Mou v. City of San Jose et al

Filing 1168

Mou v. City of San Jose et al

Doc. 1168 Att. 2

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December jg 2002 Mr. Dean V. Kruse Kruse International 5540 Country Road 11A

Auburn, IN 46706
Re: Separation and Consulting Agreement

Dear Dean: This letter sets forth the tenns of a separationand consulting agreement(the "Agreement") between you and eBay Inc. ("eBay"), entered into in connection with eBay's sale of all of the outstanding capital stock of Kruse Inc. d/b/a Kruse International ("Kruse") and the other entities as provided in that certain Stock PurchaseAgreement of even date ("SPA"), and supersedesyour Employment Agreement with eBay dated May 18, 1999 (the "Employment Agreement") (a copy of which is attached as Exhibit A hereto), eBay's "welcome letter" to you dated as of June 8, 1999 ("Welcome Letter") (a copy of which is attached as Exhibit B hereto), and the amendment the Employment Agreement dated April 26, 2001 (the "Amendment") (a copy of which is attached as Exhibit C hereto), exceptas provided herein. 1. Separation. You acknowledge that as of the date of this Agreement you are not, and subsequentto April 13, 2001 ("eBay SeparationDate"), you have not been, employed by eBay (or any of its subsidiaries or affiliates other than Kruse), as provided in the Amendment. 2. Accrued Salary and Vacation. You acknowledge that eBay has paid you all accrued salary and accrued and unused vacation earned as of the eBay SeparationDate, and that eBay has no obligation to pay you any accrued salary or accrued and unused vacation incurred during your employment by Kruse from the eBay SeparationDate until the Effective Date of this Agreement or thereafter. 3. Consulting Agreement. You will serve as a consultant to eBay under the tenns

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specified below. (a) Consulting Period. The consulting period will begin immediately following the Effective Date of this Agreement and will continue until, and terminate effective as of, January 15,2003 ("Consulting Period"), unless tenninated earlier pursuant to subparagraph

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(b) Consulting Services. You agree to provide consulting services to eBay in any of the areas of your expertise during the Consulting Period upon request by eBay. You agree to be available to provide such services for up to thirty (30) hours per month during the
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Consulting Period. You agreeto exercise a high degree of professionalism and utilize your expertise and creative talents in performing these services. (c) Consulting Consideration.

(i) Stock Option Vesting. As the sole and exclusive consideration for your consulting relationship with eBay provided herein, your options (the "Options") to purchase sharesof eBay common stock, listed below on a split adjusted basis, shall continue vesting until 11:59 p.m. Indiana time on January 15,2003. Your rights to exercise any vested shares of said Options shall be as provided in the applicable stock option grants, agreementsand

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Grant Date: 05/14/99 -200,000 shares Grant Date: 10/01/99 -20,000 shares Grant Date: 11/09/99 -20,000 shares Grant Date: 01/12/01 -125,000 shares Grant Date: 08/01/01 -1,560 shares GrantDate: 02/01/02 -850 shares GrantDate: 08/01/02 -800 shares

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(ii) Taxes. You acknowledge that you will be responsible for payment of any and all taxes incurred with respectto the continued stock option vesting provided above, and you hereby agreeto indemnify and saveharmless eBay from any liability for any taxes, penalties or interest that may be assessed any taxing authority with respect to the by compensation you receive under this Agreement. (d) Limitations on Authority. You will have no responsibilities or authority as a consultant to eBay other than as provided above. You agree not to represent or purport to represent eBay in any manner whatsoeverto any third party unless authorized by the Associate General Counsel of eBay, in writing, to do so. (e) Termination. During the Consulting Period, eBay may terminate this Agreement (or any section hereof) in its sole discretion in the event that: (i) Kruse commits a material breach of that certain Transition Services Agreement referred to in the SPA (the "Transition Services Agreement"); (ii) eBay notifies Kruse of such breach; and (iii) Kruse does

