<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 18, 1996
REGISTRATION NO. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
PHOENIX TECHNOLOGIES LTD.
(Exact name if issuer as specified is its charter)
<TABLE>
<S> <C>
DELAWARE 04-2685985
(State of (I.R.S. Employer Identification
Incorporation) Number)
</TABLE>
2770 DE LA CRUZ BLVD.
SANTA CLARA, CALIFORNIA 96050
(Address, including zip code and telephone number, including
area code, of Registrant's principal executive offices)
SCOTT C. NEELY
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
PHOENIX TECHNOLOGIES LTD.
2770 DE LA CRUZ BLVD.
SANTA CLARA, CALIFORNIA 94061
(408) 654-9000
(Name, address, including zip code and telephone number, including area code, of
agent for service)
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER SHARE (1) OFFERING PRICE (1) REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock $0.001 par value........ 1,241,842 shares $16.3125 $20,257,547 $6,139
</TABLE>
(1) Estimated solely for the purpose of computing the amount of the registration
fee pursuant to Rule 457(c) under the Securities Act of 1933 on the basis of
the average of the high and low prices on November 15, 1996 of the Common
Stock of the Registrant as reported on the Nasdaq Stock Market.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
PROSPECTUS
1,241,842 SHARES
PHOENIX TECHNOLOGIES LTD.
COMMON STOCK
($0.001 PAR VALUE)
This Prospectus relates to the public offering, which is not being
underwritten, of shares of the common stock, $0.001 per share ("Common Stock"),
of Phoenix Technologies Ltd. (together with its consolidated subsidiaries,
"Phoenix") offered from time to time by any or all of the Selling Stockholders
named herein (the "Selling Stockholders") who received such shares in exchange
for their shares of the capital stock of Virtual Chips, Inc. ("VCI") upon the
merger of a wholly-owned subsidiary of Phoenix with and into VCI on August 14,
1996 (the "Merger"). Such shares were issued pursuant to an exemption from the
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act"), provided by Section 4(2) thereof. Phoenix will receive no
part of the proceeds of sales made hereunder. All expenses of registration
incurred in connection with this offering are being born by Phoenix, but all
selling and other expenses incurred by Selling Stockholders will be born by such
Selling Stockholders. None of the shares offered pursuant to this Prospectus has
been registered prior to the filing of the Registration Statement of which this
Prospectus is a part.
The Common Stock offered hereby may be offered and sold from time to time by
the Selling Stockholders directly or through broker-dealers or underwriters who
may act solely as agents, or who may acquire the Common Stock as principals. The
distribution of the Common Stock may be effected in one or more transactions
that may take place through the Nasdaq national Market, including block trades
or ordinary broker's transactions, or through privately negotiated transactions,
or through underwritten public offerings, or through a combination of any such
methods of sale, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. Usual and
customary or specially negotiated brokerage fees or commissions may be paid by
the Selling Stockholders in connection with such sales. See "Plan of
Distribution."
The Common Stock of Phoenix is traded in the over-the-counter market on the
Nasdaq National Market (Nasdaq Symbol: PTEC). On November 11, 1996, the closing
sale price of a share of Phoenix's Common Stock was $17.00.
Each Selling Stockholder and any broker executing selling orders or behalf
of the Selling Stockholders may be deemed to be an "underwriter" within the
meaning of the Securities Act. Commissions received by any such broker may be
deemed to be underwriting commissions under the Securities Act.
------------------------
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, IN CONNECTION
WITH THE OFFERING DESCRIBED HEREIN, AND IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY PHOENIX.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN
OFFER TO BUY, NOR SHALL THERE BE ANY SALE OF THESE SECURITIES BY ANY PERSON IN
ANY JURISDICTION IN WHICH IT IS UNLAWFUL FOR SUCH PERSON TO MAKE SUCH OFFER,
SOLICITATION OR SALE. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE
HEREOF.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OF ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS , 1996
<PAGE>
AVAILABLE INFORMATION
Phoenix is subject to the informational reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the Public
Reference Room of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549
and at the Commission's regional offices at: Seven World Trade Center, New York,
New York 10045; and 5009 West Madison Street, Suite 1400, Chicago, Illinois
60661; and copies of such material can be obtained from the Public Reference
Section of the Commission, Washington, D.C. 20549, at proscribed rates.
