GSI COMMERCE INC (Form: 8-K, Received: 06/17/2011 16:59:23)

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): June 16, 2011

GSI COMMERCE, INC.

(Exact name of registrant as specified in its charter)


Delaware	0-16611	04-2958132

(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)


935 First Avenue, King of Prussia, Pennsylvania		19406

(Address of principal executive offices)		(Zip Code)

Registrant’s telephone number, including area code: 610-491-7000

Not Applicable

(Former name or former address, if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o		Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o		Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o		Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o		Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Introductory Note

On June 17, 2011, GSI Commerce, Inc. (“GSI”), a Delaware corporation, completed its merger (the “Merger”) with Gibraltar Acquisition Corp. (“Merger Sub”), a wholly-owned subsidiary of eBay Inc. (“eBay”), pursuant to the terms of the Agreement and Plan of Merger, dated as of March 27, 2011 (the “Merger Agreement”), among GSI, eBay and Merger Sub. As a result of the Merger, GSI is now wholly owned by eBay.


Item 1.01		Entry into a Material Definitive Agreement

In connection with the Merger, the indenture (the “Indenture”) relating to GSI’s 2.50% Convertible Senior Notes due 2027 (the “Notes”) was amended pursuant to the First Supplemental Indenture, dated as of June 17, 2011 (the “Supplemental Indenture”) to provide that, as a result of the Merger, if a holder exercises its right to convert its Notes in accordance with the provisions of the Indenture (other than a conversion “in connection with” a Make-Whole Fundamental Change (as defined in the Supplemental Indenture) that occurs from June 17, 2011 until the Fundamental Change Repurchase Date (as defined in the Supplemental Indenture) relating to the Merger), GSI will pay to such holder, in full satisfaction of GSI’s obligations with respect to such conversion, cash in an amount equal to $986.00 for each $1,000 in principal amount of the Notes to be converted, which amount represents the $29.25 per share cash consideration payable in the Merger plus an additional $0.33 per share in cash in respect of the 33.3333 shares of GSI common stock otherwise issuable upon conversion of $1,000 in principal amount of the Notes. Upon a conversion “in connection with” the Make-Whole Fundamental Change that occurs from June 17, 2011 until the Fundamental Change Repurchase Date relating to the Merger, GSI will pay to such holder, in full satisfaction of GSI’s obligations with respect to such conversion, cash in an amount equal to $1,135.38 for each $1,000 in principal amount of the Notes to be converted. The foregoing description of the Supplemental Indenture is qualified in its entirety by reference to the Supplemental Indenture, which is attached hereto as Exhibit 10.1 and is incorporated by reference into this Current Report on Form 8-K.


Item 1.02		Termination of a Material Definitive Agreement

On June 17, 2011, in connection with the Merger, GSI repaid in full all outstanding loans, together with interest and all other amounts, if any, due in connection with such repayment under the Credit Agreement, dated as of February 9, 2011, by and among GSI and GSI Commerce Solutions, Inc., as co-borrowers, a group of lenders party thereto, Bank of America, N.A., as Administrative Agent for such lenders, and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley Senior Funding, Inc., PNC Capital Markets LLC, Deutsche Bank Securities Inc. and J.P. Morgan Securities Inc., as joint lead arrangers and joint bookrunners (the “Credit Facility”) and terminated the Credit Facility. No penalties were due in connection with such repayments. The remaining obligations of GSI under the Credit Facility generally are limited to certain remaining contingent indemnification obligations under such Credit Facility. Borrowings under the Credit Facility bore interest, at GSI’s option, at either (i) a “base rate” (“Base Rate”) equal to, for any day, a fluctuating rate per annum equal to the highest of (a) the federal funds rate plus 0.5%, (b) the Agent’s “prime rate” and (c) the London Interbank Offered Rate (“LIBOR”) for a three-month Interest Period plus 1.00%, in each case plus an applicable margin, or (ii) a rate derived from LIBOR as adjusted for statutory reserve requirements for Eurocurrency liabilities, plus an applicable margin. In each case, the applicable margin is determined by GSI’s Leverage Ratio (as defined in the Credit Facility) and in the case of Base Rate term loans ranges from 1.25% to 2.50%, in the case of LIBOR term loans ranges from 2.25% to 3.50%, in the case of Base Rate revolving loans ranges from 0.90% to 2.00% and in the case of LIBOR revolving loans ranges from 1.90% to 3.00%. The revolving credit commitment (whether used or unused) under the Credit Facility at any time was subject to a facility fee ranging from 0.35% to 0.50% based on GSI’s Leverage Ratio. The Credit Facility contained customary covenants and events of default. The foregoing description of the Credit Facility is qualified in its entirety by reference to the Credit Facility, which is incorporated by reference to Exhibit 10.1 to GSI’s Current Report on Form 8-K filed on February 10, 2011.


Item 2.01		Completion of Acquisition or Disposition of Assets

On June 17, 2011, GSI and eBay consummated the transactions contemplated by the Merger Agreement. Pursuant to the Certificate of Merger filed with the Secretary of State of the State of Delaware, the Merger was effective on June 17, 2011 (the “Effective Time”). At the Effective Time, all outstanding shares of common stock of GSI, par value $0.01 per share (the “Common Stock”), other than shares held by GSI, eBay, Merger Sub or any of their subsidiaries and shares held by stockholders, if any, who validly perfected their appraisal rights under Delaware law, converted into the right to receive $29.25 per share in cash, without interest and less any applicable withholding taxes. The Merger Agreement further provided that at the Effective Time:

•

All outstanding Common Stock that was unvested or subject to a repurchase option, risk of forfeiture or other condition converted into a right to receive $29.25 per share in cash, without interest and less any applicable withholding taxes, which right will remain unvested and subject to the same repurchase option, risk of forfeiture or other condition previously applicable to such Common Stock, and need not be paid until such time as such repurchase option, risk of forfeiture or other condition lapses or otherwise terminates;

•

Each outstanding stock option to acquire shares of Common Stock, to the extent vested immediately prior to the Effective Time, including the options that vested contingent upon the consummation of the merger, terminated and converted into the right to receive an amount in cash (without interest and subject to any applicable withholding taxes) equal to (i) the number of shares of Common Stock underlying the option multiplied by (ii) the difference between (A) $29.25, and (B) the exercise price per share of such option;

•

Each outstanding stock option to acquire shares of Common Stock, to the extent unvested immediately prior to the Effective Time, converted into an option to purchase eBay common stock in an amount equal to (i) the number of shares of Common Stock underlying such option immediately prior to the Effective Time, multiplied by (ii) a ratio (the “Conversion Ratio”) equal to (A) $29.25 divided by (B) $29.77, the average of the closing sale prices of a share of eBay common stock as reported on NASDAQ for each of the ten consecutive trading days immediately preceding the Effective Time, rounding the resulting number down to the nearest whole number of shares of eBay common stock;

•

Each restricted stock unit of GSI, to the extent vested immediately prior to the Effective Time, converted into the right to receive an amount in cash (subject to any applicable withholding taxes) equal to (i) the number of shares of Common Stock underlying the restricted stock unit multiplied by (ii) $29.25; and

•

Each restricted stock unit of GSI, to the extent unvested immediately prior to the Effective Time, converted into a restricted stock unit representing the right to receive the number of shares of eBay common stock equal to (i) the number of shares of Common Stock subject to such restricted stock unit immediately prior to the Effective Time, multiplied by (ii) the Conversion Ratio, rounding down the product to the nearest whole number of shares of eBay common stock.

In addition, as previously disclosed in GSI’s Current Report on Form 8-K filed with the Securities and Exchange Commission on June 13, 2011, pursuant to that certain memorandum of understanding, dated June 10, 2011 (the “MOU”), entered into with respect to the consolidated action captioned In Re GSI Commerce, Inc. Shareholder Litigation, Consol. C.A. No. 6346-VCN , pending in the Court of Chancery of the State of Delaware, eBay will pay a settlement amount (the “Settlement Amount”) equal to $0.33 per share to GSI stockholders who held GSI common stock and/or GSI equity incentive awards on the Effective Date, but excluding (1) GSI common stock and GSI equity incentive awards held by GSI’s directors and senior officers and (2) any shares of GSI common stock that are obtained through a conversion of any GSI debt securities on or after June 9, 2011. The payment of the Settlement Amount is separate and distinct from the payment of the $29.25 per share merger consideration to be paid pursuant to the terms of the Merger Agreement to all of the stockholders of GSI (including those who will not receive the Settlement Amount) but will be paid contemporaneously with the payment of such per share merger consideration.

The foregoing summary does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, which is included as Exhibit 2.1 to this Current Report on Form 8-K and is incorporated herein by reference.


Item 3.03		Material Modification to Rights of Security Holders

The information provided in response to Item 1.01 and Item 2.01 of this Current Report on Form 8-K is incorporated herein by reference.


Item 5.01		Changes in Control of Registrant

The information provided in response to Item 2.01 of this Current Report on Form 8-K is incorporated herein by reference. The total merger consideration paid by eBay for the outstanding shares of Common Stock and vested equity awards was approximately $2.2 billion. The source of funds for the cash consideration was readily available funds. Upon the Effective Time, the Merger constituted a change of control of GSI, resulting in GSI becoming a wholly-owned subsidiary of eBay. There are no known arrangements which may at a subsequent date result in a change of control of GSI.


Item 5.02		Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Agreements of Certain Officers

(b)

Pursuant to the terms of the Merger Agreement, each member of the board of directors of GSI resigned immediately prior to the Effective Time, and Michael G. Rubin, Michael R. Conn, Damon Mintzer and J. Scott Hardy resigned from each of their respective positions as officers of GSI. Messrs. Mintzer and Hardy will each continue as an employee of GSI.

(c)

Effective upon the resignation of Mr. Rubin, Christopher Saridakis was elected to the position of President of GSI and will become GSI’s Principal Executive Officer. Mr. Saridakis, 42, has served as the chief executive officer of GSI’s Global Marketing Service segment since May 2010. From December 2007 to May 2010, Mr. Saridakis served as senior vice president and chief digital officer of Gannett Co., Inc. Prior to joining Gannett, Mr. Saridakis served as chief executive officer of PointRoll, Inc. from June 2003 to December 2007. There is no arrangement or understanding between Mr. Saridakis and any other persons pursuant to which he was elected as President of GSI. Mr. Saridakis has no family relationship with any director or executive officer of GSI.

Effective upon the resignation of Mr. Conn, Scott Rosenberg was elected to the position of Chief Financial Officer of GSI and will become GSI’s Principal Financial and Accounting Officer. Mr. Rosenberg, 47, has served as GSI’s Senior Vice President Enterprise Finance & Strategic Planning since April 2011. He served as CFO of GSI’s Global eCommerce Services segment from April 2010 to 2011, as GSI’s Senior Vice President, Finance from April 2008 through March 2010, GSI’s Vice President, Finance from April 2005 through March 2008, and GSI’s Vice President, Financial Planning and Analysis from August 2003 through March 2005. There is no arrangement or understanding between Mr. Rosenberg and any other persons pursuant to which he was elected as Chief Financial Officer of GSI. Mr. Rosenberg has no family relationship with any director or executive officer of GSI.