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not completely cure such material breach within 10 business days after the receipt of the notice described in clause "(ii)" of this sentence (it being understood that nothing contained in this Agreement, including any requirement for notice or opportunity to cure, shall limit any other rights that eBay may have with respect to a breach of this Agreement or the Transition Services Agreement). In the event of any such termination due to a material breach by Kruse, any further vesting of the Options not then yet vested shall be deemed to have ceased as of the expiration of the ten business days after receipt of the notice described in clause "(ii)" above unless the material breach has been completely cured by you or Kruse. In the event that your services as a consultant are voluntarily or involuntarily terminated due to your death or your inability due to substantiated medical reasons to perform the consulting services hereunder, any such tern1ination shall not in and of itself be deemed to be a breach or default by you of this Agreement or by Kruse of the Transition Services Agreement (it being understood that no such death or inability shall limit or otherwise affect Kruse's obligations under the Transition Services Agreement). 4. Other Compensation or Benefits. You aclmowledge that you will not receive from eBay any additional compensation or benefits of any kind (including but not limited to salary, commissions, bonuses, fees or severance), except as expressly provided in this Agreement or in the SPA. \~"..,i 5. Return of Company Property. You agree to return to eBay, not later than five (5) days after the Effective Date, all eBay documents (and all copies thereof) and other eBay property that you have had in your possession at any time, including but not limited to, any files, notes, drawings, records, business plans and forecasts, financial information, specifications, training materials, computer-recorded information, tangible property, including but not limited to, computers, credit cards, entry cards, identification badges and keys; and any materials of any kind that contain or embody any proprietary or confidential information of eBay (and all reproductions thereof). You may retain such documents, property, and materials during the Consulting Peri04 only to the extent approved in writing by the Associate General Counsel of eBay and you shall return them immediately upon written request. The term eBay documents and property shall not include any property owned solely by the Companies (as the term "Companies" is defined in the SPA). 6. Proprietary Information and Non-Competition Obligations.

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(a) You hereby aclmowledge and confirm your obligations under your Employee Proprietary Information and Inventions Agreement dated May 18, 1999 (the "Proprietary Information Agreement") (a copy of which is attached as Exhibit D hereto), including but not limited to, your continuing obligations not to use or disclose any confidential or proprietary information of eBay without written authorization by the Associate General Counsel of eBay, which obligations continue both during and after the Consulting Period (it being understood, however, that it shall not be deemed to be a breach of this paragraph 6(a) or Exhibit Q hereto for the Companies to continue to use any such confidential or proprietary information

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in the operation their respective of businesses the extentthat: (i) suchinfonnationwas to materialto, andusedby, the Companies the operation their businesses in of prior to the date hereof;and (ii) suchinfonnationis usedafterthe datehereofin a mannersimilar to the way in which it wasusedErior to the datehereof). The tenn "ProprietaryInfonnation" asusedin the ProprietaryInformationAgreement shall not applyto suchinformationwhoserights and interests ownedsolely by the Companies. are (b) You herebyreaffinn your noncompetitionobligationsto eBay,asprovided in Section8 of the Employment Agreement, the period offive (5) yearsfollowing the for EffectiveDateof this Agreement; provided,however, nothing in this Agreement that shall either prohibit (i) yourownership,employment involvementin the Companies, definedin the or as SP A@:!s:iJJlone of the Companies engages anybusiness activity prohibitedby Section in or 8 of the EmploymentAgreement modified by this paragraph as 6(b); or (ii) your conductingor participatingin anybusiness activity, including live-eventoffline auctionsor on-line auctions, or ~~~A) neitheryou nor anyof your affiliates, directly or indirectly, without eBay'sprior approvalin a writing signedby a seniorexecutiveofficer of eBay (which approvalmaybe withheld in eBay's sole discretion)fa_cilitat~ listing @d/Qr-gle, directly or indirectly, QimQre the t1;~!~~tQ)J~!~:~Q~1 (i.e., lessthan 10yearsold) ~~s, cars,trucks,boats,watercraft,or othermerchandise fr~~~~!g!i2!!!!!J~eller (e.g., any leasingcompany, bank, financial institution, government agency,fleet management companyor organization, rental car company, or fmancingcompany,including suchseller's affiliates) eachmonth; and (B) you and eachof your affiliates~~ as your andits~~~:m m~mj~~~) on-line auctions(but only to the extentthat you or your affiliatesin their soleand absolutediscretionelectto conduct online auctions),(2) on-line sales(but only to the extentthat you or your affiliates in their soleand absolute discretionelectto conducton-line sales),(3) on-line vehicle-specific 1!~~ and (4) on-linevehicle-specificad~~J~~ts, in each caseincluding without limitation live auction Internetbidding (it being understood that: (~}.~~in clauses"(3)" or "(4)" of this sentence ~LE!2ll!Qit ~~~ its~:ent~~!~(acting on their own and not with anythird parties) .rr°mincluding,!n th~~~~!f :ehicle-spec~fi.c infonnation or vehicl~-specific a1vertising, m eachcaseaslQn.gr~suchmfonnationor advertismg relates ~to vehiclesthat will be sold in offline auctions;(y) infonnation or advertising the type contemplated clause"(x)" of this of by sentencemayIlobe included onthe web of anyfuture affiliate of Kruse without the prior t site written consent eBay, which consent of shallnot be unreasonably delayedor withheld; and (z) if you or anyof your affiliates violates anyof the tenns of clause"(A)" or clause"(B)" of this sentencethenall of clause"(ii)" of this sentence , shall thereafter cease have any furtherforce to or effect). For purposes this paragraph on-linemeansany activity conducted an of 6, in electronicor digital fonnat with the transaction concludedwholly or in part overthe Internet. 7. Nonsolicitation. You agreethat for one (1) year following the EffectiveDate you will not, eitherdirectly or throughothers,solicit or attemptto solicit anyemployee, consultant, or independent contractorof eBayto tenninatehis or her relationshipwith eBayin orderto become employee,consultant independent an or contractor or for any otherpersonor entity. to

