Settlement and Standstill Agreement
This AGREEMENT, dated as of May 7, 2002 (the "Agreement"), is by and
between FairMarket, Inc., a Delaware corporation ("FairMarket"), and the
entities listed on Schedule A hereto (collectively, the "JHC Entities").
WHEREAS, the JHC Entities are the beneficial owners of shares of common
stock, par value $0.001 per share, of FairMarket (the "Common Stock"); and
WHEREAS, by letter dated February 22, 2002, xxxxxxxxxx.xxx, Inc.
("musicmaker") provided notice to FairMarket of its intention to nominate
Xxxxxx X. Xxxxxx, Xx. for election as a director of FairMarket at its 2002
annual meeting of stockholders (the "Stockholder Nomination"); and
WHEREAS, subject to this Agreement musicmaker intends hereby to withdraw
the Stockholder Nomination and refrain from contesting the election of directors
at FairMarket's 2002 annual meeting of stockholders; and
WHEREAS, FairMarket and the JHC Entities intend to provide hereby for,
among other matters, enlargement of the Board of Directors of FairMarket (the
"Board") from four (4) to five (5) members and for the appointment of Xxxxxx X.
Xxxxxx, Xx. to the Board to fill the vacancy resulting therefrom, and
furthermore, FairMarket and the JHC Entities desire to otherwise resolve all
matters between them, including those matters at issue in or with respect to the
Stockholder Nomination.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1. Representations.
---------------------------
(a) Binding Agreement: Authority. FairMarket hereby represents and
warrants that this Agreement has been duly authorized, executed and delivered by
FairMarket, and is a valid and binding obligation of FairMarket, enforceable
against FairMarket in accordance with its terms. Each of the JHC Entities
represents and warrants that this Agreement has been duly authorized, executed
and delivered by such JHC Entity, and is a valid and binding obligation of such
JHC Entity, enforceable against such JHC Entity in accordance with its terms.
(b) Share Ownership of Common Stock. Each of the JHC Entities hereby
represents and warrants that, as of the date hereof, it and its Affiliates and
Associates (as such terms are hereinafter defined) are the "beneficial owners"
(as such term is hereinafter defined) of an aggregate of 3,504,500 shares of
Common Stock (the "Shares"), and that neither it nor its Affiliates or
Associates beneficially own, or have any rights, options or agreements to
acquire or vote, any other shares of Common Stock.
(c) Defined Terms. For purposes of this Agreement, the term "Affiliate"
and "Associate" shall have the respective meanings set forth in Rule 12b-2
promulgated by the
Securities and Exchange Commission (the "SEC") under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"). For purposes of this Agreement, the
terms "beneficial owner" and "beneficially own" shall have the same meanings as
set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act except
that a person shall also be deemed to be the beneficial owner of all shares of
Common Stock which such person has the right to acquire pursuant to the exercise
of any rights in connection with any securities or any agreement, regardless of
when such rights may be exercised and whether they are conditional.
Section 2. Directors.
---------------------
(a) Additional Director. The JHC Entities and FairMarket agree that as
promptly as practicable (but in no event more than the fifth business day)
following the execution of this agreement by the parties the Board will increase
the size of the Board to five (5) members and appoint Xxxxxx X. Xxxxxx, Xx.
(together with any successor nominee appointed by the JHC Entities pursuant to
this Agreement, the "JHC Nominee") to fill the newly created directorship on the
Board as a Class II director whose term shall expire at FairMarket's 2002 annual
meeting of stockholders. If at any time during the Standstill Period (as
hereinafter defined) there shall occur a vacancy in a Board seat previously
occupied by a JHC Nominee by reason of the resignation, removal, death or
incapacity of a JHC Nominee, then such vacancy shall be filled by a person
nominated by the JHC Entities having appropriate background and experience. At
such time as Xx. Xxxxxx (or any JHC Nominee) shall become a director of
FairMarket in accordance with the terms of this Agreement, Xx. Xxxxxx (or such
JHC Nominee) shall agree in writing to be bound by the terms and conditions of
FairMarket's xxxxxxx xxxxxxx policy.
