SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)*
Liberate Technologies
(Name of Issuer)
Common Stock, $0.01 par value
(Title of Class of Securities)
530129105
(CUSIP Number)
David Lockwood
Liberate Technologies
2655 Campus Drive, Suite 250
San Mateo, CA 94403
(650) 645-4000
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
April 15, 2005
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box [ ].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7 for other
parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 (the "Act") or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
SCHEDULE 13D
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CUSIP No. 530129105 Page 2 of 11 Pages
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1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
David Lockwood
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(See Instructions) (a) [X]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (See Instructions)
PF, SC
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States Citizen
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7 SOLE VOTING POWER
NUMBER OF
5,107,201
SHARES
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8 SHARED VOTING POWER
BENEFICIALLY
8,225,700
OWNED BY
-----------------------------------------------------------
9 SOLE DISPOSITIVE POWER
EACH
5,107,201
REPORTING
-----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
PERSON
8,225,700
WITH
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,332,901
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES (See Instructions) [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.6%
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14 TYPE OF REPORTING PERSON (See Instructions)
IN
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SCHEDULE 13D
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CUSIP No. 530129105 Page 3 of 11 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Lockwood Fund LLC
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) [X]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (See Instructions)
OO
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7 SOLE VOTING POWER
NUMBER OF
0
SHARES
-----------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
8,225,700
OWNED BY
-----------------------------------------------------------
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
-----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
PERSON
8,225,700
WITH
-------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,225,700
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.8%
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14 TYPE OF REPORTING PERSON (See Instructions)
OO
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SCHEDULE 13D
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CUSIP No. 530129105 Page 4 of 11 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Lockwood Capital Advisors LLC
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) [X]
(b) [ ]
-------------------------------------------------------------------------------
3 SEC USE ONLY
-------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions)
OO
-------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
-------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
-------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
-----------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
8,225,700
OWNED BY
-----------------------------------------------------------
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
-----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
PERSON
8,225,700
WITH
-------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,225,700
-------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.8%
-------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
OO
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This Amendment No. 3 to Schedule 13D ("Amendment No. 3") amends the
statement on Schedule 13D filed on February 19, 2003 (the "Schedule 13D"), by
David Lockwood ("Mr. Lockwood"), Lockwood Fund LLC ("Lockwood Fund") and
Lockwood Capital Advisors LLC ("Lockwood Capital Advisors") (Mr. Lockwood,
Lockwood Fund and Lockwood Capital Advisors collectively the "Reporting
Persons"), as such Schedule 13D was amended by Amendment No. 1 on March 17,
2003 (the "Amendment No. 1") and by Amendment No. 2 on January 13, 2005 (the
"Amendment No. 2"), and together, the "Amended Statement"). This Amendment No.
3 is being filed pursuant to a Joint Filing Agreement dated February 19, 2003,
a copy of which is attached as Exhibit 1 to Amendment No. 1. Capitalized terms
used in this Amendment No. 3 and not otherwise defined herein have the
meanings set forth in the Amended Statement. The information set forth in
response to each separate item shall be deemed to be a response to all items
where such information is relevant. Except as specifically provided herein,
this Amendment No. 3 does not modify any of the information previously
reported on the Amended Statement.
Item 1. Security and the Issuer
Item 1 is hereby amended and restated in its entirety as set forth
below.
This statement on Schedule 13D relates to the shares of common stock,
par value $0.01 (the "Shares") of Liberate Technologies (the "Issuer"), a
Delaware corporation whose principal executive offices are located at 2655
Campus Drive, Suite 250, San Mateo, CA 94403.
Item 2. Identity and Background.
Subsections (b) and (c) of Item 2 are hereby amended and restated in
their entirety as set forth below.
(b) The address of the principal office of Lockwood Funds and
Lockwood Capital Advisors is c/o Schulte Roth & Zabel LLP, 919 Third Avenue,
New York, NY 10022, Attention: Stuart D. Freedman, Esq. The business address
of Mr. Lockwood is Liberate Technologies, 2655 Campus Drive, Suite 250, San
Mateo, CA 94403.
(c) The principal business of Lockwood Fund is serving as a private
investment fund. The principal business of Lockwood Capital Advisors is
serving as the Managing Member of Lockwood Fund. Mr. Lockwood is a
professional investor in technology companies, the Managing Member of Lockwood
Capital Advisors, and as of June 9, 2003, the Chairman of the Board of
Directors and Chief Executive Officer of the Issuer.