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8. Confidentiality. The provisions of this Agreement will be held in strictest confidence by you and eBay and will not be publicized or disclosed in any manner whatsoever; provided, however, that: (a) you may disclose this Agreement to your immediate family; (b) the parties may disclose this Agreement in confidence to their respective attorneys, accountants, auditors, tax preparers, and [mancial advisors; (c) eBay may disclose this Agreement as necessaryto fulfill standardor legally required corporate reporting or disclosure requirements; and (d) the parties may disclose this Agreement insofar as such disclosure may be necessaryto enforce its teffi1Sor as otherwis.erequired by law. ill particular, and without limitation, you will not disclose the provisions of this Agreement to any current or former Company employee or any other Company personnel. 9. Nondisparagement. Both you and eBay (by its officers and directors) agree not to disparagethe other party, or the other party's officers, directors, employees, shareholders, parents, subsidiaries, affiliates, or agents,in any manner likely to be harmful to them or their business, business reputation or personal reputation; provided, however, that both you and eBay shall respond accurately and fully to any question, inquiry or request for inforn1ation when required by legal process. ,~.." ~:"~",,,. 10. Dispute Resolution. Unless otherwise prohibited by law or specified below, all disputes, claims and causesof action in law or equity arising from or relating to this Agreement or its enforcement, performance, breach or interpretation shall be resolved solely and exclusively as provided in Section 4.9 of the SPA. 11. Release of Claims. ill exchange for the consulting arrangement, stock option vesting and other considerationunder this Agreement to which you would not otherwise be entitled, you hereby release, acquit and forever discharge eBay, and its officers, directors, agents, servants, employees, attorneys, shareholders,successors,assignsand affiliates, of and from any and all claims, liabilities, demands,causesof action, costs, expenses,attorneys fees, damages, indemriities and obligations of every kind and nature, in law, equity, or otherwise, known and unknown, arising out of or in any way related to your employment with eBay or the termination of that employment; claims or demandsrelated to salary, bonuses,commissions, stock, stock options, or any other ownership interests in eBay, vacation pay, fringe benefits, expense reimbursements, sabbaticalbenefits, severancebenefits, or any other form of compensation; claims pursuant to any federal, state, local law, statute or causeof action, including but not limited to, the federal Civil 'Rights Act of 1964, as amended;the federal Americans with Disabilities Act of 1990; the federal Age Discrimination in Employment Act, as amended by the Older Workers Benefit Protection Act (the "ADEA "); the Indiana Civil Rights Law, as amended; the illdiana Age Discrimination Law, as amended; the California Fair Employment and Housing Act, as amended; tort law; contract law; wrongful discharge; discrimination; fraud; defamation; harassment; emotional distress; and breach of the implied covenantof good faith and fair dealing..

