{"id":43690,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/stock-purchase-agreement-liberate-technologies-and-cisco.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"stock-purchase-agreement-liberate-technologies-and-cisco","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/stock-purchase-agreement-liberate-technologies-and-cisco.html","title":{"rendered":"Stock Purchase Agreement &#8211; Liberate Technologies and Cisco Systems Inc."},"content":{"rendered":"<pre>                            STOCK PURCHASE AGREEMENT\n\n\n     THIS STOCK PURCHASE AGREEMENT is made as of the 16th day of July 2000, by\nand between Liberate Technologies, a Delaware corporation (the \"Company\"), and\nCisco Systems, Inc., a California corporation (the \"Investor\").\n\n     WHEREAS, the Investor has indicated a desire to purchase the number of\nshares of the Company's common stock, par value $0.01 per share (\"Common Stock\")\nobtained by dividing 100,000,000 by (95%) ninety-five percent of the average\nclosing price during the last ten (10) trading days preceding the trading date\nimmediately prior to the date of this Agreement (the \"Shares\").\n\n     WHEREAS, the Company has indicated a desire to sell the Shares to the\nInvestor on the terms set forth herein.\n\n     WHEREAS, the Company and the Investor have agreed that this Agreement shall\nconstitute the entire understanding and agreement between the parties with\nregard to the subject matter hereof.\n\n     NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:\n\n     1.   PURCHASE AND SALE OF STOCK.\n\n          1.1. SALE AND ISSUANCE OF STOCK. Subject to the terms and conditions\nof this Agreement, the Company agrees to sell to the Investor and the Investor\nagrees to purchase from the Company a total of 3,963,780 Shares for an aggregate\npurchase price of $100,000,000, or $25.22844 per share, in cash (the \"Purchase\nPrice\").\n\n          1.2. ADJUSTMENT OF PURCHASE PRICE. The Purchase Price shall be\nadjusted to reflect fully the effect of any stock split, reverse split, stock\ndividend, reorganization, recapitalization or other like change with respect to\nthe Common Stock occurring after the date hereof and prior to the Closing Date\nand of any increase in the number of shares of the Common Stock, or securities\nconvertible into or exchangeable for shares of the Common Stock, outstanding\nafter the date hereof relative to such number as derived from Section 2.2\nhereof, so that the Investor shall receive the number of shares of Common Stock\nthat the Investor would have received in respect of the Shares if the\ntransaction contemplated by this Agreement had been consummated as of the date\nhereof, prior to such stock split, reverse split, stock dividend,\nreorganization, recapitalization, like change or increase.\n\n          1.3. THE CLOSING. The purchase and sale of the Shares (the \"Closing\")\nshall be held at the offices of Brobeck, Phleger &amp; Harrison LLP, 1633 Broadway,\nNew York, New York, as soon as practicable following satisfaction of the closing\nconditions set forth in Section 5 hereof, or such later date as the Investor and\nthe Company may agree upon (the \"Closing Date\"). At the Closing, the Company\nwill deliver or cause to be delivered by its transfer agent a certificate\nevidencing the Shares to the Investor, in the name of the Investor (or any\ndesignee of the Investor) and such other documents and instruments necessary to\nvest in the Investor good, marketable and record title to, and beneficial\nownership of, the Shares free and \n\n\n\nclear of all liens, together with evidence of payment of applicable transfer or\nissuance taxes, if any.\n\n     2.   REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby\nrepresents and warrants to the Investor that:\n\n          2.1. ORGANIZATION, GOOD STANDING, POWER AND RIGHTS TO ACQUIRE STOCK.\nThe Company is a corporation duly organized, validly existing and in good\nstanding under the laws of the State of Delaware and has all requisite corporate\npower and authority to carry on its business as now conducted and as presently\nproposed to be conducted. The Company is duly qualified to transact business and\nis in good standing in each jurisdiction in which the failure to so qualify\nwould have a material adverse effect on its business or properties. The Company\nhas delivered to the Investor a true and correct copy of the Sixth Amended and\nRestated Certificate of Incorporation of the Company (the \"Restated\nCertificate\") filed with the Delaware Secretary of State on August 2, 1999, and\nthe Amended and Restated Bylaws of the Company (the \"Bylaws\"), or other charter\ndocuments, as applicable, of the Company, each as amended to date. The Company\nis not in violation of any of the provisions of its charter or Bylaws. Except as\nset forth in the Company SEC Documents (as defined in Section 2.9), as set forth\nin Section 2.2 below and except for changes in the number of outstanding\nemployee stock options after June 30, 2000, there are no outstanding\nsubscriptions, options, warrants, puts, calls, rights, exchangeable or\nconvertible securities or other commitments or agreements of any character\nrelating to the issued or unissued capital stock or other securities obligating\nthe Company to issue, transfer, sell, purchase, redeem or otherwise acquire any\nsuch securities. Except as disclosed in the Company SEC Documents and on\nSchedule 2.1, the Company does not directly or indirectly own any equity or\nsimilar interest in, or any interest convertible or exchangeable or exercisable\nfor, any equity or similar interest in, any corporation, partnership, joint\nventure or other business association or entity.