(d)

Following the resignation of each member of the board of directors of GSI, Michael R. Jacobson, Christopher Saridakis and Robert H. Swan were elected to the board of directors. There is no arrangement or understanding between each of Messrs. Jacobson, Saridakis and Swan and any other persons pursuant to which each such person was elected as a director. There are no relationships between each such and GSI that would require disclosure pursuant to Item 404(a) of Regulation S-K.

(e)

On June 16, 2011, the compensation committee of the board of directors of GSI granted to Mr. Saridakis a performance award (the “Award”) pursuant to the GSI Commerce, Inc. 2010 Equity Incentive Plan and a Performance Award Agreement (the “Award Agreement”). The Award will be equal to $7,500,000 multiplied by the total number of EBITDA thresholds (as defined in the Award Agreement) that are attained by the Business Unit (as defined in the Award Agreement) and will be earned over four calendar years beginning with the 2012 calendar year and ending with the 2015 calendar year. The maximum aggregate amount payable under the Award Agreement is $30 million. Any payout of the Award is subject to the achievement of the performance criteria set forth in the Award Agreement and Mr. Saridakis’ continuous employment with GSI through the first business day after January 1, 2016. However, upon a termination due to death or without Cause (as defined in the Award Agreement), the Award Agreement provides for pro-rated vesting through the last day of the performance period prior to the date of termination. The foregoing summary is qualified in its entirety by reference to the complete text of the Award Agreement, which is attached hereto as Exhibit 10.2 and is incorporated by reference into this Current Report on Form 8-K.

On June 16, 2011, the board of directors of GSI approved the entry into a separation agreement (the “Separation Agreement”) with Mr. Conn. The Separation Agreement is subject to the non-revocation of a release of claims against GSI by Mr. Conn (the “Release”). In exchange for the Release, the Separation Agreement provides for full vesting of all unvested equity awards held by Mr. Conn immediately prior to the Effective Time. The Separation Agreement also provides for payment upon Mr. Conn’s termination of an amount equal to $5,000,000 pursuant to the terms of the Transaction Incentive Agreement entered into on March 27, 2011 by and between the Mr. Conn and GSI and payment of an amount equal to $174,062.50 representing accrued and unpaid bonus through the termination date. The foregoing summary is qualified in its entirety by reference to the complete text of the Separation Agreement, which is attached hereto as Exhibit 10.3 and is incorporated by reference into this Current Report on Form 8-K.


Item 5.03		Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year

At the Effective Time and pursuant to the Merger Agreement, the certificate of incorporation and bylaws of GSI were amended and restated to be in the form of the certificate of incorporation and bylaws of Merger Sub. The amended certificate of incorporation and bylaws are attached hereto as Exhibits 3.1 and 3.2, respectively, and incorporated herein by reference.


Item 9.01		Financial Statements and Exhibits.

(d)

Exhibits


	2.1			Agreement and Plan of Merger, dated as of March 27, 2011, by and among eBay Inc., Gibraltar Acquisition Corp. and GSI Commerce, Inc. (incorporated by reference to Exhibit 2.1 to the registrant’s Current Report on Form 8-K filed on March 28, 2011). The schedules and exhibits to the Agreement and Plan of Merger are omitted pursuant to Item 601(b)(2) of Regulation S-K. GSI agrees to furnish supplementally to the SEC, upon request, a copy of any omitted schedule or exhibit.

	3.1			Amended and Restated Certificate of Incorporation of GSI Commerce, Inc., adopted June 17, 2011.

	3.2			Amended and Restated Bylaws of GSI Commerce, Inc., adopted June 17, 2011.

	10.1			First Supplemental Indenture, dated as of June 17, 2011, to the Indenture, dated as of July 2, 2007, between GSI Commerce, Inc. and The Bank of New York Mellon, as trustee.

	10.2			GSI Commerce, Inc. 2010 Equity Incentive Plan Performance Award Agreement for Christopher Saridakis granted on June 16, 2011.

	10.3			Separation Agreement, entered into as of June 17, 2011, by and between GSI Commerce, Inc. and Michael R. Conn.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.


	GSI COMMERCE, INC.
June 17, 2011	By:	/s/ Scott Rosenberg
		Name:	Scott Rosenberg
		Title:	Chief Financial Officer

Exhibit Index


Exhibit No.		Description

	2.1	Agreement and Plan of Merger, dated as of March 27, 2011, by and among eBay Inc., Gibraltar Acquisition Corp. and GSI Commerce, Inc. (incorporated by reference to Exhibit 2.1 to the registrant’s Current Report on Form 8-K filed on March 28, 2011). The schedules and exhibits to the Agreement and Plan of Merger are omitted pursuant to Item 601(b)(2) of Regulation S-K. GSI agrees to furnish supplementally to the SEC, upon request, a copy of any omitted schedule or exhibit.

	3.1	Amended and Restated Certificate of Incorporation of GSI Commerce, Inc., adopted June 17, 2011.

	3.2	Amended and Restated Bylaws of GSI Commerce, Inc., adopted June 17, 2011.

	10.1	First Supplemental Indenture, dated as of June 17, 2011, to the Indenture, dated as of July 2, 2007, between GSI Commerce, Inc. and The Bank of New York Mellon, as trustee.

	10.2	GSI Commerce, Inc. 2010 Equity Incentive Plan Performance Award Agreement for Christopher Saridakis granted on June 16, 2011.

	10.3	Separation Agreement, entered into as of June 17, 2011, by and between GSI Commerce, Inc. and Michael R. Conn.

EXHIBIT 3.1

AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
GSI COMMERCE, INC.

ARTICLE I

The name of the corporation is GSI Commerce, Inc. (hereinafter referred to as the “ Corporation ”).

ARTICLE II

The address of the Corporation’s registered office in the State of Delaware is The Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware, 19801. The name of its registered agent at such address is The Corporation Trust Company.

ARTICLE III

The nature of the business and the purposes to be conducted and promoted by the Corporation are to conduct any lawful business, to promote any lawful purpose and to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation Law (“ DGCL ”).

ARTICLE IV

1. The total number of shares of stock which the Corporation shall have authority to issue is one thousand (1,000) shares of common stock, $.001 par value per share (the “ Common Stock ”).

2. Shares of the Common Stock may be issued from time to time as the Board of Directors of the Corporation (the “ Board ”) shall determine and on such terms and for such consideration as shall be fixed by the Board. The amount of the authorized Common Stock of the Corporation may be increased or decreased by the affirmative vote of the holders of a majority of the outstanding Common Stock of the Corporation entitled to vote.

ARTICLE V

Elections of directors need not be by written ballot unless required by the Amended and Restated Bylaws of the Corporation. Any director may be removed from office either with or without cause at any time by the affirmative vote of the holders of a majority of the outstanding Common Stock of the Corporation entitled to vote, given at a meeting of the stockholders called for that purpose, or by the consent of the holders of a majority of the outstanding Common Stock of the Corporation entitled to vote, given in accordance with DGCL Section 228.

ARTICLE VI

In furtherance and not in limitation of the powers conferred upon the Board by law, the Board shall have the power to make, adopt, alter, amend and repeal from time to time the Bylaws of the Corporation subject to the right of the stockholders entitled to vote with respect thereto to alter, amend and repeal Bylaws made by the Board.

ARTICLE VII

1. The liability of the directors of the Corporation for monetary damages shall be eliminated to the fullest extent under applicable law. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated to the fullest extent permitted by the DGCL, as so amended.

2. Any repeal or modification of this Article VII shall be prospective and shall not affect the rights under this Article VII in effect at the time of the alleged occurrence of any act or omission to act giving rise to liability or indemnification.

3. Neither any amendment nor repeal of this Article VII, nor the adoption of any provision of this Corporation’s Certificate of Incorporation inconsistent with this Article VII, shall eliminate or reduce the effect of this Article VII in respect of any matter occurring, or any action or proceeding accruing or arising or that, but for this Article VII, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.

EXHIBIT 3.2

AMENDED AND RESTATED

BYLAWS
OF
GSI COMMERCE, INC.

TABLE OF CONTENTS


	Page

ARTICLE I Meetings of Stockholders		1
Section 1.1. Annual Meetings		1
Section 1.2. Special Meetings		1
Section 1.3. Notice of Meeting		1
Section 1.4. Quorum		1
Section 1.5. Adjournments		1
Section 1.6. Voting		2
Section 1.7. Proxies		2
Section 1.8. Judges of Election		2

ARTICLE II Board of Directors		2
Section 2.1. Number		2
Section 2.2. Election and Term of Office		2
Section 2.3. Vacancies and Additional Directorships		2
Section 2.4. Regular Meetings		2
Section 2.5. Special Meetings		3
Section 2.6. Waiver of Notice		3
Section 2.7. Quorum and Manner of Acting		3
Section 2.8. Telephonic Meetings		3
Section 2.9. Resignation of Directors		3
Section 2.10. Removal of Directors		3
Section 2.11. Compensation of Directors		4
Section 2.12. General Powers		4

ARTICLE III Committees of the Board		4
Section 3.1. Designation, Power, Alternate Members and Term of Office		4
Section 3.2. Executive Committee		5
Section 3.3. Meetings, Notices and Records		5
Section 3.4. Quorum and Manner of Acting		5
Section 3.5. Resignations		5
Section 3.6. Removal		6
Section 3.7. Vacancies		6
Section 3.8. Compensation		6

ARTICLE IV Officers		6
Section 4.1. Officers		6
Section 4.2. Election, Term of Office and Qualifications		6
Section 4.3. Subordinate Officers and Agents		6
Section 4.4. Resignations		6
Section 4.5. Removal		6
Section 4.6. Vacancies		7
Section 4.7. General Duties of Officers		7
Section 4.8. Salaries		7


	Page

ARTICLE V Execution of Instruments and Deposit of Corporate Funds		7
Section 5.1. Execution of Instruments Generally		7
Section 5.2. Borrowing		7
Section 5.3. Deposits		7
Section 5.4. Checks, Drafts, etc		7
Section 5.5. Proxies		8
Section 5.6. Other Contracts and Instruments		8

ARTICLE VI Record Dates		8

ARTICLE VII Corporate Seal		8

ARTICLE VIII Fiscal Year		8

ARTICLE IX Amendments		9

ARTICLE X Action Without A Meeting		9

ARTICLE XI Indemnification		9

ARTICLE I

Meetings of Stockholders

Section 1.1. Annual Meetings . The annual meeting of the stockholders for the election of directors and for the transaction of such other business as properly may come before such meeting shall be held each year on such date, and at such time and place within or without the State of Delaware, as may be designated by the Board of Directors.