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12. ADEA Waiver. You acknowledge that you are knowingly and voluntarily waiving and releasing any rights you may have under the ADEA. You also acknowledge that the consideration given for the waiver and release in the preceding paragraphis in addition to anything of value to which you were already entitled. You further acknowledge that you have beenadvised by this writing, as required by the ADEA, that: (a) your waiver and releasedo not apply to any rights or claims that arise after the date you sign this Agreement; (b) you should consult with an attorney prior to signing this Agreement; (c) you have twenty-one (21) days to consider this Agreement (although you may chooseto voluntarily sign this Agreement earlier); (d) you have seven (7) days following the date you sigil this Agreement to revoke the Agreement; and (e) your releaseof any ADEA claims hereunderwill not be effective until the date on which the revocation period has expired, which will be the eighth day after you sign this Agreement. 13. Additional Waiver. In granting the releasesherein, you acknowledge that you understand that you are expressly waiving the benefit of all rights and benefits under: (a) California Civil Code section 1542 ("Section 1542"), which states, A general releasedoes not extend to claims which the creditor does not know or suspectto exist in his favor at the time of executing the release, which ifknown by him must have materially affected his settlement with the debtor; and/or (b) any law or legal principle of similar effect to Section 1542 in Indiana or any other jurisdiction, with respectto the releaseof unknown and unsuspectedclaims granted in this Agreement. 14. Effective Date. This Agreement shall be effective as of the date of the SPA ("Effective Date"). 15. Entire Agreement. This Agreement, including Exhibits A, B, C and D hereto, constitutes the complete, final and exclusive embodimentof the entire agreement between you and eBay with regard to the subject matters hereof, and supersedesand renders void the Employment Agreement, the Welcome Letter and the Amendment, except that the following provisions shall remain in full force and effect: (a) Section 8 (Noncompetition) of the Employment Agreement, as modified herein, and (b) the following sections of the Amendment: l4(c), (d) and (e) (ffi.8 Form 8300 Lawsuit); 18 (Noninterference with Business), as applicable to your obligations to eBay; 23 and24. This Agreement is entered into without reliance on any promise or representation, written or oral, other than those expressly contained herein. It may not be modified except in a writing signed by you and the Associate General Counsel of eBay. Each party has carefully read this Agreement, has beenafforded the opportunity to be advised of its meaning and consequencesby his or its respective attorneys, and signed the same ofms or its own free will. 16. Successors and Assigns. This Agreementwill bind the heirs, personal representatives, successors,assigns,executors and administrators of each party, ,andwill inure to the benefit of eachparty, its heirs, successorsand assigns.

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17. Applicable Law. Except as otherwise provided in paragraph 13 above and the Proprietary Information Agreement, this Agreement will be deemed to have been enteredinto and will be construed and enforced in accordancewith the laws of the State of Indiana as applied to contracts made and to be performed entirely within Indiana. 18. Severability. If a court of competentjurisdiction determines that any term or provision of this Agreement is invalid or unenforceable,in whole or in part, then the remaining terms and provisions hereof will be unimpaired. The court or arbitrator will then have the authority to modify or replace the invalid or unenforceableterm or provision with a valid and enforceable term or provision that most accuratelyrepresentsthe parties' intention with respect to the invalid or unenforceable term or provision. 19. Counterparts. This Agreement may be executed in tWo counterparts, eachof which will be deemed an original, all of which togetherconstitutes one and the sameinstrument. Facsimile signaturesare as effective as original signatures.

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Name: Simon Rothman Title: Vice President Exhibit Exhibit Exhibit Exhibit

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A -Employment Agreement B -Welcome Letter C -Amendment to Employment Agreement D -Employee Proprietary Information and Inventions Agreement

UNDERSTOOD AGREED: AND

Dean V. Kruse Date: December 1l. 2002

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EMPLOYMENT AGREEMENT

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AMENDMENT TO EMPLOYMENT AGREEMENT

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EMPLOYEE PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT

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Mr. DeanV. Kruse Kruse International 5540 CountryRoad llA Auburn, rn 46706 Re: Separation and Consulting Agreement ..

