of Incorporation, which will become effective upon the closing of this offering, includes a provision that eliminates the personal liability of its directors for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) under section 174 of the DGCL (regarding unlawful dividends and stock purchases) or (iv) for any transaction from which the director derived an improper personal benefit. As permitted by the DGCL, the Registrant's Amended and Restated Bylaws, which will become effective upon the closing of this offering, provide that (i) the Registrant is required to indemnify its directors and officers to the fullest extent permitted by the DGCL, subject to certain very limited exceptions, (ii) the Registrant is required to advance expenses, as incurred, to its directors and officers in connection with a legal proceeding to the fullest extent permitted by the DGCL, subject to certain very limited exceptions and (iii) the rights conferred in the Amended and Restated Bylaws are not exclusive. 2 The Registrant has entered into Indemnity Agreements with each of its current directors and officers to give such directors and officers additional contractual assurances regarding the scope of the indemnification set forth in the Registrant's Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws and to provide additional procedural protections. At present, there is no pending litigation or proceeding involving a director, officer or employee of the Registrant regarding which indemnification is sought, nor is the Registrant aware of any threatened litigation that may result in claims for indemnification. Reference is also made to Section 8 of the Underwriting Agreement relating to Registrant's initial public offering, effected pursuant to a Registration Statement on Form S-1 (Commission File No. 333-59097), which provides for the indemnification of officers, directors and controlling persons of the Registrant against certain liabilities. The indemnification provision in the Registrant's Amended and Restated Certificate of Incorporation, Amended and Restated Bylaws and the Indemnity Agreements entered into between the Registrant and each of its directors and officers may be sufficiently broad to permit indemnification of the Registrant's directors and officers for liabilities arising under the Securities Act. The Registrant, with approval by the Registrant's Board of Directors, expects to obtain directors' and officers' liability insurance. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. - ------ ----------------------------------- Not applicable. ITEM 8. EXHIBITS. - ------ -------- 4.01 Registrant's Certificate of Incorporation (incorporated herein by reference to Exhibit 3.01 of Registrant's Registration Statement on Form S-1, File No. 333-59097, originally filed with the Commission on July 15, 1998, as subsequently amended (the "Form S- 1")). 4.02 Registrant's Certificate of Designation of Preferred Stock (incorporated herein by reference to Exhibit 3.02 of the Form S- 1). 4.03 Form of Registrant's Certificate of Amendment of Certificate of Incorporation to be effective upon the closing of Registrant's initial public offering (incorporated herein by reference to Exhibit 3.03 of the Form S-1). 4.04 Form of Registrant's Amended and Restated Certificate of Incorporation of the Registrant (incorporated herein by reference to Exhibit 3.04 of the Form S-1). 4.05 Registrant's Bylaws (incorporated by reference to Exhibit 3.05 of the Form S-1). 4.06 Form of Registrant's Amended and Restated Bylaws to be effective upon the closing of Registrant's initial public offering (incorporated herein by reference to Exhibit 3.06 of the Form S- 1). 4.07 Registrant's 1996 Stock Option Plan and related documents (incorporated herein by reference to Exhibit 10.02 of the Form S- 1). 4.08 Registrant's 1997 Stock Option Plan and related documents (incorporated herein by reference to Exhibit 10.03 of the Form S- 1). 4.09 Registrant's 1998 Equity Incentive Plan and related documents (incorporated herein by reference to Exhibit 10.04 of the Form S- 1). 4.10 Registrant's 1998 Directors Stock Option Plan and related documents (incorporated herein by reference to Exhibit 10.05 of the Form S-1). 3 4.11 Registrant's 1998 Employee Stock Purchase Plan (incorporated herein by reference to Exhibit 10.06 of the Form S-1). 4.12 Form of Registrant's Non-Plan Stock Option Agreement. 4.13 Investor Rights Agreement, dated June 20, 1997, between Registrant and certain stockholders named therein (incorporated herein by reference to Exhibit 4.02 of the Form S-1). 5.01 Opinion of Fenwick & West LLP. 23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01). 