sec document
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------
SCHEDULE 13D
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. 8)(1)
Phoenix Technologies Ltd.
-------------------------
(Name of Issuer)
Common Stock, $.001 Par Value
-----------------------------
(Title of Class of Securities)
719153108
---------
(CUSIP Number)
STEVEN WOLOSKY, ESQ.
OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
Park Avenue Tower
65 East 55th Street
New York, New York 10022
(212) 451-2300
--------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
February 6, 2007
----------------
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box / /.
NOTE. Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. SEE Rule 13d-7 for other
parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 34 Pages)
----------------
(1) The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, SEE the
NOTES).
---------------------- ----------------------
CUSIP No. 719153108 13D Page 2 of 34 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
STARBOARD VALUE AND OPPORTUNITY MASTER FUND LTD.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 2,774,471
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH - 0 -
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
2,774,471
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
- 0 -
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
2,774,471
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.8%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 719153108 13D Page 3 of 34 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
PARCHE, LLC 20-0870632
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 528,470
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH - 0 -
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
528,470
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
- 0 -
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
528,470
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.1%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 719153108 13D Page 4 of 34 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
ADMIRAL ADVISORS, LLC 37-1484525
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 3,302,941
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH - 0 -
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
3,302,941
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
- 0 -
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
3,302,941
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.9%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IA, OO
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 719153108 13D Page 5 of 34 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
RAMIUS CAPITAL GROUP, L.L.C. 13-3937658
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 3,302,941
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH - 0 -
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
3,302,941
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
- 0 -
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
3,302,941
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.9%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IA, OO
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 719153108 13D Page 6 of 34 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
C4S & CO., L.L.C. 13-3946794
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 3,302,941
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH - 0 -
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
3,302,941
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
- 0 -
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
3,302,941
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.9%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 719153108 13D Page 7 of 34 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
PETER A. COHEN
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY - 0 -
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH 3,302,941
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
- 0 -
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
3,302,941
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
3,302,941
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.9%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 719153108 13D Page 8 of 34 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
MORGAN B. STARK
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY - 0 -
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH 3,302,941
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
- 0 -
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
3,302,941
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
3,302,941
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.9%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 719153108 13D Page 9 of 34 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
JEFFREY M. SOLOMON
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY - 0 -
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH 3,302,941
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
- 0 -
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
3,302,941
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
3,302,941
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.9%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 719153108 13D Page 10 of 34 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
THOMAS W. STRAUSS
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY - 0 -
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH 3,302,941
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
- 0 -
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
3,302,941
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
3,302,941
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.9%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 719153108 13D Page 11 of 34 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
JOHN MUTCH
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
PF
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 200,000
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH - 0 -
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
200,000
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
- 0 -
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
200,000
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Less than 1%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 719153108 13D Page 12 of 34 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
PHILIP MOYER
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY - 0 -
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH - 0 -
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
- 0 -
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
- 0 -
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
- 0 -
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 719153108 13D Page 13 of 34 Pages
---------------------- ----------------------
The following constitutes Amendment No. 8 ("Amendment No. 8") to
the Schedule 13D filed by the undersigned. This Amendment No. 8 amends the
Schedule 13D as specifically set forth.
Item 2 is hereby amended to add the following:
In connection with the Settlement Agreement described and defined in
Item 4, Starboard has withdrawn its nomination of Messrs. Moyer and Mutch for
election at the 2007 Annual Meeting. Pursuant to the Settlement Agreement, the
Issuer has agreed to nominate and recommend the election of John Mutch and
Robert J. Majteles as the Issuer's nominees for election as Class 2 directors at
the 2007 Annual Meeting (the "Issuer Nominees"). Accordingly, Messrs. Moyer and
Mutch are no longer members of the Section 13(d) group and shall cease to be
Reporting Persons immediately after the filing of this Amendment No. 8. The
remaining Reporting Persons will continue filing as a group statements on
Schedule 13D with respect to their beneficial ownership of securities of the
Issuer to the extent required by applicable law.
The final paragraph of Item 2(a) is hereby amended and restated as
follows:
As of February 13, 2007, the Reporting Persons were the beneficial
owners of, in the aggregate, 3,502,941 Shares, representing approximately 13.7%
of the Shares presently outstanding.
Item 4 is hereby amended to add the following:
On February 6, 2007, Starboard issued a letter on behalf of the
Reporting Persons to the shareholders of the Issuer noting that Ramius Capital
has withdrawn Admiral Advisors' $5.25 per Share offer to purchase the Issuer.
The letter is attached as Exhibit 14 hereto and is incorporated herein by
reference.
On February 12, 2007, the Reporting Persons and the Issuer
(together, the "Parties") entered into a Settlement Agreement (the "Settlement
Agreement"), a copy of which is attached hereto as Exhibit 15 and is
incorporated herein by reference. Pursuant to the Settlement Agreement, the
Reporting Persons agreed (i) to withdraw Starboard's nomination of Messrs. Moyer
and Mutch for election at the 2007 Annual Meeting, (ii) to withdraw and
terminate their proxy solicitation to elect Messrs. Moyer and Mutch as directors
at the 2007 Annual Meeting, (iii) to not present any other nominees or proposals
at the 2007 Annual Meeting, (iv) to vote all of their Shares, in person or by
proxy, in favor of the Issuer Nominees at the 2007 Annual Meeting and (v) from
February 12, 2007 through the 2007 Annual Meeting, not to directly or indirectly
engage in any activities in opposition to the election of the Issuer Nominees as
the sole directors elected at the 2007 Annual Meeting.