Item 4. Purpose of Transaction.
Item 4 is hereby amended and restated in its entirety as set forth
below.
Mr. Lockwood was granted by the Issuer, without payment, an option to
purchase 1,300,000 Shares pursuant to the Notice of Stock Option Grant (the
"Stock Option Grant") between the Issuer and Mr. Lockwood, dated as of March
14, 2003, in connection with Mr. Lockwood's agreement to act as a Strategic
Consultant for the Issuer and to subsequently assume the positions of Chairman
of the Board of Directors and Chief Executive Officer of the Issuer. Mr.
Lockwood became Chairman of the Board of Directors and Chief Executive Officer
of the Issuer on June 9, 2003.
The Reporting Persons acquired the Shares for investment purposes
based upon a determination that the shares presented an opportunity to realize
significant capital appreciation. Except as described in Item 6 below, none of
the Reporting Persons has any present plans or proposals which relate to, or
could result in, any of the matters referred to in paragraphs (a) through (j),
inclusive, of the instructions to Item 4 of Schedule 13D. Each of the
Reporting Persons, however, intends to evaluate on an ongoing basis his or its
investment in the Issuer and accordingly reserves the right to change his or
its plans and intentions at any time, as he or it deems appropriate, subject
to relevant legal restrictions and certain contractual restrictions described
in Item 6 below.
Mr Lockwood and the Lockwood Fund previously entered into a Stockholder
Voting Agreement, dated as of January 14, 2005, with Double C Technologies,
LLC ("Double C") in connection with sale of the Issuer's North America
business pursuant to the Asset Purchase Agreement, dated as of January 14,
2005, by and among the Issuer, Liberate Technologies Canada Ltd. and Double C
(the "Double C Purchase Agreement"). On April 7, 2005, the Issuer consummated
the sale of its North America business to Double C and upon the closing of
such transaction Mr. Lockwood's previously unvested options under the Stock
Option Grant became fully vested by their terms.
Item 6 also describes plans or proposals of the Reporting Persons
which relate to or would result in a sale or transfer of a material amount of
assets of the Issuer or its subsidiaries and is incorporated herein by
reference.
Item 5. Interest in Securities of the Issuer.
Items 5(a), (b)(i) and (c) are hereby amended and restated in their
entirety as set forth below.
(a) Mr. Lockwood directly owns 5,107,201 Shares, of which 3,807,201
are held in an Individual Retirement Account. Mr. Lockwood may also be deemed
to beneficially own (as defined in Rule 13d-3 under the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) 8,225,700 Shares in his capacity
as the Managing Member of Lockwood Capital Advisors, which is itself the
Managing Member of Lockwood Fund. Thus, Mr. Lockwood may be deemed to
beneficially own, in the aggregate, 13,982,901 Shares representing
approximately 12.6% of the Shares outstanding, based upon 106,077,485 Shares
outstanding as of March 31, 2005, as reported in the Issuer's Form 10-Q for
the period ended February 28, 2005.
Lockwood Fund directly owns, and Lockwood Capital Advisors, in its
capacity as Managing Member of Lockwood Fund, may be deemed to beneficially
own, 8,225,700 Shares, representing approximately 7.8% of the Shares
outstanding, based upon the number of outstanding Shares referenced above.
(b) (i) Mr. Lockwood has sole voting and dispositive power over
5,107,201 Shares and shared voting and dispositive power over 8,225,700
Shares.
(c) The trading dates, number of Shares purchased and the price per
Share for all transactions related to Shares effected by the Reporting Persons
in the past 60 days are set forth in Schedule I hereto and are incorporated
herein by reference.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer.
Item 6 is hereby amended and restated in its entirety as set forth
below.
Mr Lockwood and the Lockwood Fund previously entered into a Stockholder
Voting Agreement, dated as of January 14, 2005, with Double C in connection
with sale of the Issuer's North America business pursuant to the Double C
Purchase Agreement. On April 7, 2005, the Issuer consummated the sale of its
North America business to Double C and upon the closing of such transaction
the Stockholder Voting Agreement with Double C terminated in accordance with
its terms.
