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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PHOENIX TECHNOLOGIES LTD.
(Exact name of registrant as specified in its charter)
Delaware 04-2685985
(State or other jurisdiction of (IRS employer
incorporation or organization) identification no.)
2770 De La Cruz Boulevard
Santa Clara, California 95050
(Address of principal executive offices)
1991 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Scott C. Neely, Esq.
Vice President, General Counsel and Secretary
Phoenix Technologies Ltd.
2770 De La Cruz Boulevard
Santa Clara, California 95050
(408) 654-9000
(Name, address and telephone number, including area code,
of agent for service)
Copies to:
Laird H. Simons, Esq.
Fenwick & West
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
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Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to be Offering Price Per Aggregate Offering Registration
to be Registered Share (1) Price (1) Fee
Registered
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Common Stock,
$0.001 par 150,000 $15.6875 $2,353,125.00 $811.42
value (2) shares
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(1) Estimated as of April 30, 1996 pursuant to Rule 457 solely for the purpose
of calculating the registration fee.
(2) Associated with the Common Stock are common stock purchase rights which will
not be exercisable or be evidenced separately from the Common Stock prior to the
occurrence of certain events.
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The Index to Exhibits appears on sequentially numbered page 7.
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission (the
"Commission") are incorporated herein by reference:
(a) The Registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of as amended (the
"Exchange Act"), or the latest prospectus filed pursuant to Rule
424(b) under the Securities Act of 1933, as amended (the
"Securities Act"), that contains audited financial statements
for the Registrant's latest fiscal year for which such statements
have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual
report or the prospectus referred to in (a) above.
(c) The description of the Registrant's Common Stock contained in the
Registrant's registration statement filed with the Commission under
Section 12 of the Exchange Act, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities registered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of the filing of such documents.
The consolidated balance sheets as of September 30, 1994 and 1993, and the
consolidated statements of income, shareholders' equity and cash flows for each
of the three years in the period ended September 30, 1994 incorporated by
reference herein and the related financial statement schedules incorporated by
reference herein have been included herein in reliance on the reports of Coopers
& Lybrand L.L.P., independent accountants.
Item 5. Interests of Named Experts and Counsel.
As to named experts, Item 5 is inapplicable. Scott C. Neely, whose opinion
is included as Exhibit 5.1 hereto, is a holder of options covering significantly
less than one percent (1%) of the outstanding shares of the outstanding Common
Stock, $.001 par value per share of the Registrant.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law grants to each
corporation organized thereunder the power to indemnify its officers and
directors for certain acts. Article TENTH of the Registrant's Restated
Certificate of Incorporation sets forth the extent to which officers and
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directors of the Registrant may be indemnified against any liabilities which
they may incur in their capacities as directors or officers of the Registrant.
Article TENTH provides, in part, that each person who was or is made a party or
is threatened to be made a party or is involved in any action, suit or
proceeding by reason of the fact that he or she is or was a director or officer
of the Registrant or is or was serving at the request of the Registrant as a
director, officer, employee or agent of another corporation or enterprise shall
be indemnified and held harmless by the Registrant, to the fullest extent
authorized by the Delaware General Corporation Law, against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection with such proceeding;
provided, however, that if the person seeking indemnification initiated the
proceeding in respect to which he or she is seeking indemnification from the
Registrant, the Registrant shall provide such indemnification only if such
proceeding was authorized by the Registrant's Board of Directors. The right to
indemnification includes the right to be paid expenses incurred in defending any
such proceeding in advance of its final disposition; provided, however, that if
the Delaware General Corporation Law so requires, the payment of such expenses
in advance of the final disposition of a proceeding shall be made only upon
delivery to the Registrant of an undertaking, by or on behalf of such director
or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to indemnification.
Article NINTH of the Registrant's Restated Certificate of Incorporation
eliminates the personal liability of the Registrant's directors to the
Registrant or its stockholders for monetary damages for breach of a director's
fiduciary duty, except for liability: (1) for breach of a director's duty of
loyalty to the Registrant or its stockholders; (2) for acts or omissions not in
good faith or involving intentional misconduct or knowing violations of law; (3)
under Section 174 of the Delaware General Corporation Law; or (4) for any
transaction from which the director derived an improper personal benefit.
Item 8. Exhibits.
The exhibits required by Item 601 of Regulation S-K are listed in the
Exhibit Index which follows the signature page for this Form S-8.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
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represent a fundamental change in the information set forth in the Registration
Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if
the Registration Statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions discussed in Item 6 hereof, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereby, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual and corporation whose
signature appears below constitutes and appoints Robert J. Riopel and
Scott C. Neely and each of them, his true and lawful attorneys-in-fact and
agents with full power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement on Form S-8, and to
file the same with all exhibits thereto and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents or any of them, or his or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Santa Clara, State of California, on this 30th day of
April, 1996.
