EXHIBIT 99.4
VOTING AGREEMENT
THIS VOTING AGREEMENT ("Agreement") is entered into as of June 20,
2003, by and between EBAY INC., a Delaware corporation (the "Purchaser"), and
the Xxxxxx Entities on Schedule A hereto (each, a "Stockholder").
RECITALS
A. Each Stockholder is a holder of record and the "beneficial
owner" (within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934) of certain shares of capital stock of FairMarket, Inc., a Delaware
corporation (the "Seller").
B. The Purchaser and the Seller are entering into an Asset
Purchase Agreement of even date herewith (the "Purchase Agreement") which
provides (subject to the conditions set forth therein) for the acquisition of
certain assets of the Seller by the Purchaser.
C. Prior to the execution of this Agreement, the board of
directors of Seller has adopted resolutions: (a) rendering inapplicable the
provisions of Section 203 of the Delaware General Corporation Law to this
Agreement and the provisions of this Agreement in accordance with its terms; and
(b) amending that certain Shareholder Rights Agreement, dated as of May 17,
2001, by and between Seller and Equiserve Trust Company, N.A., in order to
prevent the transactions contemplated by this Agreement from triggering the
occurrence of a "Stock Acquisition Date" under such Shareholder Rights
Agreement.
D. In order to induce the Purchaser to enter into the Purchase
Agreement, each Stockholder is entering into this Agreement.
AGREEMENT
The parties to this Agreement, intending to be legally bound, agree as
follows:
SECTION 1. CERTAIN DEFINITIONS
For purposes of this Agreement:
(a) Capitalized terms used in this Agreement and not
otherwise defined herein or on Exhibit B hereto shall have the meanings
given to them in the Purchase Agreement.
(b) The term "ACQUISITION" shall mean the acquisition of
certain assets of Seller by the Purchaser pursuant to the terms of the
Purchase Agreement, as amended.
(c) Each Stockholder shall be deemed to "OWN" or to have
acquired "OWNERSHIP" of a security if the Stockholder: (i) is the
record owner of such security; or
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(ii) is the "beneficial owner" (within the meaning of Rule 13d-3 under
the Securities Exchange Act of 1934) of such security.
(d) "PERSON" shall mean any: (i) individual, (ii)
corporation, limited liability company, partnership or other entity; or
(iii) governmental authority.
(e) "SELLER COMMON STOCK" shall mean the common stock,
par value $0.001 per share, of the Seller.
(f) "SUBJECT SECURITIES" shall mean: (i) all securities
of the Seller (including all shares of Seller Common Stock and all
options, warrants and other rights to acquire shares of Seller Common
Stock) Owned by such Stockholder as of the date of this Agreement; and
(ii) all additional securities of the Seller (including all additional
shares of Seller Common Stock and all additional options, warrants and
other rights to acquire shares of Seller Common Stock) of which such
Stockholder acquires Ownership during the period from the date of this
Agreement through the Voting Covenant Expiration Date.
(g) A Person shall be deemed to have a effected a
"TRANSFER" of a security if such Person directly or indirectly: (i)
sells, pledges, encumbers, grants an option with respect to, transfers
or disposes of such security or any interest in such security to any
Person other than the Purchaser; (ii) enters into an agreement or
commitment contemplating the possible sale of, pledge of, encumbrance
of, grant of an option with respect to, transfer of or disposition of
such security or any interest therein to any Person other than the
Purchaser; or (iii) reduces such Person's beneficial ownership of,
interest in or risk relating to such security.
(h) "VOTING COVENANT EXPIRATION DATE" shall mean the
earlier of the date upon which the Purchase Agreement is validly
terminated, or the date upon which the Acquisition is consummated.
SECTION 2. RESTRICTIONS ON TRANSFER OF SUBJECT SECURITIES AND VOTING
RIGHTS
2.1 RESTRICTION ON TRANSFER OF SUBJECT SECURITIES. During the
period from the date of this Agreement through the Voting Covenant Expiration
Date, each Stockholder shall not, directly or indirectly, cause or permit any
Transfer of any of the Subject Securities to be effected.