Section 1.2. Special Meetings . Special meetings of the stockholders for any proper purpose or purposes may be called at any time by the Board of Directors to be held on such date, and at such time and place within or without the State of Delaware, as the Board of Directors shall direct. A special meeting of the stockholders shall be called by the president or the secretary of the Corporation whenever stockholders owning a majority of the shares of the Corporation then issued and outstanding and entitled to vote on matters to be submitted to stockholders of the Corporation shall make application therefor in writing. Any such written request shall state a proper purpose or purposes of the meeting and shall be delivered to the president or the secretary of the Corporation.

Section 1.3. Notice of Meeting . Written notice, signed by the president, the secretary or any assistant secretary of the Corporation, of every meeting of stockholders stating the date and time when, and the place where, such meeting is to be held, shall be delivered either personally or by mail to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of such meeting, except as otherwise provided by law. The purpose or purposes for which such meeting is called may, in the case of an annual meeting, and shall in the case of a special meeting, also be stated in such notice. If mailed, such notice shall be directed to a stockholder at such stockholder’s address as it shall appear on the stock books of the Corporation, unless such stockholder shall have filed with the president or secretary of the Corporation a written request that notices intended for such stockholder be mailed to some other address, in which case it shall be mailed to the address designated in such request. Whenever any notice is required to be given under the provisions of the General Corporation Law of the State of Delaware, the Amended and Restated Certificate of Incorporation or these Bylaws, a waiver thereof, signed by the stockholder entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent thereto. Attendance of a stockholder at the meeting shall be deemed equivalent to a written waiver of notice of such meeting.

Section 1.4. Quorum . The presence at any meeting of stockholders, in person or by proxy, of the holders of record of a majority of the shares then issued and outstanding and entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction of business, except as otherwise provided by law.

Section 1.5. Adjournments . In the absence of a quorum, a majority in interest of the stockholders entitled to vote, present in person or by proxy, or, if no stockholder entitled to vote is present in person or by proxy, any officer entitled to preside at or act as secretary of a meeting of stockholders, may adjourn such meeting from time to time until a quorum shall be present.

Section 1.6. Voting . Directors shall be chosen by a plurality of the votes cast at the election, and, except as otherwise provided by law or by the Amended and Restated Certificate of Incorporation, all other questions shall be determined by a majority of the votes cast on such question.

Section 1.7. Proxies . Any stockholder entitled to vote may vote by proxy, provided that the instrument authorizing such proxy to act shall have been executed in writing (which shall include telegraphing or cabling) by the stockholder himself or by such stockholder’s duly authorized attorney.

Section 1.8. Judges of Election . The Board of Directors may appoint judges of election to serve at any election of directors and at balloting on any other matter that may properly come before a meeting of stockholders. If no such appointment shall be made, or if any of the judges so appointed shall fail to attend, or refuse or be unable to serve, then such appointment may be made by the presiding officer at the meeting.

ARTICLE II

Board of Directors

Section 2.1. Number . The number of directors which shall constitute the whole Board of Directors shall be fixed from time to time by resolution of the Board of Directors or stockholders (any such resolution of either the Board of Directors or stockholders being subject to any later resolution of either of them). The first Board of Directors and subsequent Boards of Directors shall consist of three directors until changed as herein provided.

Section 2.2. Election and Term of Office . Directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2.3. Each director (whether elected at an annual meeting or to fill a vacancy or otherwise) shall continue in office until such Director’s successor shall have been elected and qualified or until such Director’s earlier death, resignation or removal in the manner hereinafter provided.

Section 2.3. Vacancies and Additional Directorships . If any vacancy shall occur among the directors by reason of death, resignation or removal, or as the result of an increase in the number of directorships, a majority of the directors then in office, or a sole remaining director, though less than a quorum, may fill any such vacancy.

Section 2.4. Regular Meetings . A regular meeting of the Board of Directors shall be held for organization, for the election of officers and for the transaction of such other business as may properly come before such meeting, within thirty days after each annual meeting of stockholders. The Board of Directors by resolution may provide for the holding of other regular meetings and may fix the times and places at which such meetings shall be held. Notice of regular meetings shall not be required to be given, provided that whenever the time or place of regular meetings shall be fixed or changed, notice of such action shall be mailed promptly to each director who shall not have been present at the meeting at which such action was taken, addressed to such director at such director’s residence or usual place of business.

Section 2.5. Special Meetings . Special meetings of the Board of Directors shall be held upon call by or at the direction of the president or the secretary of the Corporation. Except as otherwise required by law, notice of each special meeting shall be mailed to each director, addressed to such director at such director’s residence or usual place of business, at least two days before the day on which the meeting is to be held, or shall be sent to such director at such place by telex, facsimile transmission, telegram, radio or cable, or telephoned or delivered to him personally, not later than the day before the day on which the meeting is to be held. Such notice shall state the time and place of such meeting, but need not state the purposes thereof, unless otherwise required by law, the Amended and Restated Certificate of Incorporation or these Bylaws.

Section 2.6. Waiver of Notice . Whenever any notice is required to be given under the provisions of the General Corporation Law of the State of Delaware, the Amended and Restated Certificate of Incorporation or these Bylaws, a waiver thereof, signed by the director entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent thereto. Attendance of a director at a meeting shall be deemed equivalent to a written waiver of notice of such meeting.

Section 2.7. Quorum and Manner of Acting . At each meeting of the Board of Directors the presence of a majority of the total number of members of the Board of Directors as constituted from time to time shall be necessary and sufficient to constitute a quorum for the transaction of business, except that when the Board of Directors consists of one or two directors, then the one or two directors, respectively, shall constitute a quorum. In the absence of a quorum, a majority of those present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present and the meeting may be held as so adjourned without further notice or waiver. A majority of those present at any meeting at which a quorum is present may decide any question brought before such meeting, except as otherwise provided by law, the Amended and Restated Certificate of Incorporation or these Bylaws. The Board of Directors may also act without a meeting so long as such action is taken with the unanimous written consent of the Board of Directors.

Section 2.8. Telephonic Meetings . Unless otherwise restricted by the Amended and Restated Certificate of Incorporation or these Bylaws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or such committee, as the case may be, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.

Section 2.9. Resignation of Directors . Any director may resign at any time by giving written notice of such resignation to the Board of Directors. Unless otherwise specified in such notice, such resignation shall take effect upon receipt thereof by the Board of Directors or any such officer, and the acceptance of such resignation shall not be necessary to make it effective.

Section 2.10. Removal of Directors . At any special meeting of the stockholders, duly called as provided in these Bylaws, any director or directors may be removed from office, either with or without cause, as provided by law. At such meeting a successor or successors may be elected by a plurality of the votes cast, or if any such vacancy is not so filled, it may be filled by the directors as provided in Section 2.3.

Section 2.11. Compensation of Directors . Directors shall receive such reasonable compensation for their services whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.

Section 2.12. General Powers . The Board of Directors shall have all powers necessary or appropriate to the management of the business and affairs of the Corporation, and, in addition to the power and authority conferred by these Bylaws, may exercise all powers of the Corporation and do all such lawful acts and things as are not by statute, these Bylaws or the Amended and Restated Certificate of Incorporation directed or required to be exercised or done by the stockholders.

Notwithstanding anything in these Bylaws to the contrary, except to the extent prohibited by law, the Board of Directors shall have the right (which, to the extent exercised, shall be exclusive) to establish the rights, powers, duties, rules and procedures that from time to time shall govern the Board of Directors and each of its members, including without limitation, the vote required for any action by the Board of Directors, and that from time to time shall affect the Directors’ power to manage the business and affairs of the Corporation; and no Bylaw shall be adopted by stockholders which shall impair or impede the implementation of the foregoing.

ARTICLE III

Committees of the Board

Section 3.1. Designation, Power, Alternate Members and Term of Office . The Board of Directors may, by resolution passed by a majority of the whole Board of Directors, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Any such committee, to the extent provided in such resolution and permitted by law, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation or a facsimile thereof to be affixed to or reproduced on all such papers as said committee shall designate. The Board of Directors may designate one or more directors as alternate members of any committee who, in the order specified by the Board of Directors, may replace any absent or disqualified member at any meeting of such committee. If at a meeting of any committee one or more of the members thereof should be absent or disqualified, and if either the Board of Directors has not so designated any alternate member or members, or the number of absent or disqualified members exceeds the number of alternate members who are present at such meeting, then the member or members of such committee (including alternates) present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another director to act at such meeting in the place of any such absent or disqualified member. The term of office of the members of each committee shall be as fixed from time to time by the Board of Directors, subject to these Bylaws; provided , however , that any committee member who ceases to be a member of the Board of Directors shall ipso facto cease to be a committee member. Each committee shall appoint a secretary, who may be a Director or an officer of the Corporation.

Section 3.2. Executive Committee . If an Executive Committee is designated by the Board of Directors in accordance with the provisions of Section 3.1 hereof, the Executive Committee shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but the Executive Committee shall not have power or authority in reference to amending the Amended and Restated Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation’s property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, amending the Bylaws of the Corporation, declaring a dividend or authorizing the issuance of stock. The provisions of Article III of these Bylaws shall apply to the Executive Committee.

Section 3.3. Meetings, Notices and Records . Each committee may provide for the holding of regular meetings, with or without notice, and may fix the times and places at which such meetings shall be held. Special meetings of each committee shall be held upon call by or at the direction of its chairman or, if there be no chairman, by or at the direction of any one of its members. Except as otherwise provided by law, notice of each special meeting of a committee shall be mailed to each member of such committee, addressed to such member at such member’s residence or usual place of business, at least two days before the day on which the meeting is to be held, or shall be sent to him at such place by telex, facsimile transmission, telegram, radio or cable, or telephoned or delivered to such member personally, not later than the day before the day on which the meeting is to be held. Such notice shall state the time and place of such meeting, but need not state the purposes thereof, unless otherwise required by law, the Amended and Restated Certificate of Incorporation of the Corporation or these Bylaws.

Notice of any meeting of a committee need not be given to any member thereof who shall attend such meeting in person or who shall waive notice thereof, before or after such meeting, in a signed writing. Each committee shall keep a record of its proceedings.

Section 3.4. Quorum and Manner of Acting . At each meeting of any committee the presence of a majority of its members then in office shall be necessary and sufficient to constitute a quorum for the transaction of business, except that when a committee consists of one member, then the one member shall constitute a quorum. In the absence of a quorum, a majority of the members present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present and the meeting may be held as so adjourned without further notice or waiver. The act of a majority of the members present at any meeting at which a quorum is present shall be the act of such committee. Subject to the foregoing and other provisions of these Bylaws and except as otherwise determined by the Board of Directors, each committee may make rules for the conduct of its business.