Information as of particular dates concerning directors and officers of Phoenix,
their remuneration, options granted to them, the principal holders of securities
of Phoenix, and any material interest of such persons in transaction with
Phoenix has been or will be disclosed in the proxy statements to be distributed
to stockholders of Phoenix and filed with the Commission.
This Prospectus contains information concerning Phoenix, but does not
contain all the information set forth in the Registration Statement on Form S-3
which Phoenix has filed with the Commission under the Securities Act (the
"Registration Statement"). The Registration Statement, including various
exhibits, may be inspected at the Commission's office in Washington, D.C.
INFORMATION INCORPORATED BY REFERENCE
The following documents and information heretofore filed with the Commission
are hereby incorporated by reference in this Prospectus:
(1) Phoenix's Annual Report on Form 10-K for the fiscal year ended September
30, 1995.
(2) Phoenix's Quarterly Reports on Form 10-Q for the fiscal quarters ended
December 31, 1995, March 31, 1996 and June 30, 1996.
(3) Phoenix's Form 10-Q/A-1 filed with respect to Phoenix's Quarterly Report
on Form 10-Q for the fiscal quarter ended June 30, 1996.
(4) Phoenix's Current Report on Form 8-K filed on January 2, 1996.
All documents filed by Phoenix pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of securities contemplated hereby shall be deemed to
be incorporated by reference in this Prospectus or any Prospectus Supplement and
to be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated by reference or deemed to be incorporated
by reference in this Prospectus or any Prospectus Supplement shall be deemed to
be modified or superseded for all purposes of this Prospectus or such Prospectus
Supplement to the extent that a statement contained herein, therein or in any
subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein or in such Prospectus Supplement modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus or any Prospectus Supplement.
Phoenix will provide without charge to each person to whom a copy of this
Prospectus has been delivered, upon the written or oral request of such person,
a copy of any and all of the documents referred to above which have been or may
be incorporated in this Prospectus by reference (other than exhibits to such
documents, unless such exhibits are specifically incorporated by reference
therein). Requests for such copies should be directed to: General Counsel,
Phoenix Technologies Ltd., 2770 De La Cruz Boulevard, Santa Clara, California
95050; telephone number 408-654-9000.
2
<PAGE>
THE COMPANY
Phoenix designs, develops, manufactures, markets and supports
standards-based compatibility software to the personal computer and information
appliance industries. Such software includes synthesizable cores for
interconnect standards, including PCI, USB and other emerging interfaces. In
addition to software products, Phoenix offers training, consulting, maintenance
and engineering services to its customers.
Phoenix Technologies Ltd. was originally incorporated as Phoenix Software
Associates Ltd. in Massachusetts in 1979 and was reincorporated in Delaware in
1986. Phoenix maintains its executive offices at 2770 De La Cruz Boulevard,
Santa Clara, California 95050 and its telephone number is 408-654-9000.
FORWARD LOOKING INFORMATION
This Prospectus, including the information incorporated by reference herein,
contains forward-looking statements within the meaning of Section 27A of the
Securities Act and Section 21E of the Exchange Act. Actual results could differ
materially from those projected in the forward-looking statements as a result of
the risk factors set forth below. Reference is made in particular to the
discussion set for under "Management's Discussion and Analysis of Financial
Condition and Results of Operations" in the Annual Report on Form 10-K for the
fiscal year ended September 30, 1995 and in the Quarterly Reports on Form 10-Q
for the fiscal quarters ended December 31, 1995, March 31, 1996 and June 30,
1996, including the Form 10-Q/A-1 filed with respect to the Quarterly Report on
Form 10-Q for the fiscal quarter ended June 30, 1996.