\n\n          2.2. CAPITALIZATION. The authorized capital stock of the Company, as\nof June 30, 2000 consists of:\n\n               (a)  20,000,000 shares of Preferred Stock, none of which are\nissued, outstanding or designated as any specific series. The rights,\nprivileges, preferences and restrictions of the Preferred Stock are as stated in\nthe Restated Certificate.\n\n               (b)  200,000,000 shares of Common Stock, 98,282,558 shares of\nwhich are issued and outstanding and none of which have been reserved solely for\nissuance upon conversion of Preferred Stock. All of the outstanding shares of\nCommon Stock have been duly authorized, fully paid and are nonassessable and\nissued in compliance with all applicable federal and state securities laws.\n\n               (c)  The Company has reserved 19,608,261 shares of Common Stock\nfor issuance to officers, directors, employees and consultants of the Company\npursuant to its various option plans duly adopted by the Board of Directors and\napproved by the Company's stockholders (the \"Stock Plans\"). Of such reserved\nshares of Common Stock, options to purchase 17,003,189 shares have been granted\nand are currently outstanding, and 2,605,072 shares of Common Stock remain\navailable for issuance to officers, directors, employees and \n\n\n                                        2\n\n\n\nconsultants pursuant to the Stock Plans. In addition, the Company has reserved\n3,044,098 shares of Common Stock for purchase by its employees under its 1999\nEmployee Stock Purchase Plan described in the Company SEC Documents. In\naddition, the Company has reserved 4,366,660 shares of Common Stock for issuance\npursuant to warrant agreements, of which 2,103,328 are currently outstanding.\n\n               (d)  Except as set forth in this Agreement , Schedule 2.2 (d) and\nthe Stockholders Agreement dated August 11, 1997, as amended (the \"Stockholders\nAgreement\"), there are no options, warrants, conversion privileges or other\nrights presently outstanding to purchase or otherwise acquire any authorized but\nunissued shares of capital stock or other securities of the Company. The Company\nis not a party or subject to any agreement or understanding and, to the best of\nthe Company's knowledge, there is no agreement or understanding between any\nperson and\/or entities that affects or relates to the voting or giving of\nwritten consents with respect to any security or by a director of the Company,\nexcept for the Voting Agreement dated May 12, 1999. Any outstanding capital\nstock of the Company was issued in compliance with all federal and state\nsecurities laws.\n\n          2.3. AUTHORIZATION. All corporate action on the part of the Company,\nits officers, directors and stockholders necessary for the authorization,\nexecution and delivery of this Agreement, the performance of all obligations of\nthe Company hereunder, and the authorization, issuance, sale and delivery of the\nShares has been taken, and this Agreement constitutes a valid and legally\nbinding obligation of the Company, enforceable in accordance with its terms,\nexcept (i) as limited by applicable bankruptcy, insolvency, reorganization,\nmoratorium, and other laws of general application affecting enforcement of\ncreditors' rights generally and (ii) as limited by laws relating to the\navailability of specific performance, injunctive relief, or other equitable\nremedies. No consent, approval, order or authorization of, or registration,\ndeclaration or filing with, any court, administrative agency or commission or\nother governmental authority or instrumentality is required by or with respect\nto the Company or any of its subsidiaries in connection with the execution and\ndelivery of this Agreement, or the consummation of the transactions contemplated\nhereby, except for (i) such consents, approvals, orders, authorizations,\nregistrations, declarations and filings as may be required under applicable\nstate securities laws and the securities laws of any foreign country; (ii) such\nfilings, if any, as may be required under the Hart-Scott-Rodino Antitrust\nImprovements Act of 1976, as amended, and the rules and regulations promulgated\nthereunder (the \"HSR Act\"); and (iii) such other consents, authorizations,\nfilings, approvals and registrations which, if not obtained or made, would not\nhave a material adverse effect on the Company and would not prevent, or\nmaterially alter or delay any of the transactions contemplated by this\nAgreement.