Section 3.5. Resignations . Any member of a committee may resign at any time by giving written notice of such resignation to the Board of Directors. Unless otherwise specified in such notice, such resignation shall take effect upon receipt thereof by the Board of Directors or any such officer, and the acceptance of such resignation shall not be necessary to make it effective.

Section 3.6. Removal . Any member of any committee may be removed at any time with or without cause by the Board of Directors.

Section 3.7. Vacancies . If any vacancy shall occur in any committee by reason of death, resignation, disqualification, removal or otherwise, the remaining member or members of such committee, so long as a quorum is present, may continue to act until such vacancy is filled by the Board of Directors.

Section 3.8. Compensation . Committee members shall receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any committee member from serving the Corporation in any other capacity and receiving compensation therefor.

ARTICLE IV

Officers

Section 4.1. Officers . The Corporation shall have such officers as are appointed from time to time by the Board of Directors.

Section 4.2. Election, Term of Office and Qualifications . Each officer (except such officers as may be appointed in accordance with the provisions of Section 4.3) shall be elected by the Board of Directors. Each such officer shall hold such office until such officer’s successor shall have been elected and shall qualify, or until such officer’s death, or until such officer shall have resigned in the manner provided in Section 4.4 or shall have been removed in the manner provided in Section 4.5.

Section 4.3. Subordinate Officers and Agents . The Board of Directors may delegate to any officer or agent the power to appoint any subordinate officers or agents and to prescribe their respective terms of office, authorities and duties.

Section 4.4. Resignations . Any officer may resign at any time by giving written notice of such resignation to the Board of Directors. Unless otherwise specified in such written notice, such resignation shall take effect upon receipt thereof by the Board of Directors, and the acceptance of such resignation shall not be necessary to make it effective.

Section 4.5. Removal . Any officer may be removed with or without cause at any meeting of the Board of Directors by affirmative vote of a majority of the directors then in office. Any officer or agent appointed in accordance with the provisions of Section 4.3 may be removed with or without cause at any meeting of the Board of Directors by affirmative vote of a majority of the directors present at such meeting, or at any time by any superior officer or agent upon whom such power of removal shall have been conferred by the Board of Directors.

Section 4.6. Vacancies . A vacancy in any office by reason of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed by these Bylaws for regular election or appointment to such office.

Section 4.7. General Duties of Officers . Each officer shall perform those duties and have such powers as from time to time may be assigned to him by the Board of Directors.

Section 4.8. Salaries . The salaries of the officers of the Corporation shall be fixed from time to time by the Board of Directors, except that the Board of Directors may delegate to any person the power to fix the salaries or other compensation of any officers or agents appointed in accordance with the provisions of Section 4.3. No officer shall be prevented from receiving such salary by reason of the fact that such officer is also a director of the Corporation.

ARTICLE V

Execution of Instruments and Deposit of Corporate Funds

Section 5.1. Execution of Instruments Generally . The Board of Directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation, and such authorization may be general or confined to specific instances.

Section 5.2. Borrowing . No loans or advance shall be obtained or contracted for, by or on behalf of the Corporation and no negotiable paper shall be issued in its name, unless and except as authorized by the Board of Directors. Such authorization may be general or confined to specific instances. Any officer or agent of the Corporation thereunto so authorized may obtain loans and advances for the Corporation, and for such loans and advances may make, execute and deliver promissory notes, bonds, or other evidences of indebtedness of the Corporation. Any officer or agent of the Corporation thereunto so authorized may pledge, hypothecate or transfer as security for the payment of any and all loans, advances, indebtedness and liabilities of the Corporation, any and all stocks, bonds, other securities and other personal property at any time held by the Corporation, and to that end may endorse, assign and deliver the same and do every act and thing necessary or proper in connection therewith.

Section 5.3. Deposits . All funds of the Corporation not otherwise employed shall be deposited from time to time to its credit in such banks or trust companies or with such bankers or other depositaries as the Board of Directors may select, or as may be selected by any officer or officers or agent or agents authorized so to do by the Board of Directors. Endorsements for deposit to the credit of the Corporation in any of its duly authorized depositaries shall be made in such manner as the Board of Directors from time to time may determine.

Section 5.4. Checks, Drafts, etc . All checks, drafts or other orders for the payment of money, and all notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers or agent or agents of the Corporation, and in such manner, as from time to time shall be determined by the Board of Directors.

Section 5.5. Proxies . Proxies to vote with respect to shares of stock of other corporations owned by or standing in the name of the Corporation may be executed and delivered from time to time on behalf of the Corporation by the President or by any other person or persons thereunto authorized by the Board of Directors.

Section 5.6. Other Contracts and Instruments . All other contracts and instruments binding the Corporation shall be executed in the name and on the behalf of the Corporation by those officers, employees or agents of the Corporation as may be authorized by the board of Directors. That authorization may be general or confirmed to specific instances.

ARTICLE VI

Record Dates

Section 6.1 In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall be not more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. Only those stockholders of record on the date so fixed shall be entitled to any of the foregoing rights, notwithstanding the transfer of any such stock on the books of the Corporation after any such record date fixed by the Board of Directors.

ARTICLE VII

Corporate Seal

Section 7.1 The corporate seal shall be circular in form and shall bear the name of the Corporation and words and figures denoting its organization under the laws of the State of Delaware and the year thereof and otherwise shall be in such form as shall be approved from time to time by the Board of Directors.

ARTICLE VIII

Fiscal Year

Section 8.1 The fiscal year of the Corporation shall be the calendar year.

ARTICLE IX

Amendments

Section 9.1 All Bylaws of the Corporation may be amended or repealed, and new Bylaws may be made, by an affirmative majority of the votes cast at any annual or special stockholders’ meeting by holders of outstanding shares of stock of the Corporation entitled to vote, or by an affirmative vote of a majority of the directors present at any organizational, regular, or special meeting of the Board of Directors.

ARTICLE X

Action Without A Meeting

Section 10.1 Any action which might have been taken under these Bylaws by a vote of the stockholders at a meeting thereof may be taken without a meeting, without prior notice and without a vote, if a consent in writing setting forth the action so taken, shall be individually signed and dated by the holders of outstanding shares of stock of the Corporation having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted, provided that no written consent will be effective unless the necessary number of written consents is delivered to the Corporation within sixty days of the earliest delivered consent to the Corporation, and provided further that prompt notice shall be given to those stockholders who have not so consented if less than unanimous written consent is obtained. Any action which might have been taken under these Bylaws by vote of the directors at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all the members of the Board of Directors or such committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of the Board of Directors or such committee.

ARTICLE XI

Indemnification

Section 11.1 The corporation shall indemnify its directors and officers to the fullest extent not prohibited by the DGCL or any other applicable law; provided, however, that the corporation may modify the extent of such indemnification by individual contracts with its directors and officers; and, provided, further, that the corporation shall not be required to indemnify any director or officer in connection with any proceeding (or part thereof) initiated by such person unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the corporation, (iii) such indemnification is provided by the corporation, in its sole discretion, pursuant to the powers vested in the corporation under the DGCL or any other applicable law or (iv) such indemnification is required to be made under Section 11.5.

Section 11.2 The corporation shall advance to any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, prior to the final disposition of the proceeding, promptly following request therefor, all expenses incurred by any director or officer in connection with such proceeding provided, however, that if the DGCL requires, an advancement of expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the corporation of an undertaking (hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled to be indemnified for such expenses under this Article XI or otherwise.

Section 11.3 Notwithstanding the foregoing, unless otherwise determined pursuant to Section 11.5 of this Article XI, no advance shall be made by the corporation to an officer of the corporation (except by reason of the fact that such officer is or was a director of the corporation in which event this paragraph shall not apply) in any action, suit or proceeding, whether civil, criminal, administrative or investigative, if a determination is reasonably and promptly made (i) by a majority vote of directors who were not parties to the proceeding, even if not a quorum, or (ii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (iii) if there are no such directors, or such directors so direct, by independent legal counsel in a written opinion, that the facts known to the decision-making party at the time such determination is made demonstrate clearly and convincingly that such person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the corporation.

Section 11.4 Without the necessity of entering into an express contract, all rights to indemnification and advances to directors and officers under this Bylaw shall be deemed to be contractual rights and be effective to the same extent and as if provided for in a contract between the corporation and the director or officer. Any right to indemnification or advances granted by this Article XI to a director or officer shall be enforceable by or on behalf of the person holding such right in any court of competent jurisdiction if (i) the claim for indemnification or advances is denied, in whole or in part, or (ii) no disposition of such claim is made within sixty (60) days of request therefor. The claimant in such enforcement action, if successful in whole or in part, shall be entitled to be paid also the expense of prosecuting the claim. In connection with any claim for indemnification, the corporation shall be entitled to raise as a defense to any such action that the claimant has not met the standards of conduct that make it permissible under the DGCL or any other applicable law for the corporation to indemnify the claimant for the amount claimed. Neither the failure of the corporation (including its Board of Directors, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct set forth in the DGCL or any other applicable law, nor an actual determination by the corporation (including its Board of Directors, independent legal counsel or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that claimant has not met the applicable standard of conduct.

Section 11.5 The rights conferred on any person by this Bylaw shall not be exclusive of any other right which such person may have or hereafter acquire under any applicable statute, provision of the Amended and Restated Certificate of Incorporation, Bylaws, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding office. The corporation is specifically authorized to enter into individual contracts with any or all of its directors, officers, employees or agents respecting indemnification and advances, to the fullest extent not prohibited by the DGCL, or by any other applicable law.

Section 11.6 The rights conferred on any person by this Bylaw shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person.

Section 11.7 To the fullest extent permitted by the DGCL or any other applicable law, the corporation, upon approval by the Board of Directors, may purchase insurance on behalf of any person required or permitted to be indemnified pursuant to this Article XI.

Section 11.8 Any repeal or modification of this Article XI shall only be prospective and shall not affect the rights under this Bylaw in effect at the time of the alleged occurrence of any action or omission to act that is the cause of any proceeding against any agent of the corporation.

Section 11.9 If this Bylaw or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify each director and officer to the full extent not prohibited by any applicable portion of this Article XI that shall not have been invalidated, or by any other applicable law. If this Article XI shall be invalid due to the application of the indemnification provisions of another jurisdiction, then the corporation shall indemnify each director and officer to the full extent under any other applicable law.

Section 11.10 For the purposes of this Bylaw, the following definitions shall apply:

(1) The term “proceeding” shall be broadly construed and shall include, without limitation, the investigation, preparation, prosecution, defense, settlement, arbitration and appeal of, and the giving of testimony in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative.

