Exhibit 10.62


Liberate Technologies

Fiscal Year 2003

Sales Commission Plan


 


Purpose:


 


The purpose of the Fiscal
Year 2003 (“FY03”) Sales Commission Plan (“the Plan”) is to provide an
incentive to exceed revenue objectives, to attract the best salespeople, and to
encourage salespeople to win new business and maintain relationships with
existing customers. The Plan is designed to offer upside income potential for
overperformance.


 


Plan Components:


 


The President (“President”)
sets the Plan commission rates and quotas.


 


Plan payments are:


 


•                    Paid approximately four weeks after the end
of Liberate Technologies’ (“Liberate”) monthly accounting period.


 


•                    Earned solely upon revenue recognition on
accounts that appear on a participant’s FY03 Account Listing as approved in
writing by the President.


 


•                    Based on Individual FY03 Revenue Quota
achievement for License, Royalty, Support, Service, Education, and margin on 3rd
party software and hardware that Liberate is a reseller of (and is recorded as
revenue), for accounts where a binding contract or valid purchase order exists.


 


•                    Calculated based on the rates assigned in the
Individual Sales Commission Plan and rounded to the nearest cent. To be
eligible for the next quota level the participant must be at or above the target
level specified in the Individual Sales Commission Plan. No rounding will apply
to quota credit.


 


•                    Earned only if the participant has performed
his or her job duties at least at an acceptable performance level during that
month, as determined by the participant’s immediate manager.


 


 


 


	
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General Terms and Conditions:


 


1.               Participants are eligible to participate in
the Plan only if they are in positions that have been identified and approved
in writing as qualifying under the Plan by the President.


 


2.               Participants are eligible to participate in
the Plan only if they are full-time regular employees of Liberate and have
signed all employment documents provided by Liberate. Participants must also
sign Plan documents and forward them to Human Resources within 15 days of
receiving the Plan documents.


 


3.               The Plan is effective from June 1, 2002
through May 31, 2003. For participants starting after June 1, 2002,
payments are prorated for the number of days of active participation in the
Plan.


 


4.               Participation in the Plan in any given year
does not automatically entitle a participant to participate in subsequent
years.


 


5.               Participation in the Plan does not constitute
an agreement to employ any participant for any length of time and will not
restrict the participant’s or Liberate’s right to terminate employment for any
reason, at any time, with or without cause or prior notice. No one at Liberate
has the authority, unless specifically authorized in writing by the CEO, to
enter into any oral, written, or implied agreement that employment is for any
minimum or fixed term or that alters in any way the “at-will’ employment
relationship.


 


6.               Sales commission payments will be earned
solely upon Net Revenue recognized, subject to the participant being actively
employed by the Liberate when the commission payment is due. Net Revenue is
recognized in accordance with generally accepted accounting principles and
reflected in Liberate’s general ledger, 10Q’s, and 10K. Net Revenue is
calculated net of any revenue reversals, amounts that are greater than
90 days past due or written off to bad debt, and amounts that have been
deemed non-commissionable (e.g., sales tax, smart cards, hardware (excluding
margin on hardware Liberate is an official reseller of), reimbursable travel,
and equity investments).


 


7.               Quota credit, but not commission payments,
will be earned on reimbursable travel and LMC cards for which Liberate is able
to recognize revenue.


 


8.               Sales commission payments, when earned, will
be paid approximately four weeks after the end of Liberate’s monthly accounting
period. The timing of the commission payment is subject to change upon written
notice. Commission payments earned in May are paid approximately six weeks after
the end of Liberate’s accounting period for May. Commissions will be earned and
paid only after the Plan documents have been signed and returned, Net Revenue
is recognized in Liberate’s general ledger, and any required representation
letters have been signed. Commissions will not be paid for Net Revenue received
in FY03 if commissions for that Net Revenue were earned under the Fiscal Year
2002 Plan.


 


9.               If a participant’s employment terminates
before a commission payment is due, the participant will forfeit any right to
such payment, even if the participant receives additional compensation from
Liberate after the last day of employment, unless the President specifically
agrees in writing that the participant remains eligible for some or all of such
sales commission.


 


10.         If a customer’s account receivable becomes greater than 90 days
past due, is written off to bad debt, or revenue is reversed, prior sales
commission payments made to a participant based on the Net Revenue from that
customer are recoverable from that participant. The Net Revenue previously
credited against the participant’s sales quota will be reversed and all
payments to the participant will be re-calculated as though that Net Revenue
had never been received. If the account is paid at a later date, the Net
Revenue will be reinstated and all sales commission payments previously
recovered will be repaid provided that the participant is still employed by
Liberate and participating in the Plan.


 


11.         The
President will assign each
participant a specific set of responsibilities, territories, and accounts.
These may consist of any combination of geographical areas, industry
classifications, specific direct channels, or assigned accounts. The President
may exclude certain accounts in a region/area and adjust territories at his
discretion.


