EXHIBIT 10.4
AGREEMENT CONCERNING TERMINATION OF
EMPLOYMENT, SEVERANCE PAY AND RELATED MATTERS
This Agreement Concerning Termination of Employment, Severance Pay and
Related Matters (this "Agreement") is made as of February 26, 2001 (the
"Effective Date") by and between FairMarket, Inc., a Delaware corporation
with its headquarters located in Woburn, Massachusetts ("FairMarket"), and
Xxxxxx Xxxxxx ("Executive"). In consideration of the mutual covenants
contained in this Agreement, FairMarket and Executive agree as follows:
WHEREAS, FairMarket desires to employ Executive and Executive desires to
be employed by FairMarket; and
WHEREAS, Executive and FairMarket desire to reach an amicable resolution
of any matters relating to any future termination of Executive's employment.
1. RIGHT TO TERMINATE 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.
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
Board of Directors 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.
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.
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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. continuation of Executive's base salary at the rate then
in effect for one (1) year following the date 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 payments for such benefits made
by FairMarket in the same proportion as made during Executive's
employment; 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 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.
f. TERMINATION PURSUANT TO A CHANGE OF CONTROL.
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.
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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 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
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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 as of
September 11, 2000 (the "Inventions, Confidentiality and Non-Competition
Agreement") and Executive's obligations contained therein apply both during
and following the termination of Executive's employment. In addition, and
without limiting the obligations of Executive set forth in the Inventions,
Confidentiality and Non-Competition Agreement, Executive agrees as follows:
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.
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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 person to
leave employment or cease a 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.
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.
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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 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.
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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 Financial 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.
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 /s/ Xxxxxx Xxxxxx
---------------------------------- -------------------------------------
Name: Xxxxx Xxxxx Xxxxxx Xxxxxx
----------------------------------
Title: Chief Financial Officer
---------------------------------
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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.
I FURTHER UNDERSTAND THAT I HAVE BEEN GIVEN AN ADEQUATE OPPORTUNITY,
IF I SO DESIRED, TO CONSIDER THIS GENERAL RELEASE FOR UP TO TWENTY-ONE (21)
DAYS BEFORE DECIDING WHETHER TO SIGN IT. IF I SIGNED THIS GENERAL RELEASE
BEFORE THE EXPIRATION OF THAT TWENTY-ONE (21) DAY PERIOD, I ACKNOWLEDGE THAT
SUCH DECISION WAS ENTIRELY VOLUNTARY UNDERSTAND THAT FOR A PERIOD OF SEVEN
(7) DAYS AFTER I EXECUTE THIS GENERAL RELEASE I HAVE THE RIGHT TO REVOKE IT
BY A WRITTEN NOTICE TO BE RECEIVED BY THE DIRECTOR, HUMAN RESOURCES OF
FAIRMARKET BY THE END OF THAT PERIOD. I ALSO UNDERSTAND THAT THIS GENERAL
RELEASE SHALL NOT BE EFFECTIVE OR ENFORCEABLE UNTIL THE EXPIRATION OF THAT
PERIOD.
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: Date:
-------------------------------- -------------------
Xxxxxx Xxxxxx
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