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EXHIBIT 10.43
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made as of the 16th day of July 2000, by
and between Liberate Technologies, a Delaware corporation (the "Company"), and
Cisco Systems, Inc., a California corporation (the "Investor").
WHEREAS, the Investor has indicated a desire to purchase the number of
shares of the Company's common stock, par value $0.01 per share ("Common Stock")
obtained by dividing 100,000,000 by (95%) ninety-five percent of the average
closing price during the last ten (10) trading days preceding the trading date
immediately prior to the date of this Agreement (the "Shares").
WHEREAS, the Company has indicated a desire to sell the Shares to the
Investor on the terms set forth herein.
WHEREAS, the Company and the Investor have agreed that this Agreement shall
constitute the entire understanding and agreement between the parties with
regard to the subject matter hereof.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF STOCK.
1.1. SALE AND ISSUANCE OF STOCK. Subject to the terms and conditions
of this Agreement, the Company agrees to sell to the Investor and the Investor
agrees to purchase from the Company a total of 3,963,780 Shares for an aggregate
purchase price of $100,000,000, or $25.22844 per share, in cash (the "Purchase
Price").
1.2. ADJUSTMENT OF PURCHASE PRICE. The Purchase Price shall be
adjusted to reflect fully the effect of any stock split, reverse split, stock
dividend, reorganization, recapitalization or other like change with respect to
the Common Stock occurring after the date hereof and prior to the Closing Date
and of any increase in the number of shares of the Common Stock, or securities
convertible into or exchangeable for shares of the Common Stock, outstanding
after the date hereof relative to such number as derived from Section 2.2
hereof, so that the Investor shall receive the number of shares of Common Stock
that the Investor would have received in respect of the Shares if the
transaction contemplated by this Agreement had been consummated as of the date
hereof, prior to such stock split, reverse split, stock dividend,
reorganization, recapitalization, like change or increase.
1.3. THE CLOSING. The purchase and sale of the Shares (the "Closing")
shall be held at the offices of Brobeck, Phleger & Harrison LLP, 1633 Broadway,
New York, New York, as soon as practicable following satisfaction of the closing
conditions set forth in Section 5 hereof, or such later date as the Investor and
the Company may agree upon (the "Closing Date"). At the Closing, the Company
will deliver or cause to be delivered by its transfer agent a certificate
evidencing the Shares to the Investor, in the name of the Investor (or any
designee of the Investor) and such other documents and instruments necessary to
vest in the Investor good, marketable and record title to, and beneficial
ownership of, the Shares free and
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clear of all liens, together with evidence of payment of applicable transfer or
issuance taxes, if any.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to the Investor that:
2.1. ORGANIZATION, GOOD STANDING, POWER AND RIGHTS TO ACQUIRE STOCK.
The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all requisite corporate
power and authority to carry on its business as now conducted and as presently
proposed to be conducted. The Company is duly qualified to transact business and
is in good standing in each jurisdiction in which the failure to so qualify
would have a material adverse effect on its business or properties. The Company
has delivered to the Investor a true and correct copy of the Sixth Amended and
Restated Certificate of Incorporation of the Company (the "Restated
Certificate") filed with the Delaware Secretary of State on August 2, 1999, and
the Amended and Restated Bylaws of the Company (the "Bylaws"), or other charter
documents, as applicable, of the Company, each as amended to date. The Company
is not in violation of any of the provisions of its charter or Bylaws. Except as
set forth in the Company SEC Documents (as defined in Section 2.9), as set forth
in Section 2.2 below and except for changes in the number of outstanding
employee stock options after June 30, 2000, there are no outstanding
subscriptions, options, warrants, puts, calls, rights, exchangeable or
convertible securities or other commitments or agreements of any character
relating to the issued or unissued capital stock or other securities obligating
the Company to issue, transfer, sell, purchase, redeem or otherwise acquire any
such securities. Except as disclosed in the Company SEC Documents and on
Schedule 2.1, the Company does not directly or indirectly own any equity or
similar interest in, or any interest convertible or exchangeable or exercisable
for, any equity or similar interest in, any corporation, partnership, joint
venture or other business association or entity.