2.2 RESTRICTION ON TRANSFER OF VOTING RIGHTS. During the period
from the date of this Agreement through the Voting Covenant Expiration Date,
each Stockholder shall ensure that: (a) none of the Subject Securities is
deposited into a voting trust; and (b) no proxy is granted, and no voting
agreement or similar agreement is entered into, with respect to any of the
Subject Securities.
SECTION 3. VOTING OF SHARES
3.1 VOTING COVENANT. Prior to the Voting Covenant Expiration Date,
at any meeting of the stockholders of the Seller, however called, and in any
action by written consent of stockholders of the Seller, unless otherwise
directed in writing by the Purchaser, each Stockholder shall cause all Subject
Securities that are entitled under applicable corporate laws to
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vote at such meeting or by such written consent to be voted (and to which such
Stockholder is entitled to vote):
(a) in favor of the Acquisition and the execution and
delivery by the Seller of the Purchase Agreement, in favor of each of
the other actions contemplated by the Purchase Agreement and in favor
of any action in furtherance of any of the foregoing; and
(b) against the following actions (other than the
Acquisition and the transactions contemplated by the Purchase
Agreement, including, without limitation, the change in Seller's
corporate name or the dissolution and liquidation of the Seller): (i)
any Acquisition Transaction; (ii) any Acquisition Proposal; (iii) any
change in a majority of the board of directors of the Seller; (iv) any
amendment to the Seller's certificate of incorporation or bylaws; (v)
any material change in the capitalization of the Seller or the Seller's
corporate structure; and (vi) any other action which is intended, or
could reasonably be expected, to impede, interfere with, delay,
postpone, discourage or adversely affect the Acquisition or any of the
other transactions contemplated by the Purchase Agreement or this
Agreement.
Prior to the Voting Covenant Expiration Date, no Stockholder shall enter into
any agreement or understanding with any Person to vote or give instructions in
any manner inconsistent with clause "(a)" or "(b)" of the preceding sentence.
3.2 PROXY. Contemporaneously with the execution of this Agreement:
(a) each Stockholder shall deliver to the Purchaser a proxy in the form attached
to this Agreement as Exhibit A, which shall be irrevocable to the fullest extent
permitted by law (at all times prior to the Voting Covenant Expiration Date)
with respect to the shares referred to therein (the "Proxy"); and (b) each
Stockholder shall cause to be delivered to the Purchaser, as soon as practicably
possible, an additional proxy (in the form attached hereto as Exhibit A or in a
substantially similar form prepared by the record holder that is reasonably
satisfactory to Purchaser) executed on behalf of the record owner of any
outstanding shares of Seller Common Stock that are owned beneficially (within
the meaning of Rule 13d-3 under the Securities Exchange Act of 1934), but not of
record, by such Stockholder.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Each Stockholder hereby represents and warrants to the Purchaser as
follows:
4.1 AUTHORIZATION, ETC. Stockholder has the absolute and
unrestricted right, power, authority and capacity to execute and deliver this
Agreement and the Proxy and to perform his or its obligations hereunder and
thereunder. This Agreement and the Proxy have been duly authorized, executed and
delivered by Stockholder and constitute legal, valid and binding obligations of
Stockholder, enforceable against Stockholder in accordance with their terms,
subject to: (a) laws of general application relating to bankruptcy, insolvency
and the relief of debtors; and (b) rules of law governing specific performance,
injunctive relief and other equitable remedies.
4.2 NO CONFLICTS OR CONSENTS.
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(a) The execution and delivery of this Agreement and the
Proxy by Stockholder do not, and the performance of this Agreement and
the Proxy by Stockholder will not: (i) conflict with or violate any
law, rule, regulation, order, decree or judgment applicable to
Stockholder or by which he or it or any of his or its properties is or
may be bound or affected; or (ii) result in or constitute (with or
without notice or lapse of time) any breach of or default under, or
result (with or without notice or lapse of time) in the creation of any
encumbrance or restriction on any of the Subject Securities pursuant
to, any contract to which Stockholder is a party or by which
Stockholder or any of his or its affiliates or properties is or may be
bound or affected.