(2) The term “expenses” shall be broadly construed and shall include, without limitation, court costs, attorneys’ fees, witness fees, fines, amounts paid in settlement or judgment and any other costs and expenses of any nature or kind incurred in connection with any proceeding.

(3) The term the “corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article XI with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued.

(4) References to a “director,” “executive officer,” “officer,” “employee,” or “agent” of the corporation shall include, without limitation, situations where such person is serving at the request of the corporation as, respectively, a director, executive officer, officer, employee, trustee or agent of another corporation, partnership, joint venture, trust or other enterprise.

(5) References to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the corporation” shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the corporation” as referred to in this Article XI.

Exhibit 10.1

EXECUTION COPY

FIRST SUPPLEMENTAL INDENTURE

FIRST SUPPLEMENTAL INDENTURE, dated as of June 17, 2011, between GSI Commerce, Inc., a Delaware corporation (hereinafter called the “ Company ”), having its principal office at 935 First Avenue, King of Prussia, Pennsylvania 19406, and The Bank of New York Mellon, as trustee hereunder (hereinafter called the “ Trustee ”).

W I T N E S S E T H

WHEREAS, the Company heretofore executed and delivered to the Trustee an Indenture dated as of July 2, 2007 (as may be supplemented or amended from time to time by one or more indentures supplemental thereto entered into pursuant to the applicable provisions thereof, being hereinafter called the “ Indenture ”; all capitalized terms used herein which are not otherwise defined herein have the meanings ascribed thereto in the Indenture), providing for the issuance of the Company’s 2.50% Convertible Senior Notes due 2027 (hereinafter called the “ Notes ”); and

WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated as of March 27, 2011, Gibraltar Acquisition Corp., a wholly-owned subsidiary of eBay Inc., merged with and into the Company (the “ Merger ”) and, as such, the Company is now a wholly owned subsidiary of eBay Inc.; and

WHEREAS, pursuant to the terms and conditions of the Merger, all Common Stock of the Company was converted into the right to receive $29.25 per share (the “ Merger Consideration ”); and

WHEREAS, the Merger constitutes a “Merger Event” as defined in Section 15.10 of the Indenture; and

WHEREAS, on June 10, 2011, a Memorandum of Understanding (the “ Memorandum of Understanding ”) was filed with the State of Delaware in the matter captioned In Re GSI Commerce Inc. Shareholder Litigation (the “ Shareholder Litigation ”) which provided for a settlement of the Shareholder Litigation and for the payment by eBay Inc. of $0.33 per share (the “ Settlement Payment ”) to Company shareholders.

WHEREAS, Section 15.10(b) of the Indenture provides that at the effective time of a Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed to a right to convert such Notes to the kind and amount of cash, securities or other property or assets that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to the Merger Event would have been entitled to receive (defined as the “ Reference Property ”); and

WHEREAS, the Conversion Rate in effect immediately prior to the Merger Event was 33.3333 per $1,000 principal amount of Notes; and

WHEREAS, pursuant to the Merger Event, 33.3333 shares of Common Stock would be entitled to receive cash in the amount of the product of (i) 33.3333 and (ii) $29.25 , or an aggregate of $974.9990; and

WHEREAS, pursuant to the Memorandum of Understanding, upon the Merger Event, 33.3333 shares of Common Stock would be entitled to receive cash in the amount of the product of (i) 33.3333 and (ii) $0.33, or an aggregate of $11.00; and

WHEREAS, Section 11.01(6) of the Indenture provides that the Company and the Trustee may amend certain provisions of the Indenture; and

WHEREAS, the Company desires to amend the Indenture as set forth in Article I hereof; and

WHEREAS, all things necessary to make this First Supplemental Indenture a valid agreement of the Company, in accordance with its terms, have been done;

NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH, that, for and in consideration of the premises, the Company agrees with the Trustee as follows:

ARTICLE I

AMENDMENTS

Section 1.01 Effect . The amendments set forth in this Article I shall apply only in respect of the Notes created pursuant to the Indenture.

Section 1.02 Conversion of Notes . In accordance with Section 15.10 of the Indenture, as of the date hereof, if a Holder exercises its right to convert its Notes in accordance with the provisions of the Indenture (other than a conversion “in connection with” the Make-Whole Fundamental Change that occurs from the date hereof until the Fundamental Change Repurchase Date relating to the Merger), the Company will pay to such Holder, in full satisfaction of the Company’s obligations with respect to such conversion, cash in an amount, for each $1,000 in principal amount of the Notes to be converted, equal to $986.00. Upon a conversion “in connection with” the Make-Whole Fundamental Change that occurs from the date hereof until the Fundamental Change Repurchase Date relating to the Merger, the Company will pay to such Holder, in full satisfaction of the Company’s obligations with respect to such conversion, cash in an amount, for each $1,000 in principal amount of the Notes to be converted, equal to $1,135.38.

ARTICLE II

MISCELLANEOUS PROVISIONS; GOVERNING LAW; ACCEPTANCE BY TRUSTEE

Section 2.01 Instruments to be Read Together . This First Supplemental Indenture is an indenture supplemental to and in implementation of the Indenture and the Officer’s Certificate, and said Indenture, the Officer’s Certificate and this First Supplemental Indenture shall henceforth be read together.

Section 2.02 Confirmation . The Indenture as amended and supplemented by this First Supplemental Indenture is in all respects confirmed and preserved.

Section 2.03 Counterparts . This First Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.

Section 2.04 Effectiveness . The provisions of this First Supplemental Indenture will take effect immediately upon its execution and delivery by the Trustee in accordance with the provisions of Section 11.04 of the Indenture, provided that the amendments set forth in this First Supplemental Indenture shall apply only in respect of the Notes.

Section 2.05 Construction of First Supplemental Indenture . THIS FIRST SUPPLEMENTAL INDENTURE AND EACH NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAW).

Section 2.06 Trust Indenture Act Controls . If any provision of this First Supplemental Indenture or the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Section 2.07 Acceptance by Trustee . The Trustee accepts the amendments of the Indenture and this First Supplemental Indenture and agrees to execute the trusts created by the Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture. The Trustee assumes no responsibility for the correctness of the recitals contained herein, which shall be taken as the statements of the Company. The Trustee makes no representation and shall have no responsibility as to the validity of this First Supplemental Indenture or the proper authorization or the due execution hereof by the Company.

[Signature Page Follows.]

IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of the day and year first above written.


	GSI COMMERCE, INC.
	By	/s/ Scott Rosenberg
	Name:	Scott Rosenberg
	Title:	Chief Financial Officer

Trustee:


	THE BANK OF NEW YORK MELLON, as trustee
	By	/s/ Francine Kincaid
	Name:	Francine Kincaid
	Title:	Vice President

[ Signature Page to the First Supplemental Indenture ]

EXHIBIT 10.2

GSI Commerce, Inc.
2010 Equity Incentive Plan
Performance Award Agreement


PARTICIPANT:		Christopher Saridakis

GRANT DATE:		June 16, 2011

MAXIMUM PERFORMANCE AWARD:		$30 million

PERFORMANCE PERIODS:		Four consecutive annual Performance Periods, beginning with the 2012 calendar year and ending with the 2015 calendar year

THIS AGREEMENT, effective as of the Grant Date set forth above, is between GSI Commerce, Inc., a Delaware corporation (the “Company”, “we”, “our” or “us”), and the Participant named above (“you” or “yours”), pursuant to the provisions of the Company’s 2010 Equity Incentive Plan (the “Plan”) with respect to the award (the “Award”) specified above. Capitalized terms used and not defined in this Performance Award Agreement (this “Agreement”) shall have the meanings given to them in the Plan.

By accepting this Agreement, you irrevocably agree, on your own behalf and on behalf of your heirs and any other person claiming rights under this Agreement, to all of the terms and conditions of the Award as set forth in or pursuant to this Agreement and the Plan (as such may be amended from time to time).

You and the Company agree that the Award is being granted in full satisfaction of the Company’s obligations to you pursuant to Section 3.5 of the Employment Agreement between you and the Company, dated March 23, 2010 (the “Employment Agreement”); provided that the performance period and performance conditions are modified herein to reflect the acquisition of the Company by eBay Inc., a Delaware corporation (“eBay”), pursuant to the merger of Gibralter Acquisition Corp, a Delaware corporation and a wholly owned subsidiary of eBay (“Merger Sub”), with and into the Company (the “Merger”), pursuant to the terms of the Agreement and Plan of Merger among eBay, Merger Sub and the Company, dated as of March 27, 2011 (the “Merger Agreement”).

You and the Company agree as follows:


1.		Application of Plan; Administration		This Agreement and your rights under this Agreement are subject to all the terms and conditions of the Plan, as it may be amended from time to time, as well as to such rules and regulations as the Compensation Committee of the Board of Directors of the Company (the “Board”) may adopt. It is expressly understood that the Compensation Committee of the Board is authorized to administer, construe and make all determinations necessary or appropriate to the administration of the Plan and this Agreement, all of which shall be binding upon you to the extent permitted by the Plan.


2.	Performance Goal and Award Amount	The Award shall be earned over four separate annual Performance Periods (each a “Performance Period”), beginning with the 2012 calendar year and ending with the 2015 calendar year. The amount of the Award (the “Award Amount”) payable to you hereunder with respect to each Performance Period shall be equal to $7,500,000 multiplied by the total number of EBITDA Thresholds, defined below, that are attained by the Business Unit, defined below, during such Performance Period. An EBITDA Threshold is attained if the EBITDA of the Business Unit during a Performance Period equals or exceeds any of the following amounts (the “EBITDA Thresholds”):

		$300,000,000;

		$375,000,000;

		$425,000,000; and

		$475,000,000.

		For purposes of this Agreement:

		“Business Unit” shall mean the business of the Company and its majority-owned subsidiaries or, following the consummation of the Merger, the business unit of eBay that includes the business conducted by the Company and its majority-owned subsidiaries as of the Grant Date, excluding the businesses conducted by Fanatics, LLC, TeamStore, Inc., RueLaLa, Inc., and ShopRunner, Inc. or any of their subsidiaries.

		“EBITDA” shall mean, following the consummation of the Merger, eBay’s non-GAAP Business Unit Operating Income, adjusted (i) to exclude expenses for interest, taxes, depreciation, amortization and the deferred acquisition payments recorded as compensation expense related to the acquisition of Fetchback, Inc., and (ii) to include reasonable estimates of (A) annual expenses for stock-based compensation granted to you, (B) annual expenses for long-term incentive compensation granted to you and other employees of the Business Unit, to the extent not otherwise included, and (C) patent litigation expenses allocable to the Performance Period (which shall be estimated by the Chief Financial Officer, in consultation with the General Counsel, of the Company or, following the consummation of the Merger, of eBay, in a manner consistent with the Company’s past practice). If the Merger Agreement shall terminate prior to the consummation of the Merger, “EBITDA” shall mean earnings before interest, taxes, depreciation and amortization, as determined by the Company in its reasonable discretion and in accordance with past practice.