23.02 Consent of PricewaterhouseCoopers LLP, independent accountants. 24.01 Power of Attorney (see page 6). Item 9. UNDERTAKINGS. - ------ ------------ The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement. Provided, however, that paragraphs (1)(i) and (1)(ii) above do not -------- ------- apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. - --------- (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. - --------- 4 Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions discussed in Item 6 hereof, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered hereby, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 5 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears below constitutes and appoints Margaret C. Whitman and Gary F. Bengier, and each of them, his or her true and lawful attorneys-in-fact and agents with full power of substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8, and to file the same with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his or her or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Jose, State of California, on this 24th day of September, 1998. eBAY INC. By: /s/ Margaret C. Whitman ------------------------------------- Margaret C. Whitman, President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- PRINCIPAL EXECUTIVE OFFICER: /s/ Margaret C. Whitman President, Chief Executive Officer and September 24, 1998 - ---------------------------------------- Director Margaret C. Whitman PRINCIPAL FINANCIAL OFFICER AND PRINCIPAL ACCOUNTING OFFICER: /s/ Gary F. Bengier Chief Financial Officer and Vice September 24, 1998 - ---------------------------------------- President Operations Gary F. Bengier ADDITIONAL DIRECTORS Director - ---------------------------------------- Pierre M. Omidyar /s/ Scott D. Cook Director September 24, 1998 - ---------------------------------------- Scott D. Cook /s/ Robert C. Kagle Director September 24, 1998 - ---------------------------------------- Robert C. Kagle /s/ Howard D. Schultz Director September 24, 1998 - ---------------------------------------- Howard D. Schultz
6 EXHIBIT INDEX ------------- Exhibit No. Description - ---------- ----------- 4.01 Registrant's Certificate of Incorporation (incorporated herein by reference to Exhibit 3.01 of Registrant's Registration Statement on Form S-1, File No. 333-59097, originally filed with the Commission on July 15, 1998, as subsequently amended (the "Form S- 1")). 4.02 Registrant's Certificate of Designation of Preferred Stock (incorporated herein by reference to Exhibit 3.02 of the Form S- 1). 4.03 Form of Registrant's Certificate of Amendment of Certificate of Incorporation to be effective upon the closing of Registrant's initial public offering (incorporated herein by reference to Exhibit 3.03 of the Form S-1). 4.04 Form of Registrant's Amended and Restated Certificate of Incorporation of the Registrant (incorporated herein by reference to Exhibit 3.04 of the Form S-1). 4.05 Registrant's Bylaws (incorporated by reference to Exhibit 3.05 of the Form S-1). 4.06 Form of Registrant's Amended and Restated Bylaws to be effective upon the closing of Registrant's initial public offering (incorporated herein by reference to Exhibit 3.06 of the Form S- 1). 4.07 Registrant's 1996 Stock Option Plan and related documents (incorporated herein by reference to Exhibit 10.02 of the Form S- 1). 4.08 Registrant's 1997 Stock Option Plan and related documents (incorporated herein by reference to Exhibit 10.03 of the Form S- 1). 4.09 Registrant's 1998 Equity Incentive Plan and related documents (incorporated herein by reference to Exhibit 10.04 of the Form S- 1). 4.10 Registrant's 1998 Directors Stock Option Plan and related documents (incorporated herein by reference to Exhibit 10.05 of the Form S-1). 4.11 Registrant's 1998 Employee Stock Purchase Plan (incorporated herein by reference to Exhibit 10.06 of the Form S-1). 4.12 Form of Registrant's Non-Plan Stock Option Agreement. 4.13 Investor Rights Agreement, dated June 20, 1997, between Registrant and certain stockholders named therein (incorporated herein by reference to Exhibit 4.02 of the Form S-1). 5.01 Opinion of Fenwick & West LLP. 23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01). 23.02 Consent of PricewaterhouseCoopers LLP, independent accountants. 24.01 Power of Attorney (see page 6). 