EXHIBIT 10.2
AMENDED AND RESTATED AGREEMENT CONCERNING TERMINATION OF
EMPLOYMENT, SEVERANCE PAY AND RELATED MATTERS
This Amended and Restated Agreement Concerning Termination of
Employment, Severance Pay and Related Matters (this "Agreement") is made as of
June 21, 2001 (the "Effective Date") by and between FairMarket, Inc., a Delaware
corporation with its headquarters located in Woburn, Massachusetts
("FairMarket"), and Xxxxx Xxxxxxx ("Executive"). In consideration of the mutual
covenants contained in this Agreement, FairMarket and Executive agree as
follows:
WHEREAS, FairMarket. and the Executive are parties to that
certain Agreement Concerning Termination of Employment, Severance Pay and
Related Matters, dated February 26, 2001 (the "Original Agreement") and
WHEREAS, the parties to the Original Agreement desire to amend
and restate such agreement to reflect certain amendments set forth herein; and
NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth herein, the parties hereto hereby amend and restate the
Original Agreement in its entirety and agree as follows:
1. RIGHT TO TERMINATE EMPLOYMENT AND TERMINATION OF EMPLOYMENT.
FairMarket and Executive agree that Executive is employed at-will and that
either party may terminate the employment relationship at any time, for any
reason or no reason, subject to the terms of this Agreement. The Executive
resigns from employment with FairMarket and its subsidiaries effective June 29,
2001 (the "Separation Date"). The Executive hereby agrees to perform his
responsibilities as an employee of the Company on a full-time basis and to
exercise his best efforts on behalf of FairMarket during the period up to and
including the Separation Date. Provided that the Executive does so, FairMarket
shall continue the Executive's employment, including his current base salary and
related benefits, during such period. Provided that the Executive complies with
his obligations under this Section 1, the Executive's resignation on the
Separation Date pursuant to this Section 1 shall be considered to be a
termination of employment pursuant to Section 2(c) for purposes of Section
2(e)(ii).
2. TERMINATION AND TERMINATION BENEFITS. Executive's employment with
FairMarket and its subsidiaries shall terminate under the circumstances and with
the effect set forth in this Section 2.
a. TERMINATION BY FAIRMARKET FOR CAUSE. Executive's employment with
FairMarket and its subsidiaries may be terminated for cause without liability on
the part of FairMarket and its subsidiaries effective immediately upon written
notice by FairMarket to Executive. Upon the giving of notice of termination of
Executive's employment pursuant to this Section, FairMarket and its subsidiaries
shall have no further obligation or liability to Executive, except as
specifically set forth in Section 2(e)(i) below. For purposes of this Agreement,
the following shall constitute "cause" for such termination:
i. any material breach by Executive of any provision of this
Agreement or of any other agreement between Executive and FairMarket,
including without limitation any agreement referred to in this
Agreement;
ii. the commission of, conviction of or plea of nolo contendere by
Executive to (A) a felony or (B) a misdemeanor involving moral
turpitude, deceit, dishonesty or fraud;
iii. any other materially dishonest act or statement of Executive
or insubordination of Executive with respect to FairMarket or any of
its affiliates; or
iv. any material misconduct, willful or deliberate non-performance
or gross negligence in the performance (other than by reason of
disability, as determined by FairMarket) by Executive of any of
Executive's duties and responsibilities to FairMarket or any of its
affiliates or otherwise with respect to FairMarket or any of its
affiliates.
For purposes of this Agreement, no act, or failure to act, on Executive's part
shall be considered "willful" unless such act, or failure to act, was without
reasonable belief that Executive's action or omission was in the best interest
of FairMarket.
b. TERMINATION BY EXECUTIVE. Executive's employment with FairMarket and
its subsidiaries may be terminated by Executive by written notice to the Chief
Executive Officer of FairMarket at least thirty (30) days prior to such
termination. After receiving written notice, FairMarket shall have the right in
its sole discretion to accelerate the timing of such termination by Executive,
and such acceleration shall not affect the treatment of such termination as a
termination by Executive pursuant to this Section 2(b). Upon the termination of
Executive's employment pursuant to this Section, FairMarket and its subsidiaries
shall have no further obligation or liability to Executive, except as
specifically set forth in Section 2(e)(i) below.