(b) The execution and delivery of this Agreement and the
Proxy by Stockholder do not, and the performance of this Agreement and
the Proxy by Stockholder will not, require any consent or approval of
any Person (provided, however, it is acknowledged that the
applicability of this Agreement to any Additional Xxxxxx Entities is
subject to the execution of this Agreement by such Additional Xxxxxx
Entity).
4.3 TITLE TO SECURITIES. As of the date of this Agreement: (a)
Stockholder holds of record (free and clear of any encumbrances or restrictions)
the number of outstanding shares of Seller Common Stock set forth under the
heading "Shares Held of Record" on the signature page hereof; (b) Stockholder
holds (free and clear of any encumbrances or restrictions) the options, warrants
and other rights to acquire shares of Seller Common Stock set forth under the
heading "Options and Other Rights" on the signature page hereof; (c) Stockholder
Owns the additional securities of the Seller set forth under the heading
"Additional Securities Beneficially Owned" on the signature page hereof; and (d)
Stockholder does not directly or indirectly Own any shares of capital stock or
other securities of the Seller, or any option, warrant or other right to acquire
(by purchase, conversion or otherwise) any shares of capital stock or other
securities of the Seller, other than the shares and options, warrants and other
rights set forth on the signature page hereof.
4.4 ACCURACY OF REPRESENTATIONS. The representations and
warranties contained in this Agreement are accurate in all material respects as
of the date of this Agreement, will be accurate in all respects at all times
through the Voting Covenant Expiration Date and will be accurate in all respects
as of the date of the consummation of the Acquisition as if made on that date.
SECTION 5. ADDITIONAL COVENANTS OF STOCKHOLDER
5.1 FURTHER ASSURANCES. From time to time and without additional
consideration, Stockholder shall execute and deliver, or cause to be executed
and delivered, such additional transfers, assignments, endorsements, proxies,
consents and other instruments, and shall take such further actions, as the
Purchaser may request for the purpose of carrying out and furthering the intent
of this Agreement. In addition, the Xxxxxx Entities agree to use their best
efforts to cause any of the Additional Xxxxxx Entities, as identified on
Schedule A under the heading "Shares Beneficially Owned - Approval Required" who
have not executed this Agreement as of the date hereof to execute this Agreement
as soon as reasonably practicable, but in no event later than June 27, 2003;
provided, however, to the extent that any such Additional Xxxxxx Entities do not
become party to this Agreement, the Xxxxxx Entities agree to use their best
efforts to cause
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any such Additional Xxxxxx Entities to act and behave in a manner consistent
with which such parties would be required to act and behave as if, in fact, they
had become a "Stockholder", including, without limitation, with respect to the
voting of Subject Securities consistent with the provisions of Section 3.1 of
this Agreement. If and at such time that any Additional Xxxxxx Entity becomes
party to this Agreement, they will be deemed to have been a Stockholder as of
the date of this Agreement.
5.2 LEGENDS. If requested by the Purchaser, Stockholder shall
(promptly after the receipt of such request) cause each certificate evidencing
any outstanding shares of Seller Common Stock or other securities of the Seller
Owned by Stockholder to be surrendered so that the transfer agent for such
securities may affix thereto a legend in the following form:
THE SECURITY OR SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
SOLD, EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN
COMPLIANCE WITH THE TERMS AND PROVISIONS OF A VOTING AGREEMENT DATED AS
OF JUNE 20, 2003, AS IT MAY BE AMENDED, A COPY OF WHICH IS ON FILE AT
THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER.