2.2. CAPITALIZATION. The authorized capital stock of the Company, as
of June 30, 2000 consists of:
(a) 20,000,000 shares of Preferred Stock, none of which are
issued, outstanding or designated as any specific series. The rights,
privileges, preferences and restrictions of the Preferred Stock are as stated in
the Restated Certificate.
(b) 200,000,000 shares of Common Stock, 98,282,558 shares of
which are issued and outstanding and none of which have been reserved solely for
issuance upon conversion of Preferred Stock. All of the outstanding shares of
Common Stock have been duly authorized, fully paid and are nonassessable and
issued in compliance with all applicable federal and state securities laws.
(c) The Company has reserved 19,608,261 shares of Common Stock
for issuance to officers, directors, employees and consultants of the Company
pursuant to its various option plans duly adopted by the Board of Directors and
approved by the Company's stockholders (the "Stock Plans"). Of such reserved
shares of Common Stock, options to purchase 17,003,189 shares have been granted
and are currently outstanding, and 2,605,072 shares of Common Stock remain
available for issuance to officers, directors, employees and
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consultants pursuant to the Stock Plans. In addition, the Company has reserved
3,044,098 shares of Common Stock for purchase by its employees under its 1999
Employee Stock Purchase Plan described in the Company SEC Documents. In
addition, the Company has reserved 4,366,660 shares of Common Stock for issuance
pursuant to warrant agreements, of which 2,103,328 are currently outstanding.
(d) Except as set forth in this Agreement , Schedule 2.2 (d) and
the Stockholders Agreement dated August 11, 1997, as amended (the "Stockholders
Agreement"), there are no options, warrants, conversion privileges or other
rights presently outstanding to purchase or otherwise acquire any authorized but
unissued shares of capital stock or other securities of the Company. The Company
is not a party or subject to any agreement or understanding and, to the best of
the Company's knowledge, there is no agreement or understanding between any
person and/or entities that affects or relates to the voting or giving of
written consents with respect to any security or by a director of the Company,
except for the Voting Agreement dated May 12, 1999. Any outstanding capital
stock of the Company was issued in compliance with all federal and state
securities laws.
2.3. AUTHORIZATION. All corporate action on the part of the Company,
its officers, directors and stockholders necessary for the authorization,
execution and delivery of this Agreement, the performance of all obligations of
the Company hereunder, and the authorization, issuance, sale and delivery of the
Shares has been taken, and this Agreement constitutes a valid and legally
binding obligation of the Company, enforceable in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting enforcement of
creditors' rights generally and (ii) as limited by laws relating to the
availability of specific performance, injunctive relief, or other equitable
remedies. No consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission or
other governmental authority or instrumentality is required by or with respect
to the Company or any of its subsidiaries in connection with the execution and
delivery of this Agreement, or the consummation of the transactions contemplated
hereby, except for (i) such consents, approvals, orders, authorizations,
registrations, declarations and filings as may be required under applicable
state securities laws and the securities laws of any foreign country; (ii) such
filings, if any, as may be required under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and the rules and regulations promulgated
thereunder (the "HSR Act"); and (iii) such other consents, authorizations,
filings, approvals and registrations which, if not obtained or made, would not
have a material adverse effect on the Company and would not prevent, or
materially alter or delay any of the transactions contemplated by this
Agreement.
2.4. VALID ISSUANCE OF SHARES. The Shares, when issued, sold and
delivered in accordance with the terms hereof for the consideration expressed
herein, will be duly and validly issued, fully paid and nonassessable and will
be free of restrictions on transfer other than restrictions on transfer under
this Agreement and under applicable state and federal securities laws. Subject
to the truth and accuracy of the Investor's representations set forth in Section
3 of this Agreement, the offer, sale and issuance of the Shares as contemplated
by this Agreement are exempt from the qualification and/or registration
requirements of any applicable state and federal securities laws, including
without limitation, the registration requirements of the Securities Act of 1933,
as amended (the "Act").
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2.5. TITLE TO PROPERTY AND ASSETS. The Company owns its property and
assets free and clear of all mortgages, liens, loans and encumbrances, except
such encumbrances and liens that arise in the ordinary course of business and do
not materially impair the Company's ownership or use of such property or assets.
With respect to the property and assets it leases, the Company is in compliance
with such leases and, to the best of its knowledge, holds a valid leasehold
interest free of any liens, claims or encumbrances.