7 EX-4.12 2 NON-PLAN STOCK OPTION EXHIBIT 4.12 eBay Inc. Stock Option Agreement EBAY INC. NON-PLAN STOCK OPTION AGREEMENT ------------------------------- This Stock Option Agreement (this "AGREEMENT") is made and entered into as of the Date of Grant set forth below (the "DATE OF GRANT") by and between eBay Inc., a Delaware corporation (the "COMPANY"), and the Optionee named below ("OPTIONEE"). Capitalized terms not defined herein shall have the meanings ascribed to them in the Company's 1998 Equity Incentive Plan (the "PLAN"). OPTIONEE: ___________________________ SOCIAL SECURITY NUMBER: ___________________________ OPTIONEE'S ADDRESS: ___________________________ TOTAL OPTION SHARES: ___________________________ EXERCISE PRICE PER SHARE: ___________________________ DATE OF GRANT: ___________________________ VESTING START DATE: ___________________________ EXPIRATION DATE: ___________________________ (unless earlier terminated under Section 3 hereof) TYPE OF STOCK OPTION (CHECK ONE): [ ] INCENTIVE STOCK OPTION [ ] NONQUALIFIED STOCK OPTION 1. GRANT OF OPTION. The Company hereby grants to Optionee an option --------------- (this "OPTION") to purchase up to the total number of shares of Common Stock of the Company set forth above as Total Option Shares (collectively, the "SHARES") at the Exercise Price Per Share set forth above (the "EXERCISE PRICE"), subject to all of the terms and conditions of this Agreement and the terms of the Plan. If designated as an Incentive Stock Option above, this Option is intended to qualify as an "incentive stock option" ("ISO") within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the "CODE"), to the extent permitted under Code Section 422. 2. VESTING; EXERCISE PERIOD. ------------------------ 2.1 Vesting of Shares. This Option shall be exercisable as it ----------------- vests. Subject to the terms and conditions of the Plan and this Agreement, this Option shall become exercisable as to portions of the Shares as follows: (a) this Option shall not be exercisable with respect to any of the Shares until ______________ ___, 19___ (the "FIRST VESTING DATE"); (b) if Optionee has continuously provided services to the Company, or any Parent or Subsidiary of the Company, then on the First Vesting Date, this Option shall become exercisable as to twenty-five percent (25%) of the Shares; and (c) thereafter this Option shall become exercisable as to an additional 2.0833% of the Shares on each monthly anniversary of the Vesting Start Date (set forth above) for the next succeeding thirty-six (36) months provided that Optionee has continuously provided services to the Company, or any Parent or Subsidiary of the Company. This Option shall cease to vest upon Optionee's Termination and Optionee shall in no event be entitled under this Option to purchase a number of shares of the Company's Common Stock greater than the "Total Option Shares" (set forth above.) eBay Inc. Stock Option Agreement 2.2 Vesting of Options. Shares that are vested pursuant to the ------------------ schedule set forth in Section 2.1 hereof are "VESTED SHARES." Shares that are not vested pursuant to the schedule set forth in Section 2.1 hereof are "UNVESTED SHARES." 2.3 Expiration. This Option shall expire on the Expiration Date ---------- set forth above and must be exercised, if at all, on or before the earlier of the Expiration Date or the date on which this Option is earlier terminated in accordance with the provisions of Section 3 hereof. 3. TERMINATION. ----------- 3.1 Termination for Any Reason Except Death, Disability --------------------------------------------------- or Cause. If Optionee is Terminated for any reason except Optionee's death, - -------- Disability or Cause, then this Option, to the extent (and only to the extent) that it is vested in accordance with the schedule set forth in Section 2.1 hereof on the Termination Date, may be exercised by Optionee no later than three (3) months after the Termination Date, but in any event no later than the Expiration Date. 3.2 Termination Because of Death or Disability. If Optionee is ------------------------------------------ Terminated because of death or Disability of Optionee (or the Optionee dies within three (3) months after Termination other than for Cause or because of Disability), then this Option, to the extent that it is vested in accordance with the schedule set forth in Section 2.1 hereof on the Termination Date, may be exercised by Optionee (or Optionee's legal representative or authorized assignee) no later than twelve (12) months after the Termination Date, but in any event no later than the Expiration Date. Any exercise after three months after the Termination Date when the Termination is for any reason other than Optionee's disability, within the meaning of Code Section 22(e)(3), shall be deemed to be the exercise of a nonqualified stock option. 