EXHIBIT 10.5
AMENDMENT TO AGREEMENT CONCERNING TERMINATION
OF EMPLOYMENT, SEVERANCE PAY AND RELATED MATTERS
This Amendment to Agreement Concerning Termination of Employment,
Severance Pay and Related Matters (the "Amendment") is made and entered into by
and between FairMarket, Inc., a Delaware corporation with its headquarters
located in Woburn, Massachusetts ("FairMarket"), and Xxxxx Xxxxxxx (the
"Executive"). This Amendment shall be effective on the date when it becomes
executed by both parties (the "Effective Date").
WHEREAS, on February 26, 2001, FairMarket and the Executive entered
into an Agreement Concerning Termination of Employment, Severance Pay and
Related Matters (the "Severance Agreement"); and
WHEREAS, the Executive and FairMarket desire to reach an amicable
resolution of matters relating to the Executive's separation of Employment with
FairMarket;
WHEREAS, the Executive and FairMarket desire to amend the Severance
Agreement;
NOW, THEREFORE, FairMarket and the Executive hereby agree as follows:
1. SEPARATION OF EMPLOYMENT.
(a) The Executive resigns from employment and from all offices that he
holds with FairMarket and any subsidiaries effective June 29, 2001 (the
"Separation Date"). The Executive hereby agrees to perform his responsibilities
as Vice President of Business Development 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. Notwithstanding your
resignation as Vice President of Business Development of the Company, FairMarket
acknowledges your employment is being terminated as a result of a reduction in
force. FairMarket shall not take the position that you are disqualified from
receiving unemployment benefits.
(b) In the event that FairMarket determines, in its reasonable
discretion, that the Executive has failed to discharge his responsibilities at
any time between the Effective Date and June 29, 2001, FairMarket may terminate
the Executive's employment at any earlier date and, notwithstanding the
foregoing, such earlier date shall be the Separation Date. In the event that
FairMarket terminates the employment of the Executive at any time before June
29, 2001 based on any "cause" (as defined in the Severance Agreement) arising on
or after the Effective Date, the Executive shall not be entitled to any payments
or benefits pursuant to the Severance Agreement or this Amendment,
notwithstanding any provision of this Amendment to the contrary.
2. CERTAIN TERMINATION BENEFITS.
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The termination of the Executive's employment on June 29, 2001 pursuant
to his resignation as provided in Section 1(a) above shall be considered to be a
termination of the Executive's employment by FairMarket without cause for
purposes of Section 2(e)(ii) of the Severance Agreement ("Section 2(e)(ii)"). In
addition to the payments and benefits available pursuant to Section 2(e)(ii) in
the event of a termination of the Executive's employment pursuant to such a
resignation on June 29, 2001, FairMarket will pay the full cost of the regular
premium benefits under FairMarket's group health and dental insurance until
December 29, 2001 (or the date when Executive is no longer eligible for COBRA
continuation) and the period for the Executive to exercise all stock options
vested as of the termination of the Executive's employment shall be extended to
June 29, 2002. Such extension shall be subject to the Executive's agreement to
the General Release required pursuant to Section 2(e)(ii) as a condition to the
payments and benefits set forth in Section 2(e)(ii). Notwithstanding anything in
the General Release to the contrary, the General Release shall not be construed
to affect any existing rights in employee benefit plans. The Executive hereby
acknowledges and understands that the opportunity to exercise such stock options
for a period of more than three months after the termination of his employment
will disqualify these stock options for treatment as incentive stock options
under the Internal Revenue Code.
3. BONUSES.
FairMarket shall pay the Executive bonuses for the completion by the
Separation Date of the contracts currently being negotiated with Microsoft and
Ticketmaster/City Search, provided that such contracts shall be considered
completed for purposes of this Amendment if and only if they are fully executed
on or before the Separation Date on terms approved by Xxxxx Xxxxx. The bonuses
shall be in the amounts of $10,000.00 for the completion of the Microsoft
contract and $5,000.00 for the completion of the Ticketmaster/City Search
contract. Any such bonus payment shall be subject to applicable tax-related
deductions and withholdings). In no event shall FairMarket be obligated to pay
any such bonuses before the Separation Date.
4. NOTICES, ACKNOWLEDGMENTS AND OTHER TERMS.
In the event of any dispute, this Amendment shall be construed as a
whole, shall be interpreted in accordance with its fair meaning, and shall not
be construed strictly for or against either the Executive or FairMarket. The
laws of the Commonwealth of Massachusetts shall govern any dispute about this
Amendment, including any interpretation or enforcement of this Amendment,
without giving effect to the conflict of laws provisions of Massachusetts law.
In the event that any provisions or portion of a provision of this Amendment
shall be determined to be unenforceable, the remainder of this Amendment shall
be enforced to the fullest extent possible as if such provision or portion of a
provision were not included. This Amendment may be modified only by a written
agreement signed by the Executive and an authorized representative of
FairMarket.
5. SURVIVAL OF THE AGREEMENT.
The parties agree that except as modified by this Amendment all
provisions of the Severance Agreement remain in full force and effect.
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6. COUNTERPARTS.
This Amendment may be executed in counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, this Amendment has been executed as a sealed
instrument by the parties.
/s/ Xxxxx Xxxxxxx 6/22/01
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XXXXX XXXXXXX, an individual Date
FAIRMARKET, INC.
By: /s/ Xxxxx Xxxxx 6/22/01
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Date
Title: CFO
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