5.3 NO SOLICITATION. Each Stockholder agrees that, during the
period from the date of this Agreement through the Voting Covenant Expiration
Date, such Stockholder shall not, directly or indirectly, and shall not
authorize or permit any of such Stockholder's Representatives directly or
indirectly to: (a) solicit, initiate, knowingly encourage, induce or facilitate
the making, submission or announcement of any Acquisition Proposal or take any
action that could reasonably be expected to lead to the making, submission or
announcement of an Acquisition Proposal; (b) furnish any information regarding
the Seller or any affiliate of the Seller to any Person in connection with or in
response to an Acquisition Proposal or an inquiry or indication of interest that
could lead to an Acquisition Proposal; (c) engage in discussions or negotiations
with any Person with respect to any Acquisition Proposal; or (d) approve,
endorse or recommend any Acquisition Proposal. Each Stockholder shall promptly
(and in no event later than 48 hours after receipt of any Acquisition Proposal,
any inquiry or indication of interest that could lead to an Acquisition Proposal
or any request for nonpublic information) advise the Purchaser orally and in
writing of any Acquisition Proposal, any inquiry or indication of interest that
could lead to an Acquisition Proposal or any request for nonpublic information
relating to the Seller or any affiliate of the Seller (including the identity of
the Person making or submitting such Acquisition Proposal, inquiry, indication
of interest or request, and the terms thereof) that is made or submitted by any
Person during the period from the date of this Agreement through the Voting
Covenant Expiration Date. Each Stockholder shall keep the Purchaser fully
informed with respect to the status of any such Acquisition Proposal, inquiry,
indication of interest or request and any modification or proposed modification
thereto.
SECTION 6. MISCELLANEOUS
6.1 EXPENSES. All costs and expenses incurred in connection with
the transactions contemplated by this Agreement shall be paid by the party
incurring such costs and expenses.
6.2 NOTICES. Any notice or other communication required or
permitted to be delivered to any party under this Agreement shall be in writing
and shall be deemed properly
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delivered, given and received: (a) when delivered by hand; (b) on the day sent
by facsimile provided that the sender has received confirmation of transmission
as of or prior to 5:00 p.m. local time of the recipient on such day; (c) the
first business day after sent by facsimile to the extent that the sender has
received confirmation of transmission after 5:00 p.m. local time of the
recipient on the day sent by facsimile; or (d) the first business day after sent
by registered mail, by courier or express delivery service, in any case to the
address or facsimile telephone number set forth beneath the name of such party
below (or to such other address or facsimile telephone number as such party
shall have specified in a written notice given to the other parties hereto):
if to any Stockholder:
at the address set forth on the signature page
hereof; and
if to the Purchaser:
eBay Inc.
0000 Xxxxxxxx Xxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
6.3 SEVERABILITY. If any provision of this Agreement or any part
of any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then: (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent; (b) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction; and (c) the
invalidity or unenforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such provision or the
validity or enforceability of any other provision of this Agreement. Each
provision of this Agreement is separable from every other provision of this
Agreement, and each part of each provision of this Agreement is separable from
every other part of such provision.
6.4 ENTIRE AGREEMENT. This Agreement, the Proxy and any other
documents delivered by the parties in connection herewith constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings between the
parties with respect thereto. No addition to or modification of any provision of
this Agreement shall be binding upon either party unless made in writing and
signed by both parties.
6.5 ASSIGNMENT; BINDING EFFECT. Except as provided herein, neither
this Agreement nor any of the interests or obligations hereunder may be assigned
or delegated by any Stockholder, and any attempted or purported assignment or
delegation of any of such interests or obligations shall be void. Subject to the
preceding sentence, this Agreement shall be binding upon such Stockholder and
his heirs, estate, executors and personal representatives and his or its
successors and assigns, and shall inure to the benefit of the Purchaser and its
successors and assigns. Without limiting any of the restrictions set forth in
Section 2 or elsewhere in this
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Agreement, this Agreement shall be binding upon any Person to whom any Subject
Securities are transferred. Nothing in this Agreement is intended to confer on
any Person (other than the Purchaser and its successors and assigns) any rights
or remedies of any nature.
6.6 SPECIFIC PERFORMANCE. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement or
the Proxy were not performed in accordance with its specific terms or were
otherwise breached. Each Stockholder agrees that, in the event of any breach or
threatened breach by any Stockholder of any covenant or obligation contained in
this Agreement or in the Proxy, the Purchaser shall be entitled (in addition to
any other remedy that may be available to it, including monetary damages) to
seek and obtain: (a) a decree or order of specific performance to enforce the
observance and performance of such covenant or obligation; and (b) an injunction
restraining such breach or threatened breach. Each Stockholder further agrees
that neither the Purchaser nor any other Person shall be required to obtain,
furnish or post any bond or similar instrument in connection with or as a
condition to obtaining any remedy referred to in this Section 6.6, and each
Stockholder irrevocably waives any right he or it may have to require the
obtaining, furnishing or posting of any such bond or similar instrument.