3.3 Termination for Cause. If Optionee is Terminated for Cause, --------------------- this Option will expire on the Optionee's date of Termination. 3.4 No Obligation to Employ. Nothing in the terms of the Plan or ----------------------- this Agreement shall confer on Optionee any right to continue in the employ of, or other relationship with, the Company or any Parent or Subsidiary of the Company, or limit in any way the right of the Company or any Parent or Subsidiary of the Company to terminate Optionee's employment or other relationship at any time, with or without Cause. 4. MANNER OF EXERCISE. ------------------ 4.1 Stock Option Exercise Agreement. To exercise this Option, ------------------------------- Optionee (or in the case of exercise after Optionee's death, Optionee's executor, administrator, heir or legatee, as the case may be) must deliver to the Company an executed stock option exercise agreement in the form attached hereto as Exhibit A, or in such other form as may be approved by the Company --------- from time to time (the "EXERCISE AGREEMENT"), which shall set forth, inter alia, ----- ---- Optionee's election to exercise this Option, the number of shares being purchased, any restrictions imposed on the Shares and any representations, warranties and agreements regarding Optionee's investment intent and access to information as may be required by the Company to comply with applicable securities laws. If someone other than Optionee exercises this Option, then such person must submit documentation reasonably acceptable to the Company that such person has the right to exercise this Option. 4.2 Limitations on Exercise. This Option may not be exercised ----------------------- unless such exercise is in compliance with all applicable federal and state securities laws, as they are in effect on the date of exercise. This Option may not be exercised as to fewer than 100 Shares unless it is exercised as to all Shares as to which this Option is then exercisable. eBay Inc. Stock Option Agreement 4.3 Payment. The Exercise Agreement shall be accompanied by full ------- payment of the Exercise Price for the Shares being purchased in cash (by check), or where permitted by law: (a) by cancellation of indebtedness of the Company to the Optionee; (b) by surrender of shares of the Company's Common Stock that either: (1) have been owned by Optionee for more than six (6) months and have been paid for within the meaning of SEC Rule 144 (and, if such shares were purchased from the Company by use of a promissory note, such note has been fully paid with respect to such shares); or (2) were obtained by Optionee in the open public market; and (3) are clear of all liens, --- claims, encumbrances or security interests; (c) by waiver of compensation due or accrued to Optionee for services rendered; (d) provided that a public market for the Company's stock exists: (1) through a "same day sale" commitment from Optionee and a broker-dealer that is a member of the National Association of Securities Dealers (an "NASD DEALER") whereby Optionee irrevocably elects to exercise this Option and to sell a portion of the Shares so purchased to pay for the Exercise Price and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price directly to the Company; or (2) through a "margin" commitment from Optionee and an NASD -- Dealer whereby Optionee irrevocably elects to exercise this Option and to pledge the Shares so purchased to the NASD Dealer in a margin account as security for a loan from the NASD Dealer in the amount of the Exercise Price, and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the Exercise Price directly to the Company; or (e) by any combination of the foregoing. 4.4 Tax Withholding. Prior to the issuance of the Shares upon --------------- exercise of this Option, Optionee must pay or provide for any applicable federal or state withholding obligations of the Company. If the Committee permits, Optionee may provide for payment of withholding taxes upon exercise of this Option by requesting that the Company retain Shares with a Fair Market Value equal to the minimum amount of taxes required to be withheld. In such case, the Company shall issue the net number of Shares to the Optionee by deducting the Shares retained from the Shares issuable upon exercise. 4.5 Issuance of Shares. Provided that the Exercise Agreement and ------------------ payment are in form and substance satisfactory to counsel for the Company, the Company shall issue the Shares registered in the name of Optionee, Optionee's authorized assignee, or Optionee's legal representative, and shall deliver certificates representing the Shares with the appropriate legends affixed thereto. 