c. TERMINATION BY FAIRMARKET WITHOUT CAUSE. FairMarket may terminate
Executive's employment with FairMarket and its subsidiaries without cause by
written notice by FairMarket to Executive. If such termination occurs before or
after a Change of Control Period (as defined in Section 2(f) below), then
Executive shall receive only the termination benefits set forth in Section 2(e)
below, subject in the case of Section 2(e)(ii) to compliance by Executive with
the provisions of that Section. If such termination occurs during a Change of
Control Period, then Executive shall receive only the termination benefits
specified in Sections 2(e)(i) and 2(f) below, subject in the case of Section
2(f) to compliance by Executive with the provisions of that Section.
d. TERMINATION BY EXECUTIVE FOR GOOD REASON. Before and after a Change
of Control Period, subject to FairMarket's notice and opportunity to cure
pursuant to this Section 2(d), Executive may terminate Executive's employment
with FairMarket and its subsidiaries for Good Reason and receive only the
termination benefits specified in Section 2(e) below, subject in the case of
Section 2(e)(ii) to compliance by Executive with the provisions of that Section.
During a Change of Control Period, Executive may terminate Executive's
employment with FairMarket and its subsidiaries for Good Reason and receive only
the termination benefits specified in Sections 2(e)(i) and 2(f) below, subject
in the case of Section 2(f) to compliance by Executive with the provisions of
that Section.
For purposes of this Agreement, "Good Reason" shall mean:
i. a substantial adverse change or diminution in the substantive
nature or scope of Executive's responsibilities, authority, powers,
functions and duties; provided, however, that any failure of FairMarket
to continue Executive in the position of director, officer or employee
of any of its subsidiaries or other affiliates and any diminution of
the business of FairMarket or any of its affiliates, including without
limitation the sale or transfer of any or all of the assets of
FairMarket or any of its affiliates, shall not constitute "Good
Reason";
ii. a reduction in Executive's annual base salary of more than
15%, except for an across-the-board salary reduction similarly
affecting all or substantially all employees, or any material failure
of FairMarket to provide Executive with such other material employee
benefits to which Executive is entitled, except for an across-the-board
change in benefits affecting all or substantially all employees; or
iii. the relocation of the offices at which Executive is
principally employed to a location more than 50 miles from such offices
without Executive's consent.
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If such termination occurs other than during a Change of Control Period by
reason of any of the events listed above in this Section 2(d), Executive shall
provide FairMarket with at least thirty (30) days notice and opportunity to cure
such events and shall not be entitled to benefits pursuant to Section 2(e)(ii)
below unless FairMarket fails to cure within such 30-day period.
e. CERTAIN TERMINATION BENEFITS.
i. In the event of the termination of Executive's employment
pursuant to any provision of this Agreement, then no later than the next payroll
date following the date of termination of Executive's employment for any reason,
FairMarket shall pay Executive for all salary and vacation time accrued as of
such date of termination. Except as otherwise specifically provided in any
compensation and benefit programs in which Executive participated, all
compensation and benefits payable to Executive shall terminate on the date of
termination of Executive's employment.
ii. Notwithstanding the foregoing, in the event of termination of
Executive's employment with FairMarket pursuant to Section 2(c) or (d) above
(other than during a Change of Control Period, in which case the provisions of
Section 2(f) shall apply), FairMarket shall provide to Executive the following
termination benefits, provided that Executive executes a General Release (as
defined in Section 2(g) below) and, if a revocation period is provided in the
General Release, does not revoke the same within the period stated in the
General Release, and subject to Section 3 below:
A. payment of a lump sum equal to one (1) year of Executive's
base salary at the time of termination;
B. continuation of group health plan benefits to the extent
authorized by and consistent with 29 U.S.C. Section 1161 ET SEQ.
(commonly known as "COBRA"), with full premium payments for such
benefits made by FairMarket for twelve (12) months after the
Separation Date; and
C. vesting of the portion of all stock options granted to
Executive by FairMarket (and not yet exercised, expired,
surrendered or canceled) that is not vested as of the Separation
Date as follows:
(I) with respect to the retention grant to Executive
of January 17, 2001 of an option to acquire 50,000 shares (but not
with respect to the performance grant to Executive of January 17,
2001 of an option to acquire 50,000 shares) and with respect to
the stock option granted to Executive as of April 3, 2001 of an
option to acquire 100,000 shares, vesting of the entire portion of
such stock options that is not vested as of Executive's
termination date;
(II) with respect to the stock options granted to
Executive on February 8, 2000, vesting of the potion of such
options that is not vested as of Executive's termination date and
that would otherwise have vested by the date that is the one (1)
year anniversary of Executive's termination date; and
(III) extension of the period for exercise of all
vested stock options to December 29, 2002.