SELLING STOCKHOLDERS
The following table shows, as to each Selling Stockholder, (i) such
stockholder's name and position, if any, with Phoenix , (ii) the number of
shares of Common Stock beneficially owned prior to the offering, and (iii) the
number of shares of Common Stock to be sold pursuant to this Prospectus:
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY SHARES TO BE
OWNED PRIOR TO SOLD IN THE
NAME OFFERING(1)(2) OFFERING
- ---------------------------------------------------------------------------- ----------------- ----------------
<S> <C> <C>
Thomas Anderson............................................................. 46,077 46,077
John G. Balletto, Trustee for the John G. Balletto and Marni A. Balletto
Family Trust U/A/D 8/12/93................................................ 7,447 7,447
Thomas Cervantez............................................................ 1,974 1,974
Shyamal Roy Chowdhry........................................................ 24,684 24,684
Herbert V. Criscito......................................................... 9,682 9,682
Mario A. Criscito........................................................... 20,108 20,108
Simon Davidmann............................................................. 25,013 25,013
Jorge del Calvo............................................................. 13,165 13,165
Jorge del Calvo, Trustee for Ahin Thomas 1996 Trust......................... 7,899 7,899
Jorge del Calvo, Trustee for Suneil Thomas 1996 Trust....................... 7,899 7,899
Fluegel Trust, FBO F.K. & D.K. Fluegel...................................... 29,790 29,790
Ram Paul Gupta.............................................................. 7,447 7,447
Martin Harding.............................................................. 52,660 52,660
James J. Harrison........................................................... 7,447 7,447
Sayed Hussain............................................................... 39,495 39,495
Sikandar Gilani, Trustee, Hussain's Children's Trust I...................... 26,330 26,330
James J. Kim................................................................ 7,447 7,447
Nestling, Inc. Retirement Trust............................................. 7,447 7,447
Thomas O'Connell............................................................ 32,912(3) 26,330
S. Pattapa.................................................................. 13 13
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY SHARES TO BE
OWNED PRIOR TO SOLD IN THE
NAME OFFERING(1)(2) OFFERING
- ---------------------------------------------------------------------------- ----------------- ----------------
<S> <C> <C>
The Pickard Family Trust.................................................... 14,895 14,895
Rajan Raghavan.............................................................. 582,274 582,274
Lakshmi Jengler, Trustee of the Raghavan Family Irrevocable Trust for Ravi
Raghavan.................................................................. 37,981 37,981
Lakshmi Jengler, Trustee of the Raghavan Family Irrevocable Trust for
Srindhi Raghavan.......................................................... 37,981 37,981
Tim Richardson.............................................................. 7,447 7,447
Joseph D. Rizzi............................................................. 47,539(4) 40,957
Joseph D. and Elizabeth M. Rizzi 1990 Family Trust.......................... 26,811 26,811
John Rizzi.................................................................. 1,489 1,489
Suzanne Phelan.............................................................. 1,489 1,489
Mansour S. Saki............................................................. 6,363 6,363
Lori L. Scott............................................................... 8,350(5) 6,582
Ajay Shah................................................................... 2,369 2,369
Rajvir and Swadesh Singh.................................................... 14,895 14,895
Richard T. Skipworth........................................................ 7,447 7,447
Arvind and Giva Thadani, Custodians for Sehr Thadani, UGMA.................. 5,957 5,957
A. Thampy Thomas............................................................ 85,133(6) 78,551
</TABLE>
- ------------------------
(1) Based on shares beneficially owned at November 1, 1996.
(2) No Selling Stockholder will own more than 1% of the outstanding shares of
Common Stock of Phoenix following the sale of the shares offered hereby.
Prior to the offering, Rajan Raghavan is the only Selling Stockholder who
owns more than 1% of the outstanding shares of Phoenix and owns
approximately 3.8% of the outstanding Phoenix Common Stock
(3) Includes 6,582 shares which Mr. O'Connell may acquire pursuant to options to
purchase Phoenix common stock which are exercisable within 60 days of
November 1, 1996.
(4) Includes 6,582 shares which Mr. Rizzi may acquire pursuant to options to
purchase Phoenix common stock which are exercisable within 60 days of
November 1, 1996.
(5) Includes 1,768 shares which Ms. Scott may acquire pursuant to options to
purchase Phoenix common stock which are exercisable within 60 days of
November 1, 1996.
(6) Includes 6,582 shares which Mr. Thomas may acquire pursuant to options to
purchase Phoenix common stock which are exercisable within 60 days of
November 1, 1996.
PLAN OF DISTRIBUTION
Phoenix has been advised by the Selling Stockholders that they and any
person receiving shares from the Selling Stockholders in the form of a bona fide
gift or transfer (a "Transferee") intend to sell all or a portion of the shares
offered hereby from time to time in the over-the-counter market and that sales
will be made at prices prevailing at the times of such sales. The Selling
Stockholders and any Transferee may also make private sales directly or through
a broker or brokers, who may act as agent or as principal. In connection with
any sales, the Selling Stockholders, any Transferee and any brokers
participating in such sales may be deemed to be underwriters within the meaning
of the Securities Act. Phoenix will receive no part of the proceeds of sales
made hereunder.