(b) Nominations. FairMarket agrees to nominate Xxxx Xxxxx and Xxxxxx X.
Xxxxxx, Xx. for election as Class II directors of FairMarket at its 2002 annual
meeting of stockholders, and use its best efforts to cause the election of such
persons, each to serve for a three-year term ending upon the election of
directors at FairMarket's 2005 annual meeting of stockholders and until his
successor is duly elected and qualified.
(c) Information. The JHC Entities agree to provide FairMarket with such
information concerning Xxxxxx X. Xxxxxx, Xx. as is required under the proxy
rules of the Exchange Act in connection with the preparation and filing of
FairMarket's proxy statement relating to the 2002 annual meeting of
stockholders.
(d) Observer Rights. During the Standstill Period, FairMarket shall permit
Xxxxx Xxxxxxxxxxx, as a designated representative of the JHC Entities, to attend
Board of Directors meetings of FairMarket; provided, however, that (i) no other
person designated by the JHC Entities shall be permitted to attend Board of
Directors meetings of FairMarket (other than the JHC Nominee as provided in
Section 2(a) above) and neither the JHC Entities nor Xx. Xxxxxxxxxxx shall have
the right to substitute any other person in his stead, (ii) the Board of
Directors of FairMarket shall have the right to exclude Xx. Xxxxxxxxxxx from any
meeting of the Board of Directors or portion thereof if the Board determines in
good faith that such attendance would not be appropriate in light of the subject
matter to be discussed at such meeting or such portion thereof (without limiting
the generality of the foregoing, such attendance would not be appropriate in
circumstances where the Board determines in good faith based upon advice of
counsel that such attendance might compromise FairMarket's attorney-client
privileges, attorney
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work-product privileges or similar protections or privileges or in circumstances
where the Board determines in good faith that there is an actual or potential
conflict of interest or other interest on the part of the JHC Entities or Xx.
Xxxxxxxxxxx that makes such attendance inappropriate, notwithstanding the
presence of the JHC Nominee), (iii) Xx. Xxxxxxxxxxx shall be an observer only,
at the invitation of the FairMarket Board of Directors, shall not be a director
and shall have no voting rights as a director, and (iv) all rights of Xx.
Xxxxxxxxxxx and the JHC Entities under this Section 2(d) shall terminate at such
time as the JHC Entities, together with their Associates and Affiliates, are the
beneficial owners of less than 5% of the total outstanding shares of Common
Stock (and such rights shall not be reinstated in any manner if the JHC
Entities, together with their Associates and Affiliates, subsequently become the
beneficial owners of 5% or more of the total outstanding shares of Common
Stock).
(e) Confidentiality. The JHC Entities, Xx. Xxxxxx and Xx. Xxxxxxxxxxx
(each, a "Recipient") each acknowledge the confidential and proprietary nature
of the Confidential Information (as defined below), agrees to hold and keep the
Confidential Information confidential as provided in this Agreement and
otherwise agrees to each and every restriction and obligation in this Agreement.
As used in this Agreement, the term "Confidential Information" means and
includes any and all of the information concerning the business and affairs of
FairMarket that may hereafter be disclosed to Recipient by FairMarket or by the
directors, officers, employees, agents, consultants, advisors or other
representatives, including legal counsel, accountants and financial advisors
("Representatives") of FairMarket; provided that "Confidential Information"
shall not include information that (a) was in or enters the public domain or was
or becomes generally available to the public other than as a result of
disclosure by Recipient or any Representative thereof, (b) was independently
acquired by Recipient without violating any of the obligations of Recipient or
its Representatives under this Agreement or any other confidentiality agreement,
or under any other contractual, legal, fiduciary or binding obligation of
Recipient or its Representatives, or (c) was available, or becomes available, to
Recipient on a nonconfidential basis other than as a result of its disclosure to
Recipient by FairMarket or a FairMarket Representative, but only if to the
knowledge of Recipient the source of such information is not bound by a
confidentiality agreement with FairMarket or is not otherwise prohibited from
transmitting the information to Recipient or Recipient's Representatives by a
contractual, legal, fiduciary or other binding obligation. To the extent that
any Confidential Information may include materials subject to the
attorney-client privilege, FairMarket is not waiving and will not be deemed to
have waived or diminished its attorney work-product protections, attorney-client
privileges or similar protections and privileges as a result of disclosing any
Confidential Information (including Confidential Information related to pending
or threatened litigation) to Recipient. Recipient agrees that the Confidential
Information (a) will be kept confidential by Recipient and Recipient's
Representatives and (b) without limiting the foregoing, will not be disclosed by
Recipient (except to such person's Representatives to the extent permitted by,
and in accordance with, this Agreement) or by Recipient's Representatives to any
person except with the specific prior written consent of FairMarket or except as
expressly otherwise permitted by this Agreement. It is understood that Recipient
may disclose Confidential Information only to those of Recipient's
Representatives who are informed by Recipient of the confidential nature of the
Confidential Material and the obligations of this Agreement.