The Issuer agreed that (i) it shall nominate and recommend John
Mutch and Robert J. Majteles for election as Class 2 directors at the 2007
Annual Meeting, (ii) in accordance with its bylaws, it shall take all action
necessary, following the election of the Issuer Nominees, to (a) appoint Mr.
Mutch as member, but not chairman, of the Audit Committee of the Issuer's board
of directors and Mr. Majteles as member, but not chairman, of the Nominating and
---------------------- ----------------------
CUSIP No. 719153108 13D Page 14 of 34 Pages
---------------------- ----------------------
Governance Committee of the Issuer's board of directors and (b) elect Dale
Fuller as the new chairman of the Issuer's board of directors, (iii) it shall,
following the 2007 Annual Meeting and prior to the 2008 annual meeting, review
and consider and deliberate upon, the corporate governance recommendations of
Institutional Shareholder Services ("ISS") in its report dated February 6, 2007
and (iv) it shall not directly or indirectly engage in any activities in
opposition to the election of the Issuer Nominees as the sole directors elected
at the 2007 Annual Meeting from February 12, 2007 through the 2007 Annual
Meeting.
Also under the Settlement Agreement, until December 6, 2007 (unless
the Company's 2008 annual meeting is held before February 9, 2008, in which case
until 70 days before the date of the 2008 annual meeting), the "Ramius Group"
(as defined in the Settlement Agreement) and any of its controlled affiliates
have agreed not to (i) acquire any voting securities of the Issuer in excess of
the "Standstill Limit" (as defined in the Settlement Agreement), (ii) other than
as provided in the Settlement Agreement, seek to influence or control the
management or the policies of the Issuer or obtain representation on the
Issuer's board of directors, (iii) make any public announcements with respect to
a merger, consolidation, business combination or other extraordinary transaction
with or involving the Issuer, except as provided by Rule 14a-1(1)(2)(iv) of the
Act and (v) form, join or in any way participate in any "group" with respect to
any voting securities, other than a "group" that includes all or some lesser
number of the persons identified as part of the Ramius Group as of February 12,
2007.
The Company has also entered into an agreement with with certain
entities and individuals affiliated with AWM Investment Company, Inc. (the "AWM
Group"), pursuant to which, among other things, the AWM Group has agreed to vote
its shares in favor of the Nominees at the 2007 annual meeting. In accordance
with the Settlement Agreement, the Issuer, the Ramius Group and the AWM Group
issued a press release on February 12, 2007 announcing the terms of the
Settlement Agreement and the "AWM Agreement" (as defined in the Settlement
Agreement).
No Reporting Person has any present plan or proposal which would
relate to or result in any of the matters set forth in subparagraph (a) - (j) of
Item 4 of Schedule 13D except as set forth herein or as such would occur upon
completion of any of the actions discussed above.
Item 5 is hereby amended and restated as follows:
The aggregate percentage of Shares reported owned by each person
named herein is based upon 25,652,196 Shares outstanding as of January 31, 2007,
which is the total number of Shares outstanding as reported in the Issuer's
Quarterly Report on Form 10-Q, filed with the Securities and Exchange Commission
on February 2, 2007.
A. Starboard
(a) As of February 13, 2007, Starboard beneficially owned 2,774,471
Shares.
Percentage: Approximately 10.8%
(b) 1. Sole power to vote or direct vote: 2,774,471
2. Shared power to vote or direct vote: 0
3. Sole power to dispose or direct the disposition: 2,774,471
4. Shared power to dispose or direct the disposition: 0
(c) Starboard did not enter into any transactions in the Shares in
the past 60 days.
---------------------- ----------------------
CUSIP No. 719153108 13D Page 15 of 34 Pages
---------------------- ----------------------
B. Parche
(a) As of February 13, 2007, Parche beneficially owned 528,470 Shares.
Percentage: Approximately 2.1%
(b) 1. Sole power to vote or direct vote: 528,470
2. Shared power to vote or direct vote: 0
3. Sole power to dispose or direct the disposition: 528,470
4. Shared power to dispose or direct the disposition: 0
(c) Parche did not enter into any transactions in the Shares in the
past 60 days.
C. Admiral Advisors
(a) As of February 13, 2007, as the investment manager of Starboard
and the managing member of Parche, Admiral Advisors may be deemed
the beneficial owner of (i) 2,774,471 Shares owned by Starboard
and (ii) 528,470 Shares owned by Parche.
Percentage: Approximately 12.9%
(b) 1. Sole power to vote or direct vote: 3,302,941
2. Shared power to vote or direct vote: 0
3. Sole power to dispose or direct the disposition: 3,302,941
4. Shared power to dispose or direct the disposition: 0
(c) Admiral Advisors did not enter into any transactions in the
Shares in the past 60 days.
D. Ramius
(a) As of February 13, 2007, as the sole member of Admiral Advisors,
Ramius may be deemed the beneficial owner of (i) 2,774,471 Shares
owned by Starboard and (ii) 528,470 Shares owned by Parche.
Percentage: Approximately 12.9%
(b) 1. Sole power to vote or direct vote: 3,302,941
2. Shared power to vote or direct vote: 0
3. Sole power to dispose or direct the disposition: 3,302,941
4. Shared power to dispose or direct the disposition: 0
(c) Ramius did not enter into any transactions in the Shares in the
past 60 days.
---------------------- ----------------------
CUSIP No. 719153108 13D Page 16 of 34 Pages
---------------------- ----------------------
E. C4S
(a) As of February 13, 2007, as the managing member of Ramius, C4S may
be deemed the beneficial owner of (i) 2,774,471 Shares owned by
Starboard and (ii) 528,470 Shares owned by Parche.
