EXHIBIT
10.67


 


LIBERATE


 


 


April 11, 2003


 


Philip A. Vachon


______________


______________


 


 


Dear Phil:


 


We are pleased to offer you employment as President of Liberate
International.  Your annual salary will
be $250,000 (USD), less applicable withholding.  Your bonus will be determined by the Compensation Committee of
Liberate’s Board of Directors, with timing and criteria to be mutually
agreed.  Your starting date will be
April 11, 2003.


 


As an employee of Liberate Technologies, you will be eligible to participate
in a number of company-sponsored benefits, including health and medical
benefits.  Subject to the approval of
Liberate’s Board of Directors or its Compensation Committee, Liberate will
grant you an option to purchase 1.7 million shares of Liberate common stock at
the fair market value per share as determined by Liberate’s Compensation
Committee.  As a condition of your
receipt of the option grant, you will confirm your investment experience, your
status as an “accredited investor”, your receipt of all information you
consider necessary and appropriate to make an investment decision, and any
other representations appropriate under the securities laws.  The option will vest monthly in equal
increments upon the completion of each of the next 48 months of service.  The option is granted outside of Liberate’s
1999 Equity Incentive Plan (the “Plan”) and its related agreements, but will be
governed by the terms of the Plan, except that the Board and the Compensation Committee
commit not to invoke Article 18.1(b) of the Plan, so that Article 18 will apply
only if Liberate’s independent auditors (and if they are not able to perform
this evaluation, another nationally recognized accounting firm selected by
Liberate) determines that you would receive a greater after-tax benefit if it
reduced any payment or option vesting acceleration. Liberate will file an S-8
registration statement covering the exercise of the option as soon as
reasonably practical following its filing of its delinquent public filings.


 


The option will vest fully in the event of a Change in Control (as
defined in the Employee Retention Agreement entered into concurrently herewith
between you and Liberate) of Liberate in which the acquiring or surviving
entity fails within ten days prior to the closing thereof to make a written
offer to you of continued employment for a period of at least one year that is
located within 20 miles of your present location (which, for the first year of
your employment will be deemed to be London, Ontario, and thereafter, unless
changed in writing by the mutual agreement of the parties, will be deemed to be
Redmond, Washington) and has equal or greater: (i) responsibilities, title, and
reporting relationship in the surviving entity and parent; (ii) total
compensation (including salary, bonus and equity incentives); and (iii) office
and support arrangements, and staff.  As
a condition of any such accelerated vesting, you and Liberate will sign a
mutual waiver of claims (as set forth in the Employee Retention Agreement between
the parties) at the time of the acceleration. 
In addition, in the event of a Change in Control that is followed within
one year by your Actual or Constructive Termination (as defined in the Employee
Retention Agreement), Liberate will pay you an amount equal to twice the sum of
your total taxable compensation received in the prior fiscal year, with a
minimum of $500,000 (USD)  and up to a
maximum of $750,000 (USD).


 


Your employment with Liberate is not for a specific term and can be
terminated by you or by Liberate at any time for any reason, with or without
cause.  (We do ask employees, to the
extent possible, to give us notice if they intend to resign.)  Additionally, Liberate may take any other
employment action at any time for any reason. 
This offer is contingent upon your executing Liberate’s Proprietary
Information Agreement, and providing legally required proof of your identity
and eligibility to work in the United States.


 


We make every effort to
maintain a great and rewarding work environment.  If, however, a dispute arises, you and we agree to waive trial
before a judge or jury and to arbitrate with the JAMS arbitration service any
dispute relating 


 


 

















 


to this agreement or to
your recruitment, employment, or termination, except for claims relating to
worker’s compensation benefits, unemployment insurance, or intellectual
property rights.  The arbitrator’s
decision will include written findings of fact and law and will be final and
binding except to the extent that judicial review is required by law.  The American Arbitration Association’s
National Rules for the Resolution of Employment Disputes will govern the
arbitration, except that the arbitrator will allow discovery authorized by the
California Arbitration Act and any additional discovery necessary to vindicate
a claim or defense.  The arbitrator may
award any remedy that would be available from a court of law.  You may choose to hold the arbitration
either in San Mateo County, California or the county where you worked when the
arbitrable dispute first arose.  You and
we will share the arbitration costs equally (except that we will pay the
arbitrator’s fee and any other cost unique to arbitration) and each party will
pay its own attorney’s fees except as required by law.  If either of us files any legal action or
proceeding about a non-arbitrable matter, it will be instituted in a state or
federal court located in Santa Clara or San Mateo County, California, and we
and you submit to the personal jurisdiction of, and agree that venue is proper
in, these courts.


 


To confirm your acceptance of this employment agreement, please sign
and date this letter in the space provided below and return it to Temre
Jenkins.  A duplicate original is
enclosed for your records.  This letter
and the Proprietary Information Agreement set forth the terms of your
employment with Liberate.  This
agreement supersedes any prior representations or agreements between us, and it
may be modified only by a document signed by you and by Liberate’s Chief
Executive Officer.  This offer, if not
accepted, will expire on April 21, 2003


 


Sincerely,


 


/s/ Mitchell Kertzman


 


Liberate Technologies




	
  By:

  	
   

  	
  Mitchell Kertzman

  
	
   

  	
   

  	
  Chief Executive Officer

  






 


I agree to and accept employment with Liberate Technologies on the
terms set forth in this agreement.


 


 


	
  /s/ Philip A. Vachon

  	
   

  	
  4/14/03

  
	
  Philip A. Vachon

  	
   

  	
  Date

  



 


 


 


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