Formof Earn Out Settlement Agreement

Exhibit 10.1 FORM OF EARN OUT SETTLEMENT AGREEMENT THIS EARN OUT SETTLEMENT AGREEMENT (this " Agreement" ) is made as of September , 2007, by and among Skype Luxembourg Holdings S.A.R.L., a limited company registered under the laws of the Grand Duchy of Luxembourg (the " Obligor" ), eBay Inc., a Delaware corporation (the " Purchaser" ), Herho Holding B.V., a company formed under the laws of the Netherlands, in its capacity as the Earn Out Representative (as defined in the Earn Out Agreement (as defined below)) (the " Earn Out Representative" ), and [ ] (the " Earn Out Seller" ). Capitalized terms not otherwise defined herein are used as defined in the Earn Out Agreement, dated as of September 11, 2005 (the " Earn Out Agreement" ), by and among the Purchaser, Skype Technologies S.A., a limited company registered under the laws of the Grand Duchy of Luxembourg (the " Company" ), and the parties identified on Schedule I thereto (the " Earn Out Sellers" ). Each of the Obligor, the Purchaser, the Earn Out Representative and the Earn Out Seller is referred to herein as a " Party" and, collectively, as the " Parties ." WHEREAS, pursuant to a Sale and Purchase Agreement, dated as of September 11, 2005 (the " Purchase Agreement" ), by and among the Purchaser, the Company and the shareholders and warrantholders of the Company (collectively, the " Sellers" ), the Purchaser and the Obligor acquired from the Sellers the entire issued share capital of the Company; WHEREAS, the Obligor owns all of the shares of the Company, except for one share that is owned by the Purchaser; WHEREAS, concurrently with the execution and delivery of the Purchase Agreement, the Purchaser, the Company and the Earn Out Sellers entered into the Earn Out Agreement to provide for certain rights and obligations of the Purchaser, the Company, the Earn Out Sellers and the Earn Out Representative in connection with the post-Completion management of the Company and the delivery by the Purchaser to the Earn Out Sellers of any Earn Out Election Per Share Post-Completion Consideration; and WHEREAS, the Parties desire: (i) to settle all Claims (as defined below) as described below, other than Excluded Claims (as defined below) and (ii) to agree to the termination of the Earn Out Agreement as among such parties. NOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, it is agreed that: 1. Settlement of Claims. The Parties agree as follows: (a) Within three Business Days following the execution of this Agreement by the Parties, the Obligor shall pay an amount in cash (the " Payment Amount" ) equal to (i) ?375,000,000 multiplied by (ii) a fraction (x) the numerator of which is the aggregate number of Earn Out Election Shares of the Earn Out Seller, which number is set forth on Schedule A hereto opposite the name of the Earn Out Seller and (y) the denominator of which is 395,013, being the aggregate number of Earn Out Election Shares of all Earn Out Sellers (such fraction, the " Payment Fraction" ), as follows: (i) to the Earn Out Representative, an amount in cash equal to the sum of (A) 1.5% of the aggregate amount to be paid in respect of the Earn Out Election Shares of the Earn Out Seller pursuant to this Agreement, such amount to be retained by the Earn Out Representative as a fee for its services rendered to the Earn Out Seller in connection with the negotiation and implementation of this Agreement and (B) ? 1,750,000, representing the Earn Out Representative' s good faith estimate of the amount required to satisfy actual and prospective obligations of the Earn Out Sellers under Section 5.1(e) of the Earn Out Agreement, Section 9 of this Agreement, and that certain letter labeled " costs letter" dated September 10, 2005 from Niklas Zennstrf6m to all holders of shares of the Company' s Series A-1 preferred stock, Series B preferred stock, Series A-2 preferred stock, and ordinary shares, and all holders of warrants conferring the right to acquire the Company' s Series A-1 preferred stock (such letter, the " Costs Letter" ), multiplied by the Payment Fraction (the sum of the amounts referred to in this Section 1(a)(i), subparagraphs (A) and (B) being referred to herein as the " Earn Out Representative Funding Amount" ) by wire transfer of immediately available funds to an account designated by the Earn Out Representative. The Earn Out Representative shall hold the portion of the Earn Out Representative Funding Amount referred to in this Section 1(a)(i)(B) pending its application for the purposes referred to in Section 5.1(e) of the Earn Out Agreement, Section 9 of this Agreement, and the Costs Letter. In the event that the Earn Out Representative determines, in its sole discretion, that there is no reasonable likelihood of any further costs, expenses, losses, claims, damages or liabilities (or actions in respect thereof) in relation to which it is entitled to be indemnified under such provisions being incurred, paid or suffered, it will pay any remaining amount of the portion of the Earn Out Representative Funding Amount referred to in this Section 1(a)(i)(B) to the Earn Out Seller by wire transfer of immediately available funds to the account of the Earn Out Seller set forth opposite the Earn Out Seller' s name on Schedule A hereto (it being understood that neither the Obligor nor the Purchaser shall have any responsibility, liability or obligation whatsoever with respect to the Earn Out Representative Funding Amount once paid to the Earn Out Representative); and