On April 15, 2005 the Issuer entered into an agreement to sell
substantially all of the assets of its business outside of North America to
SeaChange International, Inc. ("Purchaser"). The agreement provides for the
Purchaser to acquire from the Issuer and Liberate Technologies B.V., a
wholly-owned subsidiary of the Issuer (the "Netherlands Subsidiary") certain
assets and to assume certain liabilities relating to the Issuer's business
outside of the United States, Canada and Mexico (the "Non-North America
Business").
In connection with the agreement, at the specific request of
Purchaser, and as a condition and inducement to Purchaser's willingness to
enter into the agreement, Mr. Lockwood and the Lockwood Fund (the "Principal
Stockholders") entered into a Stockholder Voting Agreement with the Purchaser,
dated as of April 15, 2005 (the "Voting Agreement") with respect to all Shares
over which each such Principal Stockholder exercises voting or investment
power (as determined pursuant to Rule 13d-3(a) under the Exchange Act)
(collectively, the "Owned Shares"). The Owned Shares do not include those
Shares which any Principal Stockholder has the right to acquire within 60
days, but do include any shares of the Issuer as to which a Principal
Stockholder acquires beneficial ownership after the execution of the Voting
Agreement.
Pursuant to the Voting Agreement, each of the Principal Stockholders
will appoint the Purchaser and any designee of the Purchaser as such Principal
Stockholder's proxy and attorney-in-fact pursuant to the provisions of Section
212 of the Delaware General Corporation Law, as amended, to vote and act on
each such Principal Stockholder's behalf and in each such Principal
Stockholder's name, place and stead with respect to such Principal
Stockholder's Owned Shares, at any annual, special or other meeting of the
stockholders of the Issuer and at any adjournment or postponement of any such
meeting and to act by written consent with respect to each such Principal
Stockholder's Owned Shares. Each Principal Stockholder will affirm that the
proxy is coupled with an interest and shall be irrevocable and will agree not
to grant any subsequent proxy with respect to such Principal Stockholder's
Owned Shares (except as provided below).
Each Principal Stockholder will further irrevocably and
unconditionally agree (i) to appear, or otherwise cause the Owned Shares to be
counted as present, at any shareholders' meeting held to vote upon the
transactions contemplated by the asset purchase agreement for purposes of
establishing a quorum and to vote or consent, or cause to be voted or
consented, the Owned Shares in favor of the asset purchase agreement, the sale
of assets provided for therein and the consummation of the transactions
contemplated thereby (the "Transaction"); provided that such Principal
Stockholder has received written notice within a reasonable period of time
prior to any such meeting that Purchaser is unable to vote the Owned Shares at
such meeting; (ii) to execute and deliver or cause to be executed and
delivered any written consent in favor of the Transaction with respect to all
of the Owned Shares; and (iii) with respect to any Owned Shares, not to vote,
execute and deliver any written consent, enter into any other voting agreement
or cause any of the foregoing actions in favor of any Alternative Proposal (as
defined in the asset purchase agreement and set forth below) or where such
action would be inconsistent with or frustrate the purposes of the asset
purchase agreement or the Voting Agreement.
"Alternative Proposal" means (A) any proposal (whether or not in
writing and whether or not delivered to the Issuer's stockholders generally),
other than (x) as contemplated by the asset purchase agreement or the asset
purchase agreed, dated as of January 14, 2005, by and among the Issuer,
Liberate Technologies Canada Ltd. and Double C, (y) as otherwise proposed by
the Purchaser or its affiliates or (z) solely with respect to the sale of all
or part of the North America Business (as defined in the asset purchase
agreement), each regarding (i) a merger, consolidation, tender offer, share
exchange or other business combination or similar transaction involving the
Issuer, (ii) the issuance by the Issuer of any equity interest in or any
voting securities of the Issuer which constitutes 20% or more of the total of
such equity interests or voting securities, (iii) the acquisition in any
manner, directly or indirectly, of 20% or more of the consolidated assets of
the Issuer or the Netherlands Subsidiary or any equity interest of the
Issuer's subsidiaries, (iv) the acquisition by any person of beneficial
ownership or a right to acquire beneficial ownership of, or the formation of
any "group" (as defined under Section 13(d) of the Exchange Act) which
beneficially owns, or has the right to acquire beneficial ownership of, 20% or
more of the then outstanding shares of capital stock of the Issuer or (v) any
transaction for any material portion of the Transferred Assets (as defined in
the asset purchase agreement) or the Non-North America Business or any
transaction the effect of which would be reasonably likely to prohibit,
restrict or delay the consummation of the transactions contemplated by the
asset purchase agreement; or (B) the occurrence of any of the transactions
described in clauses (i) - (v) of (A) above or any public announcement of a
proposal, plan or intention to do any of the foregoing or any agreement to
engage in any of the foregoing.
