Exhibit 99.2
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STOCKHOLDER VOTING AGREEMENT
STOCKHOLDER VOTING AGREEMENT, dated as of April 15, 2005 (this
"Agreement"), by and among SeaChange International, Inc. ("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 April 15, 2005, by and among Purchaser, Seller and Liberate Technologies
B.V. (the "Netherlands 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 Netherlands Subsidiary to Purchaser of all the
specified assets, properties, interest in properties and rights of Seller and
the Netherlands Subsidiary in the Non-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 Netherlands
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 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;
(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.
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 to be executed and delivered) any written consent in favor of the
Transaction with respect to all of the Owned Shares; and
(iii) such Principal Stockholder will not vote, or cause to
be voted, any Owned Shares (or otherwise provide a proxy or consent or enter
into another voting agreement with respect thereto) in favor of any other
Alternative Proposal, nor vote the Owned Shares at a meeting of the holders of
Seller Common Stock nor execute any written consent in lieu of a meeting of
holders of Seller Common Stock if such vote or consent by the holders of
Seller Common Stock would be inconsistent with or frustrate the purposes of
the other agreements of such Principal Stockholder pursuant to the Asset
Purchase Agreement or this Agreement.
(b) For purposes of clarity, each Principal Stockholder acknowledges
that the covenant set forth in Section 3(a) applies even if the Board of
Directors of Seller withdraws, modifies or qualifies in a manner adverse to
Purchaser its recommendation regarding the Asset Purchase Agreement or the
Transaction.
(c) Each Principal Stockholder hereby revokes any and all previous
proxies with respect to such Principal Stockholder's Owned Shares.
4. Irrevocable Proxy. Each Principal Stockholder hereby appoints
Purchaser and any designee of Purchaser, each of them individually, each such
Principal Stockholder's proxy and attorney-in-fact pursuant to the provisions
of Section 212 of the Delaware General Corporation Law, as amended, with full
power of substitution and resubstitution, to vote and act on each such
Principal Stockholder's behalf and in each such Principal Stockholder's name,
place and stead with respect to such Principal Stockholder's Owned Shares, at
any annual, special or other meeting of the stockholders of Seller, and at any
adjournment or postponement of any such meeting, held during the term of this
Agreement and to act by written consent with respect to each such Principal
Stockholder's Owned Shares, at all times during the term of this Agreement
with respect to the matters referred to in, and in accordance with, Section
3(a) hereof. Each Principal Stockholder affirms that this proxy is coupled
with an interest and shall be irrevocable. Each Principal Stockholder shall
take such further action or execute such other instruments as may be necessary
to effectuate the intent of this proxy. Except in order to vote the Owned
Shares in accordance with Section 3(a), each Principal Stockholder covenants
and agrees not to grant any subsequent proxy with respect to such Principal
Stockholder's Owned Shares, and further covenants and agrees that any such
proxy, if granted, shall not be valid or effective.
5. Limitations on Transfer. Each Principal Stockholder agrees that he
or it will not, without the prior written consent of Purchaser, (a) directly
or indirectly, sell, transfer, pledge, assign or otherwise dispose of, or
enter into any contract, option, commitment or other arrangement or
understanding with respect to the sale, transfer, pledge, assignment or other
disposition of, any of the Owned Shares or any securities convertible into or
exchangeable for common stock of Seller, and (b) take any action that would
prohibit, prevent or preclude such Principal Stockholder from performing its
obligations under this Agreement, including, without limitation, the granting
of a power of attorney with respect to the Owned Shares, depositing the Owned
Shares in a voting trust or entering into any other stockholder voting
agreements with respect to the Owned Shares, provided, however, that a
Principal Stockholder may transfer any of its Owned Shares to a Permitted
Transferee without the prior written consent of Purchaser if such Permitted
Transferee executes a counterpart of this Agreement agreeing to be bound by
this Agreement and agrees in writing to hold such Owned Shares (or interest in
such Owned Shares) subject to all of the terms and provisions of this
Agreement, provided that the Principal Stockholder shall remain liable under
this Agreement in all respects. Each Principal Stockholder further agrees that
this Agreement and each Principal Stockholder's obligations hereunder shall
attach to such Principal Stockholder's Owned Shares and shall be binding upon
any person or entity to which legal or beneficial ownership of such Owned
Shares may pass, whether by operation of law or otherwise, including without
limitation such Principal Stockholder's heirs, guardians, administrators or
successors. Each Principal Stockholder further covenants and agrees not to
request that Seller register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of such Principal
Stockholder's Owned Shares, unless such transfer is made in compliance with
this Agreement and acknowledges that Purchaser and Seller may notify Seller's
transfer agent of the terms hereof. Each Principal Stockholder agrees, if
requested by Purchaser, that such Principal Stockholder shall tender its Owned
Shares for the inscription of a legend consistent with this Agreement.