Executive hereby acknowledges and understands that the
amendment of the Original Agreement to provide an opportunity to
exercise incentive stock options after September 29, 2001 will
disqualify such stock options from treatment as incentive stock
options under the Internal Revenue Code.
f. TERMINATION PURSUANT TO A CHANGE OF CONTROL.
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i. If a Change of Control (as defined below) occurs and if during
the period beginning on the date such Change of Control occurs and ending on the
second anniversary thereof (a "Change of Control Period"), FairMarket terminates
Executive's employment pursuant to Section 2(c) or Executive terminates
Executive's employment with FairMarket pursuant to Section 2(d) and, in either
event, Executive executes a General Release and, if a revocation period is
provided in the General Release, does not revoke the same within the period
stated in the General Release, and subject to Section 3 below, then:
A. FairMarket shall pay Executive an amount equal to two (2)
times the greater of (1) the sum of the base salary and the amount
of any Bonus (as defined below) paid or payable to Executive
during the twelve (12) months following the date on which such
termination occurs or (2) the sum of (x) the base salary paid or
payable to Executive during the twelve (12) months preceding the
date on which such termination occurs plus (y) the average of the
last four (4) quarterly Bonuses paid to or payable to Executive
prior to the date on which such termination occurs multiplied by
four (4), payable as provided below;
B. FairMarket shall provide Executive with continuation of
group health plan benefits to the extent authorized by and
consistent with 29 U.S.C. Section 1161 ET SEQ. (commonly known as
"COBRA"), with payments for such benefits made by FairMarket in
the same proportion as made during Executive's employment; and
C. any and all stock options granted Executive by FairMarket
and not yet exercised, expired, surrendered or canceled shall
automatically vest in full as of Executive's termination date.
Any decrease in Executive's Bonus and any decrease in Executive's base salary
that occur after the date a Change of Control occurs, other than an
across-the-board decrease affecting all or substantially all employees, shall be
disregarded for purposes of the calculation set forth in the preceding clause
(A). The Change of Control Payment shall be in lieu of any payments to or on
behalf of Executive that may otherwise be required pursuant to Sections
2(e)(ii). As used above, "Bonus" means any cash compensation paid by FairMarket
and its subsidiaries to Executive under any cash incentive or bonus compensation
plan.
ii. "Change of Control" shall mean the occurrence of one or more
of the following events:
A. the stockholders of FairMarket approve an agreement for the
sale of all or substantially all of the assets of FairMarket on a
consolidated basis to an unrelated person or entity;
B. the stockholders of FairMarket approve a merger,
reorganization or consolidation in which the outstanding shares of
FairMarket's common stock are converted into or exchanged for a
different kind of securities of the successor entity and the
holders of FairMarket's outstanding voting power immediately prior
to such transaction do not own a majority of the outstanding
voting power of the successor entity immediately upon completion
of such transaction; or
C. the sale of all of the outstanding common stock of
FairMarket to an unrelated person or entity.
iii. FairMarket shall promptly reimburse Executive for the amount
of all reasonable attorneys' fees and expenses incurred by Executive in
successfully obtaining or enforcing any right or benefit provided Executive
under this Section 2(f).
g. GENERAL RELEASE. Executive's entitlement to benefits pursuant to
Section 2(e)(ii) or 2(f) is conditioned on Executive's execution of and the
effectiveness of a General Release. For purposes of this Agreement, a "General
Release" means a release of any and all claims against FairMarket and related
persons and entities: (i) in a form identical to or substantially the same as
the release attached as Exhibit A
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hereto, provided, however, that FairMarket reserves the right to change any
provision concerning notice and revocation to conform to legal requirements; or
(ii) any other form of general release acceptable to FairMarket.