2.6. COMPLIANCE WITH OTHER DOCUMENTS. The execution and delivery of
this Agreement, consummation of the transactions contemplated hereby, and
compliance with the terms and provisions hereof will not conflict with or result
in a breach of the terms and conditions of, or constitute a default under the
Restated Certificate or Bylaws of the Company or of any contract or agreement to
which the Company is now a party, except where such conflict, breach or default
of any such contract or agreement, either individually or in the aggregate,
would not have a material adverse effect on the Company's business, financial
condition or results of operations and would not prevent, or materially alter or
delay any of the transactions contemplated by this Agreement.
2.7. LITIGATION. Except as disclosed in the Company SEC Documents
filed from time to time with the U.S. Securities and Exchange Commission (the
"SEC"), there are no actions, proceedings or investigations pending against the
Company, that, either in any case or in the aggregate, would result in any
material adverse change in the business, financial condition, or results of
operations of the Company and would not prevent, or materially alter or delay
any of the transactions contemplated by this Agreement.
2.8. INTELLECTUAL PROPERTY. Except as disclosed in the Company SEC
Documents, the Company owns or possesses sufficient legal title or rights to use
all patents, trademarks, service marks, trade names, copyrights, trade secrets,
licenses, information, and proprietary rights and processes (collectively,
"Intellectual Property") necessary for its business as now conducted and as
proposed to be conducted without any conflict with, or infringement of, the
rights of others. Except as set forth in Schedule 2.8, the Company has not
received any communications alleging that the Company has violated or, by
conducting its business as proposed, would violate any of the Intellectual
Property of any other person or entity. The Company is not aware that any of its
employees or officers is obligated under any contract (including licenses,
covenants, or commitments of any nature) or other agreement, or is subject to
any judgment, decree, or order of any court or administrative agency, that would
interfere with the use of such employee's best efforts to promote the interests
of the Company or that would conflict with the Company's business as proposed to
be conducted. The Company is not aware that any of its officers, employees or
consultants (i) disclosed or utilized or may be disclosing or utilizing any
trade secret or proprietary information of any third party; (ii) violated or may
be violating the terms of his employment, non-competition or non-disclosure
agreement with any party; or (iii) interfered or may be interfering in the
employment relationship with any third party and any of its present or former
employees. Neither the execution nor delivery of this Agreement, nor the
carrying on of the Company's business by the employees of the Company, nor the
conduct of the Company's business as proposed, will, to the best of the
Company's knowledge, conflict with or result in a breach of the terms,
conditions, or provisions of, or constitute a default under, any contract,
covenant, or instrument under which any of such
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employees is now obligated. The Company does not believe it is or will be
necessary to use any inventions of any of its employees made prior to their
employment by the Company.
2.9. SEC DOCUMENTS; FINANCIAL STATEMENTS. The Company has made
available to the Investor a true and complete copy of each statement, report,
registration statement (with the prospectus in the form filed pursuant to Rule
424(b) of the Act), definitive proxy statement and other filings made with the
SEC by the Company since July 28, 1999 and, prior to the Closing, the Company
will have furnished to the Investor true and complete copies of any additional
documents filed with the SEC by the Company prior to the Closing (collectively,
the "Company SEC Documents"). The Company has timely filed all forms, statements
and documents required to be filed by it with the SEC and The Nasdaq National
Market since July 28, 1999. In addition, the Company has made available to the
Investor all exhibits to the Company SEC Documents filed prior to the date
hereof, and will promptly make available to the Investor all exhibits to any
additional Company SEC Documents filed prior to the Closing. All documents
required to be filed as exhibits to the Company SEC Documents have been so
filed, and all material contracts so filed as exhibits are in full force and
effect, except those which have expired in accordance with their terms, and
neither the Company nor any of its subsidiaries is in material default
thereunder. As of their respective filing dates, the Company SEC Documents
complied in all material respects with the requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the Act, and none of the
Company SEC Documents contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances in which they
were made, not misleading, except to the extent corrected by a subsequently
filed Company SEC Document. The financial statements of the Company, including
the notes thereto, included in the Company SEC Documents (the "Company Financial
Statements") were complete and correct in all material respects as of their
respective dates, complied as to form in all material respects with applicable
accounting requirements and with the published rules and regulations of the SEC
with respect thereto as of their respective dates, and have been prepared in
accordance with United States generally accepted accounting principles ("GAAP")
applied on a basis consistent throughout the periods indicated and consistent
with each other (except as may be indicated in the notes thereto or, in the case
of unaudited statements included in Quarterly Reports on Form 10-Q, as permitted
by Form 10-Q of the SEC). The Company Financial Statements fairly present the
consolidated financial condition and operating results of the Company and its
subsidiaries at the dates and during the periods indicated therein (subject, in
the case of unaudited statements, to normal, recurring year-end adjustments).
