Exhibit
10.74


 


Management
Transition Agreement


 


This Management
Transition Agreement (the “Agreement”) is effective as of September 30,
2003 (“Effective Date”), and confirms the agreement between Liberate
Technologies (“Liberate”) and John Kent Walker (“Walker”) (each a “Party” and
collectively the “Parties”) concerning the conclusion of Walker’s employment
with Liberate, which shall occur upon a mutually agreeable date within the
six-month period from the Effective Date or such earlier date as Liberate may
designate (“Termination Date”).


 


Purpose.  Both Parties understand and agree that the purpose of this
Agreement is to set forth an employment transition schedule and release
and waive all claims that either Party may have at any time, individually or collectively,
against the other Party or the others released herein.  Walker understands and agrees that Liberate
has paid Walker all salary, wages, bonuses, and any other compensation earned
by Walker through and until the date of signing hereof.


 


Transition Services.  Up until the Termination Date, Walker will
continue to provide Liberate with services in his present capacity as Executive
Vice President, General Counsel and Secretary of Liberate, and will work
diligently with Liberate’s management team to transition all outstanding
matters so as to promote to the extent possible a smooth and orderly transfer
of responsibilities (“Transition Services”). 
Liberate agrees to provide the transition benefits and consideration set
forth in this Agreement.  Nothing contained
herein is intended to be interpreted as employment for a fixed term or to alter
Walker’s  “at will” employment status.


 


Post-Transition Covenants.  Upon
the Termination Date and thereafter, Walker agrees to:


 


(i)                                     terminate his employment in all capacities at
Liberate and any of its subsidiaries and affiliates; and resign from his
position as Executive Vice President, General Counsel, and Secretary of
Liberate (and all similar positions with and positions as a director or officer
of Liberate’s subsidiaries and corporate affiliates);


 


(ii)                                  adhere
to his obligations under the Proprietary Information Agreement between the
Parties dated September 27, 2000 (the “Proprietary Information
Agreement”);


 


(iii)                               generally
provide reasonable assistance to Liberate on a compensation-free basis (other
than payment of any associated and necessary transportation and lodging
expenses) in any legal dispute or administrative proceedings with which Walker
was involved, including, for example, signing of documents or testimony in
securities litigation, SEC investigations, financial audits, and other legal,
administrative, regulatory, or governmental investigations, actions, or
proceedings;


 


(iv)                              return
to Liberate, and not keep or take, any document or other thing (electronic,
paper or otherwise) containing or incorporating Liberate’s confidential or
proprietary information that Walker produced or to which he obtained access
during his employment, including any material information that is not generally
known to the public and that relates to Liberate’s business, research,
development, trade secrets, know-how, inventions, technical data, manufacturing
techniques, engineering, marketing, merchandising and/or selling of Liberate
products or technologies, and any confidential information entrusted to
Liberate by third parties.


 


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(v)                                 return
any Liberate property of material value (including computers) in his
possession;


 


(vi)                              return
to Liberate, and not keep or make copies of, any proprietary and confidential
Liberate information (including drawings, blueprints, manuals, letters, notes,
notebooks, reports, sketches, other information or materials, source code,
computer programs, or customer lists) or Liberate access device (including
identification badges, keys, and card keys); and


 


(vii)                           sign
and deliver to Liberate on the Termination Date a separate General Release of
All Claims in the form set forth in Exhibit A (the “Subsequent Release”).


 


Mutual Non-Disparagement.  Each Party
agrees to refrain from making any comments or statement that disparages or
criticizes the other Party or any of the other Party’s businesses,
technologies, strategies, inventions, assets, actions, or practices or
those of any of its directors, officers, employees, agents, heirs, executors, administrators,
successors, predecessors, subsidiaries, parents, shareholders, employee benefit
plans, or assigns (all of the foregoing, collectively each Party’s
“Affiliates”), and to be generally supportive of each other and of each other’s
Affiliates in any discussions or communications concerning the abilities,
businesses, technologies, or strategies of the Parties or their
Affiliates.  Nothing in this Agreement
shall be construed to prohibit either Party from providing truthful testimony
in any administrative or judicial proceeding or investigation.


 


Benefits & Consideration.  Walker agrees that Liberate has granted to
Walker 103,000 shares of Liberate’s common stock in accordance with and subject
to the terms of the stock award agreement provided in connection therewith in
exchange for Walker’s execution of this Agreement, including, but not limited
to, the General Release of All Claims in the form set forth in Exhibit A.   In further consideration of Walker’s execution
of this Agreement, the General Release of All Claims concurrently herewith, and
the Subsequent Release (as described below), without any revocation of any of
the foregoing, Liberate will continue to employ Walker pursuant to the terms of
this Agreement.  Additionally, following
the Termination Date,  Liberate agrees
to pay Walker $1,000, less any applicable withholdings,  provided Walker executes the Subsequent
Release, and such Subsequent Release becomes effecitive pursuant to its
terms.   The benefits described herein
shall be in addition to payment for any earned but unpaid salary and any
accrued but unused vacation time earned through the Termination Date.