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Dear Dean:

This letter setsforth the termsof a separation consultingagreement "Agreement") and (the betweenyou and eBayInc. reBay"). enteredinto in connection with eBay' s sale of all of the outstandingcapital stock ofKroseInc. d/b/aKruseInternational("Kruse") and the other entities .as providedin that certain StockPurchase Agreement evendateC"SP 'j, and supersedes of A your ..Employment Agreementwith eBaydatedMay 18, .1999 (the "EmploymentAgreement")(a copy of which is attachedas Exhibit A hereto),eBay's"welcome letter" to you datedas of J1me 8, 1999("Welcome Letter") (a copyof which is attached Exhibit B hereto),andthe amendment as .~.~. to the EmploymentAgreement datedApril 26, 2001 (the "Amendment")(a copy of which is "'" .' \~~; attachedas Exhibit C hereto),except providedherein. as 1. Separation. You aclmowledge as oftl1e dateof this Agreementyo~ arenot, that and subsequent April 13,2001 ("eBay Separation to Date'), youhavenot been,employedby eBay (or anyof its subsidiaries affiliates otl1erthanKruse), asprovidedin theAmendment. or 2. Accrued Salary and Vacation. You acknowledge eBayhaspaid you.all that accruedsalaryand accruedandunusedvacation .earned. of the eBayS~aration Date, and that as eBay hasno obligation to payYouany accruedsalary or accm"oo unusedvacationincurred and during your employmentby Kmse from the eBaySeparation Dateuntil the Effective Date of this Agreementor thereafter. 3. .Consulting Agreement. You will serveas a consultant eBayunderthe tenns to specifiedbelow. (a) Consulting Period.' The consultingperiod will begin immediately following the Effective Dateof this Agreement will continueuntil, and terminateeffeCtive and as of,eJanuary15, 2003 ("Consulting Period'), unlessterminatedearlierpln-suant subparagraph to 3( ) below. . .(b) Consulting Services. You agreeto provideconsultingservicesto eBayin any of the areasof your expertise duringthe ConswtingPerioduponrequestby eBay. You agree to be availableto provide such~ervices up to tlrirty (30)hoursper month during the . for

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, ConsultingPeriod. You agreeto exercise high degree professionalism utilize your a of and expeftjseandcreativetalentsin performingtheseservices. (c) Consnlting Consideration.

(I) Stock Option Vesting. As the sole andexclusive consideration for your consultingrelationshipwith eBayprovidedherein.your options(the "aptiODSj to pescihaseshares eBaycommonstock,January15,2003. Yom-rightsto exerciseanyvested of vur t nguntil 11:59pJIl. Indianatime on listed belowon a split adjustedbasis,shall continue sharesof said Optionsshallbe asprovidedin the applicablestock option grants,agreements and

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GrantDate: 05/14/99 -200.000 shares GrantDate: 10/01/99 -20,000 shares GrantDate: 11/09/99 -20,000 shm'es GrantDate: 01/12/01-125,000 shares GrantDate: 08/01/01-1,560 shares GrantDate: 02/01/02 -850 shares GrantDate: 08/01/02-800 shares

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(ii)' Taxes~You acknowledge you will be responsiblefor payment that of anyand all taxesincurred with respectto the continuedstockoption vestingprovidedabove. and you herebyagree indemnify andsaveharmlesseBay from any liability for anytaxes, to penaltiesor interestthat maybe assessed any taxingauthoritywith respectto the by compensation receiveunderthis Agreement. you (d) Limitations on Authority. You will haveno responsibilitiesor authority as a consultant eBayotherthan asprovidedabove. You agreenot to represent purport to or to represent eBayin anymannerwhatsoever any thiId party unlessauthorizedby theAssociate to GeneralCounselof eBay,in writing. to do so. . (e) T~minatioD. During the ConsultingPeriod. eBay may tenninatethis Agreement (or any section hereof)in its sole discretionin the eventthat: (i) Kruse commits a material breach of that certain Transition ServicesAgreement referred to in the SPA (the "Transition Services Agreexnent");(ii) eBaynotifies Kruse of suchbreach;and [Iii) Krusedoes

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.descn'bed not completelyc~ such material breach within 10 businessdays after tho receipt of the notice in clause"(ii)" of this sentence being understoodthat nothing containedin this (it Agreement,including any requirementfor notice or opport1mityto cure, shall limit any other rights that eBaymay have with respectto a breachof this Agreementor the ,Transition Services A~ent). In ~e eventof any suchterminationdueto a material breachby Kruse, anyfurther vestingof the Optionsnot then yet vested shall be deemed have ceased of the expmtion of to as the ten businessdays after receipt of the notice describedin clause "(il)" above unlessthe materialbre~h hasbeen completely curedby you or Kruse. In the eventthat your services a as consultant voluntarily or involuntarilytenninateddue to your deathor your inability due to are substantiatemedicalreasons performthe consultingserviceshereunder, suchtermination d to any shall no~in and of itself be deemedto be a breachor' default by you of this A~ent or by Kruseof the TransitionServicesAgreement bcing understoodthat no suchdeathor inability (it sha111imor otherwiseaffect Kruse'sobligations it under thc Transition Services Agreement).