		Whether an EBITDA Threshold is attained during a Performance Period shall be determined as of the last day of such Performance Period and shall be based on the EBITDA for such Performance Period as certified by the Compensation Committee of the Board. More than one EBITDA Threshold may be attained in any one Performance Period; provided that the attainment of an EBITDA Threshold in any Performance Period shall not be considered to have been attained again in any subsequent Performance Period for purposes of determining the Award Amount in such subsequent Performance Period. If an EBITDA Threshold is attained, then the corresponding portion of the Award Amount is considered earned, regardless of the Business Unit’s performance in a subsequent Performance Period, subject to the vesting conditions described in Section 3 of this Agreement. The maximum Award Amount under this Agreement with respect to all Performance Periods shall be $30,000,000 ( i.e., $7,500,000 multiplied by each of the four EBITDA Thresholds attained).


		The Compensation Committee of the Board may take reasonable action to adjust either the EBITDA Thresholds or the manner in which EBITDA is determined with respect to any current or future Performance Period to reflect one or more of the following: (i) items related to a change in accounting principles; (ii) items relating to financing activities; (iii) expenses for restructuring or productivity initiatives; (iv) other non-operating items; (v) items related to acquisitions; (vi) items attributable to the business operations of any entity acquired by the Company; (vii) items related to the disposal of a business or segment of a business; (viii) items related to discontinued operations that do not qualify as a segment of a business under GAAP; (ix) items attributable to any stock dividend, stock split, combination or exchange of shares; (x) any other items of significant income or expense which are determined to be appropriate adjustments; (xi) items relating to unusual or extraordinary corporate transactions, events or developments, (xii) items related to amortization of acquired intangible assets; (xiii) items that are outside the scope of the Company’s core, on-going Business Unit activities; (xiv) items relating to any other unusual or nonrecurring events or changes in applicable laws, accounting principles or business conditions; or (xv) items relating to any change in the payment or allocation of general and administrative expenses among the business units of the Company and its Affiliates. If such adjustment occurs later than 90 days after the commencement of a Performance Period, such adjustment shall apply to such Performance Period only to the extent that the adjustment is necessary to reflect objectively determinable changes in the EBITDA of the Business Unit, as reflected in the financial statements of the Company, and shall be made in compliance with Section 162(m) of the Internal Revenue Code of 1986, as amended (the “Code”).

3.	Award Vesting	No Award Amount will be payable to you hereunder unless the Award is vested. The Award will vest in the following circumstances:

		(a) Employment Continues Through First Business Day After January 1, 2016 . The Award will vest if you are continuously employed by the Company through the first business day after January 1, 2016. All references in this Agreement to employment by the Company shall include employment by any parent or subsidiary of the Company.

		(b) Termination of Employment Due to Death. The Award will vest if your employment terminates due to your death on or before the first business day after January 1, 2016. Upon such a termination of your employment, the Award Amount will be based on the EBITDA Thresholds attained through the last day of the Performance Period ending on or prior to your termination of employment.


		(c) Termination of Employment by the Company without Cause . The Award will vest if your employment is terminated by the Company without Cause on or before the first business day after January 1, 2016. “Cause” will exist if the Board (or an appropriate committee thereof) in good faith determines that (i) you are grossly negligent or engaged in willful misconduct in the performance of your duties, (ii) you are convicted of, or enter a plea of guilty or nolo contendere to, a crime constituting a felony or any criminal offense involving fraud, dishonesty or moral turpitude under the laws of the United States or any state thereof other than an automobile offense, or (iii) you breach, in a material respect, any written material agreement between you and the Company or violate, in a material respect, the Company’s Code of Business Conduct or any of the Company’s material policy statements. Notwithstanding the foregoing, Cause shall only exist after (a) the Company delivers written notice to you of its intention to terminate for Cause within thirty (30) days after the Company has actual knowledge of the facts and circumstances upon which it seeks to rely as a basis for its right to terminate for Cause, (b) such notice sets forth in reasonable detail such facts and circumstances and (c) in the case of clauses (i) or (iii), you have failed to correct the acts, omissions or events set forth in the Company’s notice, if such acts, omissions or events are reasonably capable of being corrected, within thirty (30) days following delivery of the Company’s written notice of its intention to terminate for Cause. Upon a termination of your employment by the Company without Cause, the Award Amount will be based on the EBITDA Thresholds attained through the last day of the Performance Period ending on or prior to your termination of employment.

		In the event that your employment with the Company terminates on or before the first business day after January 1, 2016 for any reason other than your death or a termination by the Company without Cause, the Award will not vest and no Award Amount will be payable to you hereunder.

4.	Settlement of Vested Performance Award	The Award will be settled after the completion of the applicable Performance Periods and the satisfaction of the applicable vesting conditions set forth in Section 3 by the payment of the Award Amount to you or, in the event of your death, to your designated beneficiary. If you are continuously employed through the first business day after January 1, 2016, such payment will be made in two equal installments. The first installment shall be paid prior to March 15, 2016, and the second installment payment shall be paid on the first anniversary of the first installment, but in all events prior to March 15, 2017. If your employment is terminated on or prior to the first business day after January 1, 2016 due to your death or a termination by the Company without Cause, such payment shall be made in one installment prior to March 15 ^th of the year following your termination of employment or death.

		The Award may be settled by the delivery of (i) cash, (ii) shares of Common Stock (“Shares”) or (iii) any combination thereof as determined in the sole discretion of the Compensation Committee of the Board. To the extent all or a portion of the Award is settled in Shares, the number of Shares delivered to you shall be equal to the cash equivalent value of the portion of the Award that is payable in Shares, divided by the average closing price of a Share as reported on the NASDAQ Global Select Market for the period of 30 consecutive trading days ending on (and including) the last trading day prior to the date the Award becomes vested, and rounding down to the nearest whole number of Shares.


		Notwithstanding any other provision of this Agreement or the Plan to the contrary, the parties acknowledge (x) that time is of the essence with respect to the issuance or delivery of any cash or Shares pursuant to this Agreement and (y) that the Company will not be obligated to issue or deliver any cash or Shares pursuant to this Agreement (i) until all conditions to this Agreement have been satisfied or removed, (ii) if the outstanding Common Stock is at the time listed on any stock exchange or included for quotation on an inter-dealer system, until the Shares have been listed or included or authorized to be listed or included on such exchange or system upon official notice of issuance, (iii) until the issuance or delivery of the Shares would not cause the Company to issue or sell more shares of Common Stock than the Company is then legally entitled to issue or sell, and (iv) until all other legal matters in connection with the issuance and delivery of such Shares have been approved by internal legal counsel to the Company.

		You hereby authorize any brokerage service provider acceptable to the Company to open a securities account for you to be used for the settlement of the Award settled in Shares. The date on which Shares are issued may include a delay in order to provide the Company such time as it determines appropriate to address tax withholding and other administrative matters.

5.	Rights as Stockholder	Except as otherwise provided in this Agreement, you will not be entitled to any privileges of ownership of the Shares underlying the Award, if any, including voting, receipt of dividends or any other rights as a stockholder of the Company, unless and until Shares are actually delivered to you under this Agreement.

6.	Transferability	Except as provided in Section 9(k) hereof, your right to receive payment under this Agreement is not transferable, whether voluntarily or involuntarily, by operation of law or otherwise, other than by will or the laws of descent and distribution. Any voluntary or involuntary assignment, pledge, transfer, or other disposition of, or any attachment, execution, garnishment, or lien issued against or placed upon your right to receive payments under this Agreement, in violation of the terms of this Agreement shall be void. Notwithstanding the foregoing, by delivering written notice to the Company, in a form satisfactory to the Company, you may designate a third party who, in the event of your death, will thereafter be entitled to receive any distribution of cash or Shares pursuant to this Agreement.

7.	Taxes	(a) General . You are ultimately liable and responsible for all taxes owed by you in connection with the Award. The Company makes no representation or undertaking regarding the treatment of any tax withholding in connection with the grant, issuance, vesting or settlement of the Award, and the subsequent sale of any of the Shares underlying the Award. The Company does not commit and is under no obligation to structure this Agreement to reduce or eliminate your tax liability.


		(b) Withholding . On or before the date upon which the Award is settled and any other date upon which tax withholding obligations of the Company may arise, or at any time thereafter as requested by the Company, you hereby authorize withholding from, at the Company’s election, Shares, payroll and any other amounts payable to you and you otherwise agree to make adequate provision for, as determined by the Company, any sums required to satisfy the Federal, state, local and foreign tax withholding obligations of the Company or an Affiliate, if any, which arise in connection with any of the above events or otherwise. Unless the tax withholding obligations of the Company or any Affiliate are satisfied, the Company will have no obligation to make any payments under this Agreement.

8.	Clawback	In the event that the Board (or an appropriate committee thereof) determines in good faith that the earlier determination of the EBITDA of the Business Unit was based on materially incorrect data, and that in fact such EBITDA had not been achieved or had been achieved to a lesser extent than originally determined and any amount paid (or portion thereof) under this Agreement would not have been paid, given the correct data, then in each such instance, you shall, at the request of the Board (or appropriate committee thereof), return or forfeit, as applicable, all or a portion (but no more than one-hundred percent (100%) of such payment to you based on such incorrect data. The amount to be recovered from you shall be the amount determined by the Board or appropriate committee thereof, by which the payment to you exceeded the amount that would have been paid to you based on the correct data. However, if you have disposed of Shares issued to you in connection with this Agreement, the cash equivalent value of such Shares on the date the Company calculated the number shares owed shall be paid by you to the Company upon notice from the Company as provided by the Board (or appropriate committee thereof). The right of the Company and/or Board with respect to this right of return and/or recapture from the Participant set out above in this paragraph shall be limited to twelve (12) months from the payment of the Award Amount.

		In the event that the Board (or appropriate committee thereof) determines that you have, prior to payment of the Award Amount, committed an act or omission that would have constituted Cause, the Board (or appropriate committee thereof), whether or not you were terminated because of such act or omission, may require you to return or forfeit, as applicable, any amount paid to you under this Agreement. If you have disposed of Shares issued to you in connection with this Agreement, the cash equivalent value of such Shares on the date the Company calculated the number shares owed shall be paid by you to the Company upon notice from the Company as provided by the Board (or appropriate committee thereof). The right of the Company and/or Board with respect to this right of return and/or recapture from the Participant set out above in this paragraph shall be limited to twelve (12) months from the payment of the Award Amount.