6.7 NON-EXCLUSIVITY. The rights and remedies of the Purchaser
under this Agreement are not exclusive of or limited by any other rights or
remedies which it may have, whether at law, in equity, by contract or otherwise,
all of which shall be cumulative (and not alternative). Without limiting the
generality of the foregoing, the rights and remedies of the Purchaser under this
Agreement, and the obligations and liabilities of any Stockholder under this
Agreement, are in addition to their respective rights, remedies, obligations and
liabilities under common law requirements and under all applicable statutes,
rules and regulations.
6.8 GOVERNING LAW; VENUE.
(a) This Agreement shall be construed in accordance with,
and governed in all respects by, the internal laws of the State of
Delaware (without giving effect to principles of conflicts of laws).
(b) Any legal action or other legal proceeding relating
to this Agreement or the enforcement of any provision of this Agreement
may be brought or otherwise commenced in any court located in the State
of Delaware or the United States District Court for the District of
Delaware. Stockholder:
(i) expressly and irrevocably consents and
submits to the exclusive jurisdiction of each state court
located in the State of Delaware and the United States
District Court for the District of Delaware in connection with
any such action or proceeding;
(ii) agrees that each such court shall be deemed
to be a convenient forum; and
(iii) agrees not to assert (by way of motion, as a
defense or otherwise), in any such action or proceeding
commenced in any such court, any claim that such party is not
subject personally to the jurisdiction of such court, that
such
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action or proceeding has been brought in an inconvenient
forum, that the venue of such action or proceeding is improper
or that this Agreement or the subject matter of this Agreement
may not be enforced in or by any such court.
Nothing contained in this Section 6.8 shall be deemed to limit or
otherwise affect the right of the Purchaser to commence any legal
proceeding or otherwise proceed against Stockholder in any other forum
or jurisdiction.
(c) EACH STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT TO A
JURY TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS
AGREEMENT OR THE PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS
AGREEMENT OR THE PROXY.
6.9 COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
6.10 CAPTIONS. The captions contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
6.11 ATTORNEYS' FEES. If any legal action or other legal proceeding
relating to this Agreement or the enforcement of any provision of this Agreement
is brought by Purchaser against a Stockholder, the prevailing party shall be
entitled to recover reasonable attorneys' fees, costs and disbursements (in
addition to any other relief to which the prevailing party may be entitled).
6.12 WAIVER. No failure on the part of the Purchaser to exercise
any power, right, privilege or remedy under this Agreement, and no delay on the
part of the Purchaser in exercising any power, right, privilege or remedy under
this Agreement, shall operate as a waiver of such power, right, privilege or
remedy; and no single or partial exercise of any such power, right, privilege or
remedy shall preclude any other or further exercise thereof or of any other
power, right, privilege or remedy. The Purchaser shall not be deemed to have
waived any claim available to the Purchaser arising out of this Agreement, or
any power, right, privilege or remedy of the Purchaser under this Agreement,
unless the waiver of such claim, power, right, privilege or remedy is expressly
set forth in a written instrument duly executed and delivered on behalf of the
Purchaser; and any such waiver shall not be applicable or have any effect except
in the specific instance in which it is given.
6.13 TERMINATION. This Agreement shall terminate and have no
further force or effect as of the Voting Covenant Expiration Date; provided,
however, that the termination of this Agreement shall not relieve any party from
any liability for any breach of any representation, warranty, covenant,
obligation or other provision contained in this Agreement prior to such
termination.
6.14 CAPACITY. Notwithstanding anything in this Agreement to the
contrary, nothing in this Agreement shall limit or restrict a Stockholder from
acting in such Stockholder's capacity as a director or officer of Seller (it
being understood that this Agreement shall apply to a
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Stockholder solely in such Stockholder's capacity as a stockholder of Seller) or
voting in such Stockholder's sole discretion on any matter other than those
matters referred to in Section 3.