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If Recipient or any of Recipient's Representatives becomes legally
compelled (by oral questions, interrogatories, requests for information or
documents, subpoena, civil or criminal investigative demand or similar process)
to make any disclosure that is prohibited or otherwise constrained by this
Agreement, Recipient or such Representative, as the case may be, will provide
FairMarket with notice, as promptly as practicable in light of the
circumstances, of such legal proceedings so that it may seek an appropriate
protective order or other appropriate relief or waive compliance with the
provisions of this Agreement. In the absence of a protective order or
Recipient's receiving such a waiver from FairMarket, Recipient or its
Representative is permitted to disclose that portion (and only that portion) of
the Confidential Information that Recipient or the Representative is legally
compelled to disclose; provided, however, that Recipient and Recipient's
Representatives must use reasonable efforts to obtain reliable assurance that
confidential treatment will be accorded by any person to whom any Confidential
Information is so disclosed.
Each Recipient acknowledges that it and its Representatives are (a) aware
that the United States securities laws prohibit any person who has material,
non-public information concerning a company from purchasing or selling
securities of such company or from communicating such information to any other
person under circumstances in which it is reasonably foreseeable that such
person is likely to purchase or sell such securities, and (b) familiar with the
Exchange Act, and that it and its Representatives will neither use, nor cause
any third party to use, any Confidential Information in contravention of such
Exchange Act.
Upon the request of FairMarket, after the expiration of the Standstill
period, (a) Recipient (i) shall promptly deliver to FairMarket all documents or
other materials disclosed by FairMarket or any FairMarket's Representative to
Recipient or Recipient's Representatives constituting Confidential Information,
together with all copies and summaries thereof in the possession or under the
control of Recipient or Recipient's Representatives, and (ii) will destroy
materials generated by Recipient or Recipient's Representatives that include or
refer to any part of the Confidential Information, without retaining a copy of
any such material, or (b) alternatively, if FairMarket requests or consents to
Recipient's request, Recipient will destroy all documents or other matters
constituting Confidential Information in the possession or under the control of
Recipient or Recipient's Representatives. Any such destruction pursuant to the
foregoing must be certified by an authorized officer of Recipient in writing to
FairMarket. Notwithstanding the foregoing, Recipient may retain for its records,
on a confidential basis, one copy of all materials referred to in clause (ii)
above, any materials that may be reasonably required in connection with any
pending litigation or dispute with any party, and any materials it may be
required to retain by applicable law or regulation, and Xx. Xxxxxx or other JHC
Nominee may retain any materials that may be retained by any other director of
FairMarket.
(f) Assignment. None of the JHC Entities, Xx. Xxxxxxxxxxx or Xx. Xxxxxx,
may make any assignment of any of their rights under this Section 2, by
operation of law or otherwise, without the prior written consent of FairMarket.
Section 3. Voting.
------------------
(a) 2002 Annual Meeting. The JHC Entities shall cause all shares of Common
Stock beneficially owned by them, and/or their Affiliates or Associates, as of
the record date for the
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2002 annual meeting of stockholders of FairMarket, to be present for quorum
purposes and to be voted in favor of Xxxx Xxxxx and Xxxxxx X. Xxxxxx, Xx. at
such annual meeting or at any adjournments or postponements thereof.