4. Other Compensation or Benefits. You acknowlcdgethat you will notreceive ..from cBayanyadditional compensation benefitsof anyldnd (including but not limited to or salarytcommissionst bonuses, fees or severance)t exceptas expresslyprovidedin this Agreement or in the SPA.

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5. Return of Company Property. You agreeto return to eBay,not laterthanfive (5) daysaftertheEffective Date, all eBaydocuments (and all copiesthereof)and othereBay propertythat youhavehad in your possession anytime, including but not limited tot anyfiles, at notes,drawings, records,business plansandforecasts, financial info~on, specifications, trainingmaterial~ computer-recorded infomlation,tangIoleproperty, includingbut notlimited to, computers, creditcards,entry cards,identificationbadgesand keys; and anymaterialsof any kind that containor embodyanyproprietaryor confidential information ofeBay (andall reproductions thereof) You may retain suchdocuments, ° property, andmaterialsdtningthe ConsultingPeiiod only to the extentapproved writing by the AssociateGeneralCounsel in of eBayand youshall return them immediately upon written request. The term eBaydocuments andpropertyshall not include any propertyowned solely by the Companies the term (as ..Companiesis definedin the SPA). " 6. Proprietary Information and Non-Competition Obligations.

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(a) You herebyacknowledge confirm your obligationsunderyour and EmployeeProprietaryInformation andInventionsAgreement dated May 18, 1999(the "ProprietaryInformationAgreement")(a copyof which is attachedas Exhibit D hereto), including but notlimited to, your continuing obligationsnot to use or discloseanyconfidentialor proprietaryinfom1ation eBay without written a~thorization the Associate of by General Counsel of eBay,which obligationscontinuebothduringand afterthe ConsultingPeriod(it being understood, however,that it shall notbe deemed be a breachof this paragraph or Exhibit to 6(a) I2 heretofor theCompanies continuetouseany suchconfidential ~ proprietaryinformation to

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in the operation their respective of businesses the extentthat: (i) suchinformationwas to -material tOtandusedby, the Companies the operationof their businesses in prior to thedate hereof;and (ii) suchinfonnation is usedafterthe datehereofin a mannersimilar to theway in which it was usedErior to the datehereof).The term "ProprietaryInformation" asusedin the ProprietaryInformation Agreementshallnot apply to suchinformationwhoserights and .interests are owned solely by the Companies. You herebyreaffirmyour noncompetition (5) yearsfollowing the in Section of (b) EmploymentAgreementt the period of fiveobligationsto eBay,asprovided 8 the for EffectiveDate of this Agreement;provided,however,thatnothing in this Agreement shall either prohibit (i) your ownership, employment involvementin the Companics, definedin the or as SPA,asiong as none ofthe Companies engages any businessor activity prom"bited Section in by 8 of the EmploymentAgreementasmodifiedby this paragraph 6(b); or (ii) your conducting or participatingin any businessor activity, including live-eventomine auctionsor on-line auctions, as Jong (A) neither you nor anyof youraffiliates, directly or indirectly, withouteBay's prior as: approvalin a writing signed by a seniorexecutiv~ officer of eBay (which approvalmaybe withheld in eBay's sole discretion)facilitatethe listing and/orsale,directly or indirectly, of more than ten (10) late-model(i.e., lessthan 10yearsold) vehicles,cars,trucks,boats,watercraft.or othermerchandise from the sameinstitutional seller(e.g., any leasingcompany, bank,financial institlltion, government agency,fleet management companyor organization,rentalcarcompany, or financingcompany,including suchseller'saffiliates) eachmonth;and (B) you andeachof your affiliates use eBayas your and its exclusive marketplacefor (1) on-line auctions (but only to the extentthat you or your affiliatesin their sole and absolutediscretionelectto conduct online auctions),(2) on-line sales(but onlyto the extentthat you or your affiliatesin theirsole and absolutediscretionelectto conducton-linesales),(3) on-line vehicle-specificlistings,and (4) on-lino vehicle-specificadvertisements, each in caseincluding without limitation live auction InternetbiddiI1;g being imdoistood (it that: (x) nothing in 'Clauses "(3)" or "(4)" of Urissentence sha1prowoit Kruse or its currentaffiliates(acting on their own and not with anythird parties) 1 from including on their own websitevehicle-specific infonnation or vehicle-specificadvertising, in .each caseas long as suchinformationor advertisingrelatessolely to vehiclesthat Will be so1d .in offline auctions;(y) information or advertising the type contemplated clause"(x)" of this of by sentence may not be included onthewebsite any future affiliate of Kruse without theprior of written consent eBay, which consent of shallnot be unreasonably delayedor withheld;and (z) if you or anyof your affiliates violates anyof the terms of clause"(A)" or clause"(B)" of this scntcncethen all of clause"(ij)" of this sentence t shall thereafterceaseto have anyfurtherforce or effect). For pmposesof this paragraph on-line meansany activity conducted an 6, in electronicor digital fom1atwith the transaction concludedwholly or in part overtheInternet. ".