PHOENIX TECHNOLOGIES LTD.
By: /s/Jack Kay
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Jack Kay
President & Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
Chief Executive Officer:
/s/Jack Kay President, Chief Executive April 30, 1996
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Jack Kay Officer, and Director
Chief Financial Officer:
/s/Robert J. Riopel Vice President, Finance, Chief April 30, 1996
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Robert J. Riopel Financial Officer and Treasurer
Other Directors:
/s/Charles Federman Director April 30, 1996
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Charles Federman
/s/Lawrence G. Finch Director April 30, 1996
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Lawrence G. Finch
/s/Ronald D. Fisher Chairman; Director April 30, 1996
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Ronald D. Fisher
/s/Lance E. Hansche Director April 30, 1996
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Lance E. Hansche
/s/Anthony P. Morris Director April 30, 1996
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Anthony P. Morris
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EXHIBIT INDEX
Exhibit
Number Description of Exhibit
4.1 Restated Certificate of Incorporation of the Registrant
(incorporated herein by reference to Exhibit 3.1 to the
Registrant's Registration Statement on Form S-1, Registration
No. 33-21793 (the "Form S-1"))
4.2 By-laws of the Registrant as amended through February 6, 1995
4.3 Certificate of Correction to the Registrant's Restated
Certificate of Incorporation (incorporated herein by reference
to Exhibit 3.3 to Amendment No. 2 to the Form S-1
("Amendment No. 2"))
4.4 Certificate of Amendment to the Registrant's Restated
Certificate of Incorporation (incorporated herein by reference
to Exhibit 3.4 to Amendment No. 2)
4.5 Certificate of Correction to the Registrant's Restated
Certificate of Incorporation (incorporated herein by reference
to Exhibit 3.5 to the Registrant's Annual Report on Form 10-K
for the fiscal year ended September 30, 1988 (the "1988 Form
10-K"))
4.6 Certificate of Ownership (incorporated herein by reference to
Exhibit 3.6 to the 1988 Form 10-K)
4.7 Certificate of Correction to the Registrant's Restated
Certificate of Incorporation (incorporated herein by reference
to Exhibit 3.7 to the 1988 Form 10-K)
4.8 Rights Agreement dated as of October 31, 1989 between the
Registrant and The First National Bank of Boston (incorporated
herein by reference to Exhibit 4.1 to the Registrant's Current
Report on Form 8-K dated October 31, 1989 (the "1989 8-K"))
4.9 Certificate of Designations of the Registrant's Series A Junior
Participating Preferred Stock (incorporated herein by reference
to Exhibit 4.1 to the 1989 8-K)
4.10 Registrant's 1991 Employee Stock Purchase Plan, amended through
February 29, 1996
4.11 Certificate of Amendment of Restated Certificate of
Incorporation filed with the Delaware Secretary of
State on April 18, 1996
4.12 Certificate of Increase of Shares Designated as Series A Junior
Participating Preferred Stock filed with the Delaware Secretary
of State on April 18, 1996
5.1 Opinion of Counsel
23.1 Consent of Counsel (included in Exhibit 5.1)
23.2 Consent of Coopers & Lybrand L.L.P., Independent Accountants
24.1 Power of Attorney (see page 5)
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EXHIBIT 4.10
PHOENIX TECHNOLOGIES LTD.
1991 EMPLOYEE STOCK PURCHASE PLAN
Amended and Restated through February 29, 1996
1. ESTABLISHMENT OF PLAN. Phoenix Technologies Ltd., a Delaware
corporation (the "COMPANY"), proposes to grant options for purchase of the
Company's Common Stock to eligible employees of the Company and its Subsidiaries
(as hereinafter defined) pursuant to this 1991 Employee Stock Purchase Plan
(this "PLAN"). For purposes of this Plan, "PARENT CORPORATION" and "SUBSIDIARY"
(collectively, "SUBSIDIARIES") shall have the same meanings as "parent
corporation" and "subsidiary corporation" in Sections 424(e) and 424(f),
respectively, of the Internal Revenue Code of 1986, as amended (the "CODE").
The Company intends this Plan to qualify as an "employee stock purchase plan"
under Section 423 of the Code (including any amendments to or replacements of
such Section), and this Plan shall be so construed. Any term not expressly
defined in this Plan but defined for purposes of Section 423 of the Code shall
have the same definition herein. A total of 650,000 shares of the Company's
Common Stock is reserved for issuance under this Plan. Such number shall be
subject to adjustments effected in accordance with Section 14 of this Plan.