(b) Other Meetings. During the Standstill Period, the JHC Entities shall
cause all shares of Common Stock beneficially owned by them, and/or their
Affiliates or Associates, as of the record date for any other meeting of
stockholders of FairMarket at which directors are to be elected, to be present
for quorum purposes and to be voted in favor of FairMarket's nominees for
directors at such meeting or at any adjournments or postponements thereof.
(c) Further Assurances. The JHC Entities further agree to take all action
reasonably necessary to carry out the intention of this Section 3, including,
without limitation, delivering to FairMarket upon its written request executed
proxies naming the proxies appointed by FairMarket for all shares of Common
Stock beneficially owned by the JHC Entities and/or their Affiliates or
Associates as of the record dates for the aforementioned meetings of
stockholders.
Section 4. Acquisition of Stock.
--------------------------------
Each of the JHC Entities covenants and agrees that, from and after the
date on which Xx. Xxxxxx is duly appointed to the Board of Directors of
FairMarket, and until the expiration of the Standstill Period, neither it nor
any of its Affiliates or Associates will, without the prior written consent of
FairMarket specifically expressed in a vote adopted by the Board, directly or
indirectly, purchase or cause to be purchased or otherwise acquire or agree to
acquire, or become or agree to become the beneficial owner of, any other
securities (other than the Shares) issued by FairMarket, or any securities
convertible into or exchangeable for Common Stock or any other equity securities
of FairMarket, if in any such case immediately after the taking of such action
such JHC Entity and its Affiliates and Associates would, in the aggregate,
beneficially own more than 14.9% of the then outstanding shares of Common Stock.
Section 5. Standstill Arrangements.
-----------------------------------
Each of the JHC Entities agrees that, during the period from the date of
this Agreement through January 22, 2005 (the "Standstill Period"), neither it
nor any of its Affiliates or Associates will, without the written consent of
FairMarket, directly or indirectly, solicit, request, advise, assist or
encourage others to:
(a) form, join in or in any other way participate in a "partnership,
limited partnership, syndicate or other group" within the meaning of Section
13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any
shares of Common Stock in a voting trust or similar arrangement or subject any
shares of Common Stock to any voting agreement or pooling arrangement, other
than solely with other JHC Entities or one or more Affiliates with respect to
the Shares or pursuant to this Agreement;
(b) solicit proxies or written consents of stockholders with respect to
Common Stock under any circumstances, or make, or in any way participate in, any
"solicitation" of any "proxy" to vote any shares of Common Stock, or become a
"participant" in any contested solicitation for the election of directors with
respect to FairMarket (as such terms are defined or used in Rules
5
14a-1 and Item 4 of Schedule 14A under the Exchange Act), or seek to advise or
influence any person with respect to the voting, holding or disposition of any
shares of Common Stock;
(c) seek to call, or to request the call of, a special meeting of the
stockholders of FairMarket, or seek to make, or make, a stockholder proposal at
any meeting of the stockholders of FairMarket or make a request for a list of
FairMarket's stockholders;
(d) commence or announce any intention to commence any tender offer for
any shares of Common Stock, or file with or send to the SEC a Schedule 13D or
any amendments to any Schedule 13D under the Exchange Act with respect to the
Common Stock to reflect changes to the disclosures set forth therein and
exhibits filed therewith, except (i) for an amendment to the Schedule 13D
previously filed with the SEC by the JHC Entities with respect to the Shares
(the "Current Schedule 13D") , provided that the JHC Entities shall, prior to
the filing of such amendment with the SEC, provide FairMarket with a copy of
such amendment as it is proposed to be so filed and a reasonable opportunity to
review and comment thereon, or (ii) to the extent such amendment is filed solely
to report one or a combination of (A) purchases of Common Stock permitted by
this Agreement, (B) dispositions of Common Stock (including dispositions that
reduce the JHC Entities' beneficial ownership below 5%), (C) other action (if
any) permitted by this Agreement, or (D) material litigation involving this
Agreement (if, but only if, the reporting of such litigation on such amendment
is required by law and the JHC Entities have given FairMarket, in writing, a