\n\n          2.4. VALID ISSUANCE OF SHARES. The Shares, when issued, sold and\ndelivered in accordance with the terms hereof for the consideration expressed\nherein, will be duly and validly issued, fully paid and nonassessable and will\nbe free of restrictions on transfer other than restrictions on transfer under\nthis Agreement and under applicable state and federal securities laws. Subject\nto the truth and accuracy of the Investor's representations set forth in Section\n3 of this Agreement, the offer, sale and issuance of the Shares as contemplated\nby this Agreement are exempt from the qualification and\/or registration\nrequirements of any applicable state and federal securities laws, including\nwithout limitation, the registration requirements of the Securities Act of 1933,\nas amended (the \"Act\").\n\n\n                                       3\n\n\n          2.5. TITLE TO PROPERTY AND ASSETS. The Company owns its property and\nassets free and clear of all mortgages, liens, loans and encumbrances, except\nsuch encumbrances and liens that arise in the ordinary course of business and do\nnot materially impair the Company's ownership or use of such property or assets.\nWith respect to the property and assets it leases, the Company is in compliance\nwith such leases and, to the best of its knowledge, holds a valid leasehold\ninterest free of any liens, claims or encumbrances.\n\n          2.6. COMPLIANCE WITH OTHER DOCUMENTS. The execution and delivery of\nthis Agreement, consummation of the transactions contemplated hereby, and\ncompliance with the terms and provisions hereof will not conflict with or result\nin a breach of the terms and conditions of, or constitute a default under the\nRestated Certificate or Bylaws of the Company or of any contract or agreement to\nwhich the Company is now a party, except where such conflict, breach or default\nof any such contract or agreement, either individually or in the aggregate,\nwould not have a material adverse effect on the Company's business, financial\ncondition or results of operations and would not prevent, or materially alter or\ndelay any of the transactions contemplated by this Agreement.\n\n          2.7. LITIGATION. Except as disclosed in the Company SEC Documents\nfiled from time to time with the U.S. Securities and Exchange Commission (the\n\"SEC\"), there are no actions, proceedings or investigations pending against the\nCompany, that, either in any case or in the aggregate, would result in any\nmaterial adverse change in the business, financial condition, or results of\noperations of the Company and would not prevent, or materially alter or delay\nany of the transactions contemplated by this Agreement.\n\n          2.8. INTELLECTUAL PROPERTY. Except as disclosed in the Company SEC\nDocuments, the Company owns or possesses sufficient legal title or rights to use\nall patents, trademarks, service marks, trade names, copyrights, trade secrets,\nlicenses, information, and proprietary rights and processes (collectively,\n\"Intellectual Property\") necessary for its business as now conducted and as\nproposed to be conducted without any conflict with, or infringement of, the\nrights of others. Except as set forth in Schedule 2.8, the Company has not\nreceived any communications alleging that the Company has violated or, by\nconducting its business as proposed, would violate any of the Intellectual\nProperty of any other person or entity. The Company is not aware that any of its\nemployees or officers is obligated under any contract (including licenses,\ncovenants, or commitments of any nature) or other agreement, or is subject to\nany judgment, decree, or order of any court or administrative agency, that would\ninterfere with the use of such employee's best efforts to promote the interests\nof the Company or that would conflict with the Company's business as proposed to\nbe conducted. The Company is not aware that any of its officers, employees or\nconsultants (i) disclosed or utilized or may be disclosing or utilizing any\ntrade secret or proprietary information of any third party; (ii) violated or may\nbe violating the terms of his employment, non-competition or non-disclosure\nagreement with any party; or (iii) interfered or may be interfering in the\nemployment relationship with any third party and any of its present or former\nemployees. Neither the execution nor delivery of this Agreement, nor the\ncarrying on of the Company's business by the employees of the Company, nor the\nconduct of the Company's business as proposed, will, to the best of the\nCompany's knowledge, conflict with or result in a breach of the terms,\nconditions, or provisions of, or constitute a default under, any contract,\ncovenant, or instrument under which any of such \n\n\n                                       4\n\n\nemployees is now obligated. The Company does not believe it is or will be\nnecessary to use any inventions of any of its employees made prior to their\nemployment by the Company.