6. Consent to this Agreement. Each Principal Stockholder hereby
consents, for purposes of any stockholders' agreement or other agreement or
commitment among the stockholders of Seller, to the execution, delivery and
performance of this Agreement by each other Principal Stockholder (and waives
any rights such Principal Stockholder would otherwise have pursuant to any
such stockholders' agreement or other agreement or commitment by virtue of the
execution, delivery or performance of this Agreement). Each Principal
Stockholder further consents and authorizes Purchaser and Seller to publish
and disclose in the Proxy Statement (including all documents filed with the
Commission in connection therewith) its identity and ownership of the Owned
Shares and the nature of its commitments, arrangements and understandings
under this Agreement.
7. Specific Performance. Each Principal Stockholder agrees that
irreparable damage to Purchaser would occur in the event that any of the
provisions of this Agreement were not performed by it in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that
Purchaser shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement by each Principal Stockholder and to enforce
specifically the terms and provisions hereof in any court of the United States
or any state having jurisdiction, this being in addition to any other remedy
to which it is entitled at law or in equity, and that each Principal
Stockholder waives the posting of any bond or security in connection with any
proceeding related thereto.
8. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original. This
Agreement shall not be effective as to any party hereto until such time as
this Agreement or a counterpart hereof has been executed and delivered by each
party hereto (which delivery may be by facsimile).
9. Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise or beginning
of the exercise of any thereof by Purchaser shall not preclude the
simultaneous or later exercise of any other such right, power or remedy by
Purchaser.
10. No Waiver. The failure of Purchaser to exercise any right, power
or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any Principal
Stockholder hereto with its obligations hereunder, and any custom or practice
of the parties at variance with the terms hereof, shall not constitute a
waiver by Purchaser of its right to exercise any such or other right, power or
remedy or to demand such compliance.
11. Stockholder Capacity. Each Principal Stockholder is executing
this Agreement solely in his or its capacity as beneficial owner of the Owned
Shares and not in its fiduciary capacity as a director or officer of Seller.
Nothing herein shall prohibit, prevent or preclude such Principal Stockholder
from taking or not taking any action in his capacity as an officer or director
of the Company.
12. Termination. This Agreement shall terminate upon the earlier to
occur of (a) the Closing Date and (b) the date of termination of the Asset
Purchase Agreement in accordance with its terms. Nothing in this Section 12
shall relieve or otherwise limit the liability of any party for breach of this
Agreement.
13. Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of Delaware without giving effect
to any choice of law or conflict of law provision or rule (whether of the
State of Delaware or any other jurisdiction) that would cause the application
of the laws of any jurisdiction other than the State of Delaware.
14. Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to Purchaser. Upon such a
determination, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner so that the transactions contemplated hereby
be consummated as originally contemplated to the fullest extent possible.
15. Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no Principal Stockholder may
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of Purchaser.
16. Entire Agreement. This Agreement (together with the Asset
Purchase Agreement and the other agreements and documents expressly
contemplated hereby and thereby) embodies the entire agreement and
understanding among the parties relating to the subject matter hereof and
supersedes all prior agreements and understandings relating to such subject
matter.
17. Amendments. This Agreement may not be modified, amended, altered
or supplemented except upon the execution and delivery of a written agreement
executed by each of the parties hereto.
[Signature page follows]
IN WITNESS WHEREOF, each Principal Stockholder and Purchaser have
duly executed this Stockholder Voting Agreement as of the date first above
written.
SEACHANGE INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ III
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ III
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Title: President and CEO
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PRINCIPAL STOCKHOLDERS:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ FUND LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Managing Member
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SPOUSAL CONSENT
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I, the undersigned, being the spouse of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, a stockholder
of Liberate Technologies (the "Company"), hereby acknowledge that I have read
and hereby approve that certain Stockholder Voting Agreement dated as of
April 15, 2005 in favor of SeaChange International, Inc. (the "Voting
Agreement"). I hereby agree to be irrevocably bound by the Voting Agreement
and that any community property interest that I may have in the Owned Shares
shall be similarly bound by the Voting Agreement. I hereby appoint my spouse,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as my attorney-in-fact with respect to the exercise of any
rights or the performance of any obligations under the Voting Agreement.
Date: April 15, 2005
Signature: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name (Printed): ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Schedule I
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Stockholder | Owned Shares
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | 5,107,201
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|
▇▇▇▇▇▇▇▇ Fund LLC | 8,225,700
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|
TOTAL | 13,332,901
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