2. PURPOSE. The purpose of this Plan is to provide employees of the
Company and Subsidiaries designated by the Board of Directors of the Company
(the "BOARD") as eligible to participate in this Plan with a convenient means of
acquiring an equity interest in the Company through payroll deductions, to
enhance such employees' sense of participation in the affairs of the Company and
Subsidiaries, and to provide an incentive for continued employment.
3. ADMINISTRATION. This Plan shall be administered by a committee
appointed by the Board (the "COMMITTEE") consisting of at least two (2) members
of the Board, each of whom is a Disinterested Person as defined in Rule 16b-3(d)
of the Securities Exchange Act of 1934 (the "EXCHANGE ACT"). As used in this
Plan, references to the "Committee" shall mean either such committee or the
Board if no committee has been established. Board members who are not
Disinterested Persons may not vote on any matters affecting the administration
of this Plan, but any such member may be counted for determining the existence
of a quorum at any meeting of the Board. Subject to the provisions of this Plan
and the limitations of Section 423 of the Code or any successor provision in the
Code, all questions of interpretation or application of this Plan shall be
determined by the Board and its decisions shall be final and binding upon all
participants. Members of the Board shall receive no compensation for their
services in connection with the administration of this Plan, other than standard
fees as established from time to time by the Board for services rendered by
Board members serving on Board committees. All expenses incurred in connection
with the administration of this Plan shall be paid by the Company.
4. ELIGIBILITY. Any employee of the Company or the Subsidiaries is
eligible to participate in an Offering Period (as hereinafter defined) under
this Plan except the following:
(a) employees who are not employed by the Company or Subsidiaries before
the beginning of such Offering Period;
(b) employees who are customarily employed for less than twenty (20) hours
per week;
(c) employees who are customarily employed for less than five (5) months
in a calendar year;
(d) employees who, together with any other person whose stock would be
attributed to such employee pursuant to Section 424(d) of the Code, own stock or
hold options to purchase stock possessing five percent (5%) or more of the total
combined voting power or value of all classes of stock of the Company or any of
its Subsidiaries or who, as a result of being granted an option under this Plan
with respect to such Offering Period, would own stock or hold options to
purchase stock possessing five percent (5%) or more of the total combined voting
power or value of all classes of stock of the Company or any of its
Subsidiaries.
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5. OFFERING DATES. The offering periods of this Plan (each, an "Offering
Period") shall be of periods not to exceed the maximum period permitted by
Section 423 of the Code. Until determined otherwise by the Committee, (a)
Offering Periods shall commence each June 1 and December 1 of each calendar
year, with the first Offering Period beginning December 1, 1991 and (b) each
Offering Period shall consist of one (1) six-month purchase period
(individually, a "Purchase Period") during which payroll deductions of the
participants are accumulated under this Plan. The first business day of each
Offering Period is referred to as the "OFFERING DATE". The last business day of
each Purchase Period is referred to as the "PURCHASE DATE". The Board shall
have the power to change the duration of Offering Periods or Purchase Periods
with respect to future offerings without stockholder approval if such change is
announced at least fifteen (15) days prior to the scheduled beginning of the
first Offering Period or Purchase Period to be affected.
6. PARTICIPATION IN THIS PLAN. Eligible employees may become participants
in an Offering Period under this Plan on the first Offering Date after
satisfying the eligibility requirements by delivering a subscription agreement
to the Company's Stock Administration Department or any other department
designated by the Stock Administration Department or an officer of the Company
("STOCK ADMINISTRATION") not later than the last day of the month before such
Offering Date unless a later time for filing the subscription agreement
authorizing payroll deductions is set by the Board for all eligible employees
with respect to a given Offering Period. An eligible employee who does not
deliver a subscription agreement to Stock Administration by such date after
becoming eligible to participate in such Offering Period shall not participate
in that Offering Period or any subsequent Offering Period unless such employee
enrolls in this Plan by filing a subscription agreement with Stock
Administration not later than the last day of the month preceding a subsequent
Offering Date. Once an employee becomes a participant in an Offering Period,
such employee will automatically participate in the Offering Period commencing
immediately following the last day of the prior Offering Period unless the
employee withdraws or is deemed to withdraw from this Plan or terminates further
participation in the Offering Period as set forth in Section 11 below. Such
participant is not required to file any additional subscription agreement in
order to continue participation in this Plan, unless such participant withdraws
from this Plan.