\n\n          2.9. SEC DOCUMENTS; FINANCIAL STATEMENTS. The Company has made\navailable to the Investor a true and complete copy of each statement, report,\nregistration statement (with the prospectus in the form filed pursuant to Rule\n424(b) of the Act), definitive proxy statement and other filings made with the\nSEC by the Company since July 28, 1999 and, prior to the Closing, the Company\nwill have furnished to the Investor true and complete copies of any additional\ndocuments filed with the SEC by the Company prior to the Closing (collectively,\nthe \"Company SEC Documents\"). The Company has timely filed all forms, statements\nand documents required to be filed by it with the SEC and The Nasdaq National\nMarket since July 28, 1999. In addition, the Company has made available to the\nInvestor all exhibits to the Company SEC Documents filed prior to the date\nhereof, and will promptly make available to the Investor all exhibits to any\nadditional Company SEC Documents filed prior to the Closing. All documents\nrequired to be filed as exhibits to the Company SEC Documents have been so\nfiled, and all material contracts so filed as exhibits are in full force and\neffect, except those which have expired in accordance with their terms, and\nneither the Company nor any of its subsidiaries is in material default\nthereunder. As of their respective filing dates, the Company SEC Documents\ncomplied in all material respects with the requirements of the Securities\nExchange Act of 1934, as amended (the \"1934 Act\"), and the Act, and none of the\nCompany SEC Documents contained any untrue statement of a material fact or\nomitted to state a material fact required to be stated therein or necessary to\nmake the statements made therein, in light of the circumstances in which they\nwere made, not misleading, except to the extent corrected by a subsequently\nfiled Company SEC Document. The financial statements of the Company, including\nthe notes thereto, included in the Company SEC Documents (the \"Company Financial\nStatements\") were complete and correct in all material respects as of their\nrespective dates, complied as to form in all material respects with applicable\naccounting requirements and with the published rules and regulations of the SEC\nwith respect thereto as of their respective dates, and have been prepared in\naccordance with United States generally accepted accounting principles (\"GAAP\")\napplied on a basis consistent throughout the periods indicated and consistent\nwith each other (except as may be indicated in the notes thereto or, in the case\nof unaudited statements included in Quarterly Reports on Form 10-Q, as permitted\nby Form 10-Q of the SEC). The Company Financial Statements fairly present the\nconsolidated financial condition and operating results of the Company and its\nsubsidiaries at the dates and during the periods indicated therein (subject, in\nthe case of unaudited statements, to normal, recurring year-end adjustments).\nThere has been no material change in the Company accounting policies since\nFebruary 29, 2000.\n\n          2.10. ABSENCE OF CERTAIN CHANGES. Except as disclosed in the Company\nSEC Documents and the Company press release for the quarter ended May 31, 2000,\ndated June 29, 2000 (the \"Press Release\") provided to the Investor, since the\ndate of such periodic reports and the Press Release, the Company has conducted\nits business in the ordinary course consistent with past practice and there has\nnot occurred: (i) any change, event or condition (whether or not covered by\ninsurance) that has resulted in, or might reasonably be expected to result in, a\nmaterial adverse effect to the Company; (ii) any acquisition, sale or transfer\nof any material asset of the Company or any of its subsidiaries other than in\nthe ordinary course of business and consistent with past practice; (iii) any\nchange in accounting methods or practices (including any change in depreciation\nor amortization policies or rates) by the Company or any revaluation by \n\n\n                                       5\n\n\nthe Company of any of its or any of its subsidiaries' assets; (iv) any\ndeclaration, setting aside, or payment of a dividend or other distribution with\nrespect to the shares of the Company, or any direct or indirect redemption,\npurchase or other acquisition by the Company of any of its shares of capital\nstock; (v) any material contract entered into by the Company or any of its\nsubsidiaries, other than in the ordinary course of business and as provided to\nthe Investor, or any material amendment or termination of, or default under, any\nmaterial contract to which the Company or any of its subsidiaries is a party or\nby which it is bound; (vi) any amendment or change to the Restated Certificate\nor Bylaws; or (vii) any development or event involving a prospective material\nadverse change, in the condition (financial or other), business, properties or\nresults of operations of the Company taken as a whole.\n\n          2.11. ABSENCE OF UNDISCLOSED LIABILITIES. The Company has no material\nobligations or liabilities of any nature (matured or unmatured, fixed or\ncontingent) required to be stated or disclosed which are not, other than (i)\nthose set forth or adequately provided for in the Company Financial Statements\nor in the related Notes to Consolidated Financial Statements included in the\nCompany's Quarterly Report on Form 10-Q for the quarter ended February 29, 2000\n(the \"Company Balance Sheet\") and the Press Release, (ii) those incurred in the\nordinary course of business and not required to be set forth in the Company\nBalance Sheet under GAAP, (iii) those incurred in the ordinary course of\nbusiness since the date of the Company Balance Sheet and not reasonably likely\nto have a material adverse effect on the Company; (iv) those incurred in\nconnection with the execution of this Agreement; and (v) those liabilities\ndisclosed in Schedule 2.11.