<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
PHOENIX TECHNOLOGIES LTD.
(Name of Issuer)
COMMON STOCK
(Title of Class of Securities)
719153-10-8
(CUSIP Number)
F. THOMAS DUNLAP, JR.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
INTEL CORPORATION
2200 MISSION COLLEGE BOULEVARD
SANTA CLARA, CA 95052
TELEPHONE: (408) 765-8080
(Name, Address, and Telephone Number of Person
Authorized to Receive Notices and Communications)
FEBRUARY 15, 1996
(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 which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with this statement /X/.
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.
<PAGE> 2
SCHEDULE 13D Page 2 of ___
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON Intel Corporation
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE 94-1672743
PERSON
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A (a) / /
GROUP (b) / /
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS WC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL / /
PROCEEDINGS IS REQUIRED PURSUANT TO ITEM
2(d) OR 2(e)
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
- --------------------------------------------------------------------------------
NUMBER OF 7. SOLE VOTING POWER 894,971
SHARES
BENEFICIALLY 8. SHARED VOTING POWER N/A
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER 894,971
REPORTING
PERSON WITH 10. SHARED DISPOSITIVE POWER N/A
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY 894,971
EACH REPORTING PERSON
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW /X/
(11) EXCLUDES CERTAIN SHARES
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN 5.9%
ROW (11)
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON CO
- --------------------------------------------------------------------------------
<PAGE> 3
SCHEDULE 13D Page 3 of ___
ITEM 1. SECURITY AND ISSUER.
(a) Name and Address of Principal Executive Offices of Issuer:
Phoenix Technologies Ltd.
2770 De La Cruz Boulevard
Santa Clara, California 95050
(b) Title and Class of Equity Securities: Common Stock
ITEM 2. IDENTITY AND BACKGROUND.
(a) Name of Person Filing: Intel Corporation
The executive officers and directors
of Intel Corporation are set forth
on Appendix A hereto.
(b) Principal Business: Manufacturer of microcomputer components,
modules and systems
(c) Address of Principal Business and Principal Office:
2200 Mission College Boulevard
Santa Clara, CA 95052-8119
(d) Criminal Proceedings:
During the last five years neither the Reporting
Person nor any officer or director of the Reporting
Person has been convicted in any criminal proceeding.
(e) Civil Proceedings:
During the last five years neither the Reporting
Person nor any officer or director of the Reporting
Person has been party to any civil proceeding of a
judicial or administrative body of competent
jurisdiction as a result of which such person would
have been subject to any judgment, decree or final
order enjoining future violations of or prohibiting
or mandating activities subject to Federal or State
securities laws or finding any violation with respect
to such laws.
(f) State of Incorporation: Delaware
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Funds for the purchase of the securities are derived from the
Reporting Person's working capital.
ITEM 4. PURPOSE OF THE TRANSACTION.
The Reporting Person acquired the Common Stock and the Warrant
(as described in Item 5(c), below) as an investment and in connection
with a technology agreement between the Issuer and the Reporting
Person pursuant to which the Issuer will become a principal supplier
of certain system-level software for certain products of the
Reporting Person. In addition to the 894,971 shares of Common Stock
of the Issuer acquired by the Reporting Person, the Reporting Person
also acquired a warrant (the "Warrant") to purchase up to 1,073,965
shares of Common Stock of the Issuer. The Reporting Person paid an
aggregate of $354,408.45 for the Warrant. The
<PAGE> 4
SCHEDULE 13D Page 4 of ___
shares of Common Stock subject to the Warrant vest and become
exercisable over a period of five years, pursuant to a schedule set
forth in the Warrant. The exercise price for the shares increases
each year that the Warrant is in effect, pursuant to a schedule set
forth in the Warrant. The Warrant expires on April 30, 2001.
ITEM 5. INTERESTS IN SECURITIES OF THE ISSUER.
(a) Number of Shares Beneficially Owned: 894,971 shares*
Right to Acquire: 0 shares*
Percent of Class:
5.9% (based upon 15,104,977 shares of
common stock outstanding, determined from
representations made by the Issuer to the
Reporting Person in connection with the
closing under the Purchase Agreement (as
defined below)*
(b) Sole Power to Vote, Direct the
Vote of, or Dispose of Shares: 894,971 shares*
(c) Recent Transactions:
On February 15, 1996, pursuant to the terms of that certain
Common Stock and Warrant Purchase Agreement dated as of
December 18, 1995 (the "Purchase Agreement"), the Reporting
Person purchased (i) 894,971 newly issued shares of Common
Stock of the Issuer at a price per share of $11.70625, and
(ii) the Warrant to purchase up to 1,073,965 shares of Common
Stock. See the Purchase Agreement and the Warrant, each of
which has been filed as an Exhibit hereto, for additional
details.
(d) Rights with Respect to Dividends
or Sales Proceeds: N/A
(e) Date of Cessation of Five Percent
Beneficial Ownership: N/A
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Pursuant to the Investor Rights Agreement between the
Reporting Person and the Issuer, the Reporting Person has, under
certain circumstances, various rights related to (a) registration of
the
- --------------
*Does not include the additional shares (up to 1,073,965) of Common Stock
that the Reporting Person has a right to acquire pursuant to the Warrant (as
defined and described in Item 4). Such shares are not beneficially owned by
the Reporting Person under Rule 13d-3 because the Reporting Person does not
have a right to acquire such shares within the next 60 days.
<PAGE> 5
SCHEDULE 13D Page 5 of ___
Common Stock that the Reporting Person owns, (b) participation in
future sales and issuances of securities by the Issuer, (c)
maintaining its ownership percentage in the Issuer, and (d) the
opportunity to acquire the Issuer or certain assets of the Issuer if
the Issuer seeks other offers or receives certain unsolicited offers.
The Reporting Person has certain standstill obligations relating to
its acquisition of shares of Common Stock of the Issuer and certain
restrictions on its voting rights. The Purchase Agreement also
contains certain restrictions on transfer of the Common Stock by the
Reporting Person. See the Investor Rights Agreement, attached as an
Exhibit hereto, for a further description of these provisions.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1 Phoenix Technologies Ltd. Common Stock and Warrant Purchase
Agreement, of December 18, 1995, between Phoenix
Technologies Ltd. and Intel Corporation (incorporated by
reference to Exhibit 10.25 to Phoenix Technologies Ltd.'s
Form 10-Q for the quarter ended December 31, 1995).
Exhibit 2 Warrant to Purchase Shares of Common Stock of Phoenix
Technologies Ltd., dated February 15, 1996.
Exhibit 3 Investor Rights Agreement, dated December 18, 1995, between
Phoenix Technologies Ltd. and Intel Corporation.
Exhibit 4 Agreement, dated December 18, 1995, between Intel
Corporation and Phoenix Technologies Ltd. (incorporated by
reference to Exhibit 10.24 to Phoenix Technologies Ltd.'s
Form 10-Q for the quarter ended December 31, 1995)
(confidential treatment requested).
Exhibit 5 Press Release of Phoenix Technologies Ltd., dated December
18, 1995.
Exhibit 6 Press Release of Phoenix Technologies Ltd., dated February
15, 1996.
<PAGE> 6
SCHEDULE 13D Page 6 of ___
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated as of February 23, 1996.
INTEL CORPORATION
By:
---------------------------------
F. Thomas Dunlap, Jr.
Vice President, General Counsel
and Secretary
<PAGE> 7
SCHEDULE 13D Page 7 of ___
APPENDIX A
DIRECTORS
The following is a list of all Directors of Intel Corporation and
certain other information with respect to each Director. All Directors are
United States citizens.
Name: Craig R. Barnett
Business Address: 2200 Mission College Boulevard, Santa
Clara, CA 95052
Principal Occupation: Executive Vice President and Chief
Operating Officer of Intel Corporation
Name, principal business and Intel Corporation, a manufacturer of
address of corporation or other microcomputer components,modules and
organization on which employment is systems.
conducted: 2200 Mission College Boulevard
Santa Clara, CA 95052
Name: Winston H. Chen
Business Address: Paramitas Foundation, 3945 Freedom Circle,
Suite 760, Santa Clara, CA 95054
Principal Occupation: Chairman of Paramitas Foundation
Name, principal business and Paramitas Foundation, a charitable
address of corporation or other foundation.
organization on which employment is 3945 Freedom Circle, Suite 760
conducted: Santa Clara, CA 95054
Name: Andrew S. Grove
Business Address: 2200 Mission College Boulevard, Santa
Clara, CA 95052
Principal Occupation: President and Chief Executive Officer of
Intel Corporation
Name, principal business and Intel Corporation, a manufacturer of
address of corporation or other microcomputer components, modules and
organization on which employment is systems.
conducted: 2200 Mission College Boulevard
Santa Clara, CA 95052
<PAGE> 8
SCHEDULE 13D Page 8 of ___
Name: D. James Guzy
Business Address: 295 North Bernardo, Mountain View, CA
94043
Principal Occupation: Chairman of The Arbor Company
Name, principal business and The Arbor Company, a limited partnership
address of corporation or other engaged in the electronics and computer
organization on which employment is industry.
conducted: 295 North Bernardo
Mountain View, CA 94043
Name: Gordon E. Moore
Business Address: 2200 Mission College Boulevard, Santa
Clara, CA 95052
Principal Occupation: Chairman of the Board of Intel Corporation
Name, principal business and Intel Corporation, a manufacturer of
address of corporation or other microcomputer components, modules and
organization on which employment is systems.
conducted: 2200 Mission College Boulevard
Santa Clara, CA 95052
Name: Max Palevsky
Business Address: 924 Westwood Boulevard, Suite 700, Los
Angeles CA 90024
Principal Occupation: Industrialist
Name, principal business and Self-employed.
address of corporation or other
organization on which employment is
conducted:
Name: Arthur Rock
Business Address: One Maritime Plaza, Suite 1220, San
Francisco, CA 94111
Principal Occupation: Venture Capitalist
Name, principal business and Arthur Rock and Company, a venture capital
address of corporation or other firm.
organization on which One Maritime Plaza, Suite 1220
employment is conducted: San Francisco, CA 94111
<PAGE> 9
SCHEDULE 13D Page 9 of ___
Name: Jane E. Shaw
Business Address: c/o Intel Corporation
2200 Mission College Boulevard
Santa Clara, CA 95052
Principal Occupation: Founder of the Stable Network, a
biopharmaceutical consulting company
Name, principal business and c/o Intel Corporation
address of corporation or other 2200 Mission College Boulevard
organization on which employment is Santa Clara, CA 95052
conducted:
Name: Leslie L. Vadasz
Business Address: 2200 Mission College Boulevard, Santa
Clara, CA 95052
Principal Occupation: Senior Vice President, Director, Corporate
Business Development, Intel Corporation
Name, principal business and Intel Corporation, a manufacturer of
address of corporation or other microcomputer components, modules and
organization on which employment is systems.
conducted: 2200 Mission College Boulevard
Santa Clara, CA 95052
Name: David B. Yoffie
Business Address: Harvard Business School, Soldiers Field
Park 1-411, Boston, MA 92163
Principal Occupation: Max and Doris Starr, Professor of
International Business Administration
Name, principal business and Harvard Business School, an educational
address of corporation or other institution.
organization on which employment is Harvard Business School
conducted: Soldiers Field Park 1-411
Boston, MA 92163
Name: Charles E. Young
Business Address: 405 Hilgard Avenue, Los Angeles, CA 90024
Principal Occupation: Chancellor
Name, principal business and University of California at Los Angeles,
address of corporation or other an educational institution.
organization on which employment is 405 Hilgard Avenue
conducted: Los Angeles, CA 90024
<PAGE> 10
SCHEDULE 13D Page 10 of __
EXECUTIVE OFFICERS
The following is a list of all executive officers of Intel
Corporation excluding executive officers who are also directors. Unless
otherwise indicated, each officer's business address is 2200 Mission College
Boulevard, Santa Clara, CA 95952-8119, which address is Intel Corporation's
business address. All executive officers are United States citizens.
Name: G. Carl Everett, Jr.
Title: Senior Vice President; General Manager, Desktop Products
Group
Name: Frank C. Gill
Title: Senior Vice President; General Manager, Intel Products Group
Address: 5200 N.E. Elam Young Parkway, Hillsboro, OR 97124-6497
Name: David L. House
Title: Senior Vice President; General Manager, Enterprise Server
Group
Name: Paul S. Otellini
Title: Senior Vice President; Director, Sales
Name: Gerhard S. Parker
Title: Senior Vice President, General Manager, Technology and
Manufacturing Group
Name: Robert W. Reed
Title: Senior Vice President; General Manager, Semiconductor
Products Group
Name: Ronald J. Whittier
Title: Senior Vice President; General Manager, Content Group
Name: Albert Y. C. Yu
Title: Senior Vice President; General Manager, Microprocessor
Products Group
Name: Michael A. Aymar
Title: Vice President; General Manager, Desktop Products Group
Name: Andy D. Bryant
Title: Vice President and Chief Financial Officer
Name: Dennis L. Carter
Title: Vice President; Director, Corporate Marketing Group
Name: Sunlin Chou
Title: Vice President; Director, Components Technology Development
Address: 5200 N.E. Elam Young Parkway, Hillsboro, OR 97124-6497
Name: Jean-Claude Cornet
Title: Vice President; Director, Microprocessor Technology
Name: F. Thomas Dunlap
Title: Vice President; General Counsel and Secretary
Name: Kirby A. Dyess
Title: Vice President; Director, Human Resources
Name: Carlene M. Ellis
Title: Vice President; Director, Information Technology
<PAGE> 11
SCHEDULE 13D Page 11 of __
Name: Hans G. Geyer
Title: Vice President; General Manager, European Operations
Name: Thomas L. Hogue
Title: Vice President; Director, Corporate Materials and Services
Name: Harold E. Hughes, Jr.
Title: Vice President; Director, Planning and Logistics
Name: Robert T. Jenkins
Title: Vice President; Director, Corporate Licensing
Name: D. Craig Kinnie
Title: Vice President; Director, Intel Architecture Laboratories
Name: Edward A. Masi
Title: Vice President; General Manager, Server Systems Product
Development
Address: 5200 N.E. Elam Young Parkway, Hillsboro, OR 97124-6497
Name: Avram C. Miller
Title: Vice President; Director, Business Development
Name: Stephen P. Nachtsheim
Title: Vice President; General Manager, Mobile/Handheld Products
Group
Name: Arvind Sodhani
Title: Vice President and Treasurer
Name: Michael R. Splinter
Title: Vice President; General Manager, Components Manufacturing
Address: 4100 Sara Boulevard, Rio Rancho, NM 87124
<PAGE> 12
SCHEDULE 13D Page 12 of __
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
EXHIBIT NO. DOCUMENT PAGE
- ----------- ----------------------------------------------------------------------- ------------
<S> <C> <C>
Exhibit 1 Phoenix Technologies Ltd. Common Stock and Warrant Purchase Agreement, --
dated December 18, 1995, between Phoenix Technologies Ltd. and Intel
Corporation (incorporated by reference to Exhibit 10.25 to Phoenix
Technologies Ltd.'s Form 10-Q for the quarter ended December 31, 1995).