Percentage: Approximately 12.9%
(b) 1. Sole power to vote or direct vote: 3,302,941
2. Shared power to vote or direct vote: 0
3. Sole power to dispose or direct the disposition: 3,302,941
4. Shared power to dispose or direct the disposition: 0
(c) C4S did not enter into any transactions in the Shares in the past
60 days.
F. Mr. Cohen, Mr. Stark, Mr. Strauss and Mr. Solomon
(a) As of February 13, 2007, as the managing members of C4S, each of
Mr. Cohen, Mr. Stark, Mr. Strauss and Mr. Solomon may be deemed
the beneficial owner of (i) 2,774,471 shares owned by Starboard
and (ii) 528,470 Shares owned by Parche. Each of Messrs. Cohen,
Stark, Solomon and Strauss share voting and dispositive power
with respect to the Shares owned by Starboard and Parche by
virtue of their shared authority to vote and dispose of such
Shares. Messrs. Cohen, Stark, Solomon and Strauss disclaim
beneficial ownership of such Shares.
Percentage: Approximately 12.9%
(b) 1. Sole power to vote or direct vote: 0
2. Shared power to vote or direct vote: 3,302,941
3. Sole power to dispose or direct the disposition: 0
4. Shared power to dispose or direct the disposition: 3,302,941
(c) None of Mr. Cohen, Mr. Stark, Mr. Strauss or Mr. Solomon has
entered into any transactions in the Shares in the past 60 days.
G. Mr. Mutch
(a) As of February 13, 2007, Mr. Mutch beneficially owned 200,000
Shares.
Percentage: Less than 1%
(b) 1. Sole power to vote or direct vote: 200,000
2. Shared power to vote or direct vote: 0
3. Sole power to dispose or direct the disposition: 200,000
4. Shared power to dispose or direct the disposition: 0
(c) Mr. Mutch did not enter into any transactions in the Shares in
past 60 days.
---------------------- ----------------------
CUSIP No. 719153108 13D Page 17 of 34 Pages
---------------------- ----------------------
H. Mr. Moyer does not currently beneficially own any Shares.
Item 6 is hereby amended to add the following:
On February 12, 2007, the Reporting Persons and the Issuer entered
into a Settlement Agreement defined and described in Item 4 above and attached
as Exhibit 15 hereto.
Item 7 is hereby amended to include the following exhibit:
14. Open Letter from Starboard to the shareholders of the Issuer,
dated February 6, 2007.
15. Agreement by and between Phoenix Technologies Ltd., on the one
hand, and each of Starboard Value and Opportunity Master Fund Ltd.,
Parche, LLC, Admiral Advisors, LLC, Ramius Capital Group, L.L.C.,
C4S & Co., L.L.C., Peter A. Cohen, Morgan B. Stark, Jeffrey M.
Solomon, Thomas W. Strauss, John Mutch, Philip Moyer and Jeffrey C.
Smith, dated February 12, 2007.
---------------------- ----------------------
CUSIP No. 719153108 13D Page 18 of 34 Pages
---------------------- ----------------------
SIGNATURES
After reasonable inquiry and to the best of his knowledge and
belief, each of the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: February 14, 2007
STARBOARD VALUE AND OPPORTUNITY ADMIRAL ADVISORS, LLC
MASTER FUND LTD. By: Ramius Capital Group, L.L.C.,
its managing member
PARCHE, LLC
By: Admiral Advisors, LLC, its RAMIUS CAPITAL GROUP, L.L.C.
managing member By: C4S & Co., L.L.C.,
as managing member
C4S & CO., L.L.C.
By: /s/ Jeffrey M. Solomon
------------------------------
Name: Jeffrey M. Solomon
Title: Authorized Signatory
JEFFREY M. SOLOMON
/s/ Jeffrey M. Solomon
--------------------------------
Individually and as attorney-in-fact
for Peter A. Cohen, Morgan B. Stark
and Thomas W. Strauss
JEFFREY C. SMITH
/s/ Jeffrey C. Smith
------------------------------
As attorney-in-fact for
John Mutch and Philip Moyer
---------------------- ----------------------
CUSIP No. 719153108 13D Page 19 of 34 Pages
---------------------- ----------------------
EXHIBIT INDEX
Exhibit Page
------- ----
14. Open Letter from Starboard to the shareholders of 20 to 21
the Issuer, dated February 6, 2007.
15. Agreement by and between Phoenix Technologies 22 to 34
Ltd., on the one hand, and each of Starboard Value
and Opportunity Master Fund Ltd., Parche, LLC,
Admiral Advisors, LLC, Ramius Capital Group,
L.L.C., C4S & Co., L.L.C., Peter A. Cohen, Morgan
B. Stark, Jeffrey M. Solomon, Thomas W. Strauss,
John Mutch, Philip Moyer and Jeffrey C. Smith,
dated February 12, 2007.
---------------------- ----------------------
CUSIP No. 719153108 13D Page 20 of 34 Pages
---------------------- ----------------------
ATTENTION PHOENIX TECHNOLOGIES LTD. SHAREHOLDERS
VOTE THE WHITE PROXY CARD
FOR
THE RAMIUS GROUP'S TWO DIRECTOR NOMINEES
Dear Fellow Shareholders:
We wish to be clear. Our proposal to purchase Phoenix Technologies Ltd.
("Phoenix" or the "Company") is withdrawn from consideration. We believe that
Phoenix is using our recent proposal to acquire the Company, which is no longer
on the table, as a smokescreen to divert your attention from the real issue in
this proxy contest - WHICH NOMINEES ARE MOST QUALIFIED TO OVERSEE THE COMPANY'S
TURNAROUND AND MAXIMIZE VALUE FOR ALL SHAREHOLDERS?
PLEASE DO NOT BE MISLED!