Any broker-dealer participating in such transactions as agent may receive
commissions from the Selling Stockholders and any Transferee (and, if they act
as agent for the purchase of such shares, from such purchaser). Usual and
customary brokerage fees will be paid by the Selling Stockholders and any
4
<PAGE>
Transferee. Broker-dealers may agree with the Selling Stockholders to sell a
specified number of shares at a stipulated price per share, and, to the extent
such a broker-dealer is unable to do so acting as agent for the Selling
Stockholders and any Transferee, to purchase as principal any unsold shares at
the price required to fulfill the broker-dealer commitment to the Selling
Stockholders and any Transferee. Broker-dealers who acquire shares as principal
may thereafter resell such shares form time to time in transactions (which may
involve crosses and block transactions and which may involve sales to and
through other broker-dealers, including transactions of the nature described
above) in the over-the-counter market, in negotiated transactions or otherwise
at market prices prevailing at the time of sale or at negotiated prices, and in
connection with such resales may pay to or receive from the purchasers of such
shares commissions computed as described above.
Phoenix has advised the Selling Stockholders that the anti-manipulative
Rules 10b-6 and 10b-7 under the Exchange Act may apply to their sales in the
market, has furnished each Selling Stockholder with a copy of these Rules and
has informed them of the need for delivery of copies of this Prospectus. The
Selling Stockholders or any Transferee may indemnify any broker-dealer that
participates in transactions involving the sale of the shares against certain
liabilities, including liabilities arising under the Securities Act. Any
commissions paid or any discounts or concessions allowed to any such broker
- -dealers, and any profits received on the resale of such shares, may be deemed
to be underwriting discounts and commissions under the Securities Act if any
such broker-dealers purchase shares as principal.
Upon notification by a Selling Stockholder or any Transferee to Phoenix that
any material arrangement has been entered into with a broker-dealer for the sale
of shares through a cross or block trade, to the extent required, a supplemental
prospectus will be filed under Rule 494(c) under the Securities Act setting
forth the name of the participating broker-dealer(s), the number of shares
involved, the price at which such shares were sold by the Selling Stockholder or
any Transferee, the commissions paid or discounts or concessions allowed by the
Selling Stockholder or any Transferee to such broker-dealer(s), and where
applicable, that such broker-dealer(s) did not conduct any investigation to
verify the information set forth in this Prospectus.
The shares offered for sale herein are "covered securities" within the
meaning of the Securities Act, and, therefore, preempt the qualification
requirements of the securities or blue sky laws of the various states. To ensure
compliance with the state requirements for regulation of broker-dealers and
agents, the Selling Stockholders have been or will be advised that sales of the
shares offered herein should be effected through registered brokers or dealers.
Any securities covered by this Prospectus which qualify for sale pursuant to
Rule 144 under the Securities Act may be sold under that Rule rather than
pursuant to this Prospectus.
There can be no assurance that any of the Selling Stockholders or any
Transferee will sell any or all of the shares of Common Stock offered by them
hereunder.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby has been passed
upon for the Company by Scott C. Neely, Vice President, General Counsel and
Secretary of Phoenix. As of November 1, 1996, Mr. Neely beneficially owned
22,541 shares of Common Stock, including 21,250 shares which may be acquired
pursuant to options vested as of November 1, 1996 and vesting within 60 days
after such date.
5
<PAGE>
PHOENIX TECHNOLOGIES LTD.
REGISTRATION STATEMENT ON FORM S-3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM NUMBER
ITEM 14 OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
<TABLE>
<S> <C>
SEC Registration Fee.............................................. $ 6,139
Accounting Fees**................................................. $ 3,000
Legal Fees**...................................................... $ 1,500
Printing Fees**................................................... $ 2,500
Miscellaneous..................................................... $ 361
</TABLE>
- ------------------------
*All expenses of issuance and distribution (other than commissions and
discounts payable to dealers or underwriters) will be paid by Phoenix.
**Estimates
ITEM 15 INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation's Board of Directors to grant, indemnification to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act. Article
Tenth of Phoenix's Amended and Restated Certificate of Incorporation provides
for indemnification of its directors, officers, employees and other agents to
the maximum extent permitted by the Delaware General Corporation Law. In
addition, the Registrant has entered into indemnification agreements with its
officers and directors.