Exhibit 2 Warrant to Purchase Shares of Common Stock of Phoenix Technologies
Ltd., dated February 15, 1996.
Exhibit 3 Investor Rights Agreement, dated December 18, 1995, between Phoenix
Technologies Ltd. and Intel Corporation.
Exhibit 4 Agreement, dated December 18, 1995, between Intel Corporation and --
Phoenix Technologies Ltd. (incorporated by reference to Exhibit 10.24
to Phoenix Technologies Ltd.'s Form 10-Q for the quarter ended
December 31, 1995) (confidential treatment requested).
Exhibit 5 Press Release of Phoenix Technologies Ltd., dated December 18, 1995.
Exhibit 6 Press Release of Phoenix Technologies Ltd., dated February 15, 1996.
</TABLE>
<PAGE> 1
SCHEDULE 13D Page 13 of __
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS
OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE
REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD
OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN
FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED
TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
Void after 5:00 p.m.,
Pacific Time
on April 30, 2001
WARRANT TO PURCHASE SHARES OF COMMON STOCK
OF
PHOENIX TECHNOLOGIES LTD.
<TABLE>
<S> <C> <C>
Initial Number of Shares: 1,073,965
Date of Grant: February 15,
1996
Expiration Date: April 30,
2001
Purchase Price of Warrant $354,408.45
</TABLE>
THIS CERTIFIES THAT, for value received pursuant to that certain Common
Stock and Warrant Purchase Agreement dated as of December 18, 1995 (the
"Purchase Agreement"), Intel Corporation and any person to whom the interest in
this Warrant is lawfully transferred pursuant to the term and conditions set
forth herein (the original holder hereof and such transferees are referred to
hereinafter as the "Holder") is entitled to purchase up to the above number (as
adjusted pursuant to Section 2 hereof) of fully paid and nonassessable shares of
the Common Stock (the "Shares") of Phoenix Technologies Ltd., a Delaware
corporation (the "Company"), at the applicable Per Share Exercise Price as set
forth in Section 1.1 hereof, subject to the provisions and upon the terms and
conditions set forth herein.
<PAGE> 2
SCHEDULE 13D Page 14 of __
This Warrant is subject to the following terms and conditions:
1. EXERCISE.
1.1 (a) Per Share Purchase Price. The "Per Share
Purchase Price" at which this Warrant may be exercised shall be (i) $12.876875
to the extent it is exercised on or prior to December 31, 1997, (ii) $13.4621875
to the extent it is exercised in calendar year 1998, (iii) $14.0475 to the
extent it is exercised in calendar year 1999, (iv) $14.6328125 to the extent it
is exercised in calendar year 2000, and (v) $15.218125 to the extent it is
exercised from January 1, 2001 to April 30, 2001.
(b) In the event that an exercise of this
Warrant is subject to HSR Act Restrictions (as defined in 1.8(a) below), the Per
Share Purchase Price shall be set as of the date Holder provides Company with
the Common Stock Warrant Notice of Exercise. The Warrant will be deemed to have
been exercised on the date immediately following the date of the expiration or
early termination of all HSR Act Restrictions.
1.2 Exercisability.
(a) Vesting Schedule. Prior to December 15,
1996, all of the Shares shall be unvested and this Warrant shall not be
exercisable with respect to any of the Shares. Until terminated pursuant to
Section 1.3, this Warrant shall become vested and exercisable as to portions of
the Shares as follows:
<TABLE>
<CAPTION>
Cumulative Number
On or after: of Shares Exercisable:
------------ ----------------------
<S> <C>
December 15, 1996 214,793
December 15, 1997 429,586
December 15, 1998 644,379
December 15, 1999 1,073,965
</TABLE>
<PAGE> 3
SCHEDULE 13D Page 15 of __
(b) Corporate Event. A "Corporate Event" shall mean any of the
following, whether accomplished through one or a series of related transactions:
(i) the acquisition of all or substantially all the assets of the Company, (ii)
the acquisition of all or substantially all of the Company's desktop personal
computer and server BIOS technology, or (iii) an acquisition of the Company by
another corporation or entity by consolidation, merger, share purchase or
exchange, or other reorganization in which the holders of the Company's
outstanding voting stock immediately prior to such transaction own, immediately
after such transaction, securities representing less than fifty percent (50%) or
more of the voting power of the corporation or other entity surviving such
transaction, provided that "Corporate Event" shall not include any transaction
described in (i), (ii), or (iii) above if Intel Corporation, the Holder, or any
of their respective affiliates is the acquiror in such transaction.
(c) Acceleration of Vesting upon Corporate Event. Notwithstanding
Section 1.2(a), unless earlier terminated pursuant to Section 1.3, this Warrant
shall become exercisable in full immediately prior to the consummation of a
Corporate Event ("Acceleration"). Notwithstanding the foregoing, there shall
not be any Acceleration of this Warrant if (i) a Corporate Event is intended to
be accounted for as a "pooling of interests," (ii) such Acceleration would
preclude such accounting treatment, (iii) upon consummation of such Corporate
Event, to the extent (and only to the extent) that this Warrant is not fully
vested immediately prior to such consummation, this Warrant shall have been
assumed, converted or substituted by the acquiror pursuant to Section 2.3, and
(iv) the acquiror in such Corporate Event, as a condition to the closing of
such Corporate Event, assumes the Company's obligations under the Technology
Agreement between the Company and Intel Corporation dated as of December 18,
1995 (the "Technology Agreement").
1.3 Termination. If the Technology Agreement is terminated in
accordance with its terms for any reason (except for a termination by Intel
Corporation due to the uncured breach by the Company of one of its material
obligations thereunder), then this Warrant shall immediately cease vesting,
expire, and be canceled to the extent that it is not vested and exercisable as
of the date of such termination of the Technology Agreement (the "Termination
Date"). To the extent (and only to the extent) that this Warrant would have been
exercisable by the Holder on the Termination Date, this Warrant shall be
exercised, if at all, by the Holder no later than the earlier of (i) four (4)
months after the Termination Date, and (ii) the Expiration Date; at which
earlier time this Warrant will expire and be canceled in its entirety to the
extent not so exercised.
1.4 Expiration. This Warrant shall expire and be canceled in its
entirety on the Expiration Date set forth above and must be exercised, if at
all, on or before the Expiration Date (subject only to the provisions of Section
1.8(a) below).
1.5 Method of Exercise; Payment.
(a) The purchase right represented by this Warrant may be
exercised by the Holder, in whole or in part, for up to the total number of
shares then exercisable, by the surrender of this Warrant (with the Common Stock
Warrant Notice of Exercise form attached hereto as Annex I duly executed) at the
principal office of the Company and by the payment to the Company in cash (by
certified check or wire transfer) or by surrender of shares of Common Stock of
the
<PAGE> 4
SCHEDULE 13D Page 16 of __
Company valued at their Market Price (as defined below) (or, where applicable,
pursuant to the provisions of 1.8(a)), in an amount equal to the then applicable
Purchase Price Per Share multiplied by the number of Shares then being
purchased.
(b) In lieu of exercising this Warrant by payment of cash or
shares of Common Stock, when permitted by law and applicable regulations
(including Nasdaq and NASD rules), the Holder may pay such exercise price
through a "same day sale" commitment from the Holder and a broker-dealer that is
a member of the National Association of Securities Dealers (an "NASD Dealer")
whereby the Holder irrevocably elects to exercise the Warrant and to sell a
portion of the Shares so purchased to pay for the exercise price and whereby the
NASD Dealer irrevocably commits upon receipt of such Shares to forward the
exercise price directly to the Company.
(c) In lieu of exercising this Warrant by payment of cash or
shares of Common Stock or by payment through a same day sale, the Holder may
elect to receive, without the payment by the Holder of any additional
consideration, a number of shares (rounded down to the nearest whole share)
equal to the value of this Warrant or any portion hereof by the surrender of
this Warrant or such portion to the Company (the "Net Exercise"), with the net
issue election initialed in the Common Stock Warrant Notice of Exercise annexed
hereto duly executed, at the office of the Company. Thereupon, the Company will
issue to the Holder such number of shares of Common Stock of the Company as is
computed using the following formula:
<PAGE> 5
SCHEDULE 13D Page 17 of __
X = Y (A-B)
------
A
where X= the number of shares of Common Stock to be issued to the Holder
upon the Net Exercise pursuant to this Section 1.5;
Y= the number of Shares exercised under this Warrant for
which the net issue election is made pursuant to this
Section 1.5 (upon such Net Exercise, the number of shares
subject to further exercise under this Warrant shall be
reduced by this number);
A= the Market Price (as defined below) of one share of the
Company's Common Stock, at the time the net issue election
is made pursuant to this Section 1.5; and
B= the Per Share Purchase Price in effect under this Warrant
at the time the net issue election is made pursuant to this
Section 1.5.
For purposes of this Section 1.5, "Market Price" means as to a share of
Common Stock the average of the closing prices of sales on all domestic
securities exchanges on which the Common Stock may at the time be listed, or, if
there have been no sales on any such exchange on any day, the average of the
highest bid and lowest asked prices on all such exchanges at the end of such
day, or, if on any day the Common Stock is not so listed, the average of the
representative bid and asked prices quoted in the Nasdaq National Market as of
4:00 P.M., New York time, on such day, or, if on any day the Common Stock is not
quoted in the Nasdaq National Market, the average of the highest bid and lowest
asked prices on such day in the domestic over-the-counter market as reported by
the National Quotation Bureau, Incorporated, or any similar successor
organization, in each such case averaged over a period of thirty (30) Trading
Days immediately preceding the date the net issue election or other exercise is
made pursuant to this Section 1.5; provided, however, that if the Common Stock
is listed on any domestic securities exchange the term "Trading Days" as used in
this sentence means Trading Days on which such exchange is open for trading. If
at any time the Common Stock is not listed on any domestic securities exchange
or quoted in the Nasdaq National Market or the domestic over-the-counter market,
the "Market Price" shall be the fair value thereof determined jointly by the
Company and the Holder; provided, however, that if such parties are unable to
reach agreement within a reasonable period of time, such fair value shall be
determined by an appraiser jointly selected by the Company and the Holder. The
determination of such appraiser shall be final and binding on the Company and
the Holder, and the fees and expenses of such appraiser shall be paid by the
Company, provided that such fees and expenses shall be paid for by the Holder in
the event that the appraiser's determination of the Market Price is no more than
5% higher than, or is lower than, the last amount previously offered by the
Company.
1.6 Limitations on Exercise. The exercise of this Warrant, and the
issuance of the Shares will be subject to and conditioned upon compliance by the
Company and the Holder with all applicable state and federal laws and
regulations and with all applicable requirements of any stock exchange or
automated quotation system on which the Company's common stock may
<PAGE> 6
SCHEDULE 13D Page 18 of __
be listed or quoted at the time of such issuance or transfer. The Company shall,
at its sole cost and expense, use its best efforts to make all filings, notices
and applications required by the Company (excluding filings, notices and
applications required by the Holder), and take all other actions necessary to
permit the exercise of this Warrant by the Holder and the issuance of the Shares
to the Holder, and the Holder shall cooperate with all reasonable requests of
the Company in connection therewith. This Warrant may not be exercised as to
fewer than 50,000 Shares unless it is exercised as to all Shares as to which the
Option is then exercisable.
1.7 Issuance of New Warrant. In the event of any exercise of the
purchase right represented by this Warrant, certificates for the Shares so
purchased will be delivered to the Holder within four (4) business days after
receipt of such payment and, unless this Warrant has been fully exercised or has
expired, a new Warrant representing the portion of the Shares, if any, with
respect to which this Warrant will not then have been exercised will also be
issued to the Holder within a reasonable time.
1.8 Hart-Scott-Rodino Compliance.
(a) The Company hereby acknowledges that the exercise of this
Warrant by Holder may subject the Company and/or the Holder to the filing
requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the
"HSR Act") and that the Holder may be prevented from closing the exercise of
this Warrant until the expiration or early termination of all waiting periods
imposed by the HSR Act ("HSR Act Restrictions"). If on or before the Expiration
Date, the Holder (i) has sent the Common Stock Warrant Notice of Exercise to the
Company, (ii) has irrevocably elected to exercise this Warrant for the number of
Shares specified in such notice subject only to the removal of HSR Act
Restrictions, and (iii) the Holder has not been able to complete the exercise of
this Warrant prior to the Expiration Date solely because of HSR Act
Restrictions, then, for so long as the Holder actively continues in its effort
to remove the HSR Act Restrictions, the Holder shall be entitled to complete the
process of exercising this Warrant for such number of Shares in accordance with
the procedures contained herein notwithstanding the fact that completion of the
exercise of this Warrant would take place after the Expiration Date.
Notwithstanding the preceding sentence, this Warrant shall no longer be subject
to the provisions of this Section 1.8 and shall completely expire and be
canceled in its entirety no later than April 30, 2002 and must be exercised, if
at all, on or before such date. If an exercise by Holder is subject to HSR Act
Restrictions, the amount payable upon such exercise shall be paid to the Company
within two (2) business days of the expiration or notice of early termination of
all HSR Act Restrictions.
(b) The Company agrees to perform all activities, including a
responsive HSR Act filing, reasonably necessary to support Holder's effort to
remove HSR Act Restrictions.
<PAGE> 7
SCHEDULE 13D Page 19 of __
2. ADJUSTMENT OF NUMBER OF SHARES AND PER SHARE PURCHASE PRICE. The
number of Shares purchasable upon the exercise of this Warrant, and the Per
Share Purchase Price, will be subject to adjustment from time to time as
provided in this Section 2:
2.1 Subdivision or Combination of Common Stock. If the Company
at any time subdivides (by any stock split, stock dividend, recapitalization or
otherwise) its outstanding shares of Common Stock into a greater number of
shares, the Per Share Purchase Price in effect immediately prior to such
subdivision shall be proportionately reduced and the number of shares of Common
Stock obtainable upon exercise of this Warrant shall be proportionately
increased. If the Company at any time combines (by reverse stock split or
otherwise) its outstanding shares of Common Stock into a smaller number of
shares, the Per Share Purchase Price in effect immediately prior to such
combination shall be proportionately increased and the number of shares of
Common Stock obtainable upon exercise of this Warrant shall be proportionately
decreased.