Phoenix would have you believe that our independent industry-expert director
nominees would act, if elected, solely to promote a sale of the Company to us at
a price that is below the current market value. THIS IS SIMPLY NOT THE CASE! OUR
OFFER IS WITHDRAWN. OUR NOMINEES ARE EXPERIENCED AND ACCOMPLISHED INDUSTRY
VETERANS INTERESTED IN ONE THING AND ONE THING ONLY: MAXIMIZING SHAREHOLDER
VALUE FOR ALL SHAREHOLDERS IN ACCORDANCE WITH THEIR FIDUCIARY DUTIES.
OUR OFFER IS NO LONGER ON THE TABLE. WE ARE NO LONGER ATTEMPTING TO BUY THE
COMPANY. We are attempting to get the most qualified people on the board of
directors of the Company to represent the best interest of all shareholders. As
13.7% shareholders, we are committed to maximizing shareholder value for all of
the Company's shareholders.
THIS BOARD WANTS YOU TO IGNORE ITS PAST MISTAKES
DON'T RISK YOUR INVESTMENT ON THE CURRENT BOARD'S IRRESPONSIBLE OVERSIGHT
WE URGE YOU TO SIGN, DATE AND RETURN THE WHITE PROXY CARD TODAY. EVEN IF YOU
HAVE ALREADY VOTED FOR THE COMPANY'S SLATE, YOU HAVE EVERY RIGHT TO CHANGE YOUR
MIND. SIMPLY SIGN AND DATE THE WHITE PROXY CARD - ONLY THE LATEST DATED PROXY
CARD YOU RETURN WILL BE COUNTED.
YOUR VOTE IS VERY IMPORTANT - REGARDLESS OF HOW MANY SHARES YOU OWN. If you have
any questions, or need assistance in filling out your WHITE proxy card, please
call our proxy solicitors, Innisfree M&A Incorporated, toll-free at (877)
800-5185.
We thank you for your consideration and look forward to the responsibility of
maximizing value for all Phoenix shareholders.
---------------------- ----------------------
CUSIP No. 719153108 13D Page 21 of 34 Pages
---------------------- ----------------------
Respectfully,
/s/ Jeffrey C. Smith
Starboard Value and Opportunity Master Fund Ltd.
on behalf of
The Ramius Group
---------------------- ----------------------
CUSIP No. 719153108 13D Page 22 of 34 Pages
---------------------- ----------------------
AGREEMENT
This Agreement (this "Agreement") is made and entered into as of February
12, 2007, by and between Phoenix Technologies Ltd. (the "Company" or "Phoenix
Technologies"), and the entities and natural persons listed on Schedule A hereto
(collectively, the "Ramius Group") (each of the Company and the Ramius Group, a
"Party" to this Agreement, and collectively, the "Parties").
RECITALS
A. The Ramius Group beneficially owns in the aggregate 3,502,941 shares of
outstanding Phoenix Technologies Common Stock and has initiated a proxy
solicitation (the "Proxy Solicitation") to elect two individuals to the Phoenix
Technologies Board of Directors (the "Phoenix Technologies Board");
B. The Parties have agreed that the Ramius Group shall withdraw its
nominees to the Phoenix Technologies Board and terminate the Proxy Solicitation
and that the Ramius Group will not present any nominees or proposals at the
Company's 2007 Annual Meeting of Stockholders (including any adjournment or
postponement thereof, the "Annual Meeting");
C. The Phoenix Technologies Board has determined that it is in the best
interests of the stockholders of the Company to nominate John Mutch and Robert
J. Majteles (collectively, the "Nominees") for election to the Phoenix
Technologies Board as Class 2 directors at the Company's Annual Meeting in place
of David S. Dury and Taher Elgamal and to recommend the Nominees for election to
the Phoenix Technologies Board;
D. The Ramius Group has agreed to vote its shares in favor of the Nominees
at the Annual Meeting;
E. Concurrently with the execution of this Agreement, the Company is
entering into an agreement (the "AWM Agreement") with certain entities and
individuals affiliated with Austin W. Marxe (the "AWM Group"), pursuant to
which, among other things, the AWM Group has agreed to vote its shares in favor
of the Nominees at the Annual Meeting; and
F. The Company and the Ramius Group desire, in connection with the
nomination of the Nominees to the Phoenix Technologies Board, to make certain
covenants and agreements with one another pursuant to this Agreement.
NOW THEREFORE, in consideration of the covenants and premises set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto hereby agree as
follows:
1. The Ramius Group hereby withdraws its nomination of Philip Moyer and
John Mutch, withdraws and terminates the Proxy Solicitation and shall promptly
file with the Securities and Exchange Commission ("SEC") a request to withdraw
the Schedule 14A filed by the Ramius Group. The Ramius Group shall also (i)
promptly file with the SEC as definitive additional soliciting materials on
Schedule 14A, the press release described in Section 13, the form of which is
attached as Exhibit A hereto, and shall indicate that it is no longer soliciting
---------------------- ----------------------
CUSIP No. 719153108 13D Page 23 of 34 Pages
---------------------- ----------------------
proxies and does not intend to vote any proxies it has received or receives and
(ii) take any other actions necessary to terminate the Proxy Solicitation.
2. The Company shall promptly amend the Schedule 14A filed by the Company
and the Company Board to indicate that (i) the Nominees are nominated as the
sole nominees for election as Class 2 directors at the Annual Meeting, (ii)
David S. Dury and Taher Elgamal will not stand for election at the Annual
Meeting, (iii) the Company's Board of Directors recommends a vote "for" the
Nominees at the Annual Meeting, and (iv) proxies solicited by the Board of
Directors of the Company will be voted "for" the Nominees at the Annual Meeting.