(ii) to the Earn Out Seller, an amount in cash equal to the Payment Amount minus the Earn Out Representative Funding Amount, by wire transfer of immediately available funds to the account of the Earn Out Seller set forth opposite the Earn Out Seller' s name on Schedule A hereto. (b) The Parties acknowledge and agree that the payments made pursuant to Section 1(a) of this Agreement, taken together with the Releases provided in Section 2 of this Agreement, shall constitute full payment for and settlement of all claims, demands, disputes, controversies, rights, liabilities, damages, debts, obligations, costs, expenses, attorneys' fees and causes of action of any kind or nature that the Parties and their Related Parties (as defined in Section 1(c) below) may have had in the past, may now have or may have in the future, whether asserted or unasserted, matured or unmatured, known or unknown, suspected or unsuspected, contingent or actual, accrued or unaccrued, whether based on contract, tort or other theories (including equitable theories), in connection with, arising from or in any way relating to the Earn Out Agreement or the transactions contemplated thereby, including in any way relating to: (i) the operation or management of the business of the Company and any of its affiliates prior to the date hereof ; (ii) the interpretation of the Earn Out Agreement; and (iii) the negotiation and execution of this Agreement (collectively, " Claims" ) against any of the other Parties and any of the Related Parties of any of the other Parties, except for the Claims identified on Schedule B hereto (the " Excluded Claims" ). (c) For purposes of this Agreement: (i) a Party' s or other person' s " Related Parties" shall include: (1) such Party' s or person' s shareholders (save in relation to shareholders in a public company, including the Purchaser), former or present directors, officers, employees, consultants, partners, trustees or beneficiaries of a trust of which such Party or person is a settler or actual or potential beneficiary, affiliates, representatives, agents and advisors, including legal and financial advisors and any affiliates of the foregoing; (2) the shareholders (save in relation to shareholders in a public company, including the Purchaser), directors, officers, employees, consultants, partners, trustees, beneficiaries, representatives, agents and advisors of such Party' s or person' s affiliates or a trust of which such affiliate is a settler or actual or potential beneficiary; and (3) the predecessors, successors, assigns, heirs, legatees, executors, guardians, custodians, administrators and conservators of any of the persons described in clause " (1)" and " (2)" of this sentence; provided, however , that, for purposes of this Agreement, none of the Earn Out Seller, the Earn Out Representative or any Related Party of the Earn Out Seller or the Earn Out Representative shall constitute a Related Party of the Purchaser or of the Obligor; and (ii) " affiliates" means in relation to a Party or other person, any person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the relevant Party or person, and for these purposes a person shall be deemed to control another person if the first such person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the second person, whether through the ownership of voting securities, control of voting rights, by contract or otherwise (it being understood that, for the avoidance of doubt, the Company is an affiliate of the Purchaser). (d) The Obligor shall (i) be entitled to deduct and withhold from any amounts payable pursuant to this Agreement such amounts as are required to be deducted or withheld under any provision of any federal, state, local or foreign Law and (ii) promptly after determining that any such amount is so required to be deducted or withheld, the Obligor shall provide written notice to the Earn Out Representative or the Earn Out Seller, as the case may be, indicating the amount that is required to be deducted or withheld and the applicable provision of law requiring such deduction or withholding. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the person to whom such amounts would otherwise have been paid. 2. Release. (a) Each of the Parties, on behalf of itself and its Related Parties, hereby fully, irrevocably and unconditionally releases and forever discharges each other Party and each of such other Party' s Related Parties (including the Purchaser and the Purchaser' s Related Parties) from any and all Claims, other than in all cases the Excluded Claims, which Excluded Claims shall remain in full force and effect and are neither released nor discharged pursuant to this Agreement. (b) Each of the Parties, on behalf of itself and its Related Parties, with respect to the Claims against the other Parties and the Related Parties of the other Parties, in any case: (i) has been fully advised by his attorney of the contents of Section 1542 of the Civil Code of the State of California, United States of America, and (ii) hereby expressly waives the benefits thereof and any rights such person may have thereunder (it being acknowledged that Section 1542 of the Civil Code of the State of California provides 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." ) (c) Each Party, on behalf of itself and its Related Parties, with respect to the Claims against the other Parties and the Related Parties of the other Parties, hereby waives the benefits of, and any rights such Party (or any of their Related Parties) may have under, any statute or common law principle having any effect similar to the effect of Section 1542 of the Civil Code of the State of California in any jurisdiction. 3. Warranties. Each Party hereby warrants as follows: (a) such Party has the legal capacity and the requisite right, power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. Except with respect to a Party that is an individual, the execution and delivery of, and


the performance by such Party of its obligations under, this Agreement have been duly authorized by all necessary action on the part of such Party. This Agreement has been duly and validly executed by such Party. (b) assuming this Agreement has been duly and validly authorized, executed and delivered by the other Parties, this Agreement constitutes a valid and binding agreement of such Party, enforceable against such Party in accordance with its terms; (c) there is no action, suit, proceeding, dispute, litigation, claim, complaint or investigation by or before any court or Governmental Entity or agency pending or, to the best of the knowledge of such Party, threatened against such Party or any of such Party' s Related Parties that challenges or would challenge the execution and delivery of this Agreement or the taking of any of the actions required to be taken by such Party under this Agreement; and (d) the execution and delivery of, and the performance by such Party of its obligations under, this Agreement will not, so far as applicable to it: (i) result in a breach of any ...