ITEM 16 EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- -----------
<C> <S>
4.1 Agreement and Plan of Reorganization dated July 16, 1996 among Phoenix Technologies Ltd., Spud
Acquisition Corp. and Virtual Chips, Inc. (incorporated by reference to Exhibit 2.1 to Form 10-Q of
Phoenix for the fiscal quarter ended June 30, 1996).
4.2 Declaration of Registration Rights
5.1 Opinion of Scott C. Neely, Esq., Vice President, General Counsel and Secretary of Phoenix.
23.1 Consent of Coopers & Lybrand, LLP, Independent Accountants
23.2 Consent of Scott C. Neely, Esq. (Included in Exhibit 5.1)
24 Power of Attorney (See page II-3)
</TABLE>
ITEM 17 UNDERTAKINGS
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 that is incorporated by reference in this 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.
II-1
<PAGE>
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions or otherwise, the registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the 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, 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 questions 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.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 19334, as amended, the
Registrant 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 the 15th day of November, 1996.
PHOENIX TECHNOLOGIES LTD.
By: /s/ JACK KAY
--------------------------------------
Jack Kay,
PRESIDENT AND CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints, jointly and severally, Jack Kay, Scott C.
Neely and Robert J. Riopel, and each of them acting individually, as his
attorney-in-fact, each with full power of substitution, for him in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said attorney to any and
all amendments to said Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ --------------------------------------------- ----------------------
<C> <S> <C>
/s/ JACK KAY
--------------------------------- President, Chief Executive Officer and November 15, 1996
Jack Kay Director (Principal Executive Officer)
/s/ ROBERT J. RIOPEL Vice President, Finance and Chief Financial
--------------------------------- Officer (Principal Financial and Accounting November 15, 1996
Robert J. Riopel Officer)
/s/ CHARLES FEDERMAN
--------------------------------- Director November 15, 1996
Charles Federman
/s/ LAWRENCE G. FINCH
--------------------------------- Director November 15, 1996
Lawrence G. Finch
/s/ RONALD D. FISHER
--------------------------------- Chairman of the Board November 15, 1996
Ronald D. Fisher
/s/ LANCE E. HANSCHE
--------------------------------- Director November 15, 1996
Lance E. Hansche
/s/ ANTHONY P. MORRIS
--------------------------------- Director November 15, 1996
Anthony P. Morris
</TABLE>
II-3
<PAGE>
EXHIBIT D
PHOENIX TECHNOLOGIES LTD.
DECLARATION OF REGISTRATION RIGHTS
This Declaration of Registration Rights ("Declaration") is made as of
July __, 1996, by Phoenix Technologies Ltd., a Delaware corporation
("Parent"), for the benefit of shareholders of Virtual Chips, Inc., a
California corporation (the "Company"), acquiring shares of Parent Common
Stock pursuant to that Agreement and Plan of Reorganization, dated as of July
__, 1996 (the "Reorganization Agreement"), among Parent, Company and Spud
Acquisition Corp., a California corporation and wholly-owned subsidiary of
Parent ("Merger Sub"), and pursuant to the related Agreement of Merger (the
"Agreement of Merger") between the Company and Merger Sub and in
consideration of such shareholders approving the Reorganization Agreement and
the transactions contemplated thereby.
1. DEFINITIONS. As used in this Declaration:
a. "Effective Time" means the time of acceptance by the
California Secretary of State of the Agreement of Merger.
b. "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
c. "Form S-3" means such form under the Securities Act as is in
effect on the date hereof or any registration form under the Securities Act
subsequently adopted by the SEC which similarly permits inclusion or
incorporation of substantial information by reference to other documents
filed by Parent with the SEC.
d. "Holder" means: (i) a shareholder of the Company to whom
shares of Common Stock of Parent are issued pursuant to the Reorganization
Agreement and the Agreement of Merger (including shares of Parent Common
Stock issued upon the exercise of Company Options assumed by Parent pursuant
to Section 1.6 of the Reorganization Agreement), or (ii) the Escrow Agent (as
defined in the Reorganization Agreement), or (iii) a transferee to whom
registration rights granted under this Declaration are assigned pursuant to
Section 10 of this Declaration.
e. "Registrable Securities" means for each Holder the number of
shares of Parent Common Stock issued to such Holder pursuant to the
Reorganization Agreement (including shares of Parent Common Stock issued upon
the exercise of Company Options assumed by Parent pursuant to Section 1.6 of
the Reorganization Agreement and shares issued to the Escrow Agent pursuant
to Sections 1.6 and 8.2 thereof), in each case rounded to the nearest
integral amount, and for all Holders the sum of the Registrable Securities
held by them.
f. "Securities Act" means the Securities Act of 1933, as amended.