7. GRANT OF OPTION ON ENROLLMENT. Enrollment by an eligible employee in
this Plan with respect to an Offering Period will constitute the grant (as of
the Offering Date) by the Company to such employee of an option to purchase on
the Purchase Date up to that number of shares of Common Stock of the Company
determined by dividing (a) the amount accumulated in such employee's payroll
deduction account during such Purchase Period by (b) the lower of (i) eighty-
five percent (85%) of the fair market value of a share of the Company's Common
Stock on the Offering Date (but in no event less than the par value of a share
of the Company's Common Stock), or (ii) eighty-five percent (85%) of the fair
market value of a share of the Company's Common Stock on the Purchase Date (but
in no event less than the par value of a share of the Company's Common Stock);
PROVIDED, HOWEVER, that the number of shares of the Company's Common Stock
subject to any option granted pursuant to this Plan shall not exceed the lesser
of (a) the maximum number of shares set by the Board pursuant to Section 10(c)
below with respect to the applicable Offering Period, or (b) the maximum number
of shares which may be purchased pursuant to Section 10(b) below with respect to
the applicable Offering Period. The fair market value of a share of the
Company's Common Stock shall be determined as provided in Section 8 hereof.
8. PURCHASE PRICE. The purchase price per share at which a share of
Common Stock will be sold in any Offering Period shall be eighty-five percent
(85%) of the lesser of:
(a) The fair market value on the Offering Date; or
(b) The fair market value on the Purchase Date;
PROVIDED, HOWEVER, that in no event may the purchase price per share of the
Company's Common Stock be below the par value per share of the Company's Common
Stock.
For purposes of this Plan, the term "fair market value" on a given date
shall mean the closing price of the Company's Common Stock as reported on a
stock exchange or on the Nasdaq National Market System on the applicable date
(or the average closing price over the number of consecutive trading days
preceding such date as the Board shall deem appropriate. If the Company's stock
is not reported on such exchange or such system or if there is no
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public market for the Company's Common Stock, the fair market value of the
Company's Common Stock shall be as determined by the Board in its sole
discretion, exercised in good faith.
9. PAYMENT OF PURCHASE PRICE; CHANGES IN PAYROLL DEDUCTIONS; ISSUANCE OF
SHARES.
(a) The purchase price of the shares is accumulated by regular payroll
deductions made during each Offering Period. The deductions are made either (i)
as a specified dollar amount per pay period, but not less than $5.00 per pay
period and not greater than an amount equal to ten percent of the participant's
Compensation as of the first day of such Offering Period or (ii) a percentage of
the participant's compensation in one percent (1%) increments not less than one
percent (2%) and not greater than ten percent (10%) or (iii) such lower limit
set by the Committee. As used herein, "COMPENSATION" shall mean all base
salary, wages, commissions, and overtime, and draws against commissions;
PROVIDED, HOWEVER, that for purposes of determining a participant's
compensation, any election by such participant to reduce his or her regular cash
remuneration under Sections 125 or 401(k) of the Code shall be treated as if the
participant did not make such election. Payroll deductions shall commence on
the first payday following the Offering Date and shall continue to the end of
the Offering Period unless sooner altered or terminated as provided in this
Plan.
(b) A participant may lower (but not increase) the rate of payroll
deductions during an Offering Period by filing with Stock Administration a new
authorization for payroll deductions, in which case the new rate shall become
effective for the next payroll period commencing more than fifteen (15) days
after Stock Administration's receipt of the authorization (or such earlier
payroll after such receipt as the Company's payroll department is able to
accommodate) and shall continue for the remainder of the Offering Period unless
changed as described below. Such change in the rate of payroll deductions may
be made at any time during an Offering Period, but not more than one (1) change
may be made effective during any Offering Period. A participant may lower the
rate of payroll deductions to zero for the remainder of the Offering Period. A
participant may increase or decrease the rate of payroll deductions for any
subsequent Offering Period by filing with Stock Administration a new
authorization for payroll deductions not later than the last day of the month
before the beginning of such Offering Period. A participant who has decreased
the rate of withholding to zero will be deemed to have withdrawn from the Plan
effective at the beginning of the Offering Period after the one in which the
rate of withholding was reduced to zero and must file a new authorization for
payroll deductions not later than the last day of the month before the beginning
of the next Offering Period in which the participant wishes to participate.
(c) All payroll deductions made for a participant are credited to his or
her account under this Plan and are deposited with the general funds of the
Company. No interest accrues on the payroll deductions. All payroll deductions
received or held by the Company may be used by the Company for any corporate
purpose, and the Company shall not be obligated to segregate such payroll
deductions.