\n\n          2.12. BROKER'S OR FINDERS' FEE. The Company has not incurred, nor will\nit incur, directly or indirectly, any liability for brokerage or finders' fees\nor agents' commissions or investment bankers' fees or any similar charges in\nconnection with the transaction contemplated by this Agreement.\n\n          2.13. INTERESTED PARTY TRANSACTIONS. Except as disclosed in Schedule\n2.13 and in the Company SEC Documents and exhibits thereto, neither the Company\nnor any of its subsidiaries is indebted to any director or officer of the\nCompany or any of its subsidiaries (except for amounts due as normal salaries\nand bonuses and in reimbursement of ordinary expenses), and no such person is\nindebted to the Company or any of its subsidiaries, and there are no other\ntransactions of the type required to be disclosed pursuant to Item 404 of\nRegulation S-K under the Act and the 1934 Act.\n\n     3.   REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. The Investor hereby\nrepresents and warrants that:\n\n          3.1. AUTHORIZATION. This Agreement constitutes the valid and legally\nbinding obligation of the Investor, enforceable in accordance with its terms,\nsubject to laws of general application relating to bankruptcy, insolvency and\nthe relief of debtors and by general principles of equity.\n\n          3.2. INVESTIGATION. The Investor acknowledges that it has had an\nopportunity to discuss the business, affairs and current prospects of the\nCompany with the Company's chief executive officer. The Investor further\nacknowledges having had access to \n\n\n                                       6\n\n\ninformation about the Company that it has requested or considers necessary for\npurposes of purchasing the Shares. The foregoing, however, does not limit or\nmodify the representations and warranties of the Company in Section 2 of this\nAgreement or the right of the Investor to rely thereon.\n\n          3.3. ACCREDITED INVESTOR. The Investor is an \"Accredited Investor\" as\nsuch term is defined in Regulation D adopted by the SEC.\n\n          3.4. PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made with\nthe Investor in reliance upon the Investor's representation to the Company,\nwhich by the Investor's execution of this Agreement the Investor hereby\nconfirms, that the Shares will be acquired for investment for the Investor's own\naccount, not as a nominee or agent, and not with a view to the resale or\ndistribution of any part thereof other than in conformity with the Act and the\nrules and regulations promulgated thereunder, and that the Investor has no\npresent intention of selling, granting any participation in, or otherwise\ndistributing the same, other than a transfer to a nominee holder or a\nmajority-owned affiliate.\n\n          3.5. RESTRICTED SECURITIES. The Investor understands that the Shares\nit is purchasing are characterized as \"restricted securities\" under the federal\nsecurities laws inasmuch as they are being acquired from the Company in a\ntransaction not involving a public offering and that under such laws and\napplicable regulations such securities may be resold without registration under\nthe Act, only in certain limited circumstances. In this connection, the Investor\nrepresents that it is familiar with Rule 144 promulgated by the Commission, as\npresently in effect, and understands the resale limitations imposed thereby and\nby the Act. For purposes of this Agreement, an affiliate of the Investor shall\nbe deemed to be an entity controlling, controlled by or under common control\nwith the Investor, where control is evidenced by the ownership of 100% of an\nentity.\n\n          3.6. AUTHORIZATIONS. All authorizations, approvals or permits, if any,\nof any governmental authority or regulatory body that are required to be\nobtained by the Investor in connection with the lawful issuance and sale of the\nShares pursuant to this Agreement have been duly obtained and shall be effective\non and as of the Closing, except for any filing and procedures applicable under\nthe HSR Act.\n\n          3.7. BROKER'S OR FINDERS' FEE. The Investor has not incurred, nor will\nit incur, directly or indirectly, any liability for brokerage or finders' fees\nor agents' commissions or investment bankers' fees or any similar charges in\nconnection with the transaction contemplated by this Agreement.\n\n          3.8. LEGENDS. It is understood that the certificates evidencing the\nShares may bear a legend in substantially the following form:\n\n\"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS\nAMENDED (THE \"ACT\"). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR\nHYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT\nTO THE SECURITIES UNDER SUCH ACT OR \n\n\n                                       7\n\n\nAN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT\nREQUIRED UNDER THE ACT.\"\n\n     4.   COVENANTS OF THE COMPANY AND THE INVESTOR.