5. NOTICE OF DISQUALIFYING DISPOSITION OF ISO SHARES. To the extent ------------------------------------------------- this Option is an ISO, if Optionee sells or otherwise disposes of any of the Shares acquired pursuant to the ISO on or before the later of (a) the date two (2) years after the Date of Grant, and (b) the date one (1) year after transfer of such Shares to Optionee upon exercise of this Option, then Optionee shall immediately notify the Company in writing of such disposition. 6. COMPLIANCE WITH LAWS AND REGULATIONS. The exercise of this Option ------------------------------------ and the issuance and transfer of Shares shall be subject to compliance by the Company and Optionee with all applicable requirements of federal and state securities laws and with all applicable requirements of any stock exchange on which the Company's Common Stock may be listed at the time of such issuance or transfer. Optionee understands that the Company is under no obligation to register or qualify the Shares with the SEC, any state securities commission or any stock exchange to effect such compliance. 7. NONTRANSFERABILITY OF OPTION. This Option may not be transferred ---------------------------- in any manner other than by will or by the laws of descent and distribution and may be exercised during the lifetime of Optionee only by eBay Inc. Stock Option Agreement Optionee. The terms of this Option shall be binding upon the executors, administrators, successors and assigns of Optionee. 8. TAX CONSEQUENCES. Set forth below is a brief summary as of the ---------------- date hereof of some of the federal and California tax consequences of exercise of this Option and disposition of the Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. OPTIONEE SHOULD CONSULT A TAX ADVISOR BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES. 8.1 Exercise of Incentive Stock Option. To the extent this ---------------------------------- Option qualifies as an ISO, there will be no regular federal or California income tax liability upon the exercise of this Option, although the excess, if any, of the fair market value of the Shares on the date of exercise over the Exercise Price will be treated as a tax preference item for federal income tax purposes and may subject the Optionee to the alternative minimum tax in the year of exercise. 8.2 Exercise of Nonqualified Stock Option. To the extent this ------------------------------------- Option does not qualify as an ISO, there may be a regular federal and California income tax liability upon the exercise of this Option. Optionee will be treated as having received compensation income (taxable at ordinary income tax rates) equal to the excess, if any, of the fair market value of the Shares on the date of exercise over the Exercise Price. The Company may be required to withhold from Optionee's compensation or collect from Optionee and pay to the applicable taxing authorities an amount equal to a percentage of this compensation income at the time of exercise. 8.3 Disposition of Shares. The following tax consequences may --------------------- apply upon disposition of the Shares. a. Incentive Stock Options. If the Shares are held for ----------------------- more than twelve (12) months after the date of the transfer of the Shares pursuant to the exercise of an ISO and are disposed of more than two (2) years after the Date of Grant, any gain realized on disposition of the Shares will be treated as long-term capital gain for federal and California income tax purposes. If Shares purchased under an ISO are disposed of within the applicable one (1) year or two (2) year period, any gain realized on such disposition will be treated as compensation income (taxable at ordinary income rates) to the extent of the excess, if any, of the fair market value of the Shares on the date of exercise over the Exercise Price. b. Nonqualified Stock Options. If the Shares are held for -------------------------- more than twelve (12) months after the date of the transfer of the Shares pursuant to the exercise of an NQSO, any gain realized on disposition of the Shares will be treated as long-term capital gain. c. Withholding. The Company may be required to withhold ----------- from Participant's compensation or collect from the Participant and pay to the applicable taxing authorities an amount equal to a percentage of this compensation income. 9. PRIVILEGES OF STOCK OWNERSHIP. Optionee shall not have any of the ----------------------------- rights of a stockholder with respect to any Shares until the Shares are issued to Optionee. 