3. REDUCTION OF PAYMENTS.
a. Anything in this Agreement to the contrary notwithstanding, if any
compensation, payment or distribution by FairMarket to or for the benefit of
Executive, whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise (the "Severance Payments"), would be
subject to the excise tax imposed by Section 4999 of the Internal Revenue Code
of 1986, as amended (the "Code"), the following provisions shall apply:
i. If the Severance Payments, reduced by the sum of (A) the
Excise Tax (as defined below) and (B) the total of the federal, state
and local income and employment taxes payable by Executive on the
amount of the Severance Payments which are in excess of the Threshold
Amount (as defined below), are greater than or equal to the Threshold
Amount, Executive shall be entitled to the full benefits payable under
this Agreement.
ii. If the Threshold Amount is less than (A) the Severance
Payments, but greater than (B) the Severance Payments reduced by the
sum of (1) the Excise Tax and (2) the total of the federal, state and
local income and employment taxes on the amount of the Severance
Payments which are in excess of the Threshold Amount, then the benefits
payable under this Agreement shall be reduced (but not below zero) to
the extent necessary so that the maximum Severance Payments shall not
exceed the Threshold Amount. To the extent that there is more than one
method of reducing the payments to bring them within the Threshold
Amount, Executive shall determine which method shall be followed;
provided that if Executive fails to make such determination within
forty-five (45) days after the delivery by FairMarket to Executive of
written notice of the need for such reduction, FairMarket may determine
the amount of such reduction in its sole discretion.
For the purposes of this Section 3: "Threshold Amount" shall mean three (3)
times Executive's "base amount" within the meaning of Section 280G(b)(3) of the
Code and the regulations promulgated thereunder less one dollar ($1.00); and
"Excise Tax" shall mean the excise tax imposed by Section 4999 of the Code, or
any interest or penalties incurred by Executive with respect to such excise tax.
b. The determination as to which of the alternative provisions of
Section 3(a) shall apply to Executive shall be made by PricewaterhouseCoopers,
L.L.P. or any other nationally recognized accounting firm selected by FairMarket
(the "Accounting Firm"), which shall provide detailed supporting calculations
both to FairMarket and Executive within fifteen (15) business days of the date
of termination of Executive's employment, if applicable, or at such earlier time
as is reasonably requested by FairMarket or Executive. For purposes of
determining which of the alternative provisions of Section 3(a) shall apply,
Executive shall be deemed to pay federal income taxes at the highest marginal
rate of federal income taxation applicable to individuals for the calendar year
in which the determination is to be made, and state and local income taxes at
the highest marginal rates of individual taxation in the state and locality of
Executive's residence on the date of termination of Executive's employment, net
of the maximum reduction in federal income taxes which could be obtained from
deduction of such state and local taxes. Any determination by the Accounting
Firm shall be binding upon FairMarket and Executive.
4. CONFIDENTIAL INFORMATION, NONCOMPETITION AND INTELLECTUAL PROPERTY. This
Agreement incorporates by reference the terms of the Employee Agreement
Regarding Inventions, Confidentiality and Non-Competition dated March 17, 1997
(the "Inventions, Confidentiality and Non-Competition Agreement") and
Executive's obligations contained therein apply both during and following the
termination of Executive's employment. Executive further agrees to the
following, provided that the following is intended to be construed to be
consistent with the Inventions, Confidentiality and Non-Competition Agreement
and shall
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not be construed to create greater substantive restrictions on Executive beyond
those to which Executive is subject pursuant to the Inventions, Confidentiality
and Non-Competition Agreement:
a. CONFIDENTIAL INFORMATION. As used in this Agreement, "Confidential
Information" means information belonging to FairMarket and its affiliates which
is of value to FairMarket in the course of conducting its business and the
disclosure of which could result in a competitive or other disadvantage to
FairMarket. Confidential Information includes, without limitation, financial
information, reports, and forecasts; inventions, improvements and other
intellectual property; trade secrets; know-how; designs, processes or formulae;
software; market or sales information or plans; customer lists; and business
plans, prospects and opportunities (such as possible acquisitions or
dispositions of businesses or facilities) which have been discussed or
considered by the management of FairMarket. Confidential Information includes
information developed by Executive in the course of Executive's employment by
FairMarket, as well as other information to which Executive may have access in
connection with Executive's employment. Confidential Information also includes
the confidential information of others with which FairMarket or any of its
affiliates has a business relationship. Notwithstanding the foregoing,
Confidential Information does not include information in the public domain,
unless due to breach of Executive's duties under this Section 4.