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7. Nonsolicitation. You agree that fOT one (1) year following the EffectiveDate you will not, eitherdirectly or throughoiliers,solicit or attemptto solicit anyemployee, consultant, ;'$;'.i,'~',... or independent contractorof eBayto terminate or her relationshipwith eBayin orderto his ~~i becomean employee,consultantor independent contractorto or for any oilier person entity. or

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Confidentiality. The provisionsoftbis Agreementwill be held in strictest by you and eBayandwill not be publicized or disclosedin any mannerwhatsoever; provided, however, that: ( a) you maydisclosethis Agreementto yourimmediate fimilly; (b) the partiesmaydisclosethis Agreement confidenceto their respective in attorneys,accountants, auditors,tax preparers, financial advisors;( c) eBay may disclose and this Agreement as necessary fulfill standardor legallyrequiredcorporatereportingor disclosurerequirements; to and (d) the partiesmaydisclosethis Agreement insofar as suchdisclosure may be necessary to enforceits temlSor as otherwis~ requiredby law. In particular, and without limitation, you will not disclose provisionsof this Agreement any current or foIIIler Companyemployeeor the to any other CompanypersonneL 9-. Nondisparagement. Both you and eBay (by its officersand directors)agreenot to disparage other party,or the otherparty's officers, directors,employees, the shareholders, parents.subsidiaries, affiliates, or agents,in any mannerlikely to be haIInfu1to themor their businessbusiness , reputationor personal reputation;provided, however, that both youand eBay shall respondaccurately and fully to any question,inquiry or requestfor information when requiredby legalprocess.

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10. Dispute Resolution. UnlessotherwiseprohI'bitedby law or specified below, all ~utes, claimsand causes actionin law or equity arising from or relating to this Agreement of or its enforcement, perfOmlance, breachor interpretationshall beresolvedsolely andcxclusively as provided in Section4.9oftbe SPA ' 11. Releaseof Claims. In exchange the consultingarrangement, for stockoption vestingand other consideration underthis Agreement which youwould not otherwisebe to entitled, you herebyrelease,acquitandforever discharge eBay, andits officers, directors,agents, servants, employees, attorneys, shareholders, succcssors, assignsandaffiliates, of and.from any and all claims;. liabilitieS, demands, causes action. costs,expenses, of attorneysfees.damages, indcmnitiesand obligationsof everykind and nature,in law, equity, or otherwise,known and unknown, arisingout of or in anywayrelatedto your employmentwith eBay or the termin~1ion of that cmplo)iment; claims or demands relatedto salary,bonuses. commissions, stock,stock options, or any otherownershiPinterests eBay, vacationpay, fringebenefits, expense in reimbursements, sabbatical benefits,severance benefits, or any otherform of compensation; claims pursuant any federal,state,local1aw.statuteor causeof action,including but not to limited to, the federalCivil Rights Act of 1964,as amended;the federalAmericanswith , Disabilities Act of 1990;the federalAge Discrimination in EmploymentAct, as amended the by Older Workers Benefit Protection (the "ADEA"); the Indiana Civil Rights Law, asamended; Act the IndianaAge DiscriminationLaw, asamended; California Fair EmploymentandHousing the Act, as amended; law; contract tort law; wrongful discharge;discrimination;fraud; defamation; harassmentemotionaldistress; breachof the implied covenantof good faith andfair ; and