2.2 Stock Dividends. If the Company at any time while this
Warrant remains outstanding and unexpired pays a dividend, without receipt of
consideration therefor, to the holders of Common Stock payable in shares of
Common Stock, Preferred Stock, other capital stock or other securities
convertible into or exchangeable for Common Stock, Preferred Stock or other
capital stock ("Convertible Securities"), or options to purchase Common Stock,
Preferred Stock, other capital stock or Convertible Securities ("Options"), the
Holder shall, upon exercise of this Warrant be entitled to receive, in addition
to the number of Shares receivable thereupon, the amount of Common Stock,
Preferred Stock, other capital stock, Convertible Securities, or Options which
such Holder would have received had it been Holder of record of such Shares as
of the date on which holders of Common Stock received or became entitled to
receive such additional shares of Common Stock, Preferred Stock, other capital
stock, Convertible Securities or Options. Any adjustment under this Section 2.2
will become effective on the record date or, if there is no record date, on the
date of issuance.
2.3 Reorganization, Reclassifications, Mergers or Sales. Any
recapitalization, reorganization, reclassification, consolidation, merger, sale
of all or substantially all of the Company's assets or other transaction
(including, without limitation, any Corporate Event), in each case that is
effected in such a way that the holders of Common Stock are entitled to receive
(either directly or upon subsequent liquidation) stock, securities or assets, or
a combination thereof, with respect to or in exchange for Common Stock is
referred to herein as an "Organic Change." Prior to the consummation of any
Organic Change, the Company shall, subject to Section 1.2(c), make appropriate
provision (in form and substance reasonably satisfactory to the Holder) to
insure that the Holder shall thereafter have the right to acquire and receive,
upon exercise of this Warrant in accordance with its terms and upon payment of
the Per Share Exercise Price then in effect, in lieu of each Share of Common
Stock immediately theretofore acquirable and receivable upon the exercise of
this Warrant, such shares of stock, securities or assets as may be issued or
payable with respect to each share of Common Stock immediately theretofore
acquirable and receivable upon exercise of the Warrant had such Organic Change
not taken place. The Company shall not effect
<PAGE> 8
SCHEDULE 13D Page 20 of __
any such consolidation, merger or sale, unless prior to the consummation
thereof, the successor entity (if other than the Company) resulting from
consolidation or merger or the entity purchasing such assets assumes by written
instrument (in form and substance reasonably satisfactory to the Holder), the
obligation to deliver to such Holder such shares of stock, securities or assets
as, in accordance with the foregoing provisions, such Holder may be entitled to
acquire.
2.4 Certain Events. If (i) any event occurs of a type that
would have an effect on the rights granted under this Warrant similar to the
effect of any event described by the other provisions of this Section 2 and (ii)
such event is not expressly provided for by such other provisions (including,
without limitation, the granting of stock appreciation rights, phantom stock
rights or other rights with equity features), then an appropriate adjustment in
the Per Share Purchase Price and the number of shares of Common Stock obtainable
upon exercise of this Warrant so as to protect the rights of the holder of the
Warrant shall be made.
<PAGE> 9
SCHEDULE 13D Page 21 of __
2.5 Notices.
(a) Within four (4) business days of any
adjustment of the Per Share Purchase Price, the Company shall give written
notice thereof to the Holder, setting forth and certifying in reasonable detail
the facts causing such adjustment and the calculation of such adjustment. The
Company will give due consideration to, and consult with counsel regarding, any
objection Holder has to the matters described in such notice, and will make any
corrections to such notice deemed necessary to conform with the terms of this
Warrant.
(b) The Company shall give written notice to the
Holder at least ten (10) business days prior to the date on which the Company
closes its books or takes a record (A) with respect to any dividend or
distribution (cash or otherwise) upon the Common Stock, (B) with respect to any
pro rata subscription or other offer to holders of Common Stock (C) for
determining rights to vote with respect to any Organic Change, dissolution or
liquidation.
(c) The Company shall also give written notice to
the Holder at least ten (10) business days prior to the date on which any
Organic Change, dissolution or liquidation shall take place.
3. TRANSFERABILITY OF WARRANT.
3.1 Majority Owned Subsidiary. A "Majority Owned Subsidiary" shall
mean a subsidiary of which Intel Corporation beneficially owns, either directly
or indirectly, at least 50% of the voting securities.
3.2 Institutional Investor. An "Institutional Investor" shall mean
any person considered to be an "accredited investor" under Rule 501(a)(1) of
Regulation D promulgated under the Act, provided however, that "Institutional
Investor" shall not include any person or affiliate of a person that is a
significant competitor of the Company.
3.3 Limitation on Transfer. To the extent this Warrant is not
vested and exercisable pursuant to Section 1.2, this Warrant may not be
transferred or assigned in whole or in part in any manner other than to a
Majority Owned Subsidiary. To the extent this Warrant is vested and exercisable
pursuant to Section 1.2, this Warrant may be transferred or assigned in whole or
in part, but only to a Majority Owned Subsidiary, or, subject to the provisions
of Section 3.4, to an Institutional Investor. The Holder agrees to provide the
Company with five (5) business days prior written notice of any transfer or
assignment of any portion of this Warrant to a Majority Owned Subsidiary.
3.4 Right of First Offer. Before any vested and exercisable portion
of this Warrant may be sold or otherwise transferred (including without
limitation a transfer by gift or operation of law, but excluding any transfer to
a Majority Owned Subsidiary), the Company and/or its assignee(s) will have a
right of first offer to purchase the portion of this Warrant to be sold or
<PAGE> 10
SCHEDULE 13D Page 22 of __
transferred (the "Offered Portion") on the terms and conditions set forth in
this Section 3.4 (the "Right of First Offer").
(a) Notice of Proposed Transfer. The Holder of This Warrant
will deliver to the Company a written notice (the "Notice") stating: (i) the
Holder's bona fide intention to sell or otherwise transfer the Offered Portion;
(ii) the name of each proposed purchaser or other transferee ("Proposed
Transferee") up to a maximum of five (5) such Proposed Transferees; (iii) the
number of Shares subject to the Offered Portion; (iv) the bona fide cash price
or other consideration for which the Holder proposes to transfer the Offered
Portion (the "Offered Price"); and (v) that the Holder will offer to sell the
Offered Portion to the Company and/or its assignee(s) at the Offered Price as
provided in this Section 3.4.
(b) Exercise of Right of First Offer. At any time within four
(4) business days after the date of the Notice, the Company and/or its
assignee(s) may, by giving written notice to the Holder, elect to purchase all
(but not less than all) of the Offered Portion proposed to be transferred to any
one or more of the Proposed Transferees named in the Notice, at the purchase
price determined in accordance with subsection (c) below.
(c) Purchase Price. The purchase price for the Offered Portion
purchased under this Section will be the Offered Price. If the Offered Price
includes consideration other than cash, then the value of the non-cash
consideration shall be determined jointly by the Company and the Holder;
provided, however, that if such parties are unable to reach agreement within a
reasonable period of time, such per share amounts paid shall be determined by an
appraiser jointly selected by the Company and the Holder. The determination of
such appraiser shall be final and binding on the Company and the Holder. The
fees and expenses of such appraiser shall be paid for by the Company, provided
that such fees and expenses shall be paid for by the Holder in the event that
the appraiser's determination of the value of such consideration is no more than
5% higher, or is lower than, the last amount previously offered by the Company.
(d) Holder's Right to Transfer. If the Offered Portion
proposed in the Notice to be transferred to a given Proposed Transferee is not
purchased by the Company and/or its assignee(s) as provided in this Section 3.4,
then the Holder may sell or otherwise transfer such Offered Portion to that
Proposed Transferee at the Offered Price or at a higher price, provided that
such sale or other transfer is consummated within 60 days after the date of the
Notice, and provided further, that: (i) any such sale or other transfer is
effected in compliance with all applicable securities laws; and (ii) the
Proposed Transferee agrees in writing that the provisions of this Section 3 will
continue to apply to the Offered Portion in the hands of such Proposed
Transferee. If the Offered Portion described in the Notice is not transferred to
the Proposed Transferee within such 60 day period, then a new Notice must be
given to the Company, and the Company will again be offered the Right of First
Offer before any portion of this Warrant held by the Holder may be sold or
otherwise transferred.
3.5 Encumbrances on Warrant. The Holder may grant a lien or
security interest in, or pledge, hypothecate or encumber this Warrant only if
each party to whom such lien or security interest is granted, or to whom such
pledge, hypothecation or other encumbrance is made, agrees in a writing
reasonably satisfactory to the Company that: (i) such lien, security interest,
pledge, hypothecation or encumbrance will not apply to any portion of this
Warrant in the event such portion is acquired by the Company (and/or its
assignees) in accordance with Section 3.4; and
<PAGE> 11
SCHEDULE 13D Page 23 of __
(ii) the provisions of this Section 3 will continue to apply to this Warrant (or
any portion thereof) in the hands of such party and any transferee of such
party. Purchaser may not grant a lien or security interest in, or pledge,
hypothecate or encumber, any portion of this Warrant that is not vested and
exercisable.
4. MISCELLANEOUS.
4.1 Legends. Any certificate for Shares issued upon exercise hereof
will be imprinted with a legend in substantially the form set forth in the
Common Stock Warrant Notice of Exercise form attached hereto as Annex I.
4.2 Investor Rights Agreement. This Warrant and the Shares are
subject to the terms and conditions of that certain Investor Rights Agreement
between the Company and Intel Corporation dated as of December 18, 1995.
4.3 Successors and Assigns. The terms and provisions of this
Warrant will inure to the benefit of, and be binding upon, the Company and the
Holder and their respective successors and assigns of the Holder and of the
Company.
4.4 Governing Law. This Warrant will be governed by and construed
under the internal laws of the State of Delaware, without reference to
principles of conflict of laws or choice of laws.
4.5 Headings. The headings and captions used in this Warrant are
used for convenience only and are not to be considered in construing or
interpreting this Warrant. All references in this Warrant to sections and
annexes will, unless otherwise provided, refer to sections and hereof and
annexes attached hereto, all of which annexes are incorporated herein by this
reference.
4.6 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement will be given in writing and will be deemed
effectively given upon personal delivery to the party to be notified, or three
(3) days after deposit with the United States Post Office, by registered or
certified mail, postage prepaid, or by deposit with a nationally recognized
courier service such as Fedex, or by facsimile with confirmed receipt and
addressed to the party to be notified.
PHOENIX TECHNOLOGIES LTD.
<PAGE> 12
SCHEDULE 13D Page 24 of __
By:
_________________________________________
Name: Jack Kay
Title: President and Chief Executive Officer
ANNEX I TO
WARRANT
________ , 199__
Phoenix Technologies Ltd.
2770 De La Cruz Boulevard
Santa Clara, California 95050
Attn: Legal Department
Common Stock Warrant Notice of Exercise
Gentlemen:
On this date the undersigned hereby acquires from Phoenix
Technologies Ltd., a Delaware corporation (the "Company"), an aggregate of
_________ shares of the Company's Common Stock (the "Warrant Shares"), by
exercise, for such number of shares, of that certain Warrant to Purchase Shares
of Common Stock (the "Warrant"), dated as of __________, 199_, from the Company
to the original holder of the Warrant. However, if this exercise of the Warrant
is subject to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR
Act") filing requirements, this Warrant shall be deemed to have been exercised
on the date immediately following the date of the expiration or early
termination of all HSR Act restrictions.
<PAGE> 13
SCHEDULE 13D Page 25 of __
1. Investment Representations and Warranties. The
undersigned represents and warrants that:
1.1 Purchase for Own Account. The
Warrant Shares to be purchased by the undersigned will be acquired for
investment for the undersigned's own account, not as a nominee or agent, and
not with a view to the public resale or distribution thereof within the meaning
of the Securities Act of 1933, as amended (the "1933 Act"), and the undersigned
has no present intention of selling, granting any participation in, or
otherwise distributing the same. The undersigned also represents that it has
not been formed for the specific purpose of acquiring the Warrant Shares.
1.2 Disclosure of Information. The
undersigned has received or has had full access to all the information it
considers necessary or appropriate to make an informed investment decision with
respect to the Warrant Shares to be purchased by the undersigned.
1.3 Investment Experience. The
undersigned understands that the purchase of the Warrant Shares involves
substantial risk. The undersigned: (a) has experience as an investor in
securities of companies and acknowledges that it is able to fend for itself,
can bear the economic risk of its investment in the Warrant Shares and has such
knowledge and experience in financial or business matters that it is capable of
evaluating the merits and risks of this investment in the Warrant Shares and
protecting its own interests in connection with this investment and/or (b) has
a preexisting personal or business relationship with the Company and certain of
its officers, directors or controlling persons of a nature and duration that
enables the undersigned to be aware of the character, business acumen and
financial circumstances of such persons.
1.4 Accredited Investor Status. The
Investor is an "accredited investor" within the meaning of Regulation D
promulgated under the 1933 Act.
1.5 Restricted Securities. The
undersigned understands that the Warrant Shares to be purchased by the
undersigned hereunder, are characterized as "restricted securities" under the
1933 Act inasmuch as they are being acquired from the Company in a transaction
not involving a public offering and that under the 1933 Act and applicable
regulations thereunder such securities may be resold without registration under
the 1933 Act only in certain limited circumstances. The undersigned is familiar
with Rule 144 of the
<PAGE> 14
SCHEDULE 13D Page 26 of __
SEC, as presently in effect, and understands the resale limitations imposed
thereby and by the 1933 Act. The undersigned understands that the Company is
under no obligation to register any of the securities sold hereunder except as
provided in the Investor Rights Agreement between the Company and Intel
Corporation dated as of December 18, 1995 (the "Investor Rights Agreement").
1.6 Further Limitations on Disposition.
Without in any way limiting the representations set forth above, the
undersigned further agrees not to make any disposition of all or any portion of
the Warrant Shares unless and until:
(a) there is then in effect a
registration statement under the 1933 Act covering such proposed disposition
and such disposition is made in accordance with such registration statement; or
(b) the undersigned has notified
the Company of the proposed disposition and has furnished the Company with a
statement of the circumstances surrounding the proposed disposition, and the
undersigned has furnished the Company, at the expense of the undersigned or its
transferee, with an opinion of counsel, reasonably satisfactory to the Company,
that such disposition will not require registration of such securities under the
1933 Act.
Notwithstanding the provisions of paragraphs (a) and (b) of
this Section 1.6, no such registration statement or opinion of counsel will be
required for any transfer of any Warrant Shares in compliance with SEC Rule 144,
Rule 144A or Rule 145(d), or if such transfer otherwise is exempt, in the view
of the Company's legal counsel, from the registration requirements of the 1933
Act.