9.	Miscellaneous	(a) YOU ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS AN EMPLOYEE, DIRECTOR, OR CONSULTANT OF THE COMPANY FOR THE VESTING PERIOD, FOR THE PERFORMANCE PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL NOT INTERFERE WITH YOUR RIGHT OR THE COMPANY’S RIGHT TO TERMINATE YOUR RELATIONSHIP (I) AS AN EMPLOYEE AT ANY TIME, FOR ANY REASON OR NO REASON, WITH OR WITHOUT CAUSE; (II) AS A CONSULTANT PURSUANT TO THE TERMS OF THIS AGREEMENT WITH THE COMPANY OR AN AFFILIATE; OR (III) AS A DIRECTOR PURSUANT TO THE BYLAWS OF THE COMPANY AND ANY APPLICABLE PROVISIONS OF THE CORPORATE LAW OF THE STATE OR OTHER JURISDICTION IN WHICH THE COMPANY IS DOMICILED, AS THE CASE MAY BE.

		(b) The Award is unfunded and as a holder of the Award you will be considered an unsecured creditor of the Company with respect to the Company’s obligation, if any, to pay cash or issue Shares pursuant to this Agreement. Upon issuance of Shares, if applicable, you will obtain full voting and other rights as a stockholder of the Company. Nothing contained in this Agreement, and no action taken pursuant to its provisions, will create or be construed to create a trust of any kind or a fiduciary relationship between you and the Company or any other person.

		(c) This Agreement will be subject to all applicable laws, rules, and regulations, and to such approvals by any governmental agencies or stock exchanges as may be required. The Company may impose such restrictions, conditions or limitations as it determines appropriate as to the timing and manner of any resales by you or other subsequent transfers by you of any Shares issued as a result of or under this Agreement, including without limitation (i) restrictions under an insider trading policy, (ii) restrictions that may be necessary in the absence of an effective registration statement under the Securities Act of 1933, as amended, covering the Award and (iii) restrictions as to the use of a specified brokerage firm or other agent for such resales or other transfers. Any sale of Shares issued pursuant to this Agreement must also comply with other applicable laws and regulations governing the sale of such Shares.

		(d) The payments provided under this Agreement are intended to be exempt from Section 409A of the Code as short-term deferrals pursuant to Treasury regulation §1.409A-1(b)(4), and for this purpose each payment shall be considered a separate payment. In the event the terms of this Agreement would subject you to taxes or penalties under Section 409A of the Code (“409A Penalties”), the Company and you shall cooperate diligently to amend the terms of this Agreement to avoid such 409A Penalties, to the extent possible; provided that in no event shall the Company be responsible for any 409A Penalties that arise in connection with any amounts payable under this Agreement. To the extent any amount under this Agreement is payable by reference to your termination of employment, such term shall be deemed to refer to your “separation from service,” within the meaning of Section 409A of the Code. Notwithstanding any other provision in this Agreement, if you are a “specified employee,” as defined in Section 409A of the Code, as of the date of your separation from service, then to the extent the Company determines that, notwithstanding the intent of the Company, an amount payable to you (i) constitutes the payment of nonqualified deferred compensation, within the meaning of Section 409A of the Code, (ii) is payable upon your separation from service and (iii) under the terms of this Agreement would be payable prior to the six-month anniversary of your separation from service, such payment shall be delayed until the earlier to occur of (a) the six-month anniversary of the separation from service and (b) the date of your death.


				(e) The interpretation, performance and enforcement of this Agreement will be governed by the law of the state of Delaware without regard to such state’s conflicts of laws rules.

				(f) Any question concerning the interpretation of this Agreement or the Plan, any adjustments required to be made under the Plan and any controversy that may arise under the Plan or this Agreement shall be determined by the Compensation Committee of the Board (including any person(s) to whom the Board has delegated its authority) in its sole and absolute discretion. Such decision by the Compensation Committee shall be final and binding.

				(g) This Agreement and the Plan represent the entire agreement between the parties with respect to the Award, and supersede and preempt any prior understandings, agreements or representations by or between the parties, written or oral, which may have related in any manner to the subject matter of the Award, including without limitation Section 3.5 and Exhibit B of the Employment Agreement. In the event of a conflict between the terms and conditions of the Plan and the terms and conditions of this Agreement, the terms and conditions of the Plan shall prevail.


				(h) If all or any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity will not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid will, if possible, be construed in a manner which will give effect to the terms of such Section or part of such Section to the fullest extent possible while remaining lawful and valid.

				(i) Either party’s failure to enforce any provision of this Agreement shall not in any way be construed as a waiver of any such provision, nor prevent that party from thereafter enforcing any other provision of this Agreement. The rights granted both parties hereunder are cumulative and shall not constitute a waiver of either party’s right to assert any other legal remedy available to it.

				(j) This Agreement may be amended only by a writing executed by you and the Company which specifically states that it is amending this Agreement. Notwithstanding the foregoing and subject to Section 13(e) of the Plan, this Agreement may be amended solely by the Board (or an appropriate committee thereof) by a writing which specifically states that it is amending this Agreement, so long as a copy of such amendment is delivered to you. Without limiting the foregoing, the Board (or an appropriate committee thereof) reserves the right to change, by written notice to you, the provisions of this Agreement in any way it may deem necessary or advisable to carry out the purpose of the grant as a result of any change in applicable laws or regulations or any future law, regulation, ruling or judicial decision, provided that any such change will be applicable only to rights relating to that portion of the Award which is then subject to restrictions as provided herein.


				(k) The rights and obligations of the Company under this Agreement will be transferable by the Company to any one or more persons or entities, and all covenants and agreements hereunder will inure to the benefit of, and be enforceable by the Company’s successors and assigns. Without limiting the foregoing, the Award and this Agreement shall be assumed by eBay upon, and subject to, the consummation of the Merger, following which all references herein to the Board and the Compensation Committee shall mean the Board of Directors and Compensation Committee, respectively, of eBay, and all references to Shares or Common Stock shall mean shares of common stock of eBay; provided that EBITDA shall continue to be determined solely with respect to the Business Unit. You may not assign, transfer or pledge the Award or any right or interest therein or thereunder to anyone other than by will or the laws of descent and distribution except with the prior written consent of the Company. Upon ten (10) days written notice to you with the opportunity to cure, the Company may cancel your rights hereunder if you attempt to assign or transfer them in a manner inconsistent with this Agreement.

				(l) All notices with respect to this Agreement shall be in writing and shall be hand delivered or sent by first class mail or reputable overnight delivery service, expenses prepaid. Notice may also be given by electronic mail or facsimile and shall be effective on the date transmitted if confirmed within 24 hours thereafter by a signed original sent in a manner provided in the preceding sentence. Notices to the Company or the Board (or an appropriate committee thereof) shall be delivered or sent (i) prior to the consummation of the Merger to the Company’s headquarters, 935 First Avenue, King of Prussia, PA 19406, to the attention of its Chief Financial Officer and its General Counsel and (ii) after the consummation of the Merger to eBay’s headquarters, 2065 Hamilton Ave., San Jose, CA 95125, to the attention of its General Counsel. Notices to you shall be sufficient if delivered or sent to your address as it appears in the regular records of the Company or its transfer agent.

				(m) The headings of the Sections in this Agreement are inserted for convenience only and will not be deemed to constitute a part of this Agreement or to affect the meaning of this Agreement.

				(n) You agree upon request to execute any further documents or instruments necessary or desirable in the reasonable determination of the Company to effect the terms of this Agreement.


				(o) You agree to reasonably assist and cooperate with the Company and its affiliates and/or their agents, officers, directors and employees in connection with any disputes, litigation or investigations of any nature brought by, against, or otherwise involving the Company or its affiliates during the period of your employment by the Company and thereafter. The Company agrees it will reimburse expenses incurred by you and pay compensation to you for the two aforementioned periods in the manner as follows: (x) the Company will reimburse you for reasonable out of pocket expenses incurred in connection therewith, in accordance with Company policy during the period in which you are employed by the Company and (y) the Company also agrees it will reimburse you for reasonable out of pocket expenses submitted to the Company and reasonable compensation, as mutually agreed between you and the Company and such agreement by the Company shall not be unreasonably withheld, delayed or conditioned, in connection with the required activities outlined above in this section during the period after termination of your employment with the Company. Notwithstanding anything to the contrary contained herein or in the Company policy, as applicable, (i) any and all compensation payable to you in accordance with this paragraph shall be paid by the Company to you by no later than March 15 following the calendar year in which you rendered services giving rise to the compensation; and (ii) any and all expense incurred by you that are eligible for reimbursement in accordance with this paragraph shall be paid by the Company to you by no later than March 15 following the calendar year in which you incurred the expense, provided that you submit proof to the Company of the expense incurred in accordance with the submittal procedures contained in the Company’s expense reimbursement policy.

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The Company hereby grants this Award to you as of the Grant Date specified above, and by your signature below you acknowledge your agreement to the terms of this Performance Award Agreement.


GSI COMMERCE, INC.

/s/ Michael R. Conn By		June 16, 2011 Date

Michael R. Conn Name

Executive Vice President, Finance and Chief Financial Officer Title

Acknowledged and Accepted by:

/s/ Christopher Saridakis Christopher Saridakis		June 15, 2011 Date

Signature Page to Saridakis Performance Award Agreement

Exhibit 10.3

SEPARATION AGREEMENT

THIS SEPARATION AGREEMENT (this “ Agreement ”), is entered into as of June 17, 2011 by and between GSI Commerce, Inc. (the “ Company ”) and Michael R. Conn (“ you ” or “ your ”).

BACKGROUND

WHEREAS, the Company has entered into an Agreement and Plan of Merger (the “ Merger Agreement ”), dated as of March 27, 2011, by and among the Company, eBay Inc. (“ Parent ”), and Gibraltar Acquisition Corp., a wholly-owned subsidiary of Parent (“ Merger Sub ”), pursuant to which Merger Sub shall be merged with and into the Company with the Company surviving as a wholly-owned subsidiary of Parent (the “ Merger ”);

WHEREAS, immediately following the Effective Time (as defined in the Merger Agreement) of the Merger, you will cease to serve as Executive Vice President, Finance and Chief Financial Officer of the Company and your employment with the Company will be terminated (the “ Termination Date ”); and

WHEREAS, in connection with your termination of employment with the Company, you and the Company desire to evidence the terms of certain agreements that have been reached between you and the Company regarding your employment with the Company and the termination of such employment, and equity and other compensation and payments, on the terms and conditions set forth in this Agreement, subject to your execution and non-revocation of a general release and waiver (the “ Release ”).

NOW, THEREFORE, in consideration of the mutual promises set forth in this Agreement and of other good and valuable consideration the sufficiency of which you acknowledge, and intending to be legally bound hereby, you and the Company agree as follows:

1. Terms of Termination . Effective as of the Termination Date, your employment with the Company will be terminated and you will cease to serve as Executive Vice President, Finance and Chief Financial Officer of the Company.

(a) You will be paid your salary for all time worked for the Company up to and including the Termination Date.