copy of the proposed amendment at least three (3) days prior to the filing
thereof). In addition, the JHC Entities may file a Schedule 13D to comply with
amendments after the date hereof to Section 13(d) of the Exchange Act, to the
rules promulgated thereunder, or to the SEC's interpretation of either of the
foregoing (it being understood that nothing contained in this Section 5(d) shall
be deemed to permit any action or disclosure that is otherwise prohibited by
this Agreement). Such permitted amendments shall be referred to as the
"Permitted Schedule 13D Amendments." In no case shall Item 4 of the Current
Schedule 13D be amended, except as otherwise permitted by this Section 5(d);
(e) take any action or form any intention which would require an amendment
to the Current Schedule 13D (other than amendments containing only Permitted
Schedule 13D Amendments);
(f) make a proposal or bid with respect to, or announce any intention or
desire to make, or publicly make or disclose, cause to be made or disclosed
publicly, any proposal or bid with respect to, the acquisition of any
substantial portion of the assets of FairMarket or of all or any portion of the
outstanding Common Stock (except that the JHC Entities may file Permitted
Schedule 13D Amendments), or any merger, consolidation, other business
combination, restructuring, recapitalization, liquidation or other extraordinary
transaction involving FairMarket;
(g) act alone or in concert with others to seek control or influence in
any manner the management, the Board (including the composition thereof) or the
business, operation or affairs of FairMarket; provided, however, that nothing
contained herein shall prohibit Xx. Xxxxxx or other JHC Nominee from exercising
his or her duties and obligations as a director of FairMarket or
6
otherwise taking any action while acting in such capacity as a director of
FairMarket; or
(h) publicly disclose, or cause or facilitate the public disclosure (including
by disclosure to any journalist or other representative of media) of, any
request, or otherwise seek (in any manner that would require public disclosure
by any of the JHC Entities or its Affiliates or Associates), to obtain any
waiver or consent under, or any amendment of, any provision of this Agreement.
Section 6. Withdrawal of Demand and Stockholder Nomination and Proposal.
------------------------------------------------------------------------
Upon Xx. Xxxxxx'x appointment to the Board of Directors of FairMarket, the
JHC Entities hereby withdraw the Stockholder Nomination and shall immediately
cease all efforts, direct or indirect, in furtherance of the Stockholder
Nomination and any related solicitation and shall not vote, deliver or otherwise
use any proxies heretofore obtained to the extent such proxies constitute votes
against Xxxx Xxxxx as a Class II director at the 2002 annual meeting of
stockholders of FairMarket.
Section 7. Press Releases and Other Public Statements.
------------------------------------------------------
During the Standstill Period, FairMarket and the JHC Entities agree as
follows:
(a) FairMarket agrees, subject to the requirements of applicable federal
securities laws, to provide the JHC Entities with an opportunity to review and
comment on any press release, public filing, or letter to FairMarket's
stockholders containing statements about the JHC Entities, prior to its public
release.
(b) The JHC Entities agree, subject to the requirements of applicable
federal securities laws, to provide to FairMarket an opportunity to review and
comment on any press release, public filing, or letter to FairMarket's
stockholders containing statements about FairMarket, prior to its public
release.
(c) Promptly after the execution of this Agreement the parties hereto
shall issue a press release in the form previously agreed to in writing by the
parties hereto.
(d) Neither FairMarket nor any of the JHC Entities, nor any of their
Affiliates or Associates, shall directly or indirectly make or issue or cause to
be made or issued any disclosure, announcement or statement (including without
limitation the filing of any document or report with the SEC or any other
governmental agency or any disclosure to any journalist, member of the media or
securities analyst) concerning the other party or any of its respective past,
present or future general partners, directors, officers or employees, which
disparages any of such other party's respective past, present or future general
partners, directors, officers or employees as individuals (recognizing that the
parties shall be free to comment in good faith regarding the business of
FairMarket, provided any such comment shall not otherwise violate the terms of
this Agreement).
Section 8. General Release.