\n\n          4.1  MARKET STAND-OFF. In connection with any underwritten public\noffering by the Company of its equity securities pursuant to an effective\nregistration statement filed under the Act, the Investor shall not Transfer or\noffer to Transfer any shares of the Shares without the prior written consent of\nthe Company and its underwriters. Such restriction (the \"Market Stand-Off\")\nshall be in effect for such period of time from and after the effective date of\nthe final prospectus for the offering as may be requested by the Company or such\nunderwriters; provided, however, that (i) such Market Stand-Off shall not exceed\nninety (90) days, and (ii) the Investor shall be subject to the Market Stand-Off\nonly if the officers and directors of the Company are also subject to similar\nrestrictions. In order to enforce the Market Stand-Off, the Company may impose\nstop-transfer instructions with respect to the Shares until the end of the\napplicable stand-off period. As used in this Agreement, the term \"Transfer\"\nshall mean any sale, transfer, assignment, hypothecation, encumbrance or other\ndisposition, whether voluntary or involuntary, of shares of the Shares. In the\ncase of a hypothecation, the Transfer shall be deemed to occur both at the time\nof the initial pledge and at any pledgee's sale or a sale by any secured\ncreditor or a retention by the secured creditor of the pledged shares of the\nShares in complete or partial satisfaction of the indebtedness for which the\nshares of the Shares are security.\n\n          4.2  PUBLICATIONS. Except as currently in use, the Company shall not\nuse the Investor's name or refer to the Investor directly or indirectly in\nconnection with the Investor's relationship with the Company in any\nadvertisement, news release or professional or trade publication, or in any\nother manner, unless otherwise required by law or with the Investor's prior\nwritten consent. Except as required by law, no press release, public statement,\nadvertisement or similar publicity from any party hereunder with respect to the\nparticipation of the Investor in the transactions contemplated hereby (or any\nother matter relating to the Company and the Investor or its affiliates) shall\nbe issued or made without the prior consent of the other party. If the Company\ndetermines that it is required by law to file any document or material with the\nSecurities and Exchange Commission which contains a reference to the Investor,\nit shall at a reasonable time before making any such filing, consult with the\nInvestor regarding such filing and seek confidential treatment for such portions\nof the document or material as may be reasonably requested by the Investor. The\nCompany agrees any material breach of these provisions is a material breach of\nthis Agreement.\n\n          4.3  LISTING OF ADDITIONAL SHARES. Promptly following the execution of\nthis Agreement, the Company shall file with The Nasdaq National Market a\nNotification Form for Listing of Additional Shares.\n\n     5.   CONDITIONS TO THE INVESTOR'S OBLIGATION AT CLOSING. The obligation of\nthe Investor to purchase the Shares at the Closing is subject to the fulfillment\nto the Investor's satisfaction on or prior to the Closing of the following\nconditions:\n\n\n                                       8\n\n\n          5.1. REPRESENTATIONS AND WARRANTIES. The representations and\nwarranties made by the Company in Section 2 hereof shall be true and correct\nwhen made, and shall be true and correct as of the Closing with the same force\nand effect as if they had been made on and as of such date, subject to changes\ncontemplated by this Agreement. The Chief Executive Officer of the Company shall\ndeliver at the Closing a certificate stating that the condition specified in the\npreceding sentence has been fulfilled.\n\n          5.2. COVENANTS. The Company shall have performed and complied with all\ncovenants, agreements, obligations and conditions contained in this Agreement\nthat are required to be performed or complied with by it on or before the\nClosing.\n\n          5.3. SECURITIES LAWS. The offer and sale of the Shares to the Investor\npursuant to this Agreement shall be exempt from the registration requirements of\nthe Act and qualification requirements of all applicable state securities laws.\n\n          5.4. AUTHORIZATIONS. All authorizations, approvals or permits, if any,\nof any governmental authority or regulatory body that are required in connection\nwith the lawful issuance and sale of the Shares pursuant to this Agreement shall\nhave been duly obtained and shall be effective on and as of the Closing. All\nwaiting periods, if any, under the HSR Act applicable to the issuance of the\nShares hereunder shall have expired or have been terminated.\n\n          5.5. ABSENCE OF GOVERNMENTAL OR OTHER OBJECTION. There shall be no\npending or threatened lawsuit challenging the transaction by any body or agency\nof the federal, state or local government or by any third party, and the\nconsummation of the transaction shall not have been enjoined by a court of\ncompetent jurisdiction as of the Closing.\n\n          5.6. OPINION OF COMPANY COUNSEL. The Investor shall have received from\nGunderson Dettmer Stough Villeneuve Franklin &amp; Hachigian, LLP, counsel for the\nCompany, an opinion, dated as of the Closing, reasonably satisfactory to the\nInvestor.\n\n          5.7. NO MATERIAL ADVERSE CHANGE. From the date hereof until the\nClosing Date, there shall have occurred no material adverse effect on the\nCompany's business, financial condition or results of operations.