<PAGE>
g. "SEC" means the Securities and Exchange Commission.
Terms not otherwise defined herein have the meanings given to them in
the Reorganization Agreement.
2. REGISTRATION. Parent shall use its best efforts to cause the
Registrable Securities held by each Holder to be registered under the
Securities Act so as to permit the sale thereof, and in connection therewith
shall prepare and file with the SEC within ninety (90) days following the
Effective Time a registration statement in such form as is then available
under the Securities Act covering the Registrable Securities; provided,
however, that each Holder shall provide all such information and materials
and take all such action as may be required in order to permit Parent to
comply with all applicable requirements of the Securities Act, the Exchange
Act, and of the SEC, and to obtain any desired acceleration of the effective
date of such registration statement, such provision of information and
materials to be a condition precedent to the obligations of Parent pursuant
to this Declaration. Parent shall not be required to effect more than one
(1) registration pursuant to this Declaration. The offerings made pursuant
to such registration shall not be underwritten.
3. OBLIGATIONS OF PARENT. Parent shall (i) prepare and file with the
SEC the registration statement in accordance with Section 2 hereof with
respect to the Registrable Securities and shall use its best efforts to cause
such registration statement to become effective as promptly as practicable
after filing and to keep such registration statement effective until two (2)
years after the Effective Time; (ii) prepare and file with the SEC such
amendments to such registration statement and amendments or supplements to
the prospectus used in connection therewith as may be necessary to comply
with the provisions of the Securities Act with respect to the sale or other
disposition of all securities registered by such registration statement until
two (2) years after the Effective Time; (iii) furnish to each Holder such
number of copies of any prospectus (including any preliminary prospectus and
any amended or supplemented prospectus) in conformity with the requirements
of the Securities Act, and such other documents, as each Holder may
reasonably request in order to effect the offering and sale of the
Registrable Securities to be offered and sold, but only while Parent shall be
required under the provisions hereof to cause the registration statement to
remain effective; (iv) use its commercially reasonable efforts to register or
qualify the Registrable Securities covered by such registration statement
under the securities or blue sky laws of such jurisdictions as each Holder
shall reasonably request (provided that Parent 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 jurisdiction
where it has not been qualified), and do any and all other acts or things
which may be necessary or advisable to enable each Holder to consummate the
public sale or other disposition of such Registrable Securities in such
jurisdictions; (v) notify each Holder upon 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 light of the circumstances then
existing; (vi) so long as the registration statement remains effective,
promptly prepare, file and furnish to each Holder a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of the
Registrable Securities, such prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
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light of the circumstances then existing; (vii) notify each Holder, promptly
after it shall receive notice thereof, of the date and time the registration
statement and each post-effective amendment thereto has become effective or a
supplement to any prospectus forming a part of such registration statement
has been filed; (viii) notify each Holder promptly of any request by the SEC
for the amendment or supplement of such registration statement or prospectus
or for additional information; and (ix) advise each Holder, promptly after it
shall receive notice or obtain knowledge thereof, of the issuance of any stop
order by the SEC suspending the effectiveness of the registration statement
or the initiation or threatening of any proceeding for that purpose and
promptly use its best efforts to prevent the issuance of any stop order or to
obtain its withdrawal if such stop order should be issued. In connection
with any offering of Registrable Securities registered pursuant to this
Declaration, Parent shall (x) furnish each Holder, at Parent's expense, with
unlegended certificates representing ownership of the Registrable Securities
being sold, in such denominations as each Holder shall request and (y)
instruct the transfer agent and registrar of the Registrable Securities to
release any stop transfer orders with respect to the Registrable Securities
being sold.