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-waiving

12. ADEA Waiver. You acknowledge that youare knowingly and voluntarily andreleasinganyrights you may haveunderthe ADEA. You alsoacknowledge the that consideration given for thewaiver andreleasein the preceding paragraph in additionto is anythingof valueto which you were alreadyentitled. You further acknowledgethat youhave beenadvisedby this writing. as requiredby the ADEA, that: (a) your waiver and release not do apply to any rights or claimsthat ariseafter the dateyou sign this Agreement;(b) you should consultwith an attorneyprior to signing this Agreement;(c) you have twenty-one (21) daysto considerthis Agreement (althoughyou may chooseto voluntarily sign this Agreementearlicr); (d) you haveseven(7) daysfollowing the date you sign this Agreementto revoke the Agre~nt; and (e) your releaseof any ADEA claimshereunder not be effective un1il1he will dateon ~ch the revocation period hasexpire4.. which will be the eighth.day after you sign this

Agreement.
13. Additional Waiver. In grantingthe releascs herein, you acknowledgethat you understand you are exprcssly that waiving tlle benefitof all rights and benefitstmder: (a)Califomia Civil Codesection1542("Section 1542"),which states,A generalrelease doesnot extendto claimswhich the creditordoesnot know or suspect exist in his favor at the time of to executingthe release, which ifknown by him musthavemateriallyaffectedhis settlement with the debtor;and/or(b) anylaw or legal principle of similar effectto Section1542in fudianaor anyotherjurisdiction~with respectto thereleaseofm1known unsuspected and claims granted in tlris Agreemcnt . 14. Effective Date. This Agreementshallbe effectiveas of the date of the SPA ("Effective Date"). 15. Entire Agreement. This Agreement, including Exht"bits B, C and D hereto, A, constitutes complete,final and exclusive ~mbodiment the entire agreement the of betweenyou andeBaywith'regard to the subje"Ctmatters hereof,andsupersedes rendersvoid the and EmploymentAgreement, Welc<;>me the Letter a:I1d Amendmcnt, the exceptthat the.following provisionsshall remainin full force a:I1d effect: (a) Section (Noncompetition)of the 8 EmploymentAgreement, modified herein,and (b) the following sectionsof the Amendmcnt as l4(c), (d) and (e) cms FoID18300 Lawsuit); 18 {Noninterference with Business),asapplicable to your obligationsto eBay;23 and 24. This Agreement entered is into without reliance on any promise or representation, written or oral, other thanthoseexpressly containedherein. It may not be m()dified exceptin a writing signedby you and theAssociateGeneralCounselof oBay. Eachparty has carefullyreadthis Agreement, beenaffordedthe opportunityto be advised has of its meaningandconsequences his or its respec1ive by attorneys, signedthe sameof his or its and own free will.

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16. Successors Assigns. This Agreement bind the heirs,personal and will representatives, successors, assigns, executors administrators eachparty, andwill inureto and of . the benefit of eachparty, its heirs, successors asSIgns. and

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Applicable Law. Exceptasotherwise provided in paragraph13 aboveandthe ProprietaryInformation Agreement, this Agreement be deemedto havebeenentered will mto and will be construed enforcedin accordance and with the laws of the Stateof Indianaasapplied to conttacts madeand to be performedentirelywithin Indiana. 18. Severability. If a court of competent jurisdiction detemrlnesthat anytenD or provision of this Agreementis invalid or unenforceable; whole or in part, thenthe remaining in termsand provisionshereof will be unimpaired.The court or arbitrator will thenhavethe authorityto modify or replacethe invalid or unenforceable te;m or provision with a valid and enforceable termor provision that most accurately represents parties' intentionwith respect the to the invalid or unenforceable term or provision. 19. Counterparts. This Agreement maybe executedin tWo counterparts, eachof which will be deemed original. all of wWchtogether an constittItesone and the sameinstrument. Facsimile signatures as effective asoriginal signatures. are

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Exhibit A -Employment Agreement ExbibitB ~ WelcomeLetter , Exhibit C -.Amendment to EmploymentAgreement Exhibit D -Employee Propnetary InfOImation Inventions Agreement and
UNDERSTOOD .AND

Dean V. Kruse Date: December 2002 Ll.

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