6.15 CONSTRUCTION.
(a) For purposes of this Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa;
the masculine gender shall include the feminine and neuter genders; the
feminine gender shall include the masculine and neuter genders; and the
neuter gender shall include masculine and feminine genders.
(b) The parties agree that any rule of construction to
the effect that ambiguities are to be resolved against the drafting
party shall not be applied in the construction or interpretation of
this Agreement.
(c) As used in this Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words
"without limitation."
(d) Except as otherwise indicated, all references in this
Agreement to "Sections" and "Exhibits" are intended to refer to
Sections of this Agreement and Exhibits to this Agreement.
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IN WITNESS WHEREOF, the Purchaser and Stockholder have caused this
Agreement to be executed as of the date first written above.
EBAY INC.
By:____________________________________
STOCKHOLDER
_______________________________________
Name:
Address: __________________________
__________________________
Facsimile: __________________________
Shares Held of Record Options and Other Rights Additional Securities Beneficially Owned
--------------------- ------------------------ ----------------------------------------
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ADDITIONAL
SECURITIES
SHARES HELD OPTIONS AND BENEFICIALLY
STOCKHOLDER OF RECORD OTHER RIGHTS OWNED
---------------------------------- ----------- ------------ -------------
__________________________________________
Name: Xxxxx X. Xxxxxx, III
Address: 0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
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ADDITIONAL
SECURITIES
SHARES HELD OPTIONS AND BENEFICIALLY
STOCKHOLDER OF RECORD OTHER RIGHTS OWNED
---------------------------------- ----------- ------------ -------------
TRUST A-4
By:
___________________________________________
Name:
Title:
Address:
Facsimile:
TRUST C
By:
____________________________________________
Name:
Title:
Address:
Facsimile:
1
ADDITIONAL
SECURITIES
SHARES HELD OPTIONS AND BENEFICIALLY
STOCKHOLDER OF RECORD OTHER RIGHTS OWNED
---------------------------------- ----------- ------------ -------------
MILGRAT II (G)
___________________________________________
Name: Xxxxx X. Xxxxxx, III
Title: Trustee
Address: 0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
MILFAM I, L.P.
By: Milfam LLC,
as managing general partner
___________________________________________
Name: Xxxxx X. Xxxxxx, III
Title: Manager
Address: 0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
MILFAM II, L.P.
By: Milfam LLC,
as managing general partner
____________________________________________
Name: Xxxxx X. Xxxxxx, III
Title: Manager
Address: 0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
ALEXANDRA UGMA
____________________________________________
Name: Xxxxx X. Xxxxxx, III
Title: Custodian
Address: 0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
1
ADDITIONAL
SECURITIES
SHARES HELD OPTIONS AND BENEFICIALLY
STOCKHOLDER OF RECORD OTHER RIGHTS OWNED
---------------------------------- ----------- ------------ -------------
XXXXXXXXX XXXXXX GST
____________________________________________
Name: Xxxxx X. Xxxxxx, III
Title: Trustee
Address: 0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
XXXXX X. XXXXXX LLC
By: ________________________________________
Name: Xxxxx X. Xxxxxx, III
Title: Manager
Address: 0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
XXXXX XXXXXX GST
By: ________________________________________
Name: Xxxxx X. Xxxxxx, III
Title: Trustee
Address: 0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
XXXXXXXX X. XXXXXX GST
_____________________________________________
Name: Xxxxx X. Xxxxxx, III
Title: Trustee
Address: 0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
2
ADDITIONAL
SECURITIES
SHARES HELD OPTIONS AND BENEFICIALLY
STOCKHOLDER OF RECORD OTHER RIGHTS OWNED
---------------------------------- ----------- ------------ -------------
______________________________________
Name: Xxxx Xxxxxx
Address:
Facsimile:
XXXXX XXXXXXX UGMA
By: ___________________________________
Name: Xxxx Xxxxxx
Title: Custodian
Address:
Facsimile:
XXXXX XXXXXXX UGMA
_______________________________________
Name: Xxxx Xxxxxx
Title: Custodian
Address:
Facsimile:
1
ADDITIONAL
SECURITIES
SHARES HELD OPTIONS AND BENEFICIALLY