(d) On each Purchase Date, so long as this Plan remains in effect and
provided that the participant has not submitted to Stock Administration a signed
and completed withdrawal form before that date which notifies the Company that
the participant wishes to withdraw from that Offering Period under this Plan and
have all payroll deductions accumulated in the account maintained on behalf of
the participant as of that date returned to the participant, the Company shall
apply the funds then in the participant's account to the purchase of whole
shares of Common Stock reserved under the option granted to such participant
with respect to the Offering Period to the extent that such option is
exercisable on the Purchase Date. The purchase price per share shall be as
specified in Section 8 of this Plan. Any cash remaining in a participant's
account after such purchase of shares shall be refunded to such participant in
cash, without interest. In the event that this Plan has been oversubscribed,
all funds not used to purchase shares on the Purchase Date shall be returned to
the participant, without interest. No Common Stock shall be purchased on a
Purchase Date on behalf of any employee whose participation in this Plan has
terminated prior to such Purchase Date.
(e) As promptly as practicable after the Purchase Date, the Company shall
arrange the delivery to each participant of a certificate representing the
shares purchased upon exercise of his option.
(f) During a participant's lifetime, such participant's option to purchase
shares hereunder is exercisable only by him or her. The participant will have
no interest or voting right in shares covered by his or her option until such
option has been exercised. Shares to be delivered to a participant under this
Plan will be registered in the name of the participant or in the name of
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the participant and his or her spouse or in the name of any stock brokerage or
other firm with whom the Company has established an account for the participant
for the automatical deposit of shares purchased under this Plan.
10. LIMITATIONS ON SHARES TO BE PURCHASED.
(a) No employee shall be entitled to purchase stock under this Plan at a
rate which, when aggregated with his or her rights to purchase stock under all
other employee stock purchase plans of the Company or any Subsidiary, exceeds
$25,000 in fair market value, determined as of the Offering Date (or such other
limit as may be imposed by the Code) for each calendar year in which the
employee participates in this Plan.
(b) No more than two hundred percent (200%) of the number of shares
determined by using eighty-five percent (85%) of the fair market value of a
share of the Company's Common Stock on the Offering Date as the denominator may
be purchased by a participant on any single Purchase Date.
(c) No employee shall be entitled to purchase more than the Maximum Share
Amount (as defined below) on any single Purchase Date. Not less than thirty
(30) days prior to the commencement of any Offering Period, the Board may, in
its sole discretion, set a maximum number of shares which may be purchased by
any employee at any single Purchase Date, which until changed by the Board shall
be 500 Shares of Common Stock (hereinafter the "MAXIMUM SHARE AMOUNT"). In no
event shall the Maximum Share Amount exceed the amounts permitted under Section
10(b) above. If a new Maximum Share Amount is set, then all participants must
be notified of such Maximum Share Amount not less than fifteen (15) days prior
to the commencement of the next Offering Period. Once the Maximum Share Amount
is set, it shall continue to apply with respect to all succeeding Purchase Dates
and Offering Periods unless revised by the Board as set forth above.
(d) If the number of shares to be purchased on a Purchase Date by all
employees participating in this Plan exceeds the number of shares then available
for issuance under this Plan, then the Company will make a pro rata allocation
of the remaining shares in as uniform a manner as shall be reasonably
practicable and as the Board shall determine to be equitable. In such event,
the Company shall give written notice of such reduction of the number of shares
to be purchased under a participant's option to each participant affected
thereby.
(e) Any payroll deductions accumulated in a participant's account which
are not used to purchase stock due to the limitations in this Section 10 shall
be returned to the participant as soon as practicable after the end of the
applicable Purchase Period, without interest.
11. WITHDRAWAL.
(a) Each participant may withdraw from an Offering Period under this Plan
by signing and delivering to Stock Administration a written notice to that
effect on a form provided for such purpose. Such withdrawal may be elected at
any time at least fifteen (15) days prior to the end of an Offering Period.
(b) Upon withdrawal from this Plan, the accumulated payroll deductions
shall be returned to the withdrawn participant, without interest, and his or her
interest in this Plan shall terminate. In the event a participant voluntarily
elects to withdraw from this Plan, he or she may not resume his or her
participation in this Plan during the same Offering Period, but he or she may
participate in any subsequent Offering Period by filing a new authorization for
payroll deductions in the same manner as set forth above for initial
participation in this Plan.
12. TERMINATION OF EMPLOYMENT. Termination of a participant's employment
for any reason, including retirement, death or the failure of a participant to
remain an eligible employee, immediately terminates his or her participation in
this Plan. In such event, the payroll deductions credited to the participant's
account will be returned to him or her or, in the case of his or her death, to
his or her legal representative, without interest. For purposes of this Section
12, an employee will not be deemed to have terminated employment or failed to
remain in the continuous employ of the Company in the case of sick leave,
military leave, or any other leave of absence approved by the Board; PROVIDED
that such leave is for a period of not more than ninety (90) days or
reemployment upon the expiration of such leave is guaranteed by contract or
statute.