3. At the Annual Meeting, the Ramius Group agrees to appear in person or
by proxy and vote all shares of Common Stock beneficially owned by it and its
controlled affiliates in favor of the election to the Phoenix Technologies Board
of the Nominees. The Ramius Group shall cause to be executed proxies for the
Nominees (in the form utilized by the Company to solicit proxies for all
stockholders) so as to vote all shares of Common Stock beneficially owned by it
and its controlled affiliates in favor of the election of the Nominees to the
Phoenix Technologies Board. The Ramius Group shall not withdraw or modify any
such proxies.
4. The Ramius Group agrees not to nominate any other person for election
at the Annual Meeting or to otherwise bring any business before the Annual
Meeting.
5. From the date hereof through the Annual Meeting, each of the Company
and the Ramius Group agree they shall not directly or indirectly engage in any
activities in opposition to the election of the Nominees as the sole directors
elected at the Annual Meeting.
6. In accordance with the Company's bylaws, the Company shall take all
action necessary in furtherance of (and John Mutch, as a director, agrees to
vote in favor of):
(a) following the election of the Nominees to the Phoenix
Technologies Board, the appointment of (i) John Mutch as a member, but not
chairman, of the Audit Committee of the Phoenix Technologies Board and (ii)
Robert J. Majteles as a member, but not chairman, of the Nominating and
Governance Committee of the Phoenix Technologies Board, in each case provided
that the director is qualified to serve on such committee under applicable law
and listing standards; and
(b) following the Annual Meeting, the election of Dale Fuller as the
new chairman of the Phoenix Technologies Board.
7. John Mutch hereby consents to be named as a Nominee.
8. The Company shall convene the Annual Meeting on February 14, 2007 at
10:00 a.m. local time and immediately adjourn the Annual Meeting, prior to the
opening of the polls, to another date and time as promptly as possible following
February 14, 2007 to allow additional time for the Company stockholders to
receive the amended proxy materials contemplated by Section 2 of this Agreement.
9. For a period commencing with the date of this Agreement and ending on
the earlier to occur of (i) December 6, 2007 or (ii) in the event the Company's
---------------------- ----------------------
CUSIP No. 719153108 13D Page 24 of 34 Pages
---------------------- ----------------------
2008 annual meeting is held before February 9, 2008 (in which case, the Company
shall either make a public announcement of the 2008 annual meeting date at least
70 days before the 2008 annual meeting or give the Ramius Group written notice
of the 2008 annual meeting date at least 70 days before the 2008 annual
meeting), then the date that is 70 days before the date of the 2008 annual
stockholder meeting (the "Standstill Period"), neither the Ramius Group nor any
of its controlled affiliates shall, without the prior written consent of the
Phoenix Technologies Board, specifically expressed in a written resolution
adopted by a majority vote of the entire Phoenix Technologies Board:
(a) acquire or agree to acquire, or publicly offer or propose to
acquire, directly or indirectly, by purchase or otherwise, any voting securities
or direct or indirect rights or options to acquire any voting securities of the
Company or any subsidiary thereof, or of any successor to or person in control
of Company, or any assets of the Company or any subsidiary or division thereof
or of any such successor or controlling person in excess of the Standstill
Limit; provided, however, that nothing herein shall limit the ability of the
Ramius Group to transfer any voting securities or direct or indirect rights or
options to acquire any voting securities of the Company to any of its controlled
affiliates, so long as such any such controlled affiliates agree to be bound by
the terms of this Agreement and execute a joinder agreement to this Agreement,
in the form attached hereto as Exhibit B;
(b) other than as provided in this Agreement, seek or propose to
influence or control the management or the policies of the Company or to obtain
representation on the Company's board of directors, or solicit, or encourage or
in any way participate in the solicitation of, any proxies or consents with
respect to any voting securities of the Company; provided that nothing herein
shall limit the ability of the Ramius Group to vote its voting securities on any
matter submitted to a vote of the stockholders of the Company;
(c) make any public announcement with respect to, or publicly offer
to effect, seek or propose (with or without conditions) a merger, consolidation,
business combination or other extraordinary transaction with or involving the
Company or any of its subsidiaries or any of its or their securities or assets
in excess of the Standstill Limit; provided, however, that nothing herein shall
limit the ability of the Ramius Group to issue any communication contemplated by
Rule 14a-1(l)(2)(iv) stating how they intend to vote and the reasons therefor
with respect to any extraordinary transaction of any kind or nature between the
Company and any third party unaffiliated with the Ramius Group; provided
further, that nothing contained herein shall limit the ability of the Ramius
Group to file an amendment or amendments to its Schedule 13D regarding the
Common Stock of the Company as required by law or to make other filings as
required by law so long as the Ramius Group does not enter into any contract,
arrangement, understanding or relationship (legal or otherwise) with respect to
the Company's voting securities in violation of clauses (a)-(e) of Section 9
hereof;
(d) (i) form, join or in any way participate in a "group" as defined
in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder (for the avoidance of doubt,
including, without limitation, a group containing members of the Ramius Group
and members of the AWM Group), other than a "group" that includes all or some
lesser number of persons identified as members of the Ramius Group, but does not
include any other members who are not currently identified as members of the
Ramius Group, or (ii) enter into any negotiations, arrangements or
---------------------- ----------------------
CUSIP No. 719153108 13D Page 25 of 34 Pages
---------------------- ----------------------
understandings with any third parties, other than members of the Ramius Group
solely with respect to the existing members of the Ramius Group, in connection
with any of the foregoing; or
(e) publicly seek or request permission to do any of the foregoing,
request to amend or waive any provision of this paragraph (including, without
limitation, any of clauses (a)-(d) hereof), or make or seek permission to make
any public announcement with respect to any of the foregoing.