1.7 Investor Rights Agreement. The
undersigned agrees and acknowledges that the Warrant Shares are subject to the
terms and conditions or the Investor Rights Agreement.
2. Legends. The undersigned understands that
certificates evidencing the Warrant Shares will bear each of the legends set
forth below:
<PAGE> 15
SCHEDULE 13D Page 27 of __
2.1 THE SECURITIES REPRESENTED HEREBY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD
EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS,
PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT
THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION
OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT
ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS.
2.2 THE SHARES EVIDENCED BY THIS CERTIFICATE
ARE SUBJECT TO CERTAIN RESTRICTIONS SPECIFIED IN A CERTAIN INVESTOR RIGHTS
AGREEMENT BETWEEN THE COMPANY AND INTEL CORPORATION DATED AS OF DECEMBER 18,
1995, A COPY OF WHICH IS AVAILABLE FOR EXAMINATION AT THE ISSUER'S PRINCIPAL
OFFICE.
2.3 Any legends required by any applicable
state securities laws.
The undersigned agrees that, to ensure and enforce compliance
with the restrictions imposed by applicable law and those referred to in the
foregoing legend, or elsewhere herein, the Company may issue appropriate "stop
transfer" instructions to its transfer agent, if any, with respect to any
certificate or other instrument representing Warrant Shares.
3. Net Exercise Election. If applicable, the
undersigned elects to purchase the Warrant Shares by Net Exercise (as defined in
the Warrant), by initialing in the following space (please initial only if Net
Exercise chosen): __________.
4. Same Day Sale Election. If applicable, the
undersigned elects to purchase the Warrant Shares by "same day sale" pursuant to
the provisions of Section 1.5(b) of the Warrant, by initialing on the following
space (please initial only if Same Day Sale chosen): ________________.
<PAGE> 16
SCHEDULE 13D Page 28 of __
By:
-------------------------------------------------------
Name:
-----------------------------------------------------
Title:
----------------------------------------------------
Address:
--------------------------------------------------
--------------------------------------------------
Date signed:
----------------------------------------------
[SIGNATURE PAGE -- PHOENIX TECHNOLOGIES LTD.
COMMON STOCK WARRANT NOTICE OF EXERCISE]
<PAGE> 1
SCHEDULE 13D Page 29 of __
PHOENIX TECHNOLOGIES LTD.
INVESTOR RIGHTS AGREEMENT
This Investor Rights Agreement (this "Agreement") is
made and entered into as of December 18, 1995 by and among Phoenix Technologies
Ltd., a Delaware corporation (the "Company"), and Intel Corporation, a Delaware
corporation (the "Investor").
R E C I T A L S
A. The Investor has agreed to purchase from
the Company, and the Company has agreed to sell to the Investor, shares of the
Company's Common Stock (the "Common Stock") and a Warrant (the "Warrant") on the
terms and conditions set forth in that certain Common Stock and Warrant Purchase
Agreement, dated of even date herewith by and between the Company and the
Investor (the "Purchase Agreement"). The Company and the Investor have entered
into an agreement of even date herewith relating to the licensing, marketing and
development of certain of the Company's system-level software designed for use
with desktop computer and server computer products (the "Technology Agreement").
B. The Purchase Agreement provides that the
Investor shall be granted certain information rights, registration rights and
other rights, all as more fully set forth herein.
NOW, THEREFORE, in consideration of the foregoing
recitals, the mutual promises hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. INFORMATION RIGHTS.
1.1 Financial Information. The Company
covenants and agrees that, commencing on the date of this Agreement, for so long
as the Investor holds shares of Common Stock issued under this Agreement or the
Purchase Agreement or shares of Common Stock issued pursuant to exercise of the
Warrant the Company will:
<PAGE> 2
SCHEDULE 13D Page 30 of __
(a) Annual Reports. Furnish to the Investor
within 90 days after the end of each fiscal year of the Company, a consolidated
Balance Sheet as of the end of such fiscal year, a consolidated Statement of
Income and a consolidated Statement of Cash Flows of the Company and its
subsidiaries for such year, setting forth in each case in comparative form the
figures from the Company's previous fiscal year, all prepared in accordance with
generally accepted accounting principles and practices and audited by nationally
recognized independent certified public accountants; and
(b) Quarterly Reports. Furnish to the
Investor within forty-five (45) days of the end of each fiscal quarter of the
Company (except the last quarter of the Company's fiscal year), quarterly
unaudited financial statements.
1.2 Board Observer. So long the Investor, together
with its Majority Owned Subsidiaries (as defined in Section 8.1(a)), holds at
least 894,971 shares of Common Stock of the Company (such number to be
proportionately adjusted for stock splits, stock dividends, and similar events),
the Company will permit a representative of the Investor (the "Representative")
reasonably acceptable to the Company's Board of Directors (the "Board") to
attend all meetings of the Board (whether in person, telephonic or other) in a
non-voting, observer capacity and shall provide to the Investor, concurrently
with the members of the Company's Board of Directors, notice of such meeting and
a copy of all materials provided to such members, provided that the Board may
exclude the Representative from any portion of any meeting and may redact from
any of such materials for or as to which the Board determines in its reasonable
discretion that the subject matter of such portion of the meeting or such
portion of the materials involves matters for which a conflict of interest
exists between the Company and the Investor, and provided further that the
Investor shall execute an appropriate confidentiality agreement.
2. REGISTRATION RIGHTS.
2.1 Definitions. For purposes of this Section 2:
(a) Registration. The terms "register,"
"registered," and "registration" refer to a registration effected by preparing
and filing a registration statement in compliance with the Securities Act of
1933, as amended, (the "Securities Act"), and the declaration or ordering of
effectiveness of such registration statement.
<PAGE> 3
SCHEDULE 13D Page 31 of __
(b) Registrable Securities. The term
"Registrable Securities" means: (1) all the shares of Common Stock of the
Company issued (A) under the Purchase Agreement, (B) pursuant to an exercise of
the Warrant, and (C) pursuant to the Right of Participation (defined in Section
3 hereof) or the Right of Maintenance (defined in Section 4 hereof), and (2) any
shares of Common Stock of the Company issued as (or issuable upon the conversion
or exercise of any warrant, right or other security which is issued as) a
dividend or other distribution with respect to, or in exchange for or in
replacement of, any such shares of Common Stock described in clause (1) of this
subsection (b); excluding in all cases, however, any Registrable Securities sold
by a person in a transaction in which rights under this Section 2 are not
assigned in accordance with this Agreement or any Registrable Securities sold in
a public offering, whether sold pursuant to Rule 144 promulgated under the
Securities Act, or in a registered offering, or otherwise.
(c) Registrable Securities Then
Outstanding. The number of shares of "Registrable Securities then outstanding"
shall mean the number of shares of Common Stock which are Registrable Securities
and (1) are then issued and outstanding or (2) are then issuable pursuant to an
exercise of the Warrant.
(d) Holder. For purposes of this Section
2, the term "Holder" means any person owning of record Registrable Securities
that have not been sold to the public or pursuant to Rule 144 promulgated under
the Securities Act or any permitted assignee of record of such Registrable
Securities to whom rights under this Section 2 have been duly assigned in
accordance with this Agreement.
(e) Form S-3. The term "Form S-3" means
such form under the Securities Act as is in effect on the date hereof or any
successor registration form under the Securities Act subsequently adopted by the
SEC which permits inclusion or incorporation of substantial information by
reference to other documents filed by the Company with the SEC.
(f) SEC. The term "SEC" or "Commission"
means the U.S. Securities and Exchange Commission.
2.2 Demand Registration.
(a) Request by Holders. If the Company
shall receive at any time subsequent to the third anniversary of the date of
this Agreement, a written request from the Holders of at least a majority of
the Registrable Securities then outstanding that the Company file a
<PAGE> 4
SCHEDULE 13D Page 32 of __
registration statement under the Securities Act covering the registration of
Registrable Securities pursuant to this Section 2.2, then the Company shall,
within ten (10) business days of the receipt of such written request, give
written notice of such request ("Request Notice") to all Holders, and use its
best efforts to effect, as soon as practicable, the registration under the
Securities Act of all Registrable Securities which Holders request to be
registered and included in such registration by written notice given such
Holders to the Company within twenty (20) days after receipt of the Request
Notice, subject only to the limitations of this Section 2.2; provided that the
Registrable Securities requested by all Holders to be registered pursuant to
such request must be at least twenty-five percent (25%) of all Registrable
Securities then outstanding; and provided further that the Company shall not be
obligated to effect any such registration if the Company has, within the (12)
month period preceding the date of such request, already effected a registration
under the Securities Act pursuant to this Section 2.2 or Section 2.4, or in
which the Holders had an opportunity to participate pursuant to the provisions
of Section 2.3, other than a registration from which the Registrable Securities
of Holders have been excluded (with respect to all or any portion of the
Registrable Securities the Holders requested be included in such registration)
pursuant to the provisions of Section 2.3(a).
(b) Underwriting. If the Holders
initiating the registration request under this Section 2.2 ("Initiating
Holders") intend to distribute the Registrable Securities covered by their
request by means of an underwriting, then they shall so advise the Company as a
part of their request made pursuant to this Section 2.2 and the Company shall
include such information in the written notice referred to in subsection 2.2(a).
In such event, the right of any Holder to include his Registrable Securities in
such registration shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall enter
into an underwriting agreement in customary form with the managing underwriter
or underwriters selected for such underwriting by the Holders of a majority of
the Registrable Securities being registered and reasonably acceptable to the
Company (including a market stand-off agreement of up to 180 days if required by
such underwriters). Notwithstanding any other provision of this Section 2.2, if
the underwriter(s) advise(s) the Company in writing that marketing factors
require a limitation of the number of securities to be underwritten then the
Company shall so advise all Holders of Registrable Securities which would
otherwise be registered and underwritten pursuant hereto, and the number of
Registrable Securities that may be included in the underwriting shall be reduced
as required by the underwriter(s) and allocated among the Holders of Registrable
Securities on a pro rata basis according to the number of Registrable Securities
then outstanding held by each Holder requesting registration (including the
Initiating Holders); provided, however, that the number of shares of Registrable
Securities to be included in such underwriting and registration shall not be
reduced unless all other securities of the Company are first entirely excluded
from the underwriting and registration. Any Registrable Securities excluded and
withdrawn from such underwriting shall be withdrawn from the registration.
(c) Maximum Number of Demand
Registrations. The Company is obligated to effect only three (3) such
registrations pursuant to this Section 2.2.
<PAGE> 5
SCHEDULE 13D Page 33 of __
(d) Deferral. Notwithstanding the
foregoing, if the Company shall furnish to Holders requesting the filing of a
registration statement pursuant to this Section 2.2, a certificate signed by the
President or Chief Executive Officer of the Company stating that in the good
faith judgment of the Board of Directors of the Company, it would be materially
detrimental to the Company and its shareholders for such registration statement
to be filed, then the Company shall have the right to defer such filing for a
period of not more than 90 days after receipt of the request of the Initiating
Holders; provided, however, that the Company may not utilize this right more
than once in any twelve (12) month period.
(e) Expenses. All expenses incurred in
connection with the first registration pursuant to this Section 2.2, including
without limitation all registration and qualification fees, printers' and
accounting fees, fees and disbursements of counsel for the Company, (but
excluding underwriters' discounts and commissions relating to shares sold by the
Holders), shall be borne by the Company. Each Holder participating in a
registration pursuant to this Section 2.2 shall bear such Holder's proportionate
share (based on the total number of shares sold in such registration other than
for the account of the Company) of all discounts, commissions or other amounts
payable to underwriters or brokers in connection with such offering.
Notwithstanding the foregoing, the Company shall not be required to pay for any
expenses of any registration proceeding begun pursuant to this Section 2.2 if
the registration request is subsequently withdrawn at the request of the Holders
of a majority of the Registrable Securities to be registered, unless the Holders
of a majority of the Registrable Securities then outstanding agree that such
registration constitutes the use by the Holders of one (1) demand registration
pursuant to this Section 2.2 (in which case such registration shall also
constitute the use by all Holders of Registrable Securities of one (1) such
demand registration); provided, further, however, that if at the time of such
withdrawal, the Holders have learned of a material adverse change in the
condition, business, or prospects of the Company not known to the Holders at the
time of their request for such registration and have withdrawn their request for
registration with reasonable promptness after learning of such material adverse
change, then the Holders shall not be required to pay any of such expenses and
shall retain their rights pursuant to this Section 2.2. The Company shall not be
required to pay for any expenses of any registration pursuant to this Section
2.2 after the Company has paid for one registration pursuant to this Section 2.2
(excluding any registration that is withdrawn after learning of such a material
adverse change).
2.3 Piggyback Registrations. The Company shall
notify all Holders of Registrable Securities in writing at least thirty (30)
days prior to filing any registration statement under the Securities Act for
purposes of effecting a public offering of securities of the Company (including,
but not limited to, registration statements relating to secondary offerings of
securities of the Company, but excluding registration statements relating to any
registration under Section 2.2 or Section 2.4 of this Agreement or to any
employee benefit plan or a corporate reorganization) and will afford each such
Holder an opportunity to include in such registration statement all or any part
of the Registrable Securities then held by such Holder. Each Holder desiring to
include in any such registration statement all or any part of the Registrable
Securities held by such Holder shall, within twenty (20)
<PAGE> 6
SCHEDULE 13D Page 34 of __
days after receipt of the above-described notice from the Company, so notify the
Company in writing, and in such notice shall inform the Company of the number of
Registrable Securities such Holder wishes to include in such registration
statement. If a Holder decides not to include all of its Registrable Securities
in any registration statement thereafter filed by the Company, such Holder shall
nevertheless continue to have the right to include any Registrable Securities in
any subsequent registration statement or registration statements as may be filed
by the Company with respect to offerings of its securities, all upon the terms
and conditions set forth herein.