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13. RETURN OF PAYROLL DEDUCTIONS. In the event a participant's interest
in this Plan is terminated by withdrawal, termination of employment or
otherwise, or in the event this Plan is terminated by the Board, the Company
shall promptly deliver to the participant all payroll deductions credited to
such participant's account. No interest shall accrue on the payroll deductions
of a participant in this Plan.
14. CAPITAL CHANGES. Subject to any required action by the stockholders
of the Company, the number of shares of Common Stock covered by each option
under this Plan which has not yet been exercised and the number of shares of
Common Stock which have been authorized for issuance under this Plan but have
not yet been placed under option (collectively, the "RESERVES"), as well as the
price per share of Common Stock covered by each option under this Plan which has
not yet been exercised, shall be proportionately adjusted for any increase or
decrease in the number of issued and outstanding shares of Common Stock of the
Company resulting from a stock split or the payment of a stock dividend (but
only on the Common Stock) or any other increase or decrease in the number of
issued and outstanding shares of Common Stock effected without receipt of any
consideration by the Company; PROVIDED, HOWEVER, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration"; and PROVIDED FURTHER, that the price per
share of Common Stock shall not be reduced below its par value per share. Such
adjustment shall be made by the Board, whose determination shall be final,
binding and conclusive. Except as expressly provided herein, no issue by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, shall affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of Common Stock subject
to an option.
In the event of the proposed dissolution or liquidation of the Company, the
Offering Period will terminate immediately prior to the consummation of such
proposed action, unless otherwise provided by the Board. The Board may, in the
exercise of its sole discretion in such instances, declare that the options
under this Plan shall terminate as of a date fixed by the Board and give each
participant the right to exercise his or her option as to all of the optioned
stock, including shares which would not otherwise be exercisable. In the event
of a proposed sale of all or substantially all of the assets of the Company, or
the merger or consolidation of the Company with or into another corporation,
each option under this Plan shall be assumed or an equivalent option shall be
substituted by such successor corporation or a parent or subsidiary of such
successor corporation, unless the Board determines, in the exercise of its sole
discretion and in lieu of such assumption or substitution, that the participant
shall have the right to exercise the option as to all of the optioned stock. If
the Board makes an option exercisable in lieu of assumption or substitution in
the event of a merger, consolidation or sale of assets, the Board shall notify
the participant that the option shall be fully exercisable for a period of
twenty (20) days from the date of such notice, and the option will terminate
upon the expiration of such period.
The Board may, if it so determines in the exercise of its sole discretion,
also make provision for adjusting the Reserves, as well as the price per share
of Common Stock covered by each outstanding option, in the event that the
Company effects one or more reorganizations, recapitalizations, rights offerings
or other increases or reductions of shares of its outstanding Common Stock, or
in the event of the Company being consolidated with or merged into any other
corporation; PROVIDED, that the price per share of Common Stock shall not be
reduced below its par value per share.
15. NONASSIGNABILITY. Neither payroll deductions credited to a
participant's account nor any rights with regard to the exercise of an option or
to receive shares under this Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of descent and
distribution or as provided in Section 22 hereof) by the participant. Any such
attempt at assignment, transfer, pledge or other disposition shall be void and
without effect.
16. REPORTS. Individual accounts will be maintained for each participant
in this Plan. Each participant shall receive promptly after the end of each
Purchase Period a report of his or her account setting forth the total payroll
deductions accumulated, the number of shares purchased, the per share price
thereof and the remaining cash balance, if any, carried forward to the next
Purchase Period or Offering Period, as the case may be.
17. NOTICE OF DISPOSITION. Each participant shall notify the Company if
the participant disposes of any of the shares purchased in any Offering Period
pursuant to this Plan if such disposition occurs within two (2) years from the
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<PAGE>
Offering Date or within one (1) year from the Purchase Date on which such shares
were purchased (the "NOTICE PERIOD"). The Company may require that, unless such
participant is disposing of any of such shares during the Notice Period, such
participant shall keep the certificates representing such shares in his or her
name (and not in the name of a nominee) during the Notice Period. The Company
may, at any time during the Notice Period, place a legend or legends on any
certificate representing shares acquired pursuant to this Plan requesting the
Company's transfer agent to notify the Company of any transfer of the shares.
The obligation of the participant to provide such notice shall continue
notwithstanding the placement of any such legend on the certificates.