4. SUSPENSION OF PROSPECTUS. Each Holder will be required to notify
Parent in writing at least five (5) business days prior to a disposition of
Registrable Securities pursuant to the registration statement of his intent
to dispose of such Registrable Securities. At any time within such five (5)
business day period, Parent may restrict disposition of such Registrable
Securities, in which event such Holder will not be able to dispose of such
Registrable Securities, provided that: (i) Parent shall have delivered a
notice in writing to such Holder stating that a delay in the disposition of
such Registrable Securities is necessary because Parent, in its reasonable
judgment, has determined that such sales would require public disclosure by
Parent of material nonpublic information that Parent deems it advisable not
to disclose; PROVIDED, HOWEVER, that no such delay shall be imposed unless
Parent shall equally prohibit during the period of such delay any sale of
Parent's securities by all executive officers and directors of Parent; (ii)
in the event of the delivery of the notice described in (i) above by Parent,
Parent shall use its best efforts to amend the registration statement and/or
amend or supplement the related prospectus if necessary and to take all other
actions necessary to allow the proposed sale to take place as promptly as
possible after the conditions referred to in the notice have ceased to exist
or have been disclosed; and (iii) Parent shall not restrict dispositions
under (i) above for a period exceeding forty-five (45) days during any
calendar quarter.
5. AVAILABILITY OF FORM S-3. Parent represents that if Form S-3 (or a
successor form) is not available for use by Parent, Parent shall file a
registration statement on Form S-1 to satisfy its obligations under Section 2
hereof. Parent further represents that it believes it is currently eligible
to utilize Form S-3 and currently believes that there is no material
nonpublic information which would preclude it from filing a registration
statement on Form S-3.
6. REGISTRATION ON FORM S-8. Parent will use commercially reasonable
efforts to file with the SEC within fifteen (15) business days of the Closing
Date, a registration statement on Form S-8 covering all shares of Parent
Common Stock issuable upon exercise of Company Options assumed by Parent.
7. EXPENSES. Parent shall pay all of the out-of-pocket expenses
incurred, other than underwriting discounts and commissions, in connection
with any registration of Registrable Securities
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pursuant to this Declaration, including, without limitation, all SEC, Nasdaq
National Market and blue sky registration and filing fees, printing expenses,
transfer agents' and registrars' fees, and the reasonable fees and
disbursements of Parent's outside counsel and independent accountants and a
single counsel for all of the Holders.
8. INDEMNIFICATION. In the event of any offering registered pursuant
to this Declaration:
a. Parent will indemnify each Holder, each of its officers,
directors and partners and such Holder's legal counsel and independent
accountants, and each person controlling such Holder within the meaning of
Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this Declaration,
and each underwriter, if any, and each person who controls any underwriter
within the meaning of Section 15 of the Securities Act, against all expenses,
claims, losses, damages and liabilities (or actions in respect thereof),
including any of the foregoing incurred in settlement of any litigation,
commenced or threatened, arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any registration
statement, prospectus, offering circular or other document, or any amendment
or supplement thereto, incident to any such registration, qualification or
compliance, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they are made, not
misleading, or any violation by Parent of any rule or regulation promulgated
under the Securities Act, or state securities laws, or common law, applicable
to Parent in connection with any such registration, qualification or
compliance, and will reimburse each such Holder, each of its officers,
directors and partners and such Holder's legal counsel and independent
accountants, and each person controlling such Holder, each such underwriter
and each person who controls any such underwriter, for any legal and any
other expenses reasonably incurred in connection with investigating,
preparing or defending any such claim, loss, damage, liability or action,
provided that Parent will not be liable in any such case to the extent that
any such claim, loss, damage, liability or expense arises out of or is based
in any untrue statement or omission or alleged untrue statement or omission,
made in reliance upon and in conformity with written information furnished to
Parent in an instrument duly executed by such Holder or underwriter and
stated to be specifically for use therein.
b. Each Holder will, if Registrable Securities held by such
Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify Parent, each of its
directors and officers and its legal counsel and independent accountants,
each underwriter, if any, of Parent's securities covered by such a
registration statement, each person who controls Parent or such underwriter
within the meaning of Section 15 of the Securities Act, and each other such
Holder, each of its officers and directors and each person controlling such
Holder within the meaning of Section 15 of the Securities Act, against all
claims, losses, damages and liabilities (or actions in respect thereof)
arising out of or based on any untrue statement (or alleged untrue statement)
of a material fact contained in any such registration statement, prospectus,
offering circular or other document, or any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse Parent, such
Holders, such directors, officers, legal counsel, independent accountants,
underwriters or control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue
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<PAGE>
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon
and in conformity with written information furnished to Parent by an
instrument duly executed by such Holder and stated to be specifically for use
therein; provided, however, that the obligations of such Holders hereunder
shall be limited to an amount equal to the gross proceeds before expenses and
commissions to each such Holder of Registrable Securities sold as
contemplated herein.