(b) Your eligibility to participate in the Company sponsored health insurance, including medical, dental, vision and prescription drug coverage, as an employee of the Company will end on the last day of the month in which the Termination Date occurs. However, you will be eligible to continue to participate in this insurance, at your own expense, in accordance with a federal law called the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), subject to COBRA’s terms, conditions and restrictions.

(c) Your eligibility to participate in all other Company sponsored group benefits, including group life and accidental death and dismemberment coverage, will end effective on the Termination Date.

(d) Your eligibility to participate in all other Company sponsored benefit plans governed by Employee Retirement Income Security Act (“ERISA”) will end effective on the Termination Date.

2. Separation Payments and Benefits . Subject to your non-revocation of this Agreement and the Release, you and the Company acknowledge and agree to the following:

(a) Pursuant to Section 2.1 of the Change in Control Agreement effective August 8, 2006 by and between you and the Company (the “ Change in Control Agreement ”), you shall be entitled to full vesting of all Equity Awards (as defined in the Change in Control Agreement) upon your termination of employment. Notwithstanding the foregoing, in connection with the Merger the Company agrees to accelerate the vesting of all your Equity Awards immediately prior to the Effective Time of the Merger so that your Equity Awards will be converted into the right to receive merger consideration pursuant to the terms of Section 5.3(a) of the Merger Agreement.

(b) Pursuant to Section 2 of the Transaction Incentive Agreement dated March 29, 2011 by and between you and the Company (the “ Transaction Incentive Agreement ”), you shall be entitled to payment of an Incentive Amount (as defined in the Transaction Incentive Agreement). Pursuant to the terms of the Transaction Incentive Agreement, your aggregate total Incentive Amount of $5,000,000 shall be paid to you in connection with your termination of employment on the Termination Date.

(c) The Company shall pay you on the Termination Date a lump sum in the amount of $174,062.50, which represents accrued and unpaid bonus as of the Effective Time.

(d) The Company shall pay you within 60 days of the Termination Date a lump sum amount for any outstanding travel and expense reimbursements due to you pursuant to the Company’s policy governing such reimbursements.

(e) Except as set forth above, you agree to waive any and all other amounts due to you pursuant to the terms of any other agreement or arrangement notwithstanding Sections 1(a) and (b) of the Release attached as Exhibit A .

3. Entire Agreement, Amendment and Assignment . This Agreement together with the Release to the Company attached as Exhibit A hereto is the sole agreement relating to the subject matter hereof and it supersedes all prior agreements and understandings with respect thereto, including without limitation (i) your Change in Control Agreement, and (ii) your Transaction Incentive Agreement. No modification to any provision of this Agreement will be binding unless in writing and signed by both you and the Company. No waiver of any rights under this Agreement will be effective unless in writing signed by the party to be charged. All of the terms and provisions of this Agreement will be binding upon and inure to the benefit of and be enforceable by the respective heirs, executors, administrators, legal representatives, successors and assigns of the parties hereto, except that the duties and responsibilities of you hereunder are of a personal nature and will not be assignable or delegable in whole or in part.

4. Confidentiality . You agree that you have kept, and will keep, the existence and terms of this Agreement confidential, and will not disclose them to anyone except your attorneys, financial advisors and immediate family members, whom you will advise of this confidentiality provision. No other disclosure will be permitted except: (a) pursuant to an action to enforce the terms of this Agreement, in which case it will be introduced under seal to the court, (b) in response to a request by any governmental or regulatory agency, (c) as may be required by any state or federal law or regulation, or (d) in response to compulsory process of law. The parties further agree that nothing in this Agreement will prohibit or restrict you from providing information to, testifying or otherwise assisting in any investigation or proceeding brought by, any federal, state or local regulatory agency, law enforcement agency, legislative body, or self-regulatory organization.

5. Governing Law . This Agreement will be governed by and interpreted in accordance with laws of the Commonwealth of Pennsylvania without giving effect to any conflict of laws provisions.

6. Notices . All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement will be in writing and will be deemed to have been given when delivered personally to the recipient, 2 business days after the date when sent to the recipient by reputable express overnight courier service (charges prepaid) or 4 business days after the date when mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid. Such notices, demands and other communications will be sent to you and the Company at the addresses set forth below,


		If to you:		Michael Conn
				[Intentionally omitted]

		If to the Company:		GSI Commerce, Inc.
				935 First Avenue
				King of Prussia, PA 19406
				Attention: General Counsel

or to such other address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party.

7. Counterparts . This Agreement will become binding when any one or more counterparts hereof, individually or taken together, will bear the signatures of you and the Company. This Agreement may be executed in two or more counterparts, each of which will be deemed to be an original as against any party whose signature appears thereon, but all of which together will constitute but one and the same instrument.

8. Severability . If any provision of this Agreement or application thereof to anyone or under any circumstances is adjudicated to be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability will not affect any other provision or application of this Agreement which can be given effect without the invalid or unenforceable provision or application and will not invalidate or render unenforceable such provision or application in any other jurisdiction.

9. Application of Section 409A of the Internal Revenue Code . This Agreement shall be interpreted to avoid any penalty sanctions under section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”). If any payment or benefit cannot be provided or made at the time specified herein without incurring sanctions under section 409A of the Code, then such benefit or payment shall be provided in full (to extent not paid in part at earlier date) at the earliest time thereafter when such sanctions will not be imposed.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF , the undersigned, intending to be legally bound, have duly executed this Agreement as of the date first above written.


GSI COMMERCE, INC .
By:	/s/ Paul D. Cataldo
	Name:	Paul D. Cataldo
	Title:	SVP and General Counsel, Legal & Corporate Affairs

Date:	June 17, 2011

AGREED TO AND ACCEPTED BY:
/s/ Michael R. Conn
Michael R. Conn

Date: June 17, 2011

Exhibit A

Release and Waiver of Claims is attached.

RELEASE AND WAIVER OF CLAIMS

In consideration of the benefits and mutual agreements set forth in the Change in Control Agreement dated August 8, 2006 and the Transaction Incentive Agreement dated March 29, 2011 (the “Agreements”), between GSI Commerce, Inc. (the “Company”) and Michael R. Conn (the “Employee”), the Employee, intending to be legally bound, agrees to the following release and waiver (“Release and Waiver”):

1. In exchange for the consideration provided to the Employee by the Agreements that the Employee is not otherwise entitled to receive and the other commitments of the Company in the Agreements, the Employee and his heirs, representatives, agents and attorneys hereby generally and completely release the Company and its directors, officers, employees, shareholders, partners, agents, attorneys, predecessors, successors, parent and subsidiary entities, insurers, affiliates and assigns from any and all claims, liabilities and obligations, both known and unknown, that arise out of or are in any way related to events, acts, conduct or omissions occurring prior to the Employee signing this Release and Waiver. This Release and Waiver includes, but is not limited to: (1) all claims arising out of or in any way related to the Employee’s employment with the Company or the termination of that employment; (2) all claims related to the Employee’s compensation or benefits from the Company, including, but not limited to, salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership interests in the Company; (3) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (4) all tort claims, including, but not limited to, claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (5) all federal, state, and local statutory claims, including, but not limited to, claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990, the federal Age Discrimination in Employment Act of 1967 (as amended) (“ADEA”), the Pennsylvania Human Relations Act, the Pennsylvania Minimum Wage Act, and the Pennsylvania Wage Payment and Collection Law. Notwithstanding the foregoing, this Release and Waiver specifically excludes any and all claims that the Employee may have in regard to (a) any severance or employment obligations of the Company or any of its subsidiaries to the Employee under the Agreements or any other written agreement or arrangement between the Company or any of its subsidiaries and the Employee arising as a result of the Employee’s termination of employment in connection with the closing of the merger contemplated by that certain Agreement and Plan of Merger between the Company, eBay Inc. and Gibraltar Acquisition Corp (the “Merger”), including any bonus plan, benefit plan and other agreement or arrangement, (b) any obligations of the Company or any of its subsidiaries to the Employee arising as a result of the Employee’s termination of employment in connection with the Merger under any written stock option agreement, restricted stock award agreement, restricted stock unit award agreement or other equity award agreement evidencing an option or other equity award granted or awarded by the Company to the Employee, (c) any indemnification obligations of Employer to the Employee as a former director (and in the case of Intershop Communications, AG, a current director), officer and/or employee of the Company or any of its subsidiaries pursuant to the Company’s or any of its subsidiaries’ certificate of incorporation or bylaws or any indemnification or other written agreement, and (d) any rights the Employee may have under any directors and officers liability insurance policy of the Company.

The Employee also acknowledges that he has read and understands 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.” The Employee hereby expressly waives and relinquishes all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to any claims he may have against the Company.

The Employee acknowledges that, among other rights, he is waiving and releasing any rights he may have under ADEA, that this Release and Waiver is knowing and voluntary, and that the consideration given for this Release and Waiver is in addition to anything of value to which he was already entitled as an employee of the Company. The Employee further acknowledges that he has been advised, as required by the Older Workers Benefit Protection Act, that: (a) the release and waiver granted herein does not relate to claims under the ADEA which may arise after this Release and Waiver is executed; (b) he should consult with an attorney prior to executing this Release and Waiver; (c) he has twenty-one (21) days in which to consider this Release and Waiver (although he may choose voluntarily to execute this Release and Waiver earlier); (d) he has seven (7) days following the execution of this Release and Waiver to revoke his consent to this Release and Waiver; and (e) this Release and Waiver shall not be effective until the eighth day after he executes this Release and Waiver and the revocation period has expired.

Notwithstanding the seven (7) day revocation period set forth above, the Company shall pay all amounts described in Sections 2(a), (b) and (c) of the Separation Agreement between the Company and the Employee, dated June 17, 2011 (the “Separation Agreement”), on the Termination Date (as defined in the Separation Agreement) or on the next payroll date immediately following the Termination Date (which the parties acknowledge is prior to the date on which this Release and Waiver will become effective and enforceable), and if the Employee revokes this Release and Waiver prior to the date on which this Release and Waiver becomes effective and enforceable, the Employee will be obligated to immediately return the amounts received pursuant to Sections 2(a), (b) and (c) of the Separation Agreement and the Employee further agrees that in the event the Employee fails to immediately repay such amounts, the Company shall be permitted to offset any amount due to it pursuant to Sections 2(a), (b) and (c) of the Separation Agreement against other amounts owed to the Employee by the Company.

2. This Release and Waiver, including any referenced documents, constitute the complete, final and exclusive embodiment of the entire agreement between the Company and the Employee with regard to the subject matter hereof. The Employee is not relying on any promise or representation by the Company that is not expressly stated herein. This Release and Waiver may only be modified by a writing signed by both the Employee and a duly authorized member of the Board of Directors of the Company.


Date:	By:
		Michael R. Conn

[ Signature Page to Release and Waiver of Claims ]