18. NO RIGHTS TO CONTINUED EMPLOYMENT. Neither this Plan nor the grant of
any option hereunder shall confer any right on any employee to remain in the
employ of the Company or any Subsidiary, or restrict the right of the Company or
any Subsidiary to terminate such employee's employment.
19. EQUAL RIGHTS AND PRIVILEGES. All eligible employees shall have equal
rights and privileges with respect to this Plan so that this Plan qualifies as
an "employee stock purchase plan" within the meaning of Section 423 or any
successor provision of the Code and the related regulations. Any provision of
this Plan which is inconsistent with Section 423 or any successor provision of
the Code shall, without further act or amendment by the Company or the Board, be
reformed to comply with the requirements of Section 423. This Section 19 shall
take precedence over all other provisions in this Plan.
20. NOTICES. All notices or other communications by a participant to the
Company under or in connection with this Plan shall be deemed to have been duly
given when received in the form specified by the Company at the location, or by
the person, designated by the Company for the receipt thereof.
21. TERM; STOCKHOLDER APPROVAL. This Amended and Restated Plan has been
approved and adopted by the Board. Any changes to the 1991 Employee Stock
Purchase Plan made as a result of this amendment and restatement, which
materially increase the benefits hereunder (including, without limitation, the
150,000 share increase in the Reserve adopted by the Board in November 1995,
will not be effective until approved by the stockholders of the Company, in any
manner permitted by applicable corporate law (including Rule 16b-3 of the rules
promulgated by the Securities and Exchange Commission pursuant to Section 16 of
the Exchange Act. This Plan shall continue until the earlier to occur of (a)
termination of this Plan by the Board (which termination may be effected by the
Board at any time), (b) issuance of all of the shares of Common Stock reserved
for issuance under this Plan, or (c) ten (10) years from the adoption of this
Plan by the Board.
22. DESIGNATION OF BENEFICIARY.
(a) A participant may file a written designation of a beneficiary who is
to receive any shares and cash, if any, from the participant's account under
this Plan in the event of such participant's death subsequent to the end of an
Purchase Period but prior to delivery to him of such shares and cash. In
addition, a participant may file a written designation of a beneficiary who is
to receive any cash from the participant's account under this Plan in the event
of such participant's death prior to a Purchase Date.
(b) Such designation of beneficiary may be changed by the participant at
any time by written notice. In the event of the death of a participant and in
the absence of a beneficiary validly designated under this Plan who is living at
the time of such participant's death, the Company shall deliver such shares or
cash to the executor or administrator of the estate of the participant, or if no
such executor or administrator has been appointed (to the knowledge of the
Company), the Company, in its discretion, may deliver such shares or cash to the
spouse or to any one or more dependents or relatives of the participant, or if
no spouse, dependent or relative is known to the Company, then to such other
person as the Company may designate.
23. CONDITIONS UPON ISSUANCE OF SHARES; LIMITATION ON SALE OF SHARES.
Shares shall not be issued with respect to an option unless the exercise of such
option and the issuance and delivery of such shares pursuant thereto shall
comply with all applicable provisions of law, domestic or foreign, including,
without limitation, the Securities Act of 1933, as amended, the Exchange Act,
the rules and regulations promulgated thereunder, and the requirements of any
stock exchange or automated quotation system upon which the shares may then be
listed, and shall be further subject to the approval of counsel for the Company
with respect to such compliance.
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<PAGE>
24. APPLICABLE LAW. The Plan shall be governed by the substantive laws
(excluding the conflict of laws rules) of the State of California.
25. AMENDMENT OR TERMINATION OF THIS PLAN. The Board may at any time
amend, terminate or the extend the term of this Plan, except that any such
termination cannot affect options previously granted under this Plan, nor may
any amendment make any change in an option previously granted which would
adversely affect the right of any participant, nor may any amendment be made
without approval of the stockholders of the Company obtained in accordance with
Section 21 hereof within twelve (12) months of the adoption of such amendment
(or earlier if required by Section 21) if such amendment would:
(a) increase the number of shares that may be issued under this Plan;
(b) change the designation of the employees (or class of employees)
eligible for participation in this Plan; or
(c) constitute an amendment for which stockholder approval is required in
order to comply with Rule 16b-3 (or any successor rule) of the Exchange Act.
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CERTIFICATE OF AMENDMENT OF
RESTATED CERTIFICATE OF INCORPORATION OF
PHOENIX TECHNOLOGIES LTD.