"Standstill Limit" shall mean that number of Common Shares, the Beneficial
Ownership of which would qualify a person or a group of affiliated or associated
persons as an "Acquiring Person" under that certain Preferred Share Rights
Agreement, dated as of October 22, 1999, between the Company and BankBoston,
N.A. (the "Preferred Share Rights Agreement"), including any amendments thereto,
other than any exception approved by the Phoenix Technologies Board to the
definition of "Acquiring Person" under the Preferred Share Rights Agreement
allowing a person or a "group" to purchase newly issued shares of the Company's
voting securities directly from the Company. For purposes of this Agreement,
"Beneficial Ownership" and "Common Shares" shall have the meaning given to them
in the Preferred Share Rights Agreement.
10. Following the Annual Meeting and prior to the 2008 annual meeting of
stockholders, the Company agrees to review and consider, and to deliberate upon,
at a meeting of the Phoenix Technologies Board, the corporate governance
recommendations of Institutional Shareholder Services ("ISS"), including the
Company's ISS Corporate Governance Quotient (the "CGQ") and factors of the CGQ
which ISS categorized as "negative" in its report dated February 6, 2007.
11. It is understood and that in consideration of the mutual promises and
covenants contained herein, and after consultation with their respective
counsel, the Company, on the one hand, and the Ramius Group, on the other hand,
on behalf of themselves and for all of their past and present affiliated,
associated, related, parent and subsidiary companies, joint venturers and
partnerships, successors, assigns, and the respective owners, officers,
directors, agents, employees, shareholders, consultants and attorneys of each of
them (collectively "Affiliates"), irrevocably and unconditionally release,
acquit and forever discharge the other and all of their Affiliates, from any and
all causes of action, claims, actions, rights, judgments, obligations, damages,
demands, losses, controversies, contentions, complaints, promises, accountings,
bonds, bills, debts, dues, sums of money, expenses, specialties and fees and
costs (whether direct, indirect or consequential, incidental or otherwise
including, without limitation, attorney's fees or court costs, of whatever
nature) incurred in connection therewith of any kind whatsoever, whether known
or unknown, suspected or unsuspected, in their own right and derivatively, in
law or in equity or liabilities of whatever kind or character (the "Claims"),
which the Parties have or may have against one another based upon events
occurring prior to the date of the execution of this Agreement (the "Released
Matters"). The Parties acknowledge that this general release of claims includes,
but is not limited to, any and all statutory and common law claims for, among
other things, fraud and breach of fiduciary duty based upon events occurring
prior to the date of the execution of this Agreement. The Parties intend that
the foregoing release be broad with respect to the Released Matters, provided,
however, this release and waiver of Claims shall not include claims to enforce
the terms of this Agreement.
---------------------- ----------------------
CUSIP No. 719153108 13D Page 26 of 34 Pages
---------------------- ----------------------
12. The Parties do hereby expressly waive and relinquish all rights and
benefits afforded by California Civil Code Section 1542, and do so understanding
and acknowledging the significance and consequences of such specific waiver of
California Civil Code Section 1542.
The Parties acknowledge and understand that they are being represented in
this matter by counsel of their own choice, and acknowledge that they are
familiar with the provisions of California Civil Code Section 1542, which
provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED
HIS OR HER SETTLEMENT WITH THE DEBTOR.
Thus, notwithstanding these provisions of law, the Parties expressly
acknowledge and agree that this Section 12 is also intended to include in its
effect, without limitation, all such claims which they do not know or suspect to
exist at the time of the execution of this Agreement, and that this Agreement
contemplates the extinguishment of those claims.
13. Promptly following the concurrent execution of this Agreement and the
AWM Agreement, the Company, the Ramius Group and the AWM Group shall jointly
issue a mutually agreeable press release announcing the terms of this Agreement
and the AWM Agreement, in the form attached hereto as Exhibit A.
14. The Ramius Group agrees it will cause its controlled affiliates to
comply with the terms of this Agreement.
15. This Agreement constitutes the entire agreement between the Parties
with respect to the subject matter hereof and supersedes all prior agreements
understandings, both written and oral, among the parties with respect to the
subject matter hereof. For the avoidance of doubt, each of the Parties hereby
acknowledges that the Company and the Ramius Group previously executed a
Confidentiality Agreement, dated as of October 20, 2006, which Confidentiality
Agreement will continue in full force and effect in accordance with its terms.
No modifications of this Agreement can be made except in writing signed by an
authorized representative of each the Company and the Ramius Group.
16. If at any time subsequent to the date hereof, any provision of this
Agreement shall be held by any court of competent jurisdiction to be illegal,
void or unenforceable, such provision shall be of no force and effect, but the
illegality or unenforceability of such provision shall have no effect upon the
legality or enforceability of any other provision of this Agreement.
17. Each of the Parties acknowledges and agrees that irreparable injury to
the other Parties hereto would occur in the event any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached and that such injury would not be adequately compensable in
damages. It is accordingly agreed by each of the Parties that a Party so moving
(the "Moving Party") shall each be entitled to specific enforcement of, and
---------------------- ----------------------
CUSIP No. 719153108 13D Page 27 of 34 Pages
---------------------- ----------------------
injunctive relief to prevent any violation of, the terms hereof and the other
Parties hereto will not take action, directly or indirectly, in opposition to
the Moving Party seeking such relief on the grounds that any other remedy or
relief is available at law or in equity.
18. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware without reference to the
conflict of laws principles thereof. Each of the Parties hereto irrevocably
agrees that any legal action or proceeding with respect to this Agreement and
the rights and obligations arising hereunder, or for recognition and enforcement
of any judgment in respect of this Agreement and the rights and obligations
arising hereunder brought by the other party hereto or its successors or
assigns, shall be brought and determined exclusively in the Delaware Court of
Chancery and any state appellate court therefrom within the State of Delaware
(or, if the Delaware Court of Chancery declines to accept jurisdiction over a
particular matter, any state or federal court within the State of Delaware).
Each of the Parties hereto hereby irrevocably submits with regard to any such
action or proceeding for itself and in respect of its property, generally and
unconditionally, to the personal jurisdiction of the aforesaid courts and agrees
that it will not bring any action relating to this Agreement in any court other
than the aforesaid courts. Each of the parties hereto hereby irrevocably waives,
and agrees not to assert in any action or proceeding with respect to this
Agreement, (i) any claim that it is not personally subject to the jurisdiction
of the above-named courts for any reason, (ii) any claim that it or its property
is exempt or immune from jurisdiction of any such court or from any legal
process commenced in such courts (whether through service of notice, attachment
prior to judgment, attachment in aid of execution of judgment, execution of
judgment or otherwise) and (iii) to the fullest extent permitted by applicable
legal requirements, any claim that (A) the suit, action or proceeding in such
court is brought in an inconvenient forum, (B) the venue of such suit, action or
proceeding is improper or (C) this Agreement, or the subject mater hereof, may
not be enforced in or by such courts.
19. This Agreement may be executed in one or more counterparts which
together shall constitute a single agreement.
20. From the date of this Agreement until the expiration of the Standstill
Period, each of the Parties covenants and agrees that none of it or its
respective subsidiaries, affiliates, successors, assigns, officers, employees or
directors shall in any way disparage, attempt to discredit, or otherwise call
into disrepute, the other Parties or such other Parties' subsidiaries,
affiliates, successors, assigns, officers, directors, employees, stockholders,
agents, attorneys or representatives, or any of their products or services, in
any manner that would damage the business or reputation of such other Parties,
their products or services or their subsidiaries, affiliates, successors,
assigns, officers, directors, employees, agents, attorneys or representatives.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
---------------------- ----------------------
CUSIP No. 719153108 13D Page 28 of 34 Pages
---------------------- ----------------------
PLEASE READ CAREFULLY THIS AGREEMENT THAT INCLUDES
A RELEASE OF KNOWN AND UNKNOWN CLAIMS
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
day and year first above written.
PHOENIX TECHNOLOGIES LTD.
By: /s/ Scott Taylor
----------------------------------------
Name: Scott Taylor
Title: SVP/General Counsel
THE RAMIUS GROUP
By: Starboard Value and Opportunity
Master Fund Ltd.
By: /s/ Jeffrey M. Solomon
-----------------------------------
Name: Jeffrey M. Solomon
Title: Authorized Signatory
By: Parche, LLC
By: /s/ Jeffrey M. Solomon
-----------------------------------
Name: Jeffrey M. Solomon
Title: Authorized Signatory
By: Admiral Advisors, LLC
By: /s/ Jeffrey M. Solomon
-----------------------------------
Name: Jeffrey M. Solomon
Title: Authorized Signatory
By: Ramius Capital Group, L.L.C.
By: /s/ Jeffrey M. Solomon
-----------------------------------
Name: Jeffrey M. Solomon
Title: Authorized Signatory
By: C4S & CO., L.L.C.
By: /s/ Jeffrey M. Solomon
-----------------------------------
Name: Jeffrey M. Solomon
Title: Authorized Signatory
[SIGNATURE PAGE TO STOCKHOLDER AGREEMENT]
---------------------- ----------------------
CUSIP No. 719153108 13D Page 29 of 34 Pages
---------------------- ----------------------
PLEASE READ CAREFULLY THIS AGREEMENT THAT INCLUDES
A RELEASE OF KNOWN AND UNKNOWN CLAIMS
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
day and year first above written.
By: /s/ Peter A. Cohen
----------------------------------------
Peter A. Cohen
By: /s/ Morgan B. Stark
-----------------------------------------
Morgan B. Stark
By: /s/ Jeffrey M. Solomon
----------------------------------------
Jeffrey M. Solomon
By: /s/ Thomas W. Strauss
----------------------------------------
Thomas W. Strauss
By: /s/ John Mutch
----------------------------------------
John Mutch
By: /s/ Philip Moyer
----------------------------------------
Philip Moyer
By: /s/ Jeffrey C. Smith
----------------------------------------
Jeffrey C. Smith
[SIGNATURE PAGE TO STOCKHOLDER AGREEMENT]
---------------------- ----------------------
CUSIP No. 719153108 13D Page 30 of 34 Pages
---------------------- ----------------------
SCHEDULE A
THE RAMIUS GROUP
-----------------------------
Starboard Value and
Opportunity Master Fund Ltd.
-----------------------------
Parche, LLC
-----------------------------
Admiral Advisors, LLC
-----------------------------
Ramius Capital Group, L.L.C.
-----------------------------
C4S & CO., L.L.C.
-----------------------------
Peter A. Cohen
-----------------------------
Morgan B. Stark
-----------------------------
Jeffrey M. Solomon
-----------------------------
Thomas W. Strauss
-----------------------------
John Mutch
-----------------------------
Philip Moyer
-----------------------------
Jeffrey C. Smith
-----------------------------
---------------------- ----------------------
CUSIP No. 719153108 13D Page 31 of 34 Pages
---------------------- ----------------------
EXHIBIT A
FORM OF PRESS RELEASE
PHOENIX TECHNOLOGIES AND LARGEST INVESTORS AGREE ON NEW BOARD NOMINEES
RAMIUS GROUP WITHDRAWS DISSIDENT PROXY; SECOND LARGEST SHAREHOLDER PROVIDES
SUPPORT; NEW AGREEMENT WILL BENEFIT ALL SHAREHOLDERS
MILPITAS, CA: FEBRUARY 12, 2007 -- Phoenix Technologies Ltd. (NASDAQ: PTEC),
the global leader in core systems firmware, today announced that the Company
has reached agreements regarding board composition with each of its two
largest shareholders, the Ramius Group and the AWM Group.