10. INTERPRETATION. Any dispute regarding the interpretation of this -------------- Agreement shall be submitted by Optionee or the Company to the Committee for review. The resolution of such a dispute by the Committee shall be final and binding on the Company and Optionee. 11. ENTIRE AGREEMENT. The terms of the Plan are incorporated herein ---------------- by reference. This Agreement and the Plan and the Exercise Agreement constitute the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersede all prior understandings and agreements with respect to such subject matter. eBay Inc. Stock Option Agreement 12. NOTICES. Any notice required to be given or delivered to the ------- Company under the terms of this Agreement shall be in writing and addressed to the Corporate Secretary of the Company at its principal corporate offices. Any notice required to be given or delivered to Optionee shall be in writing and addressed to Optionee at the address indicated above or to such other address as such party may designate in writing from time to time to the Company. All notices shall be deemed to have been given or delivered upon: personal delivery; three (3) days after deposit in the United States mail by certified or registered mail (return receipt requested); one (1) business day after deposit with any return receipt express courier (prepaid); or one (1) business day after transmission by facsimile. 13. SUCCESSORS AND ASSIGNS. The Company may assign any of its rights ---------------------- under this Agreement. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set forth herein, this Agreement shall be binding upon Optionee and Optionee's heirs, executors, administrators, legal representatives, successors and assigns. 14. GOVERNING LAW. This Agreement shall be governed by and construed ------------- in accordance with the internal laws of the State of California, without regard to that body of law pertaining to choice of law or conflict of law. 15. ACCEPTANCE. Optionee hereby acknowledges receipt of a copy of ---------- this Agreement and the Plan. Optionee has read and understands the terms and provisions thereof, and accepts this Option subject to all the terms and conditions set forth in the Plan and this Agreement. Optionee acknowledges that there may be adverse tax consequences upon exercise of this Option or disposition of the Shares and that the Company has advised Optionee to consult a tax advisor prior to such exercise or disposition. IN WITNESS WHEREOF, the Company has caused this Agreement to be executed in duplicate by its duly authorized representative and Optionee has executed this Agreement in duplicate as of the Date of Grant. EBAY INC. OPTIONEE By:________________________________ _____________________________________ (Signature) ___________________________________ _____________________________________ (Please print name) (Please print name) ___________________________________ (Please print title) EXHIBIT A --------- EBAY INC. NON-PLAN STOCK OPTION EXERCISE AGREEMENT ---------------------------------------- I hereby elect to purchase the number of shares of common stock of EBAY INC. (the "Company") as set forth below: Optionee_______________________________________________ Number of Shares Purchased:_________________________________ Social Security Number:________________________________ Purchase Price Per Share:___________________________________ Address:_______________________________________________ Aggregate Purchase Price:___________________________________ ___________________________________________ Date of Option Agreement:___________________________________ ___________________________________________ Type of Option: [ ] Incentive Stock Option Exact Name of Title to Shares:______________________________ [ ] Nonqualified Stock Option ____________________________________________________________
1. DELIVERY OF PURCHASE PRICE. Optionee hereby delivers to the company the aggregate purchase price, to the extent permitted in the option agreement (the "option agreement") as follows (check as applicable and complete): [ ] in cash (by check) in the amount of $_____________________, receipt of which is acknowledged by the Company; [ ] by cancellation of indebtedness of the Company to Optionee in the amount of $___________________________________; [ ] by delivery of ______________________________ fully-paid, nonassessable and vested shares of the Common Stock of the Company owned by Optionee for at least six (6) months prior to the date hereof (and which have been paid for within the meaning of SEC Rule 144), or obtained by Optionee in the open public market, and owned free and clear of all liens, claims, encumbrances or security interests, valued at the current Fair Market Value of $____________________ per share; [ ] by the waiver hereby of compensation due or accrued to Optionee for services rendered in the amount of $_______________________________; [ ] through a "same-day-sale" commitment, delivered herewith, from Optionee and the NASD Dealer named therein, in the amount of $_______________________________; or [ ] through a "margin" commitment, delivered herewith from Optionee and the NASD Dealer named therein, in the amount of $_________________________. 