EXHIBIT
99.01
FORM OF VOTING
AGREEMENT
THIS STOCKHOLDER VOTING
AGREEMENT CONSTITUTES AN IRREVOCABLE PROXY APPOINTMENT WITH RESPECT
TO THE PRINCIPAL STOCKHOLDERS’ SHARES OF LIBERATE
TECHNOLOGIES.
FORM
OF STOCKHOLDER VOTING AGREEMENT
STOCKHOLDER VOTING
AGREEMENT, dated as of , 2005
(this “Agreement”), by and among Double C Technologies,
LLC (“Purchaser”) and the stockholders of Liberate
Technologies (“Seller”) identified as the signatories
hereto (collectively, the “Principal Stockholders,” and
each a “Principal Stockholder”).
WHEREAS, in
connection with the execution of this Agreement, Purchaser and
Seller are entering into an Asset Purchase Agreement, dated as of
, 2005, by and among Purchaser,
Seller and Liberate Technologies Canada, Ltd. (the “Canadian
Subsidiary”), as amended from time to time in accordance with
the terms thereof (the “Asset Purchase Agreement”),
which provides for, among other things, the sale, transfer,
conveyance and assignment by Seller and the Canadian Subsidiary to
Purchaser of all the specified assets, properties, interest in
properties and rights of Seller and the Canadian Subsidiary in the
North America Business (as defined in the Asset Purchase Agreement)
in accordance with the terms of the Asset Purchase
Agreement;
WHEREAS, Purchaser
would not enter into the Asset Purchase Agreement unless each
Principal Stockholder were to enter into this Agreement;
WHEREAS, each
Principal Stockholder is the record or Beneficial Owner of the
number of Owned Shares (as defined herein) set forth opposite such
Principal Stockholder’s name on Schedule I
hereto;
WHEREAS, the Board
of Directors of each of Seller and the Canadian Subsidiary has,
prior to the date of execution of this Agreement, duly and validly
approved and adopted the Asset Purchase Agreement; and
WHEREAS, as a
stockholder of Seller, each Principal Stockholder will benefit from
the Asset Purchase Agreement.
NOW, THEREFORE, in
consideration of Purchaser’s entry into the Asset Purchase
Agreement, each Principal Stockholder agrees with each other and
Purchaser as follows:
1.
Certain Definitions . Capitalized terms not expressly
defined in this Agreement will have the meanings ascribed to them
in the Asset Purchase Agreement. For purposes of this
Agreement:
(a)
“Beneficially Own,” “Beneficial Owner” or
“Beneficial Ownership” with respect to any securities
means having voting power or investment power with respect to such
securities (as determined pursuant to Rule 13d-3(a) under the
Securities Exchange Act of 1934, as amended), except for those
shares of Seller Common Stock which such Principal Stockholder has
the right to acquire within 60 days.
(b)
“Family Group” means, with respect to a Principal
Stockholder that is a natural Person, such Person’s spouse,
descendants (whether natural or adopted), or siblings.
(c)
“Permitted Transferee” means, with respect to a
Principal Stockholder, (i) any member of such Stockholder’s
Family Group; (ii) the estate or any of the heirs or legatees of
such Stockholder upon such Person’s death; and (iii) any
trust established and maintained for the benefit of (A) any
Principal Stockholder that is a natural Person or (B) any member of
such Stockholder’s Family Group.
(d)
“Seller Common Stock” means the common stock, par value
$0.01 per share, of Seller.
(e)
“Transaction” means the Asset Purchase Agreement, the
sale of assets provided for therein and the consummation of the
transactions contemplated thereby.
2.
Representations and Warranties of Principal Stockholders
. Each Principal Stockholder represents and warrants as
follows:
(a)
He or it Beneficially Owns the number of shares of Seller Common
Stock set forth on Schedule I attached hereto (the
“Owned Shares”), free from any lien, encumbrance,
proxy, voting trust, voting agreement, voting restriction,
understanding, right of first refusal, limitation on disposition,
adverse claim of ownership, or restriction whatsoever and with full
and sole power to vote the Owned Shares without the consent or
approval of any other person or entity;
(b)
Except for the Owned Shares and the options to purchase Seller
Common Stock set forth on Schedule I , he or it does not
Beneficially Own any other Seller Common Stock or hold any
securities convertible into or exchangeable for Seller Common
Stock;
(c)
Except as set forth on Schedule I hereto, he or it is the
record holder of the Owned Shares;
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(d)
This Agreement has been duly executed by each such Principal
Stockholder and constitutes the valid and legally binding
obligation of each such Principal Stockholder, enforceable against
each such Principal Stockholder in accordance with its terms,
except to the extent that (x) the enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting the
enforcement of creditor’s rights generally and (y) the
availability of equitable remedies may be limited by equitable
principles of general applicability;
(e)
The execution, delivery and performance of this Agreement by each
such Principal Stockholder and the proxy contained herein does not
violate or breach, and will not give rise to any violation or
breach of, such Principal Stockholder’s certificate of
formation or limited liability company agreement or other
organizational documents (if such Principal Stockholder is not an
individual), or any law, contract, instrument, arrangement or
agreement by which such Principal Stockholder is bound;
(f)
The execution, delivery and performance of this Agreement and the
proxy contained herein do not, and performance of this Agreement
will not, require any consent, approval, authorization or permit
of, or filing with or notification to, any governmental or
regulatory authority (other than any necessary filing under the
Exchange Act), domestic or foreign;
(g)
The execution, delivery and performance of this Agreement by each
such Principal Stockholder and the other signatories hereto and the
proxy contained herein does not create or give rise to any right in
such Principal Stockholder or, to such Principal
Stockholder’s knowledge, in any other signatory hereto or any
other person, with respect to the Owned Shares or any other
security of Seller (including, without limitation, voting rights
and rights to purchase or sell any shares of Seller Common Stock or
other securities of Seller) pursuant to any stockholders’
agreement or similar agreement or commitment, other than any such
right as is duly and validly waived pursuant to Section 6 of this
Agreement; and
(h)
The representations and warranties by each Principal Stockholder in
Section 2(a) made herein are qualified in their entirety by the
effects of applicable community property laws and the laws
affecting the rights of marital partners generally.
For all purposes
of this Agreement, Owned Shares shall include any shares of Seller
as to which Beneficial Ownership is acquired by a Principal
Stockholder after the execution hereof.
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3.
Covenant to Vote .
(a)
Each Principal Stockholder irrevocably and unconditionally agrees
that, during the period commencing on the date hereof and
continuing until the termination of this Agreement in accordance
with Section 12 hereof:
(i)
at any meeting (whether annual or special and whether or not an
adjourned or postponed meeting) of the holders of Seller Common
Stock held during the term of this Agreement called to vote upon
the Transaction, however called, such Principal Stockholder will,
provided that such Principal Stockholder has received written
notice from Purchaser within a reasonable period of time prior to
any such meeting that Purchaser is unable to vote the Owned Shares
subject to the irrevocable proxy set forth in Section 4 herein (the
“Proxy”) at the meeting, appear at the meeting or
otherwise cause the Owned Shares to be counted as present thereat
for purposes of establishing a quorum and vote or consent (or cause
to be voted or consented) the Owned Shares in favor of the
Transaction;
(ii)
such Principal Stockholder will execute and deliver (or cause t
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