STOCKHOLDER OF RECORD OTHER RIGHTS OWNED
---------------------------------- ----------- ------------ -------------
_____________________________________
Name: Xxxxxxxx X. Xxxxxx
Address:
Facsimile:
1
EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned stockholder ("Stockholder") of FAIRMARKET, INC., a
Delaware corporation (the "Seller"), hereby irrevocably (to the fullest extent
permitted by law) appoints and constitutes XXXXXXX X. XXXXXXXX, XXXX XXXXXX,
XXXXX X. XXXXX and EBAY INC., a Delaware corporation (the "Purchaser"), and each
of them, the attorneys and proxies of Stockholder with full power of
substitution and resubstitution, to the full extent of Stockholder's rights with
respect to the outstanding shares of capital stock of the Seller owned of record
by Stockholder as of the date of this proxy, which shares are specified on the
final page of this proxy. (The shares of the capital stock of the Seller
referred to in the immediately preceding sentence are collectively referred to
as the "Shares.") Upon the execution hereof, all prior proxies given by
Stockholder with respect to any of the Shares are hereby revoked, and
Stockholder agrees that no subsequent proxies will be given with respect to any
of the Shares in contravention of this Proxy. Capitalized terms used in this
Proxy and not otherwise defined shall have the meanings ascribed to them in the
Voting Agreement (as defined below).
This proxy is irrevocable, is coupled with an interest and is granted
in connection with the Voting Agreement, dated as of the date hereof, between
the Purchaser and Stockholder (the "Voting Agreement"), and is granted in
consideration of the Purchaser entering into the Asset Purchase Agreement, dated
as of the date hereof, between the Purchaser and the Seller (the "Purchase
Agreement"). This proxy will terminate on the Voting Covenant Expiration Date
(as defined in the Voting Agreement).
The attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares at any time until the Voting Covenant
Expiration Date at any meeting of the stockholders of the Seller, however
called, and in connection with any action by written consent of stockholders of
the Seller (and to which Stockholder is entitled to vote):
(i) in favor of the Acquisition (as defined in the Voting
Agreement) and the execution and delivery by the Seller of the Purchase
Agreement, in favor of each of the other actions contemplated by the
Purchase Agreement and in favor of any action in furtherance of any of
the foregoing; and
(ii) against the following actions (other than the
Acquisition and the transactions contemplated by the Purchase
Agreement, including, without limitation, the change in Seller's
corporate name or the dissolution and liquidation of the Seller): (i)
any Acquisition Transaction; (ii) any Acquisition Proposal; (iii) any
change in a majority of the board of directors of the Seller; (iv) any
amendment to the Seller's certificate of incorporation or bylaws; (v)
any material change in the capitalization of the Seller or the Seller's
corporate structure; and (vi) any other action which is intended, or
could reasonably be expected, to impede, interfere with, delay,
postpone, discourage or adversely affect the Acquisition or any of the
other transactions contemplated by the Purchase Agreement or the Voting
Agreement.
1
Stockholder may vote the Shares on all other matters not referred to in
this proxy, and the attorneys and proxies named above may not exercise this
proxy with respect to such other matters.
This proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of Stockholder (including any transferee
of any of the Shares).
If any provision of this proxy or any part of any such provision is
held under any circumstances to be invalid or unenforceable in any jurisdiction,
then: (a) such provision or part thereof shall, with respect to such
circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent; (b) the invalidity or unenforceability of such provision or part thereof
under such circumstances and in such jurisdiction shall not affect the validity
or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction; and (c) the invalidity or
unenforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this proxy. Each provision of this
proxy is separable from every other provision of this proxy, and each part of
each provision of this proxy is separable from every other part of such
provision.