c. Each party entitled to indemnification under this Section 8
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
Party has written notice of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of any such
claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval shall
not be unreasonably withheld), and the Indemnified Party may participate in
such defense at such party's expense, and provided further that the failure
of any Indemnified Party to give notice as provided herein shall not relieve
the Indemnifying Party of its obligations under this Declaration, except to
the extent, but only to the extent, that the Indemnifying Party's ability to
defend against such claim or litigation is impaired as a result of such
failure to give notice. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to the Indemnified Party of a release from all liability in respect
to such claim or litigation.
d. The obligations of Parent and each Holder under this Section 8
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Declaration and otherwise.
9. REPORTS UNDER EXCHANGE ACT. Parent agrees to:
a. use its commercially reasonable efforts to file with the SEC
in a timely manner all reports and other documents required of Parent under
the Securities Act and the Exchange Act; and
b. furnish to each Holder, forthwith upon request (i) a written
statement by Parent that it has complied with the reporting requirements of
the Securities Act and the Exchange Act, or that it qualifies as a registrant
whose securities may be resold pursuant to Form S-3 (at any time after it so
qualifies), (ii) a copy of the most recent annual or quarterly report of
Parent and (iii) such other information as may be reasonably requested in
availing each Holder of any rule or regulation of the SEC which permits the
selling of any such securities pursuant to Form S-3.
10. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause Parent to
register Registrable Securities pursuant to this Declaration may be assigned
by a Holder to a transferee of Registrable Securities only if: (a) Parent is,
within a reasonable time after such transfer, furnished with written notice
of the name and address of such transferee and the Registrable Securities
with respect to which such registration rights are being assigned and a copy
of a duly executed written instrument in form reasonably
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<PAGE>
satisfactory to Parent by which such transferee assumes all of the
obligations and liabilities of its transferor hereunder and agrees itself to
be bound hereby; and (b) immediately following such transfer the disposition
of such Registrable Securities by the transferee is restricted under the
Securities Act.
11. AMENDMENT OF REGISTRATION RIGHTS. Holders of a majority of the
Registrable Securities from time to time outstanding may, with the consent of
Parent, amend the registration rights granted hereunder.
12. TERMINATION. The registration rights set forth in this Declaration
shall terminate with respect to a Holder at such time as all of the
Registrable Securities then held by such Holder can be sold by such Holder in
a three-month period in accordance with Rule 144 under the Securities Act.
13. THIRD PARTY BENEFICIARIES. It is intended that the shareholders of
the Company be third party beneficiaries to this Declaration.
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EXHIBIT 5.1
November 15, 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-3 (the "Registration Statement") to be filed by Phoenix Technologies Ltd.
(the "Company") with the Securities and Exchange Commission on or about
November 15, 1996 (the "Registration Statement") in connection with the
registration under the Securities Act of 1933, as amended, of 1,241,842
shares of the Company's Common Stock, par value $.001 per share (the
"Stock"), all of which are authorized and have been previously issued to the
Selling Stockholders named therein in connection with the acquisition by the
Company of Virtual Chips, Inc. (the "Acquisition"). The Stock is to be
offered by the Selling Stockholders for sale to the public as described in
the Registration Statement.
As Vice President, General Counsel and Secretary of the Company, I have
examined the records and filings made and proceedings taken by you in
connection with the Acquisition, including without limitation minutes of
meetings of the Board of Directors of the Company filings made with the
Securities and Exchange Commission and the Nasdaq Stock Market, Inc.
It is my opinion that the Stock that may be sold by the Selling
Shareholders pursuant to the Prospectus associated with the Registration
Statement, when sold in the manner referred to in the Registration Statement,
will be legally and validly 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
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement on
Form S-3 (being filed with respect to 1,241,842 shares of Phoenix
Technologies Ltd. common stock) of our reports 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 reports are 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
November 15, 1996