\n\n          5.8. DELIVERY OF SHARE CERTIFICATES. On the Closing Date, the Company\nshall have delivered, or shall have caused to be delivered, to the Investor a\nstock certificate representing the Shares being purchased by the Investor.\n\n     6.   CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING. The obligation \nof the Company to sell the Shares at the Closing is subject to the \nfulfillment to the Company's satisfaction on or prior to the Closing of the \nfollowing conditions:\n\n          6.1. REPRESENTATIONS AND WARRANTIES. The representations and\nwarranties of the Investor contained in Section 3 hereof shall be true as of the\nClosing with the same force and effect as if they had been made on and as of\nsuch date, subject to changes contemplated by this Agreement.\n\n\n                                       9\n\n\n          6.2. SECURITIES LAWS. The offer and sale of the Shares to the Investor\npursuant to this Agreement shall be exempt from the registration requirements of\nthe Act and the qualification requirements of all applicable state securities\nlaws.\n\n          6.3. AUTHORIZATIONS. All authorizations, approvals or permits, if any,\nof any governmental authority or regulatory body that are required in connection\nwith the lawful issuance and sale of the Shares pursuant to this Agreement shall\nhave been duly obtained and shall be effective on and as of the Closing. All\nwaiting periods, if any, under the HSR Act applicable to the issuance of the\nShares hereunder shall have expired or have been terminated.\n\n          6.4. ABSENCE OF GOVERNMENTAL OR OTHER OBJECTION. There shall be no\npending or threatened lawsuit challenging the transaction by any body or agency\nof the federal, state or local government or by any third party, and the\nconsummation of the transaction shall not have been enjoined by a court of\ncompetent jurisdiction as of the Closing.\n\n          6.5. PAYMENT OF PURCHASE PRICE. The Investor shall have delivered to\nthe Company the Purchase Price for the Shares as set forth in Section 1.1\nhereof.\n\n     7.   MISCELLANEOUS.\n\n          7.1. GOVERNING LAW. This Agreement shall be governed in all respects\nby the laws of the State of California as applied to agreements among California\nresidents entered into and to be performed entirely within California, without\nregard to the conflict of law provisions thereof.\n\n          7.2. SURVIVAL; ADDITIONAL SECURITIES. The representations and\nwarranties set forth in Sections 2 and 3 shall survive until the Closing. The\ncovenants and agreements set forth in Section 4 shall survive in accordance with\ntheir terms. Any new, substituted or additional securities which are by reason\nof any stock split, stock dividend, recapitalization or reorganization\ndistributed with respect to the Shares (\"Share Distributions\") shall be\nimmediately subject to the covenants and agreements set forth in Section 4 to\nthe same extent the Shares is at such time covered by such provisions.\n\n          7.3. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided\nherein, the provisions hereof shall inure to the benefit of, and be binding\nupon, the respective successors and assigns of the parties hereto. Nothing in\nthis Agreement, express or implied, is intended to confer upon any party other\nthan the parties hereto or their respective successors and assigns any rights,\nremedies, obligations, or liabilities under or by reason of this Agreement,\nexcept as expressly provided in this Agreement. The Investor may assign its\nrights hereunder to a nominee or to any majority-owned affiliate.\nNotwithstanding anything to the contrary contained herein, the covenants set\nforth in Section 4 shall not be binding upon any entity (other than an affiliate\nof the Investor), which acquires any shares of the Shares or a Share\nDistribution in a transaction permitted hereunder.\n\n          7.4. ENTIRE AGREEMENT. This Agreement constitutes the entire\nunderstanding and agreement between the parties with regard to the subject\nmatter hereof.\n\n\n                                       10\n\n\n          7.5. NOTICES. Except as otherwise provided, all notices and other\ncommunications required or permitted hereunder shall be in writing, shall be\neffective when given, and shall in any event be deemed to be given upon receipt\nor, if earlier, (i) five (5) days after deposit with the U.S. postal service or\nother applicable postal service, if delivered by first class mail, postage\nprepaid, (ii) upon delivery, if delivered by hand, (iii) one (1) business day\nafter the day of deposit with Federal Express or similar overnight courier,\nfreight prepaid, if delivered by overnight courier or (iv) one (1) business day\nafter the day of facsimile transmission, if delivered by facsimile transmission\nwith copy by first class mail, postage prepaid, and shall be addressed, (a) if\nto the Investor, at the Investor's address set forth below, or at such other\naddress as the Investor shall have furnished to the Company in writing, or (b)\nif to the Company, at its address as set forth below its signature, or at such\nother address as the Company shall have furnished to the Investor in writing:\n\nIf to the Company:\n\n             Liberate Technologies\n             2 Circle Star Way\n             San Carlos, California  94070\n             Attn:  General Counsel\n             Facsimile Number:  (650) 701-4999\n\n             with a copy to:\n\n             Gunderson Dettmer Stough Villeneuve Franklin &amp; Hachigian, LLP\n             155 Constitution Drive\n             Menlo Park, CA 94025\n             Attn:  Brooks Stough\n             Facsimile Number:  (650) 321-2800\n\n\nIf to the Investor:\n\n             Cisco Systems, Inc.