(a) Underwriting. If a registration
statement under which the Company gives notice under this Section 2.3 is for an
underwritten offering, then the Company shall so advise the Holders of
Registrable Securities. In such event, the right of any such Holder's
Registrable Securities to be included in a registration pursuant to this Section
2.3 shall be conditioned upon such Holder's participation in such underwriting
and the inclusion of such Holder's Registrable Securities in the underwriting to
the extent provided herein. All Holders proposing to distribute their
Registrable Securities through such underwriting shall enter into an
underwriting agreement in customary form with the managing underwriter or
underwriters selected for such underwriting (including a market stand-off
agreement of up to 180 days if required by such underwriters). Notwithstanding
any other provision of this Agreement, if the managing underwriter determine(s)
in good faith that marketing factors require a limitation of the number of
shares to be underwritten, then the managing underwriter(s) may exclude shares
(including Registrable Securities) from the registration and the underwriting,
and the number of shares that may be included in the registration and the
underwriting shall be allocated, first, to the Company, and second, to each of
the Holders requesting inclusion of their Registrable Securities in such
registration statement on a pro rata basis based on the total number of
Registrable Securities then held by each such Holder provided, however, that the
right of the underwriters to exclude shares (including Registrable Securities)
from the registration and underwriting as described above shall be restricted so
that (i) the number of Registrable Securities included in any such registration
is not reduced below fifteen percent (15%) of the aggregate number of shares
covered by the registration; and (ii) all shares that are not Registrable
Securities and are held by any other person, including, without limitation, any
person who is an employee, officer or director of the Company (or any subsidiary
of the Company) shall first be excluded from such registration and underwriting
before any Registrable Securities are so excluded. If any Holder disapproves of
the terms of any such underwriting, such Holder may elect to withdraw therefrom
by written notice to the Company and the underwriter, delivered at least ten
(10) business days prior to the effective date of the registration statement.
Any Registrable Securities excluded or withdrawn from such underwriting shall be
excluded and withdrawn from the registration. For any Holder which is a
partnership or corporation, the partners, retired partners and shareholders of
such Holder, or the estates and family members of any such partners and retired
partners and any trusts for the benefit of any of the foregoing persons shall be
deemed to be a single "Holder", and any pro rata reduction with respect to such
"Holder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
"Holder," as defined in this sentence.
<PAGE> 7
SCHEDULE 13D Page 35 of __
(b) Expenses. All expenses incurred in
connection with a registration pursuant to this Section 2.3 (excluding
underwriters' and brokers' discounts and commissions relating to shares sold by
the Holders), including, without limitation all federal and "blue sky"
registration and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Company shall be borne by the Company.
2.4 Form S-3 Registration. In case the Company
shall receive from any Holder or Holders of a majority of all Registrable
Securities then outstanding a written request or requests that the Company
effect a registration on Form S-3 and any related qualification or compliance
with respect to all or a part of the Registrable Securities owned by such Holder
or Holders, then the Company will:
(a) Notice. Promptly give written
notice of the proposed registration and the Holder's or Holders' request
therefor, and any related qualification or compliance, to all other Holders of
Registrable Securities; and
(b) Registration. As soon as
practicable, effect such registration and all such qualifications and
compliances as may be so requested and as would permit or facilitate the sale
and distribution of all or such portion of such Holder's or Holders' Registrable
Securities as are specified in such request, together with all or such portion
of the Registrable Securities of any other Holder or Holders joining in such
request as are specified in a written request given within twenty (20) days
after the Company provides the notice contemplated by Section 2.4(a); provided,
however, that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section 2.4:
(1) if Form S-3 is not available for such
offering by the Holders;
(2) if the Holders, together with the
holders of any other securities of the Company entitled to inclusion in such
registration, propose to sell Registrable Securities and such other securities
(if any) at an aggregate price to the public of less than $2,000,000;
(3) if the Company shall furnish to the
Holders a certificate signed by the President or Chief Executive Officer of the
Company stating that in the good faith judgment of the Board of Directors of the
Company, it would be materially detrimental to the Company and its shareholders
for such Form S-3 Registration to be effected at such time, in which
<PAGE> 8
SCHEDULE 13D Page 36 of __
event the Company shall have the right to defer the filing of the Form S-3
registration statement no more than once during any twelve month period for a
period of not more than 60 days after receipt of the request of the Holder or
Holders under this Section 2.4;
(4) if the Company has, within the twelve
(12) month period preceding the date of such request, already effected a
registration under the Securities Act other than a registration from which the
Registrable Securities of Holders have been excluded (with respect to all or any
portion of the Registrable Securities the Holders requested be included in such
registration) pursuant to the provisions of Section 2.3(a); or
(5) in any particular jurisdiction in
which the Company would be required to qualify to do business or to execute a
general consent to service of process in effecting such registration,
qualification or compliance.
(c) Expenses. The Company shall pay all
expenses incurred in connection with each registration requested pursuant to
this Section 2.4, (excluding underwriters' or brokers' discounts and commissions
relating to shares sold by the Holders), including without limitation all
filing, registration and qualification, printers' and accounting fees.
(d) Not Demand Registration. Form S-3
registrations shall not be deemed to be demand registrations as described in
Section 2.2 above. Except as otherwise provided herein, there shall be no limit
on the number of times the Holders may request registration of Registrable
Securities under this Section 2.4.
2.5 Obligations of the Company. Whenever required
to effect the registration of any Registrable Securities under this Agreement,
the Company shall, as expeditiously as reasonably possible:
(a) Registration Statement. Prepare and
file with the SEC a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration statement to
become effective, provided, however, that the Company shall not be required to
keep any such registration statement effective for more than sixty (60) days.
<PAGE> 9
SCHEDULE 13D Page 37 of __
(b) Amendments and Supplements. Prepare
and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration statement
as may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement.
(c) Prospectus. Furnish to the Holders
such number of copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other documents
as they may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by them that are included in such registration.
(d) Blue Sky. Use its best efforts to
register and qualify the securities covered by such registration statement under
such other securities or Blue Sky laws of such jurisdictions as shall be
reasonably requested by the Holders, provided that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such states
or jurisdictions.
(e) Underwriting. In the event of any
underwritten public offering, enter into and perform its obligations under an
underwriting agreement, in usual and customary form, with the managing
underwriter(s) of such offering. Each Holder participating in such underwriting
shall also enter into and perform its obligations under such an agreement.
(f) Notification. Notify each Holder of
Registrable Securities covered by such registration statement at any time when a
prospectus relating thereto is required to be delivered under the Securities Act
of the happening of any event as a result of which the prospectus included in
such registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances then existing.
(g) Opinion and Comfort Letter. Furnish,
at the request of any Holder requesting registration of Registrable Securities,
on the date that such Registrable Securities are delivered to the underwriters
for sale, if such securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the date that the
registration statement with respect to such securities becomes effective, (i) an
opinion, dated as of such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering and reasonably satisfactory to a
majority in interest of the Holders requesting registration, addressed to the
underwriters, if any, and to the Holders requesting registration of Registrable
Securities and (ii) a "comfort" letter dated as of such date, from the
independent certified public accountants of the
<PAGE> 10
SCHEDULE 13D Page 38 of __
Company, in form and substance aarily given by independent certified public
accountants to underwriters in an underwritten public offering and reasonably
satisfactory to a majority in interest of the Holders requesting registration,
addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities.
2.6 Furnish Information. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to
Sections 2.2, 2.3 or 2.4 that the selling Holders shall furnish to the Company
such information regarding themselves, the Registrable Securities held by them,
and the intended method of disposition of such securities as shall be required
to timely effect the registration of their Registrable Securities.
2.7 Indemnification. In the event any Registrable
Securities are included in a registration statement under Sections 2.2, 2.3 or
2.4:
(a) By the Company. To the extent
permitted by law, the Company will indemnify and hold harmless each Holder, the
partners, officers and directors of each Holder, any underwriter (as defined in
the Securities Act) for such Holder and each person, if any, who controls such
Holder or underwriter within the meaning of the Securities Act or the Securities
Exchange Act of 1934, as amended, (the "1934 Act"), against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the Securities Act, the l934 Act or other federal or state law, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"):
(i) any untrue statement or alleged untrue statement
of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto;
(ii) the omission or alleged omission to state
therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company
of the Securities Act, the 1934 Act, any federal or state
securities law or any rule or regulation promulgated under
the Securities Act, the 1934 Act or any federal or
<PAGE> 11
SCHEDULE 13D Page 39 of __
state securities law in connection with the offering
covered by such registration statement;
and the Company will reimburse each such Holder, partner,
officer or director, underwriter or controlling person for any legal or other
expenses reasonably incurred by them, as incurred, in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided however, that the indemnity agreement contained in this subsection
2.7(a) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability
or action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by such Holder, partner,
officer, director, underwriter or controlling person of such Holder.
(b) By Selling Holders. To the extent
permitted by law, each selling Holder will indemnify and hold harmless the
Company, each of its directors, each of its officers who have signed the
registration statement, each person, if any, who controls the Company within the
meaning of the Securities Act, any underwriter and any other Holder selling
securities under such registration statement or any of such other Holder's
partners, directors or officers or any person who controls such Holder within
the meaning of the Securities Act or the 1934 Act, against any losses, claims,
damages or liabilities (joint or several) to which the Company or any such
director, officer, controlling person, underwriter or other such Holder, partner
or director, officer or controlling person of such other Holder may become
subject under the Securities Act, the 1934 Act or other federal or state law,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereto) arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon and
in conformity with written information furnished by such Holder expressly for
use in connection with such registration; and each such Holder will reimburse
any legal or other expenses reasonably incurred by the Company or any such
director, officer, controlling person, underwriter or other Holder, partner,
officer, director or controlling person of such other Holder in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this subsection
2.7(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Holder, which consent shall not be unreasonably withheld; and provided
further, that the total amounts payable in indemnity by a Holder under this
Section 2.7(b) in respect of any Violation shall not exceed the net proceeds
received by such Holder in the registered offering out of which such Violation
arises.
(c) Notice. Promptly after receipt by an
indemnified party under this Section 2.7 of notice of the commencement of any
action (including any governmental action), such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under this
Section 2.7, deliver to the indemnifying party a written notice of the
commencement
<PAGE> 12
SCHEDULE 13D Page 40 of __
thereof and the indemnifying party shall have the right to participate in, and,
to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that an indemnified
party shall have the right to retain its own counsel, with the fees and expenses
to be paid by the indemnifying party, if representation of such indemnified
party by the counsel retained by the indemnifying party would be inappropriate
due to actual or potential conflict of interests between such indemnified party
and any other party represented by such counsel in such proceeding. The failure
to deliver written notice to the indemnifying party within a reasonable time of
the commencement of any such action shall relieve such indemnifying party of
liability to the indemnified party under this Section 2.7 to the extent the
indemnifying party is prejudiced as a result thereof, but the omission so to
deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section 2.7.
(d) Defect Eliminated in Final Prospectus.
The foregoing indemnity agreements of the Company and Holders are subject to the
condition that, insofar as they relate to any Violation made in a preliminary
prospectus but eliminated or remedied in the amended prospectus on file with the
SEC at the time the registration statement in question becomes effective or the
amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the "Final
Prospectus), such indemnity agreement shall not inure to the benefit of any
person if a copy of the Final Prospectus was timely furnished to the indemnified
party and was not furnished to the person asserting the loss, liability, claim
or damage at or prior to the time such action is required by the Securities Act.
(e) Contribution. In order to provide for
just and equitable contribution to joint liability under the Securities Act in
any case in which either (i) any Holder exercising rights under this Agreement,
or any controlling person of any such Holder, makes a claim for indemnification
pursuant to this Section 2.7 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 2.7 provides for indemnification in such case, or (ii) contribution
under the Securities Act may be required on the part of any such selling Holder
or any such controlling person in circumstances for which indemnification is
provided under this Section 2.7; then, and in each such case, the Company and
such Holder will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others) in
such proportion so that such Holder is responsible for the portion represented
by the percentage that the public offering price of its Registrable Securities
offered by and sold under the registration statement bears to the public
offering price of all securities offered by and sold under such registration
statement, and the Company and other selling Holders are responsible for the
remaining portion; provided, however, that, in any such case, (A) no such Holder
will be required to contribute any amount in excess of the public offering price
of all such Registrable Securities offered and sold by such Holder pursuant to
such registration statement; and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person or entity who was not guilty of
such fraudulent misrepresentation.
<PAGE> 13
SCHEDULE 13D Page 41 of __
(f) Survival. The obligations
of the Company and Holders under this Section 2.7 shall survive until the fifth
anniversary of the completion of any offering of Registrable Securities in a
registration statement, regardless of the expiration of any statutes of
limitation or extensions of such statutes.
2.8 Termination of the Company's
Obligations. The Company shall have no obligations pursuant to Sections 2.2
through 2.4 with respect to any Registrable Securities proposed to be sold by
a Holder in a registration pursuant to Section 2.2, 2.3 or 2.4 more than seven
(7) years after the date of this Agreement, or, if, in the opinion of counsel
to the Company, all such Registrable Securities proposed to be sold by a Holder
may then be sold under Rule 144 in one transaction without exceeding the
volume limitations thereunder.
3. RIGHT OF PARTICIPATION.
3.1 General. The Investor and any
Majority Owned Subsidiary of the Investor to which rights under this Section 3
have been duly assigned in accordance with Section 8.1 (the Investor and each
such assignee being hereinafter referred to as a "Participation Rights Holder")
has the right of first refusal to purchase such Participation Rights Holder's
Pro Rata Share (as defined below), of all (or any part) of any New Securities
(as defined in Section 3.3) that the Company may from time to time issue after
the date of this Agreement (the "Right of Participation"); provided, however,
that no Participation Rights Holder shall have the Right of Participation with
respect to any issuance of New Securities that would result in less than a ten
percent (10%) reduction in such Participation Rights Holder's Pro Rata Share.
3.2 Pro Rata Share. A Participation
Rights Holder's "Pro Rata Share" for purposes of the Right of Participation is
the ratio of (a) the number of Registrable Securities held by such Participation
Rights Holder, to (b) the difference between (i) the total number of shares of
Common Stock of the Company (and other voting securities of the Company, if any)
then outstanding (immediately prior to the issuance of New Securities giving
rise to the Right of Participation), and (ii) the number of Dilutive Securities
(defined below) issued since the last Notice Date (defined below) excluding any
Maintenance Securities (defined below) issued pursuant to the last Maintenance
Notice.
3.3 New Securities. "New Securities"
shall mean any Common Stock, Preferred Stock or other voting capital stock of
the Company, whether now authorized or not, and rights, options or warrants to
purchase such Common Stock or Preferred Stock, and securities of any type
whatsoever that are, or may become, convertible or exchangeable into such Common
Stock,
<PAGE> 14
SCHEDULE 13D Page 42 of __
Preferred Stock or other capital stock; provided, however, that the term "New
Securities" does not include:
(a) any shares of the Company's Common Stock (and/or
options or warrants therefor) issued to employees,
officers, directors, contractors, advisors or
consultants of the Company pursuant to incentive
agreements or incentive plans approved by the Board of
Directors of the Company;
(b) any shares of Common Stock issued under the Purchase
Agreement, as such agreement may be amended;
(c) the Warrant or any shares of Common Stock issued upon
any exercise thereof;
(d) any securities issued in connection with any stock
split, stock dividend or other similar event in which
all Participation Rights Holders are entitled to
participate on a pro rata basis;
(e) any securities issued upon the exercise, conversion or
exchange of any outstanding security if such
outstanding security constituted a New Security; or
(f) any securities issued pursuant to the acquisition of
another corporation or entity by the Company by
consolidation, merger, purchase of assets, or other
reorganization in which the Company acquires, in a
single transaction or series of related transactions,
assets of such other corporation or entity or fifty
percent (50%) or more of the voting power of such other
corporation or entity or fifty percent (50%) or more of
the equity ownership of such other entity.
