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