 


Sufficiency of Consideration.  The Parties acknowledge the value and
sufficiency of the mutual consideration and releases set forth herein, and
further acknowledge that all of the consideration provided by each Party under
this Agreement is provided in exchange for all of the consideration provided by
the other Party hereunder and each Party deems such consideration, taken as a
whole, as sufficient justification for its entry into this Agreement.


 


Review of Agreement. 
Each Party has had the opportunity to carefully
review and consider this Agreement and has had up to twenty-one days after
receipt of this agreement to consult with legal counsel prior to entering into
this Agreement, and each Party has freely and knowingly agreed to enter into
this Agreement.  Furthermore,
each Party has seven days after it has signed this Agreement during which time
it may revoke this Agreement.  If either
Party wishes to


 


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revoke this Agreement, it
may do so by delivering a letter of revocation to the other Party.  Because of this revocation period, each
Party understands that this Agreement shall not be effective or enforceable
until the eighth day after the last date of signature.


 


Entire Agreement; Interpretation.  This Agreement and the consideration
referenced herein are not part of an incentive or other employment termination
or transition program offered to a group or class of employees.  This Agreement is a separate agreement
between Liberate and Walker as an individual employee.  Walker understands and agrees that except
for the transition benefits specifically set forth above, he waives and
releases all rights or claims to any other transition benefits or rights.  This Agreement supersedes and terminates the
Employee Retention Agreement between
the Parties dated March 14, 2003 (and any preceding or similar agreements)
between the Parties (the “Employee Retention Agreements”).  The Proprietary Information
Agreement, the Indemnification Agreement dated November 1, 2000 (the
“Indemnification Agreement”), and the Trustee Indemnification Agreement dated
November 20, 2002 (the “Trustee Indemnification Agreement”) between the
Parties will stay in full force and
effect in accordance with their respective terms.  This Agreement represents the complete
agreement between the Parties related to its subject matter and supersedes any
other related oral, written, or implied agreements, understandings, or
representations, provided that nothing shall be construed to supersede the
Proprietary Information Agreement, the Indemnification Agreement, or the
Trustee Indemnification Agreement.  This
Agreement shall in all respects be governed by the laws of the State of
California (excluding its conflict of law provisions) and to the extent legally
permissible venue in any legal action shall exist exclusively in the United
States District Court for the Northern District of California (San Jose
Division) or the state courts located in San Jose as appropriate.  This Agreement may be amended only through a
written document signed by the Parties. 
It is the desire and intent of the Parties that the provisions of this
Agreement shall be enforced to the fullest extent permissible under the laws
and public policies applied in each jurisdiction in which enforcement is
sought.  If a court finds any of the provisions
of this Agreement to be invalid or unenforceable, that determination shall not
affect any other provisions of this Agreement. 
If a court finds any of the provisions in this Agreement excessively
broad, the Parties intend that such court shall enforce such provisions to the
maximum extent possible in accord with the expressed intent of the
Agreement.  In no event is any remedy
made available to either Party hereunder intended to be exclusive of any other
available remedy.


 


Execution.  This Agreement may be executed in one or more counterparts and a
facsimile of this document or a signature to it for all purposes shall be
considered equivalent to an original.


 


Acknowledgements.  Each Party has read, understands, and
knowingly and voluntarily agrees to all of the terms of this Agreement.  Each Party acknowledges that it is giving up
certain legal rights under this Agreement and has had the opportunity to
consult with counsel before signing this Agreement.


 


	
  Liberate Technologies

  	
  John Kent Walker

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ David Lockwood

  	
   

  	
  /s/ John Kent Walker

  	
   

  
	
  David Lockwood

  	
   

  
	
  CEO

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
  11/6/03

  	
   

  	
  Dated:

  	
  11/6/03

  	
   

  
									



 


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Exhibit
A


 


 


GENERAL
RELEASE OF ALL CLAIMS (THE “RELEASE”).


 


In
consideration of the mutual consideration provided under the Management Transition
Agreement dated September 30, 2003 entered into between Liberate and
Walker, each Party, on his or its own behalf and on behalf of his or its
Affiliates, hereby forever releases and discharges the other Party and his or
its officers, directors, employees, agents, assigns, heirs or executors
(collectively, “Affiliates”) from any and all rights, claims, debts, demands,
covenants, contracts, agreements, promises, damages, losses, costs, expenses,
liabilities and causes of action (collectively, “Claims”) of any nature
whatsoever known or unknown, suspected or unsuspected, that either Party ever
had, now has or may hereafter claim to have, with respect to any matter,
including without limitation, any matter arising out of or relating in any way
to Walker’s employment with Liberate, including the conclusion of Walker’s
employment, with exception of any Claims each Party may have in connection with
the Management Transition Agreement, the Indemnification Agreement, or the
Trustee Indemnification Agreement (each of which shall remain in effect in
accordance with its respective terms), and any Claims that Liberate may have in
connection with the Proprietary Information Agreement, which shall remain in
effect in accordance with its terms.