b. CONFIDENTIALITY. Executive understands and agrees that Executive's
employment creates a relationship of confidence and trust between Executive and
FairMarket with respect to all Confidential Information. At all times, both
during Executive's employment with FairMarket and after its termination,
Executive will keep in confidence and trust all such Confidential Information,
and will not use or disclose any such Confidential Information without the prior
written consent of FairMarket, except as necessary in the ordinary course of
performing Executive's duties to FairMarket.
c. DOCUMENTS, RECORDS, ETC. All documents, records, apparatus,
equipment and other physical property, whether or not pertaining to Confidential
Information, which are furnished to Executive by FairMarket or any of its
affiliates or are produced by Executive in connection with Executive's
employment will be and remain the sole property of FairMarket. Executive will
return to FairMarket all such materials and property as and when requested by
FairMarket. In any event, Executive will return all such materials and property
immediately upon termination of Executive's employment for any reason. Executive
will not retain with Executive any such material or property or any copies
thereof after such termination.
d. NONCOMPETITION AND NONSOLICITATION. During the term of Executive's
employment with FairMarket and for one (1) year thereafter, Executive: (i) will
not, directly or indirectly, whether as owner, partner, shareholder, consultant,
agent, employee, co-venturer or otherwise, engage, participate or invest in any
Competing Business (as defined below); (ii) will refrain from directly or
indirectly employing, attempting to employ, recruiting or otherwise soliciting,
inducing or influencing any FairMarket employee or FairMarket consultant to
leave their employment or cease their consulting relationship with FairMarket or
any of its affiliates (other than terminations of employment of subordinate
employees and terminations of consulting relationships undertaken in the
ordinary course of Executive's employment with FairMarket); and (iii) will
refrain from soliciting or encouraging any customer or supplier to terminate or
otherwise modify adversely its business relationship with FairMarket or any of
its affiliates. Executive understands that the restrictions set forth in this
Section 4(d) are intended to protect FairMarket's interest in its Confidential
Information and established employee, consultant, customer and supplier
relationships and goodwill, and agrees that such restrictions are reasonable and
appropriate for this purpose. For purposes of this Agreement, the term
"Competing Business" shall mean a business conducted anywhere in the world which
is competitive with any business which FairMarket or any of its affiliates
conducts or proposes to conduct at any time during the employment of Executive.
Executive acknowledges that the business of FairMarket and its affiliates is
international in scope. Notwithstanding the foregoing, Executive may own up to
one percent (1%) of the outstanding stock of a publicly held corporation which
constitutes or is affiliated with a Competing Business.
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e. INJUNCTION. Executive agrees that it would be difficult to measure
any damages caused to FairMarket which might result from any breach by Executive
of the promises set forth in this Section 4 or in the Confidentiality,
Inventions and Non-Competition Agreement, and that in any event money damages
would be an inadequate remedy for any such breach. Accordingly, Executive agrees
that if Executive breaches, or proposes to breach, any portion of this Agreement
or the Confidentiality, Inventions and Non-Competition Agreement, FairMarket
shall be entitled, in addition to all other remedies that it may have, to an
injunction or other appropriate equitable relief to restrain any such breach
without showing or proving any actual damage to FairMarket.
5. NONDISPARAGEMENT. Executive agrees not to make any statements that
disparage or otherwise criticize FairMarket or any of its affiliates, products,
services, employees, officers or directors following the termination of
employment. Notwithstanding the foregoing, statements made in the course of
sworn testimony in legal proceedings or other statements required by law shall
not be subject to this Section 5.
6. LITIGATION AND REGULATORY COOPERATION. During and after Executive's
employment, Executive shall cooperate fully with FairMarket and its affiliates
in the defense or prosecution of any claims or actions now in existence or which
may be brought in the future against or on behalf of FairMarket or any of its
affiliates which relate to events or occurrences that transpired while Executive
was employed by FairMarket. Executive's full cooperation in connection with such
claims or actions shall include, but not be limited to, being available to meet
with counsel to prepare for discovery or trial, to act as a witness on behalf of
FairMarket, and if called to testify, to testify truthfully and in good faith
about events that happened during Executive's employment. During and after
Executive's employment, Executive also shall cooperate fully with FairMarket in
connection with any investigation or review of any federal, state or local
regulatory authority as any such investigation or review relates to events or
occurrences that transpired while Executive was employed by FairMarket.