 


12.         President may reassign accounts at their discretion, reallocating the
quota credit allocation and corresponding sales commission between the
reassigned participant and the new participant assigned to that account. Any
assignment must be approved in writing by the President. The President may take
into account the amount of effort already expended by the reassigned
participant to that account, the number of participants assigned to the
account, and such other factors as he 


 


 


 


	
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or she may consider
relevant. The determination of the President will be final and binding. Quota
adjustments will typically result in a corresponding adjustment to commission
rates.


 


13.         Unless otherwise approved in advance and in writing by the President, a
participant is entitled only to commissions for accounts listed under his/her
name on the approved FY03 Account Listing. During the Plan year, the President
may modify Account Listings.


 


14.         Some participants may be eligible for Key Performance Indicator (“KPI”)
bonuses. KPI’s represent specific objectives as set by the President for their
direct reports. KPI’s may be earned up to a specified maximum based on the
participant’s level and region.


 


15.         Any disputes regarding the admission or interpretation of the Plan will
be documented in writing by the participant that has the dispute, within
30 days after the incident and submitted to the President whose decision
regarding disputes will be final and binding.


 


16.         Liberate may modify or terminate all or part of the Plan at any time
with or without cause; however, such modifications or termination must be in
writing and will not adversely affect any sales commissions previously earned.


 


17.         Liberate makes every effort to maintain a great and rewarding work
environment. If, however, a dispute arises, the participant and Liberate agree
to waive trial before a judge or jury and to arbitrate with the JAMS
arbitration service any dispute relating to the Plan, the participant’s
employment, or the participant’s 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.
The participant may choose to hold the arbitration either in San Mateo County,
California or the county where the participant worked when the arbitrable
dispute first arose. The participant and Liberate will share the arbitration
costs equally (except that Liberate 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 or ordered by the arbitrator in favor of the
prevailing party.


 


18.         The Plan supersedes and replaces any representations, contracts, or agreements
that conflict with or are contrary to its terms. The Plan may not be altered or
amended except in writing signed by the participant and the President.
Furthermore, payment under the Plan does not necessarily mean that job
performance is satisfactory.


 


	
  Plan
  Participant Details:

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Don Fitzpatrick

  
	
  Effective Date of Plan:

  	
   

  	
  June 1, 2002

  
	
  Annual Base Salary:

  	
   

  	
  $235,000

  



 


In consideration for my
eligibility for a bonus payment from Liberate, I agree to the terms of the
Fiscal Year 2003 Sales Commission Plan.


 


	
   

  	
   

  	
   

  
	
  Don
  Fitzpatrick, Chief Operating Officer

  	
   

  	
  Date

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Coleman
  Sisson, President

  	
   

  	
  Date

  



 


 


 


	
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Liberate Technologies

Individual Sales Commission Plan

For Fiscal Year 2003


 


	
  Name:

  	
   

  	
  Don Fitzpatrick

  
	
   

  	
   

  	
   

  
	
  Effective
  Date Plan:

  	
   

  	
  June 1, 2002

  
	
   

  	
   

  	
   

  
	
  KPI:

  	
   

  	
  $100,000

  



 


KPI Payout:


 


$50,000 as follows: $12,500
for each quarter in which Liberate hits the quarterly EPS targets below 


 


	
   

  	
   

  	
   

  	
  Q1

  	
   

  	
  Q2

  	
   

  	
  Q3

  	
   

  	
  Q4

  	
   

  
	
   

  	
  FY03 EPS Targets

  	
   

  	
  (0.076)

  	
   

  	
  (0.043)

  	
   

  	
  (0.007)

  	
   

  	
  0.012

  	
   

  



 


$50,000 as follows: $12,500
for each quarter in which Liberate hits the quarterly Revenue targets below


 


	
   

  	
   

  	
   

  	
  Q1

  	
   

  	
  Q2

  	
   

  	
  Q3

  	
   

  	
  Q4

  	
   

  
	
   

  	
  FY03 Revenue Targets

  	
   

  	
  $21,000,000

  	
   

  	
  $24,000,000

  	
   

  	
  $27,000,000

  	
   

  	
  29,500,000

  	
   

  



 


 


	
  Individual FY03 Revenue Quota:

  	
   

  	
   

  	
  $101,500,000

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


Commission Rates:


 


Rates for
Revenue Quota: 


 


	
   

  	
  0 - 65%

  	
   

  	
  66% - 100%

  	
   

  	
  101% - 150%

  	
   

  	
  151% +

  	
   

  
	
   

  	
  0.30%

  	
   

  	
  0.42%

  	
   

  	
  2.00%

  	
   

  	
  3.00%

  	
   

  



 


 


	
  Specific Accounts:

  	
   

  	
  Worldwide

  



 


 


By signing below, you
indicate that you have read, understand and agree with the above Individual
Sales Commission Plan for fiscal year 2003.


 


 


	
   

  	
   

  	
   

  
	
  Don
  Fitzpatrick, Chief Operating Officer

  	
   

  	
  Date

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Coleman
  Sisson, President

  	
   

  	
  Date

  



 


 


 


	
  Liberate Confidential

  	
   

  	
  Participant’s
  Initials