Each Principal Stockholder will also agree that he or it will not,
without the prior written consent of the Purchaser, (a) directly or
indirectly, sell, transfer, pledge, assign or otherwise dispose of, or enter
into any contract, option, commitment or other arrangement or understanding
with respect to the disposition of, any of the Owned Shares or any securities
convertible into or exchangeable for Shares, or (b) take any action that would
prohibit, prevent or preclude such Principal Stockholder from performing his
or its obligations under the Voting Agreement, including, without limitation,
granting a power of attorney with respect to the Owned Shares, depositing the
Owned Shares in a voting trust or entering into any other stockholder voting
agreements with respect to the Owned Shares. Each Principal Stockholder will
further agree that the Voting Agreement and each Principal Stockholder's
obligations thereunder shall attach to the Owned Shares and shall be binding
upon any person or entity to which legal or beneficial ownership of such Owned
Shares may pass.
The Voting Agreement shall terminate on the earlier of (i) the
closing of the transactions contemplated by the asset purchase agreement and
(ii) the termination of the asset purchase agreement in accordance with its
terms.
The foregoing summary of the Voting Agreement contained in this Item
6 is qualified in its entirety by reference to the Voting Agreement, attached
as Exhibit 7 hereto and incorporated herein by reference.
Except as described herein, there are no contracts, arrangements,
understandings or relationships (legal or otherwise) among the Reporting
Persons or between the Reporting Persons and any person with respect to any
securities of the Issuer, including but not limited to transfer or voting of
any other securities, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, divisions of profits or
losses, or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits.
Item 7 is hereby amended and supplemented by adding the following.
There is filed herewith as Exhibit 7 the Stockholder Voting Agreement
by and among SeaChange International, Inc., David Lockwood and Lockwood Fund
LLC, dated as of April 15, 2005.
SIGNATURES
After reasonable inquiry and to the best of knowledge and belief of
the undersigned, the undersigned certify that the information set forth in
this statement is true, complete and correct.
Dated: April 21, 2005
/s/ David Lockwood
------------------------------
David Lockwood
LOCKWOOD FUND LLC
By: LOCKWOOD CAPITAL ADVISORS LLC,
its Managing Member
By: /s/ David Lockwood
-----------------------------
David Lockwood, as Managing Member
LOCKWOOD CAPITAL ADVISORS LLC
By: /s/ David Lockwood
-----------------------------
David Lockwood, as Managing Member
EXHIBIT INDEX
Exhibit No. Exhibit Name
----------- ------------
7 Stockholder Voting Agreement, dated as of April 15, 2005
by and among SeaChange International, Inc., David Lockwood
and Lockwood Fund LLC.
Schedule I
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Transactions in Shares in the Past 60 Days
Date of Amount of Exercise Price
Reporting Person Transaction Securities Involved per Share
David Lockwood March 14, 2005 27,083.3(1) $1.75(2)
David Lockwood April 7, 2005 650,000(3) $1.75
David Lockwood April 8, 2005 1,300,000(4) $0
(1) Mr. Lockwood was deemed to have automatically acquired beneficial
ownership of an additional 27,083.3 Shares on March 14, 2005 pursuant to the
vesting of an option to purchase 1,300,000 Shares that was granted by the
Issuer on March 14, 2003, vesting in equal portions over 48 months. Mr.
Lockwood did not exercise, sell or otherwise transfer any Shares in connection
with the period vesting of these options.
(2) The option was granted by the Issuer without payment. The exercise price
is $1.75 per Share.
(3) Mr. Lockwood's previously unvested options under the Stock Option Grant
became fully vested, by their terms, in connection with the consummation of
the asset sale to Double C.
(4) Effective on the payment date of the Issuer's special dividend previously
declared on March 25, 2005, Mr. Lockwood's options were adjusted by reducing
the per share exercise price by the value of the per share dividend of $2.10.
Because the per share dividend was greater than the per share exercise price,
Mr. Lockwood was deemed to have exercised his options and in lieu thereof
automatically received for each Share subject to his options, one Share and a
cash payment equal to the difference between the per share dividend and the
per share exercise price, or $0.35.