There has been no material change in the Company accounting policies since
February 29, 2000.
2.10. ABSENCE OF CERTAIN CHANGES. Except as disclosed in the Company
SEC Documents and the Company press release for the quarter ended May 31, 2000,
dated June 29, 2000 (the "Press Release") provided to the Investor, since the
date of such periodic reports and the Press Release, the Company has conducted
its business in the ordinary course consistent with past practice and there has
not occurred: (i) any change, event or condition (whether or not covered by
insurance) that has resulted in, or might reasonably be expected to result in, a
material adverse effect to the Company; (ii) any acquisition, sale or transfer
of any material asset of the Company or any of its subsidiaries other than in
the ordinary course of business and consistent with past practice; (iii) any
change in accounting methods or practices (including any change in depreciation
or amortization policies or rates) by the Company or any revaluation by
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the Company of any of its or any of its subsidiaries' assets; (iv) any
declaration, setting aside, or payment of a dividend or other distribution with
respect to the shares of the Company, or any direct or indirect redemption,
purchase or other acquisition by the Company of any of its shares of capital
stock; (v) any material contract entered into by the Company or any of its
subsidiaries, other than in the ordinary course of business and as provided to
the Investor, or any material amendment or termination of, or default under, any
material contract to which the Company or any of its subsidiaries is a party or
by which it is bound; (vi) any amendment or change to the Restated Certificate
or Bylaws; or (vii) any development or event involving a prospective material
adverse change, in the condition (financial or other), business, properties or
results of operations of the Company taken as a whole.
2.11. ABSENCE OF UNDISCLOSED LIABILITIES. The Company has no material
obligations or liabilities of any nature (matured or unmatured, fixed or
contingent) required to be stated or disclosed which are not, other than (i)
those set forth or adequately provided for in the Company Financial Statements
or in the related Notes to Consolidated Financial Statements included in the
Company's Quarterly Report on Form 10-Q for the quarter ended February 29, 2000
(the "Company Balance Sheet") and the Press Release, (ii) those incurred in the
ordinary course of business and not required to be set forth in the Company
Balance Sheet under GAAP, (iii) those incurred in the ordinary course of
business since the date of the Company Balance Sheet and not reasonably likely
to have a material adverse effect on the Company; (iv) those incurred in
connection with the execution of this Agreement; and (v) those liabilities
disclosed in Schedule 2.11.
2.12. BROKER'S OR FINDERS' FEE. The Company has not incurred, nor will
it incur, directly or indirectly, any liability for brokerage or finders' fees
or agents' commissions or investment bankers' fees or any similar charges in
connection with the transaction contemplated by this Agreement.
2.13. INTERESTED PARTY TRANSACTIONS. Except as disclosed in Schedule
2.13 and in the Company SEC Documents and exhibits thereto, neither the Company
nor any of its subsidiaries is indebted to any director or officer of the
Company or any of its subsidiaries (except for amounts due as normal salaries
and bonuses and in reimbursement of ordinary expenses), and no such person is
indebted to the Company or any of its subsidiaries, and there are no other
transactions of the type required to be disclosed pursuant to Item 404 of
Regulation S-K under the Act and the 1934 Act.
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. The Investor hereby
represents and warrants that:
3.1. AUTHORIZATION. This Agreement constitutes the valid and legally
binding obligation of the Investor, enforceable in accordance with its terms,
subject to laws of general application relating to bankruptcy, insolvency and
the relief of debtors and by general principles of equity.
3.2. INVESTIGATION. The Investor acknowledges that it has had an
opportunity to discuss the business, affairs and current prospects of the
Company with the Company's chief executive officer. The Investor further
acknowledges having had access to
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information about the Company that it has requested or considers necessary for
purposes of purchasing the Shares. The foregoing, however, does not limit or
modify the representations and warranties of the Company in Section 2 of this
Agreement or the right of the Investor to rely thereon.