3.4 Procedures. In the event that the
Company proposes to undertake an issuance of New Securities (in a single
transaction or a series of related transactions) that would result in a ten
percent (10%) or greater reduction in the Pro Rata Share of each Participation
Rights Holder, it shall give to each Participation Rights Holder written notice
of its intention to issue New Securities (the "Participation Notice"),
describing the amount and the type of New Securities and the price and the
general terms upon which the Company proposes to issue such New Securities. Each
Participation Rights Holder shall have ten (10) business days from the date of
receipt of any such
<PAGE> 15
SCHEDULE 13D Page 43 of __
Participation Notice to agree in writing to purchase such Participation Rights
Holder's Pro Rata Share of such New Securities for the price and upon the terms
and conditions specified in the Participation Notice by giving written notice to
the Company and stating therein the quantity of New Securities to be purchased
(not to exceed such Participation Rights Holder's Pro Rata Share). If any
Participation Rights Holder fails to so agree in writing within such ten (10)
business day period to purchase such Participation Rights Holder's full Pro Rata
Share of an offering of New Securities, then such Participation Rights Holder
shall forfeit the right hereunder to purchase that part of its Pro Rata Share of
such New Securities that it did not so agree to purchase. Such Participation
Rights Holder shall purchase the portion elected by such Participation Rights
Holder concurrently with the closing of the transaction triggering the Right of
Participation.
3.5 Failure to Exercise. Upon the
expiration of such ten (10) day period, the Company shall have 120 days
thereafter to sell the New Securities described in the Participation Notice
(with respect to which the Participation Rights Holders' rights of first refusal
hereunder were not exercised) at the same or higher price and upon non-price
terms not materially more favorable to the purchasers thereof than specified in
the Participation Notice. In the event that the Company has not issued and sold
such New Securities within such 120 day period, then the Company shall not
thereafter issue or sell any New Securities without again first offering such
New Securities to the Participation Rights Holders pursuant to this Section 3.
3.6 Termination. The Right of
Participation shall terminate upon the earliest to occur of (i) the expiration
of or any termination of the Technology Agreement in accordance with its terms
for any reason (except for a termination by Intel Corporation due to the uncured
breach by the Company of one of its material obligations thereunder), (ii)
immediately prior to any Corporate Event (as defined in Section 5.1), or (iii)
the first date that the Investor holds less than 894,971 shares of Common Stock
of the Company (such number to be proportionately adjusted for stock splits,
stock dividends and similar events).
4. RIGHT OF MAINTENANCE.
4.1 General. Each Participation Rights
Holder will, pursuant to the terms and conditions of this Section 4, have the
right to purchase shares of Common Stock, voting Preferred Stock or other voting
capital stock ("Maintenance Securities") from the Company at the Purchase Price
(as defined in Section 4.3) following the issuance by the Company of Dilutive
Securities (as defined in Section 4.2) that the Company may from time to time
issue after the date of this Agreement, solely in order to maintain such
Participation Rights Holder's Prior Percentage Interest (as defined in Section
4.4) in the Company (the "Right of Maintenance"). Each right to purchase
Maintenance Securities pursuant to this Section 4 shall be on the same terms
(other than price to the extent provided in Section 4.3 below) as the issuance
of the Diluting Securities which gave rise to the right to purchase such
Maintenance Securities.
<PAGE> 16
SCHEDULE 13D Page 44 of
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4.2 Dilutive Securities. "Dilutive Securities"
shall mean any Common Stock, voting Preferred Stock or other voting capital
stock of the Company, whether now authorized or not; provided, however, that
the term "Dilutive Securities" does not include:
(a) any securities other than Common Stock,
voting Preferred Stock or other voting capital stock (e.g.
warrants or options to purchase Common Stock, Preferred
Stock or other capital stock);
(b) any shares of Common Stock issued under the
Purchase Agreement, as such agreement may be amended;
(c) the Warrant or any shares of Common Stock
issuable upon any exercise thereof;
(d) any securities issued in connection with any
stock split, stock dividend or similar event in which all
Participation Rights Holders are entitled to participate
on a pro rata basis;
(e) any securities for which the issuance gave
rise to the Right of Participation (regardless of whether
any such right was exercised); or
(f) any securities issuable upon the exercise,
conversion or exchange of any securities described in (d)
or (e) above.
4.3 Purchase Price.
(a) Employee Stock. To the extent that
the right to purchase Maintenance Securities arises out of the issuance of
Dilutive Securities to employees, officers, directors, contractors, advisors or
consultants of the Company pursuant to incentive agreements or incentive plans
approved by the Board of Directors of the Company ("Employee Stock"), the per
share
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"Purchase Price" of the Maintenance Securities shall equal the average
Market Price (as defined below) of such Maintenance Securities over the thirty
(30) trading days immediately preceding the date on which the Participation
Rights Holder elects to purchase such Maintenance Securities.
(b) Other Dilutive Securities. To the extent that
the right to purchase Maintenance Securities arises out of any issuance of
Dilutive Securities other than Employee Stock, the per share "Purchase Price" of
the Maintenance Securities shall equal the greater of (i) the per share price at
which such Dilutive Securities were issued, and (ii) 75% of the average of the
Market Price (as defined below) of such Maintenance Securities over the thirty
(30) trading days immediately preceding the date on which the Participation
Rights Holder elects to purchase such Maintenance Securities, unless the
issuance of such other Dilutive Securities occurred upon the exercise,
conversion or exchange of other securities ("Exchangeable Securities"), in which
case, the per share "Purchase Price" of the Maintenance Securities shall equal
the greater of (i) the sum of (A) the per share amount paid upon such exercise,
conversion or exchange, and (B) the per share amount previously paid for the
Exchangeable Securities (adjusted for any stock splits, stock dividends or other
similar events), and (ii) 75% of the average Market Price of such Maintenance
Securities over the thirty (30) trading days immediately preceding the date on
which the Participation Rights Holder elects to purchase such Maintenance
Securities.
(c) Market Price. For purposes of this Section 4.3,
"Market Price" means as to any Maintenance Securities on a given day the average
of the closing prices of such security's sales on all domestic securities
exchanges on which such security may at the time be listed, or, if there have
been no sales on any such exchange on such day, the average of the highest bid
and lowest asked prices on all such exchanges at the end of such day, or, if on
any day such security is not so listed, the average of the representative bid
and asked prices quoted in the Nasdaq National Market as of 4:00 P.M., New York
time, on such day, or, if on any day such security is not quoted in the Nasdaq
National Market, the average of the highest bid and lowest asked prices on such
day in the domestic over-the-counter market as reported by the National
Quotation Bureau, Incorporated, or any similar successor organization. If at any
time the Maintenance Securities are not listed on any domestic securities
exchange or quoted in the Nasdaq National Market or the domestic
over-the-counter market ("Unlisted Securities"), the "Market Price" shall be the
fair value thereof determined jointly by the Company and the Holder.
(d) Consideration Other than Cash. In the event that
Dilutive Securities or Exchangeable Securities were issued for consideration
other than cash, the per share amounts paid for such Dilutive Securities or
Exchangeable Securities shall be determined jointly by the Company and the
Participation Rights Holder.
(e) Appraiser. If the Company and the Participation
Rights Holder are unable to reach agreement within a reasonable period of time
with respect to (i) the Market Price
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of Unlisted Securities, or (ii) the per share amounts paid for Dilutive
Securities or Exchangeable Securities issued for consideration other than cash,
such Market Price or per share amounts paid, as the case may be, shall be
determined by an appraiser jointly selected by the Company and the Participation
Rights Holder. The determination of such appraiser shall be final and binding on
the Company and the Participation Rights Holder. The fees and expenses of such
appraiser shall be paid for by the Company, provided that such fees and expenses
shall be paid for by the Participation Rights Holder in the event that the
appraiser's determination of the Market Price or the per share amounts paid, as
the case may be, is higher than, or no more than 5% lower than, the last amount
previously offered by the Company.
4.4 Prior Percentage Interest. A Participation
Rights Holder's "Prior Percentage Interest" for purposes of the Right of
Maintenance is the ratio of (a) the number of Registrable Securities held by
such Participation Rights Holder as of the date of such Maintenance Notice (as
defined in Section 4.6) (the "Notice Date"), to (b) the difference between (i)
the total number of shares of Common Stock of the Company (and other voting
securities of the Company, if any) outstanding on the Notice Date, and (ii) the
total number of Dilutive Securities issued since the later of the date of this
Agreement or the last Notice Date excluding any Maintenance Securities (defined
below) issued pursuant to the last Maintenance Notice.
4.5 Maintenance Amount. A Participation Rights
Holder's "Maintenance Amount" with respect to any Maintenance Notice shall equal
such number of Maintenance Securities as is obtained by multiplying the number
of Dilutive Securities specified in such Maintenance Notice by such
Participation Rights Holder's Prior Percentage Interest, rounded to the nearest
whole share.
4.6 Notice of Issuance. Within fifteen (15)
business days of each anniversary of this Agreement, and within fifteen (15)
business days of each issuance of Dilutive Securities which when cumulated with
all prior issuances of Dilutive Securities since the later of (i) the date of
this Agreement, or (ii) the date of the last Notice Date (subsequent to which
the Participation Rights Holder has had an opportunity to purchase Maintenance
Securities), results in a five percent (5%) reduction in a Participation Rights
Holders' Prior Percentage Interest, the Company shall give to each Participation
Rights Holder written notice (the "Maintenance Notice") describing the number of
Dilutive Securities issued since such prior Notice Date and the non-price terms
upon which the Company issued such Dilutive Securities, and the Maintenance
Amount of Maintenance Securities that such Participation Rights Holder is
entitled to purchase as a result of such issuances.
4.7 Purchase of Maintenance Securities. Each
Participation Rights Holder shall have twenty (20) days from the receipt of a
Maintenance Notice to elect to purchase up to such Participation Rights Holder's
Maintenance Amount of such Maintenance Securities at the Purchase Price as
defined in Section 4.3 and upon the terms and conditions specified in the
Maintenance Notice. The closing of such purchase shall occur within ten (10)
days after such election
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to purchase. If any Participation Rights Holder fails to elect to purchase such
Participation Rights Holder's full Maintenance Amount of Maintenance Securities
within such twenty (20) day period, then such Participation Rights Holder shall
forfeit the right hereunder to purchase that part of its Maintenance Amount that
it did not so elect to purchase.
4.8 Termination. The Right of Maintenance shall
terminate upon the termination of the Right of Participation.
5. RIGHTS IN CORPORATE EVENTS.
5.1 Corporate Event. A "Corporate Event" shall mean
any of the following, whether accomplished through one or a series of related
transactions (a) the acquisition of all or substantially all the assets of the
Company, (b) the acquisition of all or substantially all of the Company's
desktop personal computer and server BIOS technology, or (c) an acquisition of
the Company by another corporation or entity by consolidation, merger, share
purchase or exchange (other than pursuant to a "hostile" tender offer), or other
reorganization in which the holders of the Company's outstanding voting stock
immediately prior to such transaction own, immediately after such transaction,
securities representing less than fifty percent (50%) or more of the voting
power of the corporation or other entity surviving such transaction.
5.2 Unsolicited Offer/Solicited Offer. An
"Unsolicited Offer" means (a) any offer for a proposed Corporate Event received
from a third party in the absence of any act taken by any officer or director of
the Company with the intent of soliciting such offer, and (b) any proposal or
offer by the Company to such third party or from such third party for a proposed
Corporate Event arising from negotiations that followed the receipt of an offer
described in 5.2(a). Any offer for a proposed Corporate Event that is not an
Unsolicited Offer shall be deemed a Solicited Offer.
5.3 Solicitation of Offers for Corporate Event.
(a) Solicitation Notice. The Company agrees
that prior to soliciting any offers (other than an offer described in Section
5.2(b) above) for a proposed Corporate Event (a "Proposed Event"), the Company
will provide the Investor with written notice of such intent to solicit offers
(a "Solicitation Notice"), specifying the terms and conditions of the Proposed
Event, including the proposed selling price for the Company or the Assets (the
"Proposed Selling Price"), the proposed structure of the transaction, a list of
the persons from whom the Company in good faith
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SCHEDULE 13D Page 48 of
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intends to solicit such offers, when the Proposed Event involves an acquisition
of assets, a description of the assets to be sold (the "Assets"), and the other
material terms and conditions of the Proposed Event.
(b) Additional Parties Notice. The Company
agrees that prior to soliciting any offers (other than an offer described in
Section 5.2(b) above) for the consummation of the Proposed Event described in
the Solicitation Notice from any parties that were not listed in the
Solicitation Notice ("Additional Parties"), the Company will provide the
Investor with written notice of such intent to solicit such offers from such
Additional Parties (the "Additional Parties Notice").
(c) Different Terms and Conditions. In the
event that the Company proposes to accept a Solicited Offer for the consummation
of a Proposed Event on non-price terms and conditions which are not
substantially the same as the terms and conditions specified in the last
Solicitation Notice, then, regardless of whether the proposed price is above or
below 90% of the Proposed Selling Price in the last Solicitation Notice, the
Company agrees to provide the Investor with a new Solicitation Notice pursuant
to Section 5.3(a).
(d) Solicited Offer Rights. The Investor
shall have fifteen (15) business days from the date of receipt of the first
Solicitation Notice, seven (7) business days from the date of receipt of any
subsequent Solicitation Notice pursuant to Section 5.3(c), or five (5) business
days from the date of receipt of any Additional Parties Notice pursuant to
Section 5.3(b), to deliver written notice to the Company agreeing in writing to
purchase (for cash or publicly traded stock) the Company or the Assets, as the
case may be, at the Proposed Selling Price and on substantially the same terms
and conditions specified in the last Solicitation Notice, which agreement shall
call for the closing of such purchase within 120 days from the date of delivery
of such notice to the Company (such 120 day period subject to extensions for
regulatory compliance). The Company agrees that it will not unreasonably refuse
a request by the Investor to extend any such seven (7) business day period by up
to three (3) additional business days. If the Investor fails to so agree in
writing within such fifteen (15) business day period, seven (7) business day
period (subject to the above mentioned extension), or such five (5) business day
period, as the case may be, then, for a period of six (6) months thereafter, the
Company shall have the right to (i) solicit offers from any party listed in the
last Solicitation Notice or any Additional Parties Notice, both directly and
indirectly through its investment advisors, for the consummation of the Proposed
Event, and (ii) enter into a binding agreement with any party listed in the last
Solicitation Notice or any Additional Parties Notice substantially on the same
terms and conditions as those described in the last Solicitation Notice, which
agreement calls for the completion of the Corporate Event within six (6) months
of the date of such agreement (such six month period subject to extensions for
regulatory compliance), provided that the selling price for the Company or the
Assets, as the case may be, is 90% of, or greater than, the Proposed Selling
Price specified in the last Solicitation Notice.
