EXHIBIT 99.1
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
[______________] ("Stockholder").
RECITALS
A. 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. In order to induce the Purchaser to enter into the Purchase
Agreement, 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 shall have the meanings given to them in the Purchase
Agreement.
(b) The term "ACQUISITION" shall mean the acquisition of
the Transferred Assets (as such term is defined in the Purchase
Agreement) by the Purchaser pursuant to the terms of the Purchase
Agreement, as amended.
(c) Stockholder shall be deemed to "OWN" or to have
acquired "OWNERSHIP" of a security if Stockholder: (i) is the record
owner of such security; or (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.
1
(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 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
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, 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,
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, Stockholder shall cause all Subject
Securities that are entitled under applicable corporate laws to vote at such
meeting or by such written consent to be voted (and to which 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
2
(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, Stockholder shall not 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) 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)
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)
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 Stockholder.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
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.
(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,
3
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.
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 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.
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.
SECTION 6. MISCELLANEOUS
4
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 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 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 Stockholder,
5
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 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 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. Stockholder agrees that, in the event of any breach or
threatened breach by 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. 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 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 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
6
(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 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) 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 against 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.
7
6.14 CAPACITY. Notwithstanding anything in this Agreement to the
contrary, nothing in this Agreement shall limit or restrict Stockholder from
acting in Stockholder's capacity as a director or officer of Seller (it being
understood that this Agreement shall apply to Stockholder solely in
Stockholder's capacity as a stockholder of Seller) or voting in 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.
8
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
--------------------- ------------------------ ----------------------------------------
9
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.
A-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:
_______________________________________
A-2
