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EXHIBIT 4.3
FAIRMARKET, INC.
AMENDMENT TO INVESTORS' RIGHTS AGREEMENT
August 23, 1999
This Amendment to Investors' Rights Agreement (this "Amendment") is by and
among FairMarket, Inc., a Delaware corporation (the "Company"), Sierra Ventures
VII, L.P., a Delaware limited partnership ("Sierra Ventures"), Microsoft
Corporation ("Microsoft") and Excite, Inc. ("Excite" and, together with
Microsoft, the "New Investors"), and amends certain provisions contained in the
Investors' Rights Agreement, dated February 25, 1999, by and among the Company,
Sierra Ventures and certain other stockholders of the Company (the "Investors'
Rights Agreement").
WHEREAS, on the date hereof the New Investors are purchasing capital stock
of the Company; and
WHEREAS, the parties hereto desire to modify the Investors' Rights
Agreement to provide certain rights thereunder to the New Investors.
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the parties hereto agree that the New Investors shall
become parties to the Investors' Rights Agreement and shall, as holders of
securities of the Company, be entitled to the benefit of and subject to the
obligations contained in the Investors' Rights Agreement. In furtherance
thereof, the parties agree that the Investors' Rights Agreement shall be amended
as follows:
1. Section 1.1(g) of the Investors' Rights Agreement shall be
restated in its entirety to read as follows:
"The term "Registrable Securities" means (i) the Common Stock issuable
or issued upon conversion of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, and Series D Preferred
Stock of the Company and upon exercise of warrants to purchase shares
of Common Stock issued to the New Investors on August 20, 1999 and
(ii) any Common Stock of the Company issued as (or issuable upon the
conversion or exercise of any warrant, right or other security that is
issued as) a dividend or other distribution with respect to, or in
exchange for, or in replacement of, the shares referenced in (i)
above, excluding in all cases, however, any Registrable Securities
sold by a person in a transaction in which his rights under this
Section 1 are not assigned."
2. For purposes of Section 2 of the Investors' Rights
Agreement, any holder of at least 200,000 shares of Series D
Preferred Stock shall be a "Major Investor" and shall be
entitled to the benefits of and subject to the obligations
contained in Section 2 of the Investors' Rights Agreement.
The term "Series C Preferred Stock" in Section 2.4(b) of the
Investors' Rights Agreement shall be replaced with the term
"Series C Preferred Stock and Series D Preferred Stock".
3. Section 2.7 of the Investors' Rights Agreement shall be
modified such that the price per share of $5.14 be changed
to $7.00 per share.
4. Section 2.8 of the Investors' Rights Agreement shall be
deleted in its entirety.
5. Sierra Ventures hereby consents to the addition of the New
Investors as parties to the Investors' Rights Agreement and
waives any rights under the Investors' Rights Agreement with
respect to such addition, including any rights under Section
2.4 thereof.
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Sierra Ventures and the New Investors waive any rights under
the Investors' Rights Agreement with respect to the sale of
any authorized shares of Series D Preferred Stock by the
Company.
6. The reference in Section 3.7 of the Investors' Rights
Agreement to "Section 2.7" shall be changed to a reference
to "Section 2.6."
7. Except as amended hereby, the Investors' Rights Agreement
shall remain in full force and effect without modification
or waiver.
[END OF TEXT]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
as of the date first set forth above.
FAIRMARKET, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
XXXXXX VENTURES VII, L.P.
By: /S/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: General Partner
MICROSOFT CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Assistant Secretary
EXCITE, INC.
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: General Counsel &
Secretary
