Exhibit 4.6
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SECOND AMENDMENT TO RIGHTS AGREEMENT
This SECOND AMENDMENT TO RIGHTS AGREEMENT (this "Amendment") has been
made and entered into as of April 15, 2005, by and between Liberate
Technologies, a Delaware corporation (the "Company"), and Equiserve Trust
Company, N.A., a federally chartered trust company (the "Rights Agent").
WHEREAS, the Company and the Rights Agent previously entered into a
Rights Agreement, dated as of May 12, 2003 and amended as of January 10, 2005
(the "Rights Agreement");
WHEREAS, Section 27 of the Rights Agreement provides that, prior to
the occurrence of a Distribution Date (as defined therein), the Company and
the Rights Agent shall, if the Company so directs, supplement or amend any
provision of the Rights Agreement without the approval of any holders of
certificates representing shares of Common Stock and the Rights Agent shall
execute such supplement or amendment;
WHEREAS, simultaneously with the execution of this Amendment, the
Company, Liberate Technologies B.V., a corporation organized under the laws of
the Netherlands and a wholly owned subsidiary of the Company (the "Netherlands
Subsidiary") and SeaChange International, Inc., a Delaware corporation (the
"Purchaser"), are entering into an Asset Purchase Agreement (the "Asset
Purchase Agreement") pursuant to which Purchaser will acquire from the Company
and the Netherlands Subsidiary specified assets relating to the Company's
business outside the United States, Canada and Mexico;
WHEREAS, in connection with the Asset Purchase Agreement, the
Purchaser, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Funds LLC are entering into a
Stockholder Voting Agreement, to be dated as of the effective date of the
Asset Purchase Agreement (the "Voting Agreement");
WHEREAS, on April 15, 2005, the Board of Directors of the Company
resolved to amend the Rights Agreement to render it inapplicable to the Asset
Purchase Agreement and the transactions specifically contemplated thereby,
including the Voting Agreement; and
WHEREAS, the Company intends to modify the terms of the Rights
Agreement in certain respects as set forth herein, and in connection
therewith, is entering into this Amendment and directing the Rights Agent to
enter into this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
1. Capitalized Terms. All capitalized terms used herein and not
otherwise defined shall have the meanings assigned thereto in the Rights
Agreement.
2. Amendment. The following sentence shall be added to the end of the
definition of "Acquiring Person" in Section 1(a) of the Rights Agreement:
Notwithstanding the foregoing or any other provision of this Agreement to the
contrary, SeaChange International, Inc., a Delaware corporation ("SeaChange"),
shall not be deemed to be an Acquiring Person as a result of (i) the execution
and delivery of either (A) the Asset Purchase Agreement by and among
SeaChange, the Company, and Liberate Technologies B.V., a corporation
organized under the laws of the Netherlands (the "Netherlands Subsidiary")
(the "Asset Purchase Agreement") or (B) the Stockholder Voting Agreement
between SeaChange, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Funds LLC, to be dated as of
the effective date of the Asset Purchase Agreement (the "Voting Agreement");
or (ii) the consummation of the transactions contemplated by the Asset
Purchase Agreement, as may be amended from time to time, or the Voting
Agreement."
3. Effective Date. This Amendment shall become effective as of the
date first above written.
4. Effect of Amendment. Except as expressly provided for in this
Amendment, all terms, conditions and obligations contained in the Rights
Agreement shall remain unchanged and in full force and effect.
5. Governing Law. This Amendment shall be governed by and interpreted
in accordance with the laws of the State of Delaware, without regard to such
state's conflicts or choice of law provisions.
6. Counterparts. This Amendment may be executed in separate
counterparts, each of which when executed and delivered shall be deemed to be
an original, but all of which, when taken together, constitute one and the
same instrument.
7. Fax Transmission. A facsimile, telecopy or other reproduction of
this Amendment may be executed by one or more parties hereto, and an executed
copy of this Amendment may be delivered by one or more parties hereto by
facsimile or similar instantaneous electronic transmission device pursuant to
which the signature of or on behalf of such party can be seen, and such
execution and delivery shall be considered valid, binding and effective for
all purposes. At the request of any party hereto, all parties agree to execute
an original of the Amendment as well as any facsimile, telecopy or other
reproduction thereof.
IN WITNESS WHEREOF, parties hereto have caused this Amendment to be duly
executed, all as of the day and year first above written.
LIBERATE TECHNOLOGIES
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:Chairman and CEO
EQUISERVE
TRUST COMPANY, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇
Title: Managing Director
