Exhibit 10.74
Management Transition
Agreement
This Management Transition Agreement (the
“Agreement”) is effective as of September 30, 2003
(“Effective Date”), and confirms the agreement between
Liberate Technologies (“Liberate”) and John Kent Walker
(“Walker”) (each a “Party” and collectively
the “Parties”) concerning the conclusion of
Walker’s employment with Liberate, which shall occur upon a
mutually agreeable date within the six-month period from the
Effective Date or such earlier date as Liberate may designate
(“Termination Date”).
Purpose. Both Parties understand and agree that
the purpose of this Agreement is to set forth an employment
transition schedule and release and waive all claims that
either Party may have at any time, individually or collectively,
against the other Party or the others released herein. Walker
understands and agrees that Liberate has paid Walker all salary,
wages, bonuses, and any other compensation earned by Walker through
and until the date of signing hereof.
Transition Services. Up until the Termination Date, Walker
will continue to provide Liberate with services in his present
capacity as Executive Vice President, General Counsel and Secretary
of Liberate, and will work diligently with Liberate’s
management team to transition all outstanding matters so as to
promote to the extent possible a smooth and orderly transfer of
responsibilities (“Transition Services”).
Liberate agrees to provide the transition benefits and
consideration set forth in this Agreement. Nothing contained
herein is intended to be interpreted as employment for a fixed term
or to alter Walker’s “at will” employment
status.
Post-Transition Covenants.
Upon the Termination Date and
thereafter, Walker agrees to:
(i)
terminate his employment in all
capacities at Liberate and any of its subsidiaries and affiliates;
and resign from his position as Executive Vice President, General
Counsel, and Secretary of Liberate (and all similar positions with
and positions as a director or officer of Liberate’s
subsidiaries and corporate affiliates);
(ii)
adhere to his obligations under the
Proprietary Information Agreement between the Parties dated
September 27, 2000 (the “Proprietary Information
Agreement”);
(iii)
generally provide reasonable
assistance to Liberate on a compensation-free basis (other than
payment of any associated and necessary transportation and lodging
expenses) in any legal dispute or administrative proceedings with
which Walker was involved, including, for example, signing of
documents or testimony in securities litigation, SEC
investigations, financial audits, and other legal, administrative,
regulatory, or governmental investigations, actions, or
proceedings;
(iv)
return to Liberate, and not keep or
take, any document or other thing (electronic, paper or otherwise)
containing or incorporating Liberate’s confidential or
proprietary information that Walker produced or to which he
obtained access during his employment, including any material
information that is not generally known to the public and that
relates to Liberate’s business, research, development, trade
secrets, know-how, inventions, technical data, manufacturing
techniques, engineering, marketing, merchandising and/or selling of
Liberate products or technologies, and any confidential information
entrusted to Liberate by third parties.
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(v)
return any Liberate property of
material value (including computers) in his possession;
(vi)
return to Liberate, and not keep or
make copies of, any proprietary and confidential Liberate
information (including drawings, blueprints, manuals, letters,
notes, notebooks, reports, sketches, other information or
materials, source code, computer programs, or customer lists) or
Liberate access device (including identification badges, keys, and
card keys); and
(vii)
sign and deliver to Liberate on the
Termination Date a separate General Release of All Claims in the
form set forth in Exhibit A (the “Subsequent
Release”).
Mutual Non-Disparagement.
Each Party agrees to refrain
from making any comments or statement that disparages or criticizes
the other Party or any of the other Party’s businesses,
technologies, strategies, inventions, assets, actions, or practices
or those of any of its directors, officers, employees, agents,
heirs, executors, administrators, successors, predecessors,
subsidiaries, parents, shareholders, employee benefit plans, or
assigns (all of the foregoing, collectively each Party’s
“Affiliates”), and to be generally supportive of each
other and of each other’s Affiliates in any discussions or
communications concerning the abilities, businesses, technologies,
or strategies of the Parties or their Affiliates. Nothing in
this Agreement shall be construed to prohibit either Party from
providing truthful testimony in any administrative or judicial
proceeding or investigation.
Benefits & Consideration.
Walker agrees that Liberate
has granted to Walker 103,000 shares of Liberate’s common
stock in accordance with and subject to the terms of the stock
award agreement provided in connection therewith in exchange for
Walker’s execution of this Agreement, including, but not
limited to, the General Release of All Claims in the form set forth
in Exhibit A. In further consideration of
Walker’s execution of this Agreement, the General Release of
All Claims concurrently herewith, and the Subsequent Release (as
described below), without any revocation of any of the foregoing,
Liberate will continue to employ Walker pursuant to the terms of
this Agreement. Additionally, following the Termination
Date, Liberate agrees to pay Walker $1,000, less any
applicable withholdings, provided Walker executes the
Subsequent Release, and such Subsequent Release becomes effecitive
pursuant to its terms. The benefits described herein
shall be in addition to payment for any earned but unpaid salary
and any accrued but unused vacation time earned through the
Termination Date.
Sufficiency of Consideration.
The Parties acknowledge the
value and sufficiency of the mutual consideration and releases set
forth herein, and further acknowledge that all of the consideration
provided by each Party under this Agreement is provided in exchange
for all of the consideration provided by the other Party hereunder
and each Party deems such consideration, taken as a whole, as
sufficient justification for its entry into this
Agreement.
Review of Agreement.
Each Party has had the opportunity
to carefully review and consider this Agreement and has had up to
twenty-one days after receipt of this agreement to consult with
legal counsel prior to entering into this Agreement, and each Party
has freely and knowingly agreed to enter into this Agreement.
Furthermore, each Party has seven days after it has signed this
Agreemen