Dated: ____________, 2003
________________________________________
Name
Number of shares of common stock of the
Seller owned of record as of the date of
this proxy:
________________________________________
2
EXHIBIT B
DEFINITIONS
ACQUISITION PROPOSAL. "Acquisition Proposal" shall mean any offer,
proposal, inquiry or indication of interest (other than an offer, proposal,
inquiry or indication of interest made or submitted by the Purchaser)
contemplating or otherwise relating to any Acquisition Transaction.
ACQUISITION TRANSACTION. "Acquisition Transaction" shall mean any
transaction or series of transactions involving: (a) any merger, consolidation,
amalgamation, share exchange, business combination, issuance of securities,
acquisition of securities, tender offer, exchange offer or other similar
transaction: (i) in which the Seller is a constituent corporation; (ii) in which
a Person or "group" (as defined in the Exchange Act and the rules promulgated
thereunder) of Persons directly or indirectly acquires beneficial or record
ownership of securities representing more than 15% of the outstanding securities
of any class of voting securities of the Seller; or (iii) in which the Seller
issues securities representing more than 15% of the outstanding securities of
any class of voting securities of the Seller; (b) any sale, lease, exchange,
transfer, license, acquisition or other disposition of all or a material portion
of the Seller's business or assets (other than in the ordinary course of
business consistent with past practice); or (c) any liquidation or dissolution
of the Seller other than a plan of dissolution and liquidation not involving any
third party that is adopted by the board of directors of the Seller and
submitted to the stockholders of the Seller for approval at the stockholders'
meeting as contemplated by Section 4.4 of the Purchase Agreement.
ENTITY. "Entity" shall mean any corporation (including any non-profit
corporation), general partnership, limited partnership, limited liability
partnership, joint venture, estate, trust, cooperative, foundation, society,
political party, union, company (including any limited liability company or
joint stock company), firm or other enterprise, association, organization or
entity.
GOVERNMENTAL BODY. "Governmental Body" shall mean any: (a) nation,
principality, state, commonwealth, province, territory, county, municipality,
district or other jurisdiction of any nature; (b) federal, state, local,
municipal, foreign or other government; (c) governmental or quasi-governmental
authority of any nature (including any governmental division, subdivision,
department, agency, bureau, branch, office, commission, council, board,
instrumentality, officer, official, representative, organization, unit, body or
Entity and any court or other tribunal); (d) multi-national organization or
body; or (e) individual, Entity or body exercising, or entitled to exercise, any
executive, legislative, judicial, administrative, regulatory, police, military
or taxing authority or power of any nature.
PERSON. "Person" shall mean any individual, Entity or Governmental
Body.
REPRESENTATIVES. "Representatives" of a party shall mean: (a) such
party's officers, directors, employees, stockholders, affiliates, attorneys,
investment bankers, advisors, accountants, agents and representatives; and (b)
the officers, directors, employees, stockholders, attorneys, investment bankers,
advisors, accountants, agents and representatives of each of such party's
affiliates.
3
SCHEDULE A
Beneficial Ownership of FairMarket, Inc. Common Stock by Xxxxx
X. Xxxxxx, III ("Xxxxxx Entities")
Shares Beneficially Owned - No Approval Required
PERSON/ENTITY NUMBER OF SHARES
Xxxxx X. Xxxxxx LLC 15,400
Milfam I, L.P. 176,253
Milfam II, L.P. 979,375
Xxxxxxxxx Xxxxxx GST 21,900
Xxxxxxxx X. Xxxxxx GST 15,400
Xxxxx Xxxxxx GST 15,000
Alexandra UGMA 21,800
Milgrat II (G) 456,254
Xxxxx X. Xxxxxx, III 617,165
Total: 2,318,574
=========
Shares Beneficially Owned - Approval Required
("Additional Xxxxxx Entities")
Person/Entity NUMBER OF SHARES
Xxxx Xxxxxx 9,000
Xxxxx Xxxxxxx UGMA 10,500
Xxxxx Xxxxxxx UGMA 10,500
Trust A-4 1,097,536
Trust C 227,505
Xxxxxxxx X. Xxxxxx 14,400
Total: 1,369,441
=========
A-1