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(e) Lower Price Notice. In the event that
the Company proposes to accept a solicited offer (a "Lower Offer") for the
consummation of the Proposed Event described in the last Solicitation Notice at
a purchase price for the Company or the Assets, as the case may be, that is less
than 90% of the Proposed Selling Price, but which is on terms and conditions
that are substantially the same as those described in the last Solicitation
Notice, then the Company will provide the Investor with written notice of such
intention to accept such Lower Offer (the "Lower Price Notice"). The Investor
shall have five (5) business days from the date of receipt of any such Lower
Price Notice to deliver written notice to the Company agreeing in writing to
consummate the purchase of the Company or the Assets, as the case may be, at the
purchase price specified in the Lower Price Notice and on substantially the same
terms and conditions specified in the Solicitation Notice or the Lower Price
Notice, which agreement shall call for the closing of such purchase within 120
days from the date of delivery of such notice to the Company (such 120 day
period subject to extensions for regulatory compliance). If the Investor fails
to so agree in writing within such five (5) business day period, then, for a
period of 120 days thereafter, the Company shall have the right to accept any
offer substantially on the same terms and conditions as those described in the
Solicitation Notice, provided that the selling price for the Company or the
Assets, as the case may be, is equal to or greater than the purchase price
specified in the Lower Price Notice.
5.4 Unsolicited Offers for Corporate Event. If the
Company receives an Unsolicited Offer from a third party for a proposed
Corporate Event (an "Offered Event"), the Company agrees that it will provide
the Investor with detailed written notice of the Offered Event specifying the
terms and conditions of the Offered Event including the name of such third
party, the proposed purchase price for the Company or the Offered Assets (the
"Offered Purchase Price"), the proposed structure of the Offered Event, when the
Offered Event involves an acquisition of assets, a description of the assets to
be sold (the "Offered Assets"), and the other material terms and conditions of
the Offered Event. If the Company proposes to accept the Offered Event or
recommend that its stockholders approve the Offered Event, the Company agrees
that it will provide the Investor with written notice of its intention, and the
Investor shall have seven (7) business days following the receipt of such notice
to offer to enter into the proposed Corporate Event on substantially the same
terms and conditions of the Offered Event but at a purchase price that is equal
to or greater than 115% of the Offered Purchase Price (an "Investor Offer"). The
Company agrees that it will not unreasonably refuse a request by the Investor to
extend any such seven (7) business day period by up to three (3) additional
business days. If the Investor fails to make an Investor Offer in writing within
such seven (7) business day period (subject to the above mentioned extension),
then, for a period of 90 days thereafter, the Company shall have the right to
enter into a binding agreement with such third party on substantially the same
terms and conditions as the Offered Event which calls for the completion of the
Corporate Event within six (6) months of the date of such agreement (subject to
extensions for regulatory compliance), provided that the purchase price for the
Company or the Assets, as the case may be, is equal to or greater than the
Offered Purchase Price. If the Investor makes an Investor Offer in writing
within such seven (7) business day period (subject to the above mentioned
extension), then, the Company agrees that it will not solicit further proposals
for a Corporate Event (unless and until the Corporate Event represented by such
Investor Offer is abandoned), that it will accept such Investor
<PAGE> 22
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Offer, and that it will recommend that the Company's stockholders approve
acceptance of the Investor Offer.
5.5 Receipt of Offer to Acquire Securities. The
Company agrees that it will provide the Investor with detailed written notice of
any offer from a third party (i) to acquire 10% or more of the Company's
outstanding voting securities, or (ii) for a proposed Corporate Event, within
four (4) business days of the date the Company first becomes aware of such offer
or proposed Corporate Event.
5.6 Fiduciary Obligations. No action of the
Company (including the Board of Directors of the Company) shall be prohibited by
or be deemed a breach of this Section 5 if the Board of Directors of the Company
determines in good faith, upon the advice of outside legal counsel, that such
action would be required by reasons of the fiduciary duties of the Board of
Directors of the Company to the Company's stockholders under applicable law;
provided, however, that in the event that the Company takes an action pursuant
to this Section 5.6 that is otherwise inconsistent with the terms of the
remainder of this Section 5, and such action involves the solicitation of, or
the proposal by the Company to accept, an offer for a proposed Corporate Event,
the parties agree, notwithstanding any other provision herein, that such
proposed Corporate Event will be treated as an Offered Event pursuant to the
terms of Section 5.4.
5.7 Termination and Suspension of Rights. The
rights of the Investor under this Section 5 shall be suspended immediately prior
to the receipt by the Company from the Investor of any Unsolicited Offer for a
proposed Corporate Event and shall be reinstated upon abandonment of such
proposed Corporate Event by the Investor. The rights of the Investor under this
Section 5 shall terminate upon termination of the Right of Participation.
6. STANDSTILL AGREEMENT.
6.1 Standstill. The Investor hereby agrees that the
Investor shall neither acquire, nor enter into discussions, negotiations,
arrangements or understandings with any third party to acquire, beneficial
ownership (as defined in Rule 13d-3 promulgated under the Securities Exchange
Act of 1934, as amended) of any Voting Stock (as defined below), any securities
convertible into or exchangeable for Voting Stock, or any other right to acquire
Voting Stock (except, in any case, by way of stock dividends or other
distributions or offerings made available to holders of any Voting Stock
generally) without the written consent of the Company, if the effect of such
acquisition would be to increase the Voting Power (as defined below) of all
Voting Stock then beneficially owned (as defined above) by the Investor or which
it has a right to acquire to more than nineteen and nine-tenths percent (19.9%)
(the "Standstill Percentage") of the Total Voting Power (as defined below) of
the Company at the time in effect; provided that:
(a) The Investor may acquire Voting Stock
without regard to the foregoing limitation, and such limitation shall be
suspended, but not terminated, if and for so long
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as (i) a tender or exchange offer is made and is not withdrawn or terminated by
another person or group to purchase or exchange for cash or other consideration
any Voting Stock which, if accepted or if otherwise successful, would result in
such person or group beneficially owning or having the right to acquire shares
of Voting Stock with aggregate Voting Power of more than ten percent (10%) of
the Total Voting Power of the Company then in effect and such offer is not
withdrawn or terminated prior to the Investor making an offer to acquire Voting
Stock or acquiring Voting Stock, or (ii) another person or group hereafter
acquires Voting Stock which results in such person or group beneficially owning
or having the right to acquire Voting Stock with aggregate Voting Power of more
than ten percent (10%) of the Total Voting Power of the Company then in effect
and such person or group would be required to file a Schedule 13D (under the
rules promulgated under Section 13(d) under the Securities and Exchange Act of
1934, as such rules and section are in effect on the date hereof) indicating
pursuant to Item 4 of such Schedule 13D that the purpose of such acquisition is
other than for mere investment; provided, however, that the foregoing standstill
limitation will be reinstated, in the case of (i) above, once any such tender or
exchange offer is withdrawn or terminated, or, in the case of (ii) above, once
the percentage of the Total Voting Power beneficially owned by such other person
or group falls below ten percent (10%).
(b) The Investor will not be obliged to dispose of
any Voting Stock if the aggregate percentage of the Total Voting Power of the
Company represented by Voting Stock beneficially owned by the Investor or which
the Investor has a right to acquire is increased beyond the Standstill
Percentage (i) as a result of a recapitalization of the Company or a repurchase
or exchange of securities by the Company or any other action taken by the
Company or its affiliates, (ii) as the result of acquisitions of Voting Stock
made during the period when the Investor's "standstill" obligations are
suspended pursuant to Section 6.1(a), (iii) as a result of an equity index
transaction, provided that Investor shall not vote such shares; (iv) by way of
stock dividends or other distributions or rights or offerings made available to
holders of shares of Voting Stock generally; (v) with the consent of a simple
majority of the authorized members of the Company's Board of Directors; or (vi)
as part of a transaction on behalf of Investor's Defined Benefit Pension Plan,
Profit Sharing Retirement Plan, 401(k) Savings Plan, Sheltered Employee
Retirement Plan and Sheltered Employee Retirement Plan Plus, or any successor or
additional retirement plans thereto (collectively, the "Retirement Plans") where
the Company's shares in such Retirement Plans are voted by a trustee for the
benefit of Investor employees or, for those Retirement Plans where Investor
controls voting, where Investor agrees not to vote any shares of such Retirement
Plan Voting Stock that would cause Investor to exceed the Standstill Percentage.
(c) As used in this Section 6, (i) the term "Voting
Stock" means the Common Stock and any other securities issued by the Company
having the ordinary power to vote in the election of directors of the Company
(other than securities having such power only upon the happening of a
contingency that has not occurred), (ii) the term "Voting Power" of any Voting
Stock means the number of votes such Voting Stock is entitled to cast for
directors of the Company at any meeting of shareholders of the Company, and
(iii) the term "Total Voting Power" means the total number of votes which may be
cast in the election of directors of the Company at any meeting of shareholders
of the Company if all Voting Stock was represented and voted to the fullest
extent possible at such meeting, other than votes that may be cast only upon the
happening of a contingency that has not occurred. For purposes of this Section
6, the Investor shall not be deemed to have beneficial ownership of any Voting
Stock held by a pension plan or other
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employee benefit program of the Investor if the Investor does not have the power
to control the investment decisions of such plan or program.
6.2 Termination of Standstill. The provisions of Section
6.1 shall terminate on the second anniversary of the date of this Agreement.
7. VOTING AGREEMENT.
7.1 Proportional Voting. Whenever the Investor directly or
indirectly owns (of record or beneficially) Voting Stock which constitutes ten
percent (10%) or more of the Total Voting Power of the Company, the Investor
agrees to vote all Registrable Securities of the Company then owned directly or
indirectly by the Investor, that consist of Voting Stock, in the same proportion
as the votes cast by all other holders of the Company's Voting Stock, except on
matters that the Investor, in its reasonable discretion, deems could potentially
be materially adverse to the Investor's interests.
7.2 No Dissent. The Investor hereby agrees that it will not
exercise dissenter's or appraisal rights or otherwise dissent or seek appraisal
rights with respect to any Corporate Event or any other merger or acquisition
involving the Company (e.g. an acquisition by the Company of a third party),
provided that, in the event that the provisions of Section 5 hereof have not
been terminated, the provisions of this Section 7.2 shall only apply with
respect to such a Corporate Event if the Company has complied with the
applicable provisions of Section 5 with respect to such Corporate Event.
7.3 Successors in Interest. The Investor agrees to ensure
that its successors in interest as to any Registrable Securities will be bound
by the provisions of Sections 7.1 and 7.2 so long as they respectively survive,
except to the extent such securities are sold in a public offering, whether
pursuant to Rule 144, a registered offering or otherwise.
7.4 Survival. The provisions of Section 7.1 shall terminate
on the fifth anniversary of the Closing (as defined in the Purchase Agreement).
The provisions of Section 7.2 shall terminate upon the later of (i) the fifth
anniversary of the Closing, or (ii) the date of expiration or termination of the
Technology Agreement.
8. ASSIGNMENT AND AMENDMENT.
8.1 Assignment. Notwithstanding anything herein to the
contrary:
(a) Information Rights. The rights of the Investor
under Section 1.1 are transferable only to a subsidiary of which the Investor
beneficially owns, either directly or indirectly, at least 50% of the voting
securities (a "Majority Owned Subsidiary"). The rights of the Investor under
Section 1.2 may not be assigned.
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(b) Registration Rights. The registration rights
of the Investor under Section 2 hereof may be assigned only to a party who
acquires at least 214,793 shares of Registrable Securities; provided, however
that no party may be assigned any of the foregoing rights unless the Company is
given written notice by the assigning party at the time of such assignment
stating the name and address of the assignee and identifying the securities of
the Company as to which the rights in question are being assigned; and provided
further that any such assignee shall receive such assigned rights subject to all
the terms and conditions of this Agreement, including without limitation the
provisions of this Section 8.
(c) Rights of Participation and Maintenance. The
rights of the Investor under Sections 3 and Section 4 hereof may be assigned
only to a Majority Owned Subsidiary; provided, however that no party may be
assigned any of the foregoing rights unless the Company is given written notice
by the Investor at the time of such assignment stating the name and address of
the assignee and identifying the securities of the Company as to which the
rights in question are being assigned; and provided further that any such
assignee shall receive such assigned rights subject to all the terms and
conditions of this Agreement.
(d) Rights On Corporate Events. The rights of the
Investor under Section 5 hereof may be assigned only in whole, and not in part,
and only to a Majority Owned Subsidiary; provided, however that no party may be
assigned any of the foregoing rights unless the Company is given written notice
by the Investor at the time of such assignment stating the name and address of
the assignee; and provided further that any such assignee shall receive such
assigned rights subject to all the terms and conditions of this Agreement.
8.2 Amendment of Rights. Any provision of this Agreement
may be amended and the observance thereof may be waived (either generally or in
a particular instance and either retroactively or prospectively), only with the
written consent of the Company and Investor (or, in the case of an amendment or
waiver of any provision of Section 2 hereof, only with the written consent of
the Company and the Holders of a majority of the Registrable Securities then
outstanding). Any amendment or waiver effected in accordance with this Section
8.2 shall be binding upon the Investor, each Holder, each permitted successor or
assignee of such Investor or Holder and the Company.
9. CONFIDENTIALITY
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9.1 (a) Each party to this Agreement will hold any of
the other's Confidential Information (as defined in the next paragraph) in
confidence and will: (i) use the same degree of care to prevent unauthorized
disclosure or use of the Confidential Information that the receiving party uses
with its own information of like nature (but in no event less than reasonable
care), (ii) limit disclosure of the Confidential Information, including any
materials regarding the Confidential Information that the receiving party has
generated, to such of its employees and contractors as have a need to know the
Confidential Information to accomplish the purposes of this Agreement, and (iii)
advise its employees, agents and contractors of the confidential nature of the
Confidential Information and of the receiving party's obligations under this
Agreement.