FairMarket shall make reasonable efforts to schedule any cooperation required
pursuant to this Section 6 at such times that will not unreasonably interfere
with Executive's search for other employment or performance of other employment
services. FairMarket shall (a) reimburse Executive for reasonable expenses
incurred by Executive in connection with Executive's performance of obligations
pursuant to this Section 6 based on the standards and procedures applicable to
expense reimbursement for FairMarket's employees and (b) compensate Executive
for any required cooperation pursuant to this Section 6 by paying Executive for
Executive's time at an hourly rate of 125% of Executive's final annual base
salary rate when last employed by FairMarket divided by 2,080, provided that
FairMarket shall not be obligated to pay for any of Executive's time spent
testifying or that otherwise could have been required to be expended pursuant to
a subpoena.
7. WITHHOLDING. All payments made by FairMarket under this Agreement shall
be reduced by any tax or other amounts that FairMarket reasonably determines to
be required to be withheld under applicable law.
8. CONSENT TO JURISDICTION. To the extent that any court action is
permitted consistent with or to enforce this Agreement, the parties hereby
consent to the jurisdiction of the Superior Court of the Commonwealth of
Massachusetts and the United States District Court for the District of
Massachusetts. Accordingly, with respect to any such court action, Executive (a)
submits to the personal jurisdiction of such courts, (b) consents to service of
process and (c) waives any other requirement (whether imposed by statute, rule
of court, or otherwise) with respect to personal jurisdiction or service of
process.
9. INTEGRATION. This Agreement and the Inventions, Confidentiality and
Non-Competition Agreement, which is incorporated by reference herein, constitute
the entire agreement between the parties with respect to the subject matter
hereof and supersede all prior agreements between the parties with respect to
such or any related subject matter.
10. ASSIGNMENT; SUCCESSORS AND ASSIGNS, ETC. Neither FairMarket nor
Executive may make any assignment of this Agreement or any interest herein, by
operation of law or otherwise, without the prior written consent of the other
party; provided that FairMarket may assign its rights under this Agreement
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without the consent of Executive in the event that FairMarket shall effect a
reorganization, consolidate with or merge into any other corporation,
partnership, organization or other entity, or transfer all or substantially all
of its properties or assets to any other corporation, partnership, organization
or other entity. This Agreement shall inure to the benefit of and be binding
upon FairMarket and Executive, their respective successors, executors,
administrators, heirs and permitted assigns.
11. ENFORCEABILITY. If any portion or provision of this Agreement
(including, without limitation, any portion or provision of any section of this
Agreement) shall to any extent be declared illegal or unenforceable by a court
of competent jurisdiction, then the remainder of this Agreement, or the
application of such portion or provision in circumstances other than those as to
which it is so declared illegal or unenforceable, shall not be affected thereby,
and each portion and provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
12. ARBITRATION OF DISPUTES. Any controversy or claim arising out of or
relating to this Agreement or the breach thereof or otherwise arising out of
Executive's employment or the termination of that employment during a Change of
Control Period (including, without limitation, any claims of unlawful employment
discrimination whether based on age or otherwise) shall, to the fullest extent
permitted by law, be settled by arbitration in any forum and form agreed upon by
the parties or, in the absence of such an agreement, under the auspices of the
American Arbitration Association ("AAA") in Boston, Massachusetts in accordance
with the Employment Dispute Resolution Rules of the AAA, including, but not
limited to, the rules and procedures applicable to the selection of arbitrators.
In the event that any person or entity other than Executive or FairMarket may be
a party with regard to any such controversy or claim, such controversy or claim
shall be submitted to arbitration subject to such other person or entity's
agreement. Judgment upon the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof. This Section 12 shall be specifically
enforceable. Notwithstanding the foregoing, this Section 12 shall not preclude
either party from pursuing a court action for the sole purpose of obtaining a
temporary restraining order or a preliminary injunction in circumstances in
which such relief is appropriate; provided that any other relief shall be
pursued through an arbitration proceeding pursuant to this Section 12.