2. MARKET STANDOFF AGREEMENT. Optionee, if requested by the Company and an underwriter of Common Stock (or other securities) of the Company, agrees not to sell or otherwise transfer or dispose of any Common Stock (or other securities) of the Company held by Optionee during the period requested by the managing underwriter following the effective date of a registration statement of the Company filed under the Securities Act, provided that all officers and directors of the Company are required to enter into similar agreements. Such agreement shall be in writing in a form satisfactory to the Company and such underwriter. The Company may impose stop-transfer instructions with respect to the shares (or other securities) subject to the foregoing restriction until the end of such period. 3. TAX CONSEQUENCES. OPTIONEE UNDERSTANDS THAT OPTIONEE MAY SUFFER ADVERSE TAX CONSEQUENCES AS A RESULT OF OPTIONEE'S PURCHASE OR DISPOSITION OF THE SHARES. OPTIONEE REPRESENTS THAT OPTIONEE HAS CONSULTED WITH ANY TAX CONSULTANT(S) OPTIONEE DEEMS ADVISABLE IN CONNECTION WITH THE PURCHASE OR DISPOSITION OF THE SHARES AND THAT OPTIONEE IS NOT RELYING ON THE COMPANY FOR ANY TAX ADVICE. 4. ENTIRE AGREEMENT. The terms of the Plan and Option Agreement are incorporated herein by reference. This Exercise Agreement, the terms of the Plan and the Option Agreement constitute the entire agreement and understanding of the parties and supersede in their entirety all prior understandings and agreements of the Company and Optionee with respect to the subject matter hereof, and are governed by California law except for that body of law pertaining to choice of law or conflict of law. Date:______________________________ _____________________________________ SIGNATURE OF OPTIONEE SPOUSAL CONSENT I acknowledge that I have read the foregoing Stock Option Exercise Agreement (the "AGREEMENT") and that I know its contents. I hereby consent to and approve all of the provisions of the Agreement, and agree that the shares of the Common Stock of eBay Inc. purchased thereunder (the "SHARES") and any interest I may have in such Shares are subject to all the provisions of the Agreement. I will take no action at any time to hinder operation of the Agreement on these Shares or any interest I may have in or to them. __________________________________ Date:__________________ SIGNATURE OF OPTIONEE'S SPOUSE __________________________________ SPOUSE'S NAME - TYPED OR PRINTED ___________________________________ OPTIONEE'S NAME - TYPED OR PRINTED 2 EX-5.01 3 OPINION OF FENWICK & WEST LLP [FENWICK & WEST LLP LETTERHEAD] EXHIBIT 5.01 ------------ September 24, 1998 eBay Inc. 2005 Hamilton Avenue, Suite 350 San Jose, CA 95125 Gentlemen/Ladies: At your request, we have examined the Registration Statement on Form S-8 (the "Registration Statement") to be filed by you with the Securities and Exchange Commission (the "Commission") on or about September 24, 1998 in connection with the registration under the Securities Act of 1933, as amended, of an aggregate of 8,132,662 shares of your Common Stock ("the Stock") subject to issuance by you upon the exercise of (a) stock options granted by you under your 1996 Stock Option Plan (the "1996 Plan") and your 1997 Stock Option Plan (the "1997 Plan"), (b) stock options granted by you outside of any stock option plan (the "Non-Plan Options"), (c) stock options to be granted by you under your 1998 Equity Incentive Plan (the "Equity Incentive Plan"), and your 1998 Directors Stock Option Plan (the "Directors Plan") or (d) purchase rights granted or to be granted under your 1998 Employee Stock Purchase Plan (the "Purchase Plan"). The plans referred to in clauses (a) through (d) above are collectively referred to in this letter as the "Plans"). In rendering this opinion, we have examined the following: (1) your registration statement on Form S-1 (File Number 333 59097) filed with the Commission on July 15, 1998, as subsequently amended, together with