---------------------------
(a) Each of the JHC Entities, on its own behalf and on behalf of its
Affiliates, Associates, successors, assigns, heirs, beneficiaries, attorneys,
partners, limited partners, employees and agents (as applicable) (collectively,
the "JHC Releasors"), hereby releases and
7
discharges FairMarket, and its respective directors, officers and employees (the
"FairMarket Releasees") from any and all charges, complaints, claims,
liabilities, obligations, promises, agreements, controversies, damages, actions,
causes of action, suits, rights, demands, costs, losses, debts and expenses,
known or unknown (collectively, "Claims"), which the JHC Releasors may have had
or may now have, own, or hold, or claim to have, own, or hold against the
FairMarket Releasees up to the date of this Agreement. The JHC Releasors
specifically waive any rights under any statute, regulation or rule which
purports to limit the right of persons to release or waive unknown Claims. Each
of the JHC Releasors represents and warrants hereby that it has not filed any
complaints or charges asserting any Claims against any of the FairMarket
Releasees with any local, state or federal agency or court, or assigned any such
Claim to any other person. Each of the JHC Releasors agrees never to xxx any of
the FairMarket Releasees or cause any of the FairMarket Releasees to be sued
regarding any matter within the scope of this General Release. If any of the JHC
Releasors violates this General Release by suing any FairMarket Releasee or
causing any FairMarket Releasee to be sued, the undersigned JHC Releasors agree
to pay all costs and expenses of defending against the suit incurred by the
FairMarket Releasees, including reasonable attorneys' fees.
(b) FairMarket, on its own behalf and on behalf of its Affiliates,
Associates, successors, assigns, heirs, beneficiaries, attorneys, partners,
limited partners, employees and agents (as applicable) (collectively, the
"FairMarket Releasors"), hereby releases and discharges each of the JHC
Entities, and its respective directors, officers and employees (the "JHC
Releasees") from any and all Claims which the FairMarket Releasors may have had
or may now have, own, or hold, or claim to have, own, or hold against the JHC
Releasees up to the date of this Agreement. The FairMarket Releasors
specifically waive any rights under any statute, regulation or rule which
purports to limit the right of persons to release or waive unknown Claims. Each
of the FairMarket Releasors represents and warrants hereby that it has not filed
any complaints or charges asserting any Claims against any of the JHC Releasees
with any local, state or federal agency or court, or assigned any such Claim to
any other person. Each of the FairMarket Releasors agrees never to xxx any of
the JHC Releasees or cause any of the JHC Releasees to be sued regarding any
matter within the scope of this General Release. If any of the FairMarket
Releasors violates this General Release by suing any JHC Releasee or causing any
JHC Releasee to be sued, the undersigned FairMarket Releasors agree to pay all
costs and expenses of defending against the suit incurred by the JHC Releasees,
including reasonable attorneys' fees.
(c) Each of the undersigned JHC Releasors and FairMarket Releasors
acknowledge that it has read the contents of the foregoing applicable General
Release, that it has had the opportunity to review such General Release with
counsel of its choice, that it understands the same and that it has given such
General Release as its own free act and deed.
(d) Notwithstanding anything contained in this Section 8 to the contrary,
this Section 8 shall not apply to any Claim arising out of a breach of the
obligations contained in this Agreement.
8
Section 9. Remedies.
--------------------
(a) Each party hereto hereby acknowledges and agrees that irreparable harm
would occur in the event any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to specific relief
hereunder, including, without limitation, an injunction or injunctions to
prevent and enjoin breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof in any state or federal court in
the State of Delaware, in addition to any other remedy to which they may be
entitled at law or in equity. Any requirements for the securing or posting of
any bond with such remedy are hereby waived.
(b) The parties hereto agree that any actions, suits or proceedings
arising out of or relating to this Agreement or the transactions contemplated
hereby shall be brought solely and exclusively in the courts of the State of
Delaware and/or the courts of The United States of America located in the State
of Delaware (and the parties agree not to commence any action, suit or
proceeding relating thereto except in such courts), and further agree that
service of any process, summons, notice or document by U.S. registered mail to
the respective addresses set forth in Section 11 hereof shall be effective
service of process for any such action, suit or proceeding brought against any
party in any such court. The parties irrevocably and unconditionally waive any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement or the transactions contemplated hereby, in the courts of the
State of Delaware or The United States of America located in the State of
Delaware, and hereby further irrevocably and unconditionally waive and agree not
to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in any inconvenient forum.