13. WAIVER. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of any party to
require the performance of any term or obligation of this Agreement, or the
waiver by any party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
14. NOTICES. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and delivered
in person or sent by a nationally recognized overnight mail service or by
registered or certified mail, postage prepaid, return receipt requested, to
Executive at the last address Executive has filed in writing with FairMarket or,
in the case of FairMarket, at its headquarters office, attention of the Chief
Executive Officer, and shall be effective on the earliest of the date of actual
receipt, deposit at the address for delivery or postal notice of the
availability of the communication.
15. AMENDMENT. This Agreement may be amended or modified only by a written
instrument signed by Executive and by a duly authorized representative of
FairMarket.
16. GOVERNING LAW. This is a Massachusetts contract and shall be construed
under and be governed in all respects by the laws of the Commonwealth of
Massachusetts, without giving effect to the conflict of laws principles of such
Commonwealth.
17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be taken to be
an original; but such counterparts shall together constitute one and the same
document.
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IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument
by FairMarket, by its duly authorized officer, and by Executive, as of the
Effective Date.
FAIRMARKET, INC.
By: /s/ Xxxxx Xxxxx
-------------------------------------------------
Name: Xxxxx Xxxxx
-----------------------------------------------
Title: Chief Financial Officer
----------------------------------------------
/s/ Xxxxx Xxxxxxx 6/21/01
----------------------------------------------
Xxxxx Xxxxxxx
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Appendix A
GENERAL RELEASE OF CLAIMS
In exchange for and as a condition to those promises of FairMarket,
Inc. ("FairMarket") in the Agreement Concerning Termination of Employment,
Severance Pay and Related Matters between FairMarket and me (the "Agreement")
that are subject to my agreement to a General Release, I agree as follows:
I hereby irrevocably and unconditionally release, acquit and forever
discharge FairMarket, its predecessors, successors, affiliates, other related
entities and assigns, and the directors, officers, employees, shareholders and
representatives of any of the foregoing, and any persons acting on behalf or
through any of the foregoing (any and all of whom or which are hereinafter
referred to as the "Company"), 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
(including attorneys' fees and costs actually incurred), of any nature
whatsoever, known or unknown (collectively, "Claims"), that I now have, own or
hold, or claim to have, own or hold, or that I at any time had, owned or held,
or claimed to have had, owned or held against the Company. This General Release
of Claims includes, without implication of limitation, the complete release of
all Claims of breach of express or implied contract, including, without
limitation, all Claims arising from any employment offer letter from the
Company; all Claims of wrongful termination of employment whether in contract or
tort; all Claims based on actions or omissions leading to this General Release
of Claims; all Claims of intentional, reckless or negligent infliction of
emotional distress; all Claims of breach of any express or implied covenant of
employment, including the covenant of good faith and fair dealing; all Claims of
interference with contractual or advantageous relations, whether those relations
are prospective or existing; all Claims of deceit or misrepresentation; all
Claims of discrimination under state or federal law, including, without
implication of limitation, Title VII of the Civil Rights Act of 1964, 42 U.S.C.
Section 2000e ET SEQ., as amended, the Age Discrimination in Employment Act of
1967, 29 U.S.C. Section 621 ET SEQ., as amended, and Chapter 151B of the
Massachusetts General Laws; all Claims of defamation or damage to reputation;
all Claims for reinstatement; all Claims for punitive or emotional distress
damages; all Claims for wages, bonuses, severance, back or front pay or other
forms of compensation; and all Claims for attorneys' fees and costs. This
General Release of Claims shall not be construed to include a release of Claims
that arise from the Company's obligations under the Agreement.
I acknowledge that I have been advised to consult with an attorney
before signing this General Release.
Notwithstanding the foregoing, I agree that nothing in this General
Release of Claims is intended to affect any of my obligations that continue
after the termination of my employment contained in the Agreement or in any
written agreement entered into between FairMarket and myself with respect to
confidentiality, ownership of inventions, non-competition and/or
non-solicitation.
I represent and agree that I have carefully read and fully understand
all of the provisions of this General Release and that I am voluntarily agreeing
to such provisions.
Name: /s/ Xxxxx Xxxxxxx Date: 6/21/01
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