3.3. ACCREDITED INVESTOR. The Investor is an "Accredited Investor" as
such term is defined in Regulation D adopted by the SEC.
3.4. PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made with
the Investor in reliance upon the Investor's representation to the Company,
which by the Investor's execution of this Agreement the Investor hereby
confirms, that the Shares will be acquired for investment for the Investor's own
account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof other than in conformity with the Act and the
rules and regulations promulgated thereunder, and that the Investor has no
present intention of selling, granting any participation in, or otherwise
distributing the same, other than a transfer to a nominee holder or a
majority-owned affiliate.
3.5. RESTRICTED SECURITIES. The Investor understands that the Shares
it is purchasing are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Act, only in certain limited circumstances. In this connection, the Investor
represents that it is familiar with Rule 144 promulgated by the Commission, as
presently in effect, and understands the resale limitations imposed thereby and
by the Act. For purposes of this Agreement, an affiliate of the Investor shall
be deemed to be an entity controlling, controlled by or under common control
with the Investor, where control is evidenced by the ownership of 100% of an
entity.
3.6. AUTHORIZATIONS. All authorizations, approvals or permits, if any,
of any governmental authority or regulatory body that are required to be
obtained by the Investor in connection with the lawful issuance and sale of the
Shares pursuant to this Agreement have been duly obtained and shall be effective
on and as of the Closing, except for any filing and procedures applicable under
the HSR Act.
3.7. BROKER'S OR FINDERS' FEE. The Investor has not incurred, nor will
it incur, directly or indirectly, any liability for brokerage or finders' fees
or agents' commissions or investment bankers' fees or any similar charges in
connection with the transaction contemplated by this Agreement.
3.8. LEGENDS. It is understood that the certificates evidencing the
Shares may bear a legend in substantially the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT
TO THE SECURITIES UNDER SUCH ACT OR
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AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE ACT."
4. COVENANTS OF THE COMPANY AND THE INVESTOR.
4.1 MARKET STAND-OFF. In connection with any underwritten public
offering by the Company of its equity securities pursuant to an effective
registration statement filed under the Act, the Investor shall not Transfer or
offer to Transfer any shares of the Shares without the prior written consent of
the Company and its underwriters. Such restriction (the "Market Stand-Off")
shall be in effect for such period of time from and after the effective date of
the final prospectus for the offering as may be requested by the Company or such
underwriters; provided, however, that (i) such Market Stand-Off shall not exceed
ninety (90) days, and (ii) the Investor shall be subject to the Market Stand-Off
only if the officers and directors of the Company are also subject to similar
restrictions. In order to enforce the Market Stand-Off, the Company may impose
stop-transfer instructions with respect to the Shares until the end of the
applicable stand-off period. As used in this Agreement, the term "Transfer"
shall mean any sale, transfer, assignment, hypothecation, encumbrance or other
disposition, whether voluntary or involuntary, of shares of the Shares. In the
case of a hypothecation, the Transfer shall be deemed to occur both at the time
of the initial pledge and at any pledgee's sale or a sale by any secured
creditor or a retention by the secured creditor of the pledged shares of the
Shares in complete or partial satisfaction of the indebtedness for which the
shares of the Shares are security.
4.2 PUBLICATIONS. Except as currently in use, the Company shall not
use the Investor's name or refer to the Investor directly or indirectly in
connection with the Investor's relationship with the Company in any
advertisement, news release or professional or trade publication, or in any
other manner, unless otherwise required by law or with the Investor's prior
written consent. Except as required by law, no press release, public statement,
advertisement or similar publicity from any party hereunder with respect to the
participation of the Investor in the transactions contemplated hereby (or any
other matter relating to the Company and the Investor or its affiliates) shall
be issued or made without the prior consent of the other party. If the Company
determines that it is required by law to file any document or material with the
Securities and Exchange Commission which contains a reference to the Investor,
it shall at a reasonable time before making any such filing, consult with the
Investor regarding such filing and seek confidential treatment for such portions
of the document or material as may be reasonably requested by the Investor. The
Company agrees any material breach of these provisions is a material breach of
this Agreement.