 


The foregoing release
shall apply to, without limitation, any and all Claims relating to any:  (i) contract dispute or matters relating to
or arising out of Walker’s employment relationship with Liberate or termination
thereof, including any Claims that either Party may have under the Employment
Agreement dated September 27, 2000, the Employee Retention Agreements, or any
preexisting Liberate Technologies Transition Plans; (ii) torts, including
infliction of emotional distress, mental anguish, pain and suffering,
defamation, damage to reputation, invasion of privacy, and wrongful
termination; (iii) discrimination, harassment or retaliation of any kind, such
as on the basis of sex, race, color, national origin, age, religion,
disability, sexual or any other Claim pursuant to any federal, state or local
law including, but not limited to, any Claims under the Equal Pay Act, Title
VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the Familiy
and Medical Leave Act, the California Fair Employment and Housing Act, the Fair
Labor Standards Act, the Americans with Disabilities Act,  the Age Discrimination in Employment Act,
and the Worker and Retraining Notification Act (“WARN”), Employee Retirement
Income Security Act of 1974 (ERISA), and any and all amendments of any of the
foregoing; (iv) claims to attorneys’ fees or costs; (v) breach of the covenant
of good faith and fair dealing; (v) violation of public policy; and (vii) state
laws that require termination notice or benefits in the event of certain
layoffs, facility closures and/or facility relocations or any other federal or
state law or regulation relating to employment or employment
discrimination.  Each Party further
agrees not to file, assist, or encourage any administrative charge or legal
proceeding against the other Party or his or its Affiliates, including a charge
relating to employment discrimination.


 


The
Parties also hereby agree that nothing contained in this release shall
constitute or be treated as an admission of liability or wrongdoing by either
Party or its Affiliates.


 


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Each Party hereby expressly waives any and all rights and benefits
afforded by the provisions of Section 1542 of the Civil Code of the State
of California (or any similar state or federal law or regulation), which states
as follows:


 


A general
release does not extend to claims which the creditor does not know or suspect
to exist in his favor at the time of executing the release, which if known by
him must have materially affected his settlement with the debtor.


 


Each Party acknowledges
that the facts with respect to which he or it gives this general release and
waiver may turn out to be different from the facts it now believes to be
true.  Each Party hereby assumes the
risk of the facts turning out to be different, and agrees that this Release
shall not be ineffective or subject to termination or rescission because of any
such difference in facts.


 


Capitalized terms set
forth in this Release shall have the definitions provided in the Management
Transition Agreement between the Parties dated September 30, 2003.


 


Review of Release.  Each Party has had the opportunity to
carefully review and consider this Release and Walker has had up to twenty-one
days after receipt of this Release to consult with legal counsel of his choice
prior to entering into this Release. 
Furthermore, Walker has seven days after he has signed this Release
during which time he may revoke this Release. 
If Walker wishes to revoke this Release, he may do so by delivering a
letter of revocation to David Lockwood expressly stating that Walker is
revoking this Release.  Because of this
revocation period, each Party understands that this Release shall not be
effective or enforceable until the eighth day after the date that Walker
executes this Release.


 


Governing Law.  This Release shall in all respects be
governed by the laws of the State of California (excluding its conflict of law
provisions) and to the extent legally permissible venue in any legal action
shall exist exclusively in the United States court for the Norther District of
California (San Jose Division) or the state courts located in San Jose as
appropriate.


 


Severability.  It is the desire and intent of the Parties
that the provisions of this Agreement shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought.  If a court
finds any of the provisions of this Agreement to be invalid or unenforceable,
that determination shall not affect any other provisions of this
Agreement.  If a court finds any of the
provisions in this Agreement excessively broad, the


 


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Parties intend that such
court shall enforce such provisions to the maximum extent possible in accord
with the expressed intent of the Agreement.


 


Acknowledgements.  Each Party has read, understands, and
knowingly and voluntarily agrees to all of the terms of this Release.  Each Party acknowledges that he or it is
giving up certain legal rights hereunder and has had the opportunity to consult
with counsel before signing hereunder.


 


	
  Liberate Technologies

  	
   

  	
  John Kent Walker

  
	
   

  	
   

  
	
  By:

  	
  /s/ David Lockwood

  	
   

  	
  /s/ John Kent Walker

  	
   

  
	
  David Lockwood

  	
   

  
	
  CEO

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
  11/6/03

  	
   

  	
  Dated:

  	
  11/6/03

  	
   

  
											



 


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