(b) For purposes of this Agreement, the term
"Confidential Information" refers to the following items relating to the
confidential and proprietary information, including trade secrets, of the
disclosing party: (i) all written materials provided by the disclosing party
that are clearly marked as confidential, (ii) any tangible materials provided by
the disclosing party that are clearly marked as confidential, and (iii) all
information that is orally or visually disclosed by the disclosing party if it
is identified as confidential at the time of disclosure and is reduced to
written disclosure delivered to the receiving party within thirty (30) days
after the original disclosure. "Confidential Information" will not include, even
if marked as confidential, materials or information which: (i) is rightfully
known without obligations of confidentiality by the receiving party, (ii) is or
becomes public knowledge through no wrongful act of the receiving party, its
agent, employees or affiliates, (iii) is rightfully received by the receiving
party from another party authorized by the disclosing party to disseminate such
materials or information, (iv) is independently developed by the receiving party
without breach of this Agreement, or (v) is approved in writing for release by
the disclosing party. Any employee or contractor of the receiving party having
access to the Confidential Information will be required to sign a non-disclosure
agreement protecting the Confidential Information if not already bound by such a
non-disclosure agreement.
9.2 Except to the extent required by law or judicial order
or except as provided herein, neither party shall disclose this Agreement or any
of its terms without the other's prior written approval, which approval will not
be delayed or unreasonably withheld. Either party may disclose this Agreement to
the extent required by law or judicial order, provided that if such disclosure
is pursuant to judicial order or proceedings, the disclosing party will notify
the other party promptly before such disclosure and will cooperate with the
other party to seek confidential treatment with respect to the disclosure if
requested by the other party and provided further that if such disclosure is
required pursuant to the rules and regulations of any federal, state or local
organization, the parties will cooperate to seek confidential treatment of this
Agreement to the maximum extent possible under law.
9.3 Prior to the execution of this Agreement, the parties
will agree on the content of a joint press release announcing the existence of
this Agreement, which press release will be issued as mutually agreed by the
parties.
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9.4 Neither party will be required to disclose to the other
any confidential information of any third party without having first obtained
such third party's prior written consent.
9.5 The provisions of this Section 9 shall survive for a
period of five (5) years from the date which the Investor ceases to have any
rights under Sections 1, 3, 4 and 5 of this Agreement.
10. GENERAL PROVISIONS.
10.1 Notices. Any notice, request or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given and received if personally delivered or, if deposited in the
U.S. mail, three (3) business days after having been so deposited, if sent by
registered or certified mail, return receipt requested, postage prepaid, as
follows:
(a) if to the Investor, at: Intel Corporation
Robert Noyce Building
2200 Mission College Boulevard
Santa Clara, California 95052-8119
Attn: General Counsel
M/S SC4-203
with a copy to: Intel Corporation
Robert Noyce Building
2200 Mission College Boulevard
Santa Clara, California 95052-8119
Attn: Treasurer
M/S SC4-210
(b) if to the Company, at: Phoenix Technologies Ltd.
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2770 De La Cruz Boulevard
Santa Clara, California 95050
Attn: Chief Financial Officer
with a copy to: Phoenix Technologies Ltd.
2770 De La Cruz Boulevard
Santa Clara, California 95050
Attn: Legal Department
Any party hereto (and such party's permitted assigns) may by
notice so given change its address for future notices hereunder. Notice shall
conclusively be deemed to have been given when personally delivered or when
deposited in the mail in the manner set forth above.
10.2 Entire Agreement. This Agreement, together with
all the Exhibits hereto, constitutes and contains the entire agreement and
understanding of the parties with respect to the subject matter hereof and
supersedes any and all prior negotiations, correspondence, agreements,
understandings, duties or obligations between the parties respecting the subject
matter hereof.
10.3 Governing Law. This Agreement shall be governed
by and construed exclusively in accordance with the internal laws of the State
of Delaware as applied to agreements among Delaware residents entered into and
to be performed entirely within Delaware, excluding that body of law relating to
conflict of laws and choice of law.
10.4 Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, then such
provision(s) shall be excluded from this Agreement and the balance of this
Agreement shall be interpreted as if such provision(s) were so excluded and
shall be enforceable in accordance with its terms.
10.5 Third Parties. Nothing in this Agreement,
express or implied, is intended to confer upon any person, other than the
parties hereto and their permitted successors and assigns, any rights or
remedies under or by reason of this Agreement.
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10.6 Successors And Assigns. Subject to the
provisions of Section 8.1, the provisions of this Agreement shall inure to the
benefit of, and shall be binding upon, the successors and permitted assigns of
the parties hereto.
10.7 Captions. The captions to sections of this
Agreement have been inserted for identification and reference purposes only and
shall not be used to construe or interpret this Agreement.
10.8 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.9 Adjustments for Stock Splits, Etc. Wherever in
this Agreement there is a reference to a specific number of shares of Common
Stock of the Company, then, upon the occurrence of any subdivision, combination
or stock dividend of Common Stock, the specific number of shares so referenced
in this Agreement shall automatically be proportionally adjusted to reflect the
affect on the outstanding shares of such class or series of stock by such
subdivision, combination or stock dividend.
[The remainder of this page is intentionally left blank.]
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SCHEDULE 13D Page 58 of
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.
PHOENIX TECHNOLOGIES LTD. INTEL CORPORATION
By: By:
------------------------ ------------------------
Name: Name:
---------------------- ----------------------
Title: Title:
--------------------- ---------------------
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
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SCHEDULE 13D Page 59 of
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[NEWS RELEASE]
CONTACT:
George Adams Tom Waldrop
Phoenix Intel Corporation
Technologies Ltd.
408-452-6855 408-765-8478
FOR IMMEDIATE RELEASE:
PHOENIX TECHNOLOGIES AND INTEL CORPORATION FORM LONG-TERM
ALLIANCE TO INTEGRATE PHOENIX SYSTEM SOFTWARE
INTO
INTEL DESKTOP AND SERVER MOTHERBOARDS
TECHNOLOGY ALLIANCE VALUED IN EXCESS OF $20 MILLION. INTEL WILL ALSO INVEST
$10.9 MILLION
FOR MINORITY INTEREST IN PHOENIX TECHNOLOGIES
SANTA CLARA, CA (DECEMBER 18, 1995) -- Phoenix Technologies
Ltd.(NASDAQ: PTEC), today announced that Phoenix and Intel have signed a
long-term technology licensing agreement. Under the terms of the seven-year
agreement, Phoenix will license to Intel several of Phoenix's key products, and
Intel and Phoenix together will work
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SCHEDULE 13D Page 60 of
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closely to develop new product features and technologies to enhance the
performance, functionality and ease-of-use of desktop and server systems.
In addition to the technology agreement, Intel will also
invest approximately $10.9 million to acquire Phoenix Technologies' common stock
and a warrant to buy additional stock of the Company. Under the terms of the
equity agreement, Intel will purchase 894,971 newly issued, unregistered shares
at a per share price of $11.71, representing 6% of Phoenix's post transaction
shares. The warrant will cover 1,073,965 shares which vests with an escalating
exercise price over four years.
Phoenix's and Intel's engineering groups are now developing
the detailed implementation plan for Intel to transition to Phoenix's system
software during 1996. Phoenix and Intel expect to complete this plan on schedule
and have integration underway by February 15, 1996, though agreement on the
final plan is not guaranteed. If the plan is not jointly approved by that date,
Intel may terminate the technology agreement and elect not to purchase the
equity securities.
"We welcome this opportunity to work with a leader like
Phoenix to help increase the pace of developing and delivering exciting new
technologies for the computer industry," said Les Vadasz, senior vice president
of business development at Intel.
"This agreement marks a major new stage in the relationship
between Intel and Phoenix," said Tim Bajarin, president of Creative Strategies.
"By working together more closely, they can now develop more new features that
can move the PC architecture forward even more rapidly."
Under the new technology agreement, Intel has licensed
Phoenix's fourth generation PhoenixBIOS(TM) 4.0, System Essentials(TM) 1.0
Windows-based system resource and DMI viewer, PhoenixMISER(TM)/DT power
management software, MultiKey(TM) keyboard controller firmware, and
PhoenixVIEW(TM) video BIOS software for use on its desktop and server
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SCHEDULE 13D Page 61 of
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motherboards. During the term of the agreement, Intel has the right to supply
these products to its customers on its desktop and server motherboards. Intel is
expected to pay Phoenix fees and royalties of at least $20 million, though the
revenue under the agreement could be significantly higher depending on shipment
volumes over the term of the agreement.
"We already work very closely with Phoenix," said John Miner,
vice president and general manager, OEM software products at Intel. "This new
alliance will ensure that current and future technology development will be
implemented with the highest levels of collaboration and teamwork, in order to
provide the industry with the newest Intel technology in the fastest manner
possible."
As part of this alliance, Phoenix also announced plans to open
a new system software development site, to be located adjacent to Intel's OEM
motherboard product development facilities in Hillsboro, Oregon. The new
facility will begin operation in January and will consist largely of engineering
and program management professionals. Phoenix plans to place approximately 20
people into that facility during 1996.
"This agreement represents a significant milestone in our
relationship with Intel," said Jack Kay, president and chief executive officer
of Phoenix. "Phoenix has worked with Intel to develop and implement many of
today's advanced technologies. We are very excited about this agreement, and we
believe it will accelerate the delivery of exciting new products to expanding
worldwide markets."
Under the equity agreement, certain Intel rights and
limitations are linked to the continuation of the technology agreement and to
ownership of a specified number of Phoenix Technologies shares. The rights
include limited rights in the event of any proposed acquisition of Phoenix, and
the ability to maintain its percentage ownership of Phoenix. Intel has agreed
that it will not increase its ownership of Phoenix beyond 19.9% for two years
and to limit its transfer rights. In addition, Intel has the right to have a
non-voting observer at Phoenix board meetings.
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SCHEDULE 13D Page 62 of
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The technology alliance will strengthen Phoenix's position as
a leading independent supplier of system-level software products for PC
manufacturers. Phoenix's full product line supports portable systems, desktop
systems, server systems, and microprocessor-based hand-held, special-purpose and
industrialized devices.
Under the technology agreement, Intel will license certain
products and technologies from Phoenix, for use on their desktop and server
motherboards, including:
PLUG AND PLAY BIOS - Plug and Play is designed to increase the
ease-of-use of the PC through a self-configuring conflict and detection
resolution routine. Phoenix authored the Plug and Play BIOS
specification with Intel, Compaq and Microsoft.
ADVANCED SERVERS - Phoenix's ServerBIOS(TM) enables
faster development of file server products with many features specific
to a server's unique requirements, such as remote access and control
and advanced diagnostics and logging capabilities.
UNIVERSAL SERIAL BUS (USB) - Phoenix has been working
with industry leaders including Intel, Microsoft, Compaq and National
Semiconductor to develop this new standard technique for adding
peripherals into a PC -- without the need to open up the PC unit, or
fumble with installation software.
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SCHEDULE 13D Page 63 of
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DESKTOP MANAGEMENT INTERFACE (DMI) - Phoenix has worked closely with
Intel and other developers to create an industry standard that makes it
simpler for PC manufacturers to greatly simplify the technical support
process and reduce support costs.
Phoenix is a worldwide leader supplying essential software to
PC manufacturers. The company's system-level software products, such as
PhoenixBIOS(TM), NoteBIOS(TM), PhoenixPICO(TM), PhoenixVIEW(TM), MultiKey(TM)
and PhoenixCard Manager(TM), allow PC manufacturers to increase product
differentiation, reduce product cycle time to market and reduce internal
engineering costs. Capitalizing on its unique position and resources, Phoenix is
developing an expanding family of software products, including Phoenix Telephony
Suite(TM) and Phoenix MUSE(TM), that increase personal computer functionality
and make PCs easier to use. Information on all Phoenix Technologies products is
available on the Worldwide Web at: http://www.ptltd.com.
# # #
The Phoenix logo is a registered trademark and
PhoenixBIOS(TM), NoteBIOS(TM), PhoenixPICO(TM), PhoenixVIEW(TM), MultiKey(TM),
PhoenixCARD Manager(TM) ,System Essentials(TM), PhoenixMISER(TM), Phoenix
MUSE(TM), and Phoenix Telephony Suite(TM), are trademarks of Phoenix
Technologies Ltd. Other trademarks are the property of their respective owners.
<PAGE> 1
SCHEDULE 13D Page 64 of
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[NEWS RELEASE]
CONTACT:
George Adams Tom Waldrop
Phoenix Intel Corporation
Technologies Ltd.
408-452-6855 408-765-8478
PHOENIX TECHNOLOGIES AND INTEL CORPORATION FINALIZE TECHNOLOGY
AND EQUITY AGREEMENTS
INTEL TO COMPLETE $10.8 MILLION PURCHASE OF EQUITY POSITION
SANTA CLARA, CA (FEBRUARY 15, 1996) -- Phoenix Technologies
Ltd.(NASDAQ: PTEC), today announced that Intel will purchase 894,971 newly
issued, unregistered shares of Phoenix's common stock at $11.71 per share. This
stock purchase represents 6% of Phoenix's post-transaction shares. Intel will
also purchase a warrant for an additional 1,073,965 shares of Phoenix common
stock. These transactions are expected to be completed later today.
Phoenix also announced today that Phoenix's and Intel's
engineering groups have completed the mutually approved, detailed implementation
plan for Intel to transition to Phoenix's system software during 1996.
In December, 1995, Phoenix announced that Intel and Phoenix
signed a long-term technology licensing agreement, and that Intel would acquire
approximately 6% of Phoenix Technologies' common stock, and that Intel would
also purchase a warrant to buy additional stock in the company.
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SCHEDULE 13D Page 65 of
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Phoenix is a worldwide leader supplying essential software to
PC manufacturers. The company's system-level software products, such as
PhoenixBIOS(TM), NoteBIOS(TM), Phoenix PowerPanel(TM), Phoenix SmartBattery
Manager(TM), PhoenixPICO(TM), PhoenixVIEW(TM), MultiKey(TM) and PhoenixCard
Manager(TM), allow PC manufacturers to increase product differentiation, reduce
product cycle time to market and reduce internal engineering costs. Capitalizing
on its unique position and resources, Phoenix is developing an expanding family
of software products, including Phoenix Telephony Suite(TM) and Phoenix
MUSE(TM), that increase personal computer functionality and make PCs easier to
use. Information on all Phoenix Technologies products is available on the
Worldwide Web at: http://www.ptltd.com.
# # #
The Phoenix logo is a registered trademark and
PhoenixBIOS(TM), NoteBIOS(TM), Phoenix PowerPanel(TM), Phoenix SmartBattery
Manager(TM), PhoenixPICO(TM), PhoenixVIEW(TM), MultiKey(TM), PhoenixCARD
Manager(TM) ,System Essentials(TM), PhoenixMISER(TM), Phoenix MUSE(TM), and
Phoenix Telephony Suite(TM), are trademarks of Phoenix Technologies Ltd. Other
trademarks are the property of their respective owners.