\n             170 West Tasman Drive\n             San Jose, California  95134-1706\n             Attn:  Associate General Counsel, Van Dang\n             Facsimile Number:  (408) 525-4757\n\n       with a copy to:\n\n             Brobeck, Phleger &amp; Harrison LLP\n             1633 Broadway\n             New York, New York  10019\n             Attn:  Eric Simonson\n             Facsimile Number:  (212) 586-7878\n\n          7.6. AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended\nand the observance of any term of the Agreement may be waived (either generally\nor in \n\n\n                                       11\n\n\na particular instance and either retroactively or prospectively) only with\nthe written consent of the Company and the Investor.\n\n          7.7. LEGAL FEES. In the event of any action at law, suit in equity or\narbitration proceeding in relation to this Agreement or the Shares or any Share\nDistribution, the prevailing party shall be paid by the other party a reasonable\nsum for the attorneys' fees and expenses incurred by such prevailing party.\n\n          7.8. EXPENSES. Irrespective of whether the Closing is effected, the\nCompany and the Investor shall each bear their own legal and other expenses with\nrespect to the transaction, except that assuming a successful completion of the\ntransaction, the Company shall pay the actual legal fees and expenses of\nBrobeck, Phleger &amp; Harrison LLP up to $30,000 which shall be payable at Closing,\nas a deduction to the Purchase Price otherwise payable by the Investor.\n\n          7.9. TITLES AND SUBTITLES. The titles of the paragraphs and\nsubparagraphs of this Agreement are for convenience of reference only and are\nnot to be considered in construing this Agreement.\n\n          7.10. COUNTERPARTS. This Agreement may be executed in counterparts,\neach of which shall be an original, but all of which together shall constitute\none instrument.\n\n          7.11. SEVERABILITY. If one or more provisions of this Agreement are\nheld to be unenforceable under applicable law, such provision shall be excluded\nfrom this Agreement and the balance of the Agreement shall be interpreted as if\nsuch provision were so excluded and shall be enforceable in accordance with its\nterms.\n\n          7.12. CONFIDENTIALITY. The parties hereto agree that, except with the\nprior written permission of the other party, it shall at all times keep\nconfidential and not divulge, furnish, or make accessible to anyone any\nconfidential information, knowledge, or data concerning or relating to the\nbusiness or financial affairs of such other party to which said party has been\nor shall become privy by reason of this Agreement, discussions or negotiations\nrelating to this Agreement, or the performance of its obligations hereunder.\n\n\n\n                  [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]\n\n\n                                       12\n\n\n\n     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of\nthe day and year hereinabove first written.\n\n                                  LIBERATE TECHNOLOGIES\n\n\n                                  By:\n                                         -----------------------------------\n                                         Mitchell E. Kertzman\n                                         President and Chief Executive Officer\n\n\n                                  Address:   2 Circle Star Way\n                                             San Carlos, California  94070\n                                             Attn:  General Counsel\n\n\n                                  CISCO SYSTEMS, INC.\n\n\n                                  By:\n                                         -----------------------------------\n                                  Title: \n                                         -----------------------------------\n\n                                  Address:   170 West Tasman Drive\n                                             San Jose, California  95134-1706\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7102,8051],"corporate_contracts_industries":[9509,9513],"corporate_contracts_types":[9622,9627],"class_list":["post-43690","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-cisco-systems-inc","corporate_contracts_companies-liberate-technologies","corporate_contracts_industries-technology__networking","corporate_contracts_industries-technology__software","corporate_contracts_types-planning","corporate_contracts_types-planning__purchase"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43690","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=43690"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43690"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43690"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43690"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}