the Exhibits filed as a part thereof, including without limitation, each of the Plans and related stock option grant and exercise agreements; (2) your registration statement on Form 8-A (File Number 000-24821) filed with the Commission on August 20, 1998; (3) the Registration Statement, together with the Exhibits filed as a part thereof; (4) the Prospectuses prepared in connection with the Registration Statement; (5) the minutes of meetings and actions by written consent of the stockholders and Board of Directors that are contained in your minute books and the minute books of your predecessor, eBay, Inc., a California corporation ("eBay California"), that are in our possession; and (6) the stock records for both you and eBay California that you have provided to us (consisting of a list of stockholders and a list of option and warrant holders respecting your capital stock and of any rights to purchase capital stock stock that was prepared by you and dated September 23, 1998). (7) a Management Certificate addressed to us and dated of even date herewith executed by the Company containing certain factual and other representations. eBay Inc. September 24, 1998 Page 2 We have also confirmed the continued effectiveness of the Company's registration under the Securities Exchange Act of 1934, as amended, by telephone call to the offices of the Commission and have confirmed your eligibility to use Form S-8. In our examination of documents for purposes of this opinion, we have assumed, and express no opinion as to, the genuineness of all signatures on original documents, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies, the legal capacity of all natural persons executing the same, the lack of any undisclosed terminations, modifications, waivers or amendments to any documents reviewed by us and the due execution and delivery of all documents where due execution and delivery are prerequisites to the effectiveness thereof. As to matters of fact relevant to this opinion, we have relied solely upon our examination of the documents referred to above and have assumed the current accuracy and completeness of the information obtained from public officials and records referred to above. We have made no independent investigation or other attempt to verify the accuracy of any of such information or to determine the existence or non-existence of any other factual matters; however, we are not aware of any facts that would cause us ------- to believe that the opinion expressed herein is not accurate. We are admitted to practice law in the State of California, and we express no opinion herein with respect to the application or effect of the laws of any jurisdiction other than the existing laws of the United States of America and the State of California and (without reference to case law or secondary sources) the existing Delaware General Corporation Law. Based upon the foregoing, it is our opinion that the 8,132,662 shares of Stock that may be issued and sold by you upon the exercise of (a) stock options granted or to be granted under the Equity Incentive Plan Plan or the Directors Plan, (b) stock options granted under the 1996 Plan, 1997 Plan or the Non-Plan Options and (c) purchase rights granted or to be granted under the Purchase Plan, when issued and sold in accordance with the applicable plan and stock option or purchase agreements to be entered into thereunder, and in the manner referred to in the relevant Prospectus associated with the Registration Statement, will be validly issued, fully paid and nonassessable. We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us, if any, in the Registration Statement, the Prospectus constituting a part thereof and any amendments thereto. This opinion speaks only as of its date and we assume no obligation to update this opinion should circumstances change after the date hereof. This opinion is intended solely for the your use as an exhibit to the Registration Statement for the purpose of the above sale of the Stock and is not to be relied upon for any other purpose. Very truly yours, FENWICK & WEST LLP By: /s/ Matthew P. Quilter ---------------------- Matthew P. Quilter EX-23.02 4 CONSENT OF INDEPENDENT ACCOUNTANTS EXHIBIT 23.02 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated March 31, 1998, relating to the financial statements of eBay Inc. and July 10, 1998, relating to the financial statements of Jump Incorporated, which appears on pages F-2 and F-26 of eBay Inc.'s Registration Statement on Form S-1 (No.333-59097). PricewaterhouseCoopers LLP San Jose, California September 24, 1998 -----END PRIVACY-ENHANCED MESSAGE-----