4.3 LISTING OF ADDITIONAL SHARES. Promptly following the execution of
this Agreement, the Company shall file with The Nasdaq National Market a
Notification Form for Listing of Additional Shares.
5. CONDITIONS TO THE INVESTOR'S OBLIGATION AT CLOSING. The obligation of
the Investor to purchase the Shares at the Closing is subject to the fulfillment
to the Investor's satisfaction on or prior to the Closing of the following
conditions:
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5.1. REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Company in Section 2 hereof shall be true and correct
when made, and shall be true and correct as of the Closing with the same force
and effect as if they had been made on and as of such date, subject to changes
contemplated by this Agreement. The Chief Executive Officer of the Company shall
deliver at the Closing a certificate stating that the condition specified in the
preceding sentence has been fulfilled.
5.2. COVENANTS. The Company shall have performed and complied with all
covenants, agreements, obligations and conditions contained in this Agreement
that are required to be performed or complied with by it on or before the
Closing.
5.3. SECURITIES LAWS. The offer and sale of the Shares to the Investor
pursuant to this Agreement shall be exempt from the registration requirements of
the Act and qualification requirements of all applicable state securities laws.
5.4. AUTHORIZATIONS. All authorizations, approvals or permits, if any,
of any governmental authority or regulatory body that are required in connection
with the lawful issuance and sale of the Shares pursuant to this Agreement shall
have been duly obtained and shall be effective on and as of the Closing. All
waiting periods, if any, under the HSR Act applicable to the issuance of the
Shares hereunder shall have expired or have been terminated.
5.5. ABSENCE OF GOVERNMENTAL OR OTHER OBJECTION. There shall be no
pending or threatened lawsuit challenging the transaction by any body or agency
of the federal, state or local government or by any third party, and the
consummation of the transaction shall not have been enjoined by a court of
competent jurisdiction as of the Closing.
5.6. OPINION OF COMPANY COUNSEL. The Investor shall have received from
Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP, counsel for the
Company, an opinion, dated as of the Closing, reasonably satisfactory to the
Investor.
5.7. NO MATERIAL ADVERSE CHANGE. From the date hereof until the
Closing Date, there shall have occurred no material adverse effect on the
Company's business, financial condition or results of operations.
5.8. DELIVERY OF SHARE CERTIFICATES. On the Closing Date, the Company
shall have delivered, or shall have caused to be delivered, to the Investor a
stock certificate representing the Shares being purchased by the Investor.
6. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING. The obligation
of the Company to sell the Shares at the Closing is subject to the
fulfillment to the Company's satisfaction on or prior to the Closing of the
following conditions:
6.1. REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Investor contained in Section 3 hereof shall be true as of the
Closing with the same force and effect as if they had been made on and as of
such date, subject to changes contemplated by this Agreement.
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6.2. SECURITIES LAWS. The offer and sale of the Shares to the Investor
pursuant to this Agreement shall be exempt from the registration requirements of
the Act and the qualification requirements of all applicable state securities
laws.
6.3. AUTHORIZATIONS. All authorizations, approvals or permits, if any,
of any governmental authority or regulatory body that are required in connection
with the lawful issuance and sale of the Shares pursuant to this Agreement shall
have been duly obtained and shall be effective on and as of the Closing. All
waiting periods, if any, under the HSR Act applicable to the issuance of the
Shares hereunder shall have expired or have been terminated.
6.4. ABSENCE OF GOVERNMENTAL OR OTHER OBJECTION. There shall be no
pending or threatened lawsuit challenging the transaction by any body or agency
of the federal, state or local government or by any third party, and the
consummation of the transaction shall not have been enjoined by a court of
competent jurisdiction as of the Closing.
6.5. PAYMENT OF PURCHASE PRICE. The Investor shall have delivered to
the Company the Purchase Price for the Shares as set forth in Section 1.1
hereof.
7. MISCELLANEOUS.
7.1. GOVERNING LAW. This Agreement shall be governed in all respects
by the laws of the State of California as applied to agreements among California
residents entered into and to be performed entirely within California, without
regard to the conflict of law provisions thereof.