Phoenix Technologies Ltd., a corporation organized and existing under the
General Corporation Law of Delaware (the "Corporation"), does hereby certify
that:
FIRST: At a meeting of the Board of Directors of the Corporation held on
September 28, 1995, resolutions were duly adopted setting forth a proposed
amendment to the Restated Certificate of Incorporation of the Corporation,
declaring said amendment to be advisable and calling a meeting of the
stockholders of said corporation for consideration thereof. The resolution
setting forth the amendment is as follows:
RESOLVED, THAT, subject to obtaining favorable vote from stockholders
holding at least a majority of the shares entitled to vote on the matter,
Article FOURTH (a) of the Restated Certificate of Incorporation of the
Corporation be amended in full to read as follows:
"(a) The total number of shares of capital stock which the
Corporation shall have authority to issue is 40,500,000, of which
40,000,000 shall be shares of common stock, each of which shall have a
par value of $.001 (the "Common Stock"), and 500,000 shall be shares
of preferred stock, each of which shall have a par value of $.10 (the
"Preferred Stock")."
SECOND: Thereafter, pursuant to resolution of its Board of Directors,
a meeting of the stockholders of said corporation was duly called and was
held on February 29, 1996, upon notice in accordance with Section 222 of
the General Corporation Law of the State of Delaware at which the necessary
number of shares as required by statute were voted in favor of said
amendment.
THIRD: Said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said corporation has caused this Certificate of
Amendment to be signed and attested by its duly authorized officer this
17th day of April, 1996.
/s/ Scott C. Neely
---------------------------------
Scott C. Neely
Vice President,
General Counsel and Secretary
<PAGE>
CERTIFICATE OF INCREASE OF
SHARES DESIGNATED AS
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
Phoenix Technologies Ltd., a corporation organized and existing under the
General Corporation Law of Delaware (the "Corporation"), does hereby certify
that:
The Corporation filed its Restated Certificate of Incorporation with the
office of the Delaware Secretary of State on May 6, 1988. On April 18, 1996,
the Corporation filed an Certificate of Amendment to said Restated Certificate
of Incorporation which increased the shares of common stock authorized for
issuance but did not change the number of shares of preferred stock authorized
for issuance. A Certificate of Designations was filed by the Corporation with
the office of the Delaware Secretary of State on November 13, 1989 with respect
to the Corporation's Series A Junior Participating Preferred Stock (the
"Certificate of Designations") as follows:
The Board of Directors of the Corporation at a meeting held on September
28, 1995 duly adopted a resolution authorizing and directing an increase in the
number of shares designated as Series A Junior Preferred Stock from 200,000 to
400,000 shares, in accordance with the provisions of section 151 of The General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the said Phoenix Technologies Ltd. has caused this
certificate to be executed by its Vice President, General Counsel and Secretary
this 17th day of April, 1996.
/s/ Scott C. Neely
----------------------------------
Scott C. Neely
Vice President,
General Counsel and Secretary
<PAGE>
EXHIBIT 5.1
April 30, 1996
Phoenix Technologies Ltd.
2770 De La Cruz Boulevard
Santa Clara, California 95050
Ladies and Gentlemen:
I have been asked by you to examine the Registration Statement on Form S-8
(the "Registration Statement") to be filed by you with the Securities and
Exchange Commission on April 30, 1996 in connection with the registration under
the Securities Act of 1933, as amended, of 150,000 shares of your Common Stock,
par value $.001 per share (the "Stock"), that may be sold by you pursuant to
awards granted by you to your (or your parents', affiliates', or subsidiaries')
directors, officers, employees, consultants, advisors, and independent
contractors pursuant to your 1991 Employee Stock Purchase Plan, as amended (the
"Plan").
As Vice President, General Counsel and Secretary of the Company, I have
examined the proceedings taken by you in connection with the adoption and
approval of the Plan.
It is my opinion that the 150,000 shares of Stock that may be issued and
sold by you pursuant to the Plan, when issued and sold in the manner referred to
in the Prospectus associated with the Registration Statement and the Plan, will
be legally issued, fully-paid and nonassessable.
I consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to me, if any, in the
Registration Statement and any amendments thereto.
Very truly yours,
/s/Scott C. Neely
-------------------
Scott C. Neely
Vice President, General Counsel and Secretary
SCN:gt
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement on
Form S-8 (being filed with respect to the Phoenix Technologies Ltd. 1991
Employee Stock Purchase Plan) of our report dated October 27, 1995, on our
audits of the consolidated financial statements and financial statement
schedule of Phoenix Technologies Ltd. as of September 30, 1995 and 1994, and
for each of the three fiscal years in the period ended September 30, 1995,
which report is included in the Registrant's Annual Report on Form 10-K.
/s/Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
San Jose, California
April 30, 1996
