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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 7, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PHOENIX TECHNOLOGIES LTD.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 04-2685985
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
411 E. PLUMERIA DRIVE
SAN JOSE, CA 95134
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
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AMENDED 1991 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLAN)
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ALBERT E. SISTO
CHIEF EXECUTIVE OFFICER
PHOENIX TECHNOLOGIES LTD.
411 E. PLUMERIA DRIVE
SAN JOSE, CA 95134
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(408) 570-1000
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPY TO:
ALAN TALKINGTON, ESQ.
ORRICK, HERRINGTON & SUTCLIFFE LLP
OLD FEDERAL RESERVE BANK BUILDING
400 SANSOME STREET
SAN FRANCISCO, CALIFORNIA 94111-3143
(415) 392-1122
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================= ==================== ==================== ==================== ===================
AMOUNT PROPOSED PROPOSED AMOUNT OF
TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE (1) OFFERING PRICE (1) FEE
----------------------------------------- -------------------- -------------------- -------------------- -------------------
<S> <C> <C> <C> <C>
Common Stock, (2)
par value $.001 per share...... 350,000 shares $17.75 $6,212,500 $1,640.10
========================================= ==================== ==================== ==================== ===================
</TABLE>
(1) Pursuant to Rule 457(h)(1), the proposed maximum offering price per share
and the proposed maximum aggregate offering price have been calculated on
the basis of $17.75 per share, the average of the high and low price of the
Common Stock on the Nasdaq National Market on June 5, 2000.
(2) Includes Preferred Stock Purchase Rights which, prior to the occurrence of
certain events, will not be exercisable or evidenced separately from the
Common Stock.
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PART I
ITEM 1. PLAN INFORMATION *
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION *
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933 (the "Securities Act") and the Note to Part
I of Form S-8.
PART II
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Registrant with the Securities and
Exchange Commission are hereby incorporated by reference in this Registration
Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended September 30, 1999.
(b) The Registrant's Quarterly Reports on Form 10-Q for the
quarters ended December 31, 1999 and March 31, 1999.
(c) The description of Registrant's common stock contained in the
Registrant's Registration Statement on Form 8-A, including any subsequent
amendment or report filed for the purpose of updating such information.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d)of the Securities Exchange Act of 1934 (the "Exchange
Act") shall be deemed incorporated by reference in this Registration Statement
and to be a part hereof from the date of filing such documents until a
post-effective amendment of this Registration Statement is filed which indicates
that all securities being offered hereby have been sold or which deregisters all
securities then remaining unsold.
ITEM 4. DESCRIPTION OF SECURITIES
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
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
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.
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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 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
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<CAPTION>
EXHIBIT
NUMBER NAME
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<S> <C>
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Orrick, Herrington & Sutcliffe LLP is included
in Exhibit 5.1 to this Registration Statement.
</TABLE>
ITEM 9. UNDERTAKINGS
(a) 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, represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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 (a)(1)(i) and (a)(1)(ii) do not apply if 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.
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(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.
(b) 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 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.
(c) 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 foregoing provisions, 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, 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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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 San Jose, State of California on the 7th of June,
2000.
PHOENIX TECHNOLOGIES LTD.
(Registrant)
By:/s/ Albert E. Sisto
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Albert E. Sisto
Chief Executive Officer
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Albert E. Sisto Director, President and June 7, 2000
----------------------------------- Chief Executive Officer
Albert E. Sisto
/s/ John M. Greeley Vice President, Finance and June 7, 2000
----------------------------------- Chief Financial Officer
John M. Greeley (Principal Financial Officer and
Principal Accounting Officer)
/s/ Taher Elgamal Director June 7, 2000
-----------------------------------
Taher Elgamal
Director June 7, 2000
-----------------------------------
Edmund Jensen
/s/ Anthony P. Morris Director June 7, 2000
-----------------------------------
Anthony P. Morris
/s/ Tony Sun Director June 7, 2000
-----------------------------------
Tony Sun
Director June 7, 2000
-----------------------------------
George C. Huang
</TABLE>
(A majority of the Board of Directors)
5
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER NAME
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<S> <C>
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Orrick, Herrington & Sutcliffe LLP is included
in Exhibit 5.1 to this Registration Statement.
</TABLE>