7.2. SURVIVAL; ADDITIONAL SECURITIES. The representations and
warranties set forth in Sections 2 and 3 shall survive until the Closing. The
covenants and agreements set forth in Section 4 shall survive in accordance with
their terms. Any new, substituted or additional securities which are by reason
of any stock split, stock dividend, recapitalization or reorganization
distributed with respect to the Shares ("Share Distributions") shall be
immediately subject to the covenants and agreements set forth in Section 4 to
the same extent the Shares is at such time covered by such provisions.
7.3. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the respective successors and assigns of the parties hereto. Nothing in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement. The Investor may assign its
rights hereunder to a nominee or to any majority-owned affiliate.
Notwithstanding anything to the contrary contained herein, the covenants set
forth in Section 4 shall not be binding upon any entity (other than an affiliate
of the Investor), which acquires any shares of the Shares or a Share
Distribution in a transaction permitted hereunder.
7.4. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding and agreement between the parties with regard to the subject
matter hereof.
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7.5. NOTICES. Except as otherwise provided, all notices and other
communications required or permitted hereunder shall be in writing, shall be
effective when given, and shall in any event be deemed to be given upon receipt
or, if earlier, (i) five (5) days after deposit with the U.S. postal service or
other applicable postal service, if delivered by first class mail, postage
prepaid, (ii) upon delivery, if delivered by hand, (iii) one (1) business day
after the day of deposit with Federal Express or similar overnight courier,
freight prepaid, if delivered by overnight courier or (iv) one (1) business day
after the day of facsimile transmission, if delivered by facsimile transmission
with copy by first class mail, postage prepaid, and shall be addressed, (a) if
to the Investor, at the Investor's address set forth below, or at such other
address as the Investor shall have furnished to the Company in writing, or (b)
if to the Company, at its address as set forth below its signature, or at such
other address as the Company shall have furnished to the Investor in writing:
If to the Company:
Liberate Technologies
2 Circle Star Way
San Carlos, California 94070
Attn: General Counsel
Facsimile Number: (650) 701-4999
with a copy to:
Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP
155 Constitution Drive
Menlo Park, CA 94025
Attn: Brooks Stough
Facsimile Number: (650) 321-2800
If to the Investor:
Cisco Systems, Inc.
170 West Tasman Drive
San Jose, California 95134-1706
Attn: Associate General Counsel, Van Dang
Facsimile Number: (408) 525-4757
with a copy to:
Brobeck, Phleger & Harrison LLP
1633 Broadway
New York, New York 10019
Attn: Eric Simonson
Facsimile Number: (212) 586-7878
7.6. AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended
and the observance of any term of the Agreement may be waived (either generally
or in
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a particular instance and either retroactively or prospectively) only with
the written consent of the Company and the Investor.
7.7. LEGAL FEES. In the event of any action at law, suit in equity or
arbitration proceeding in relation to this Agreement or the Shares or any Share
Distribution, the prevailing party shall be paid by the other party a reasonable
sum for the attorneys' fees and expenses incurred by such prevailing party.
7.8. EXPENSES. Irrespective of whether the Closing is effected, the
Company and the Investor shall each bear their own legal and other expenses with
respect to the transaction, except that assuming a successful completion of the
transaction, the Company shall pay the actual legal fees and expenses of
Brobeck, Phleger & Harrison LLP up to $30,000 which shall be payable at Closing,
as a deduction to the Purchase Price otherwise payable by the Investor.
7.9. TITLES AND SUBTITLES. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
7.10. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be an original, but all of which together shall constitute
one instrument.
7.11. SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
7.12. CONFIDENTIALITY. The parties hereto agree that, except with the
prior written permission of the other party, it shall at all times keep
confidential and not divulge, furnish, or make accessible to anyone any
confidential information, knowledge, or data concerning or relating to the
business or financial affairs of such other party to which said party has been
or shall become privy by reason of this Agreement, discussions or negotiations
relating to this Agreement, or the performance of its obligations hereunder.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year hereinabove first written.
LIBERATE TECHNOLOGIES
By:
-----------------------------------
Mitchell E. Kertzman
President and Chief Executive Officer
Address: 2 Circle Star Way
San Carlos, California 94070
Attn: General Counsel
CISCO SYSTEMS, INC.
By:
-----------------------------------
Title:
-----------------------------------
Address: 170 West Tasman Drive
San Jose, California 95134-1706