Section 10. Entire Agreement.
----------------------------
This Agreement contains the entire understanding of the parties with
respect to the subject matter hereof and may be amended only by an agreement in
writing executed by the parties hereto.
Section 11. Notices.
-------------------
All notices, consents, requests, instructions, approvals and other
communications provided for herein and all legal process in regard hereto shall
be validly given, made or served, if in writing and sent by U.S. registered
mail, return receipt requested:
if to FairMarket: FairMarket, Inc.
000 Xxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxx
9
with a copy to: Xxxxxxx Procter LLP
Exchange Place
Boston, Massachusetts 02109
Attention: Xxxxx X. Xxxxx, P.C.
Xxxxx X. Xxxxxxxx, P.C.
if to the JHC Entities: JHC Investment Partners, LLC
c/o Barington Capital Group, L.P.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxxx
with a copy to: Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Section 12. Law Governing.
-------------------------
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware, without regard to any
conflict of laws provisions thereof.
Section 13. Counterparts.
------------------------
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
Section 14. No Presumption Against Draftsman.
--------------------------------------------
Each of the undersigned parties hereby acknowledges the undersigned
parties fully negotiated the terms of this Agreement, that each such party had
an equal opportunity to influence the drafting of the language contained in this
Agreement and that there shall be no presumption against any such party on the
ground that such party was responsible for preparing this Agreement or any part
hereof.
Section 15. Enforceability.
--------------------------
If any term, provision, covenant or restriction of this Agreement is held
by a court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated. It is hereby stipulated and declared to be the intention of the
parties that the parties would have executed the remaining terms, provisions,
covenants and restrictions without including any of such which may be hereafter
declared invalid, void or unenforceable. In addition, the parties agree to use
their best efforts to agree upon and substitute a valid and enforceable term,
provision, covenant or restriction for any such that is held invalid, void or
unenforceable by a court of competent jurisdiction.
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Section 16. Registration
FairMarket acknowledges and confirms that JHC Investment Partners, LLC is
the assignee of all of the rights and obligations of At Home Corporation
(formerly Excite, Inc.) under the Investor's Rights Agreement dated February 25,
1999 by and among FairMarket and the investors identified therein, as amended
from time to time thereafter (the "Investors' Rights Agreement"). FairMarket
further acknowledges and confirms that the number of registrations on Form S-3
in accordance with Section 1.4 of the Investors' Rights Agreement is unlimited.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, or caused the same to be executed by its duly authorized
representative as of the date first above written.
FAIRMARKET, INC.
By:
------------------------------------
Name:
Title:
BARINGTON CAPITAL GROUP, L.P.
By: LNA Capital Corp., as general partner
By:
------------------------------------
Name:
Title:
BARINGTON COMPANIES EQUITY
PARTNERS, L.P.
By: Barington Companies Investors, LLC,
as general partner
By:
------------------------------------
Name:
Title:
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JHC INVESTMENT PARTNERS, LLC
By: Barington Capital Group, L.P.,
as managing member
By: LNA Capital Corp., as general partner
By:
------------------------------------
Name:
Title:
JEWELCOR MANAGEMENT, INC.
By:
------------------------------------
Name:
Title:
XXXXXXXXXX.XXX, INC.
By:
------------------------------------
Name:
Title:
AS TO SECTION 2(e) ONLY:
---------------------------------------
Xxxxxx Xxxxxx, individually
---------------------------------------
Xxxxx Xxxxxxxxxxx, individually
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Schedule A
BARINGTON CAPITAL GROUP, X.X.
XXXXXXXXX COMPANIES EQUITY PARTNERS, L.P.
JHC INVESTMENT PARTNERS, LLC
JEWELCOR MANAGEMENT, INC.
XXXXXXXXXX.XXX, INC.
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