\n Six months from Effective Date: $ 73,000
\n Twelve months from Effective Date: $109,500
\n Fifteen months from Effective Date: $109,500
\n Eighteen months from Effective Date: $109,500
\n Twenty-one months from Effective Date: $109,500
\n Twenty-four months from Effective Date: $306,600
\n<\/c><\/s><\/table>\nYou will be solely responsible for any taxes that may be incurred as a result of
\nthe Retention Payments, and Liberate will withhold applicable taxes from them.<\/p>\n
ACCELERATION UPON CHANGE IN CONTROL. Should Liberate experience a Change in
\nControl within the two years following the Effective Date and you are terminated
\nwithout Cause within twelve months of such Change in Control, Liberate will pay
\nyou any unpaid Retention Payments listed above within 30 days. For purposes of
\nthis Agreement, a termination of employment without Cause will include any of
\nthe following changes made without your express written consent:<\/p>\n
(i) significant reduction of your duties, authority, or
\n responsibilities, including continued employment (or an offer of
\n continued employment) at a level below your current position,
\n specifically including a reduction in your title or a reporting
\n relationship in which you report to someone other than the chief
\n executive officer or equivalent of Liberate or any successor
\n corporation or business unit);<\/p>\n
(ii) reduction of your base salary;<\/p>\n
(iii) material reduction of your overall benefits package;<\/p>\n
(iv) material reduction of your performance bonuses, excluding both
\n generally applicable changes to performance objectives and
\n partial or non-payment of bonuses based on the failure to
\n achieve specific performance objectives; or<\/p>\n
(v) any termination other than for Cause<\/p>\n
Cause is defined as: (i) gross negligence or willful misconduct in the
\nperformance of your duties to Liberate; (ii) repeated unexplained or unjustified
\nabsence from Liberate; <\/p>\n
-1-<\/p>\n
(iii) the commission of any act of fraud, embezzlement, or dishonesty with
\nrespect to Liberate, (iv) any unauthorized use or disclosure of confidential
\ninformation or trade secrets of Liberate (or any Liberate Parent or subsidiary),
\nor (v) any other intentional misconduct that materially harms the business
\naffairs of Liberate (or any parent or subsidiary). The foregoing provisions and
\ndefinition shall not be deemed to include all of the acts or omissions that
\nLiberate (or any Liberate parent or subsidiary) may consider as grounds for
\ndismissal or discharge.<\/p>\n
Change in Control is defined as: (i) a sale, transfer or disposition of all or
\nsubstantially all of Liberate’s assets or (ii) the consummation of a merger or
\nconsolidation of Liberate with or into another entity or any other corporate
\nreorganization, if persons who own less than 50% of Liberate immediately prior
\nto such merger, consolidation, or other reorganization own immediately after
\nsuch merger, consolidation, or other reorganization 50% or more of the voting
\npower of the outstanding securities of each of (A) the continuing or other
\nsurviving entity and (B) any direct or indirect parent corporation of such
\ncontinuing or surviving entity. In addition, a transaction shall not constitute
\na Change in Control if its sole purpose is to change the state of Liberate’s
\nincorporation or to create a holding company that will be owned in substantially
\nthe same proportions by the person who held Liberate’s securities immediately
\nbefore such transaction.<\/p>\n
LIMITATIONS ON ACCELERATED PAYMENTS IN THE EVENT OF EXTRAORDINARY TAX LIABILITY.
\nIf the total compensation from Liberate or its successors to you (including
\nsalary, bonuses, and payments under this agreement, but excluding option
\ncompensation) would otherwise exceed $1 million in a given tax year, Liberate
\nmay defer the excess of such payments over $1 million to the following tax year.<\/p>\n
If Liberate’s independent external auditors determine that you would receive a
\ngreater after-tax benefit if it reduced the amount of the accelerated Retention
\nPayment (for example, due to application of Section 4999 of the Internal Revenue
\nCode relating to “excess parachute payments”), Liberate will reduce the
\nRetention Payment to the amount calculated to provide you with the maximum
\nafter-tax value. If Liberate’s auditors subsequently determine that the correct
\namount differs from the amount paid to you, any under- or over-payment will be
\ntreated as a loan between the parties, repayable within three months from the
\nnotice of the revised determination and bearing interest at the prime rate from
\nthe date of the under- or over-payment.<\/p>\n
ARBITRATION. The parties waive trial before a judge or jury and agree to
\narbitrate with the JAMS arbitration service any dispute relating to this
\nagreement or your recruitment, employment, or termination, except for claims
\nrelating to worker’s compensation benefits, unemployment insurance, or
\nintellectual property rights. The arbitrator’s decision will include written
\nfindings of fact and law and will be final and binding except to the extent that
\njudicial review of arbitration awards is required by law. The American
\nArbitration Association’s National Rules for the Resolution of Employment
\nDisputes will govern the arbitration, except that the arbitrator will allow
\ndiscovery authorized by the California Arbitration Act and any additional
\ndiscovery necessary to vindicate a claim or defense. The arbitrator may award
\nany remedy that would be available from a court of law. You may chose to hold
\nthe arbitration either in San Mateo County, California or the <\/p>\n
-2-<\/p>\n
county where the you worked when the arbitrable dispute first arose. The
\nparties will share the arbitration costs equally (except that Liberate will
\npay the arbitrator’s fee and any other cost unique to arbitration) and will
\npay their own attorney’s fees except as required by law or separate
\nagreement. This Agreement is governed by the laws of the State of California
\nwithout regard to its conflict-of-law rules.<\/p>\n
MUTUAL RELEASE OF CLAIMS. As a condition of entering into this agreement, each
\nparty releases the other from any claims against the other or against any
\naffiliated persons or entities. This release includes, but is not limited to,
\nany claims related to your employment with Liberate, and any claims under past
\nor present laws or regulations, including original and amended versions of Title
\nVII of the Civil Rights Act of 1964; the California Fair Employment and Housing
\nAct; the Worker Adjustment and Retraining Notification Act; the California
\nConstitution; the California Worker’s Compensation Act; the Age Discrimination
\nin Employment Act, the Older Workers’ Benefit Protection Act; the Employee
\nRetirement Income Security Act of 1974; the Family Medical Leave Act; the
\nAmericans with Disabilities Act; and the National Labor Relations Act. You
\nconfirm that you are not aware of any such claims.<\/p>\n
The parties understand and acknowledge that they may not currently know of
\nlosses or claims or may have underestimated the severity of losses. Part of the
\nconsideration provided by this Agreement was given in exchange for the release
\nof such claims. The parties hereby waive any rights or benefits under California
\nCivil Code Section 1542, which provides that:<\/p>\n
A general release does not extend to claims which the creditor does not
\n know or suspect to exist in his favor at the time of executing the
\n release, which if known by him must have materially affected his
\n settlement with debtor.<\/p>\n
MISCELLANEOUS. Should you die before receiving any payments otherwise earned
\nunder this agreement, Liberate will make such payments to your estate. Other
\nthan specifically set forth above, nothing in this Agreement modifies your
\nexisting at-will employment relationship with Liberate or otherwise changes the
\nterms of your employment agreement.<\/p>\n
\/s\/ Mitchell Kertzman \/s\/ David A. Limp
\n—————————- ——————————-
\nMitchell Kertzman David A. Limp
\nChief Executive Officer Executive Vice President\/
\nLiberate Technologies Chief Strategy Officer
\n Liberate Technologies<\/p>\n
-3-<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8051],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9539,9544],"class_list":["post-38811","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-liberate-technologies","corporate_contracts_industries-technology__software","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38811","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38811"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38811"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38811"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38811"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}