The Phoenix Technologies board of directors has determined that it is in the
best interests of all shareholders of the Company to nominate Mr. John Mutch and
Mr. Robert J. Majteles, for election to the Phoenix Technologies board at the
Company's annual meeting of stockholders to be held on February 14, 2007.
Following the election of the new nominees to the Phoenix Technologies board,
Mr. Mutch will be appointed as a member of the Audit Committee of the board and
Mr. Majteles will be appointed as a member of the Nominating and Governance
Committee of the board. Current board members and nominees for the upcoming
elections, Mr. Dave Dury and Dr. Taher Elgamal, have decided to withdraw their
candidacy. Mr. Dale Fuller, a current board member, will become the new chairman
of the board upon Mr. Dury's departure. In announcing the agreement, Mr. Woody
Hobbs, president and chief executive officer of Phoenix Technologies said, "We
are very pleased that we were able to reach an agreement with the Ramius Group,
our largest shareholder. By adding one board member recommended by the Ramius
Group and one by AWM, we ensure that diverse shareholder interests are
represented on the board."
"I also want to thank Dave Dury and Taher Elgamal for their service on the board
and for their help in facilitating this settlement. We can now get back to the
real business of making Phoenix Technologies a great and valuable company,"
added Mr. Hobbs.
Mr. John Mutch, who was originally nominated by Starboard Value and Opportunity
Master Fund Ltd., an affiliate of Ramius Capital Group, L.L.C., is the founder
and a managing partner of MV Advisors, LLC. In March 2003, Mr. Mutch was
appointed to the board of directors of Peregrine Systems, a global enterprise
software provider, where he served as President and CEO, and led the company
through its acquisition by Hewlett-Packard. Mr. Mutch joined HNC Software in
1997 where he was promoted to increasing responsibilities culminating in the CEO
position in 2001. From December 1986 to June 1994, Mr. Mutch held a variety of
executive sales and marketing positions with Microsoft Corporation, including
director of organization marketing. Mr. Mutch is currently a director of the San
Diego Software Industry Council. He holds a B.S. from Cornell University and an
M.B.A. from the University of Chicago.
Mr. Robert J. Majteles, recommended by Ramius and by the AWM Group, is the
managing partner of Treehouse Capital LLC, an investment firm he founded in
2001. Prior to Treehouse, Mr. Majteles was CEO of three different technology
companies. In addition, Mr. Majteles has also been an investment banker and a
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CUSIP No. 719153108 13D Page 32 of 34 Pages
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mergers and acquisitions attorney. Mr. Majteles received a law degree from
Stanford University in 1989 and a Bachelor of Arts degree from Columbia
University in 1986. He is also a Lecturer at the Haas School of Business,
University of California, Berkeley, and at Stanford Law School, Stanford
University.
In connection with the agreement, the Ramius Group has agreed to withdraw its
proxy solicitation and vote in favor of both Mr. Mutch and Mr. Majteles. AWM has
also agreed to vote in favor of both nominees.
The Company also announced that it intends to convene its annual meeting of
stockholders as originally scheduled at 10:00 A.M., Pacific Standard Time, on
February 14, 2007 at the Company's offices located at 915 Murphy Ranch Road,
Milpitas, California 95035, and then immediately adjourn the meeting to a later
date, in order to provide stockholders time to receive supplemental proxy
materials and a new proxy card to reflect the Company's two new nominees for
Class 2 Director.
ABOUT PHOENIX TECHNOLOGIES
Phoenix Technologies Ltd. (NASDAQ: PTEC) is the global market leader in system
firmware that provides the most secure foundation for today's computing
environments. The Company established industry leadership with its original BIOS
product in 1983, and today has 149 technology patents, has shipped in over one
billion systems, and continues to ship in over 125 million new systems each
year. The company's breakthrough solution, TrustedCore, enables hardware vendors
to bring secure devices to market with the latest advances in Microsoft
operating systems. The PC industry's top builders and specifiers trust Phoenix
to pioneer open standards and deliver innovative solutions to help them
accelerate time to market, differentiate products and increase profits. Phoenix
is headquartered in Milpitas, California with offices worldwide. For more
information, visit www.phoenix.com.
Phoenix, Phoenix Technologies, and the Phoenix Technologies logo are trademarks
and/or registered trademarks of Phoenix Technologies Ltd. All other trademarks
are the property of their respective owners.
Safe Harbor Statement under the Private Securities Litigation Reform Act of
1995: With the exception of historical information, the statements set forth
above include forward-looking statements that involve risk and uncertainties.
All forward-looking statements included in this document are based upon
information available to the Company as of the date hereof, and the Company
assumes no obligation to update any such forward-looking statement. Factors that
could cause actual results to differ materially from those in the forward
looking statements are discussed in the Company's filings with the Securities
and Exchange Commission, including its recent filings on Form 10-K, filed
December 14, 2006.
CONTACTS
Phoenix Technologies
Media & Investor Relations
Tel. +1 408 570 1060
investor_relations@phoenix.com
public_relations@phoenix.com
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CUSIP No. 719153108 13D Page 33 of 34 Pages
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Erica Mannion, Sapphire Investor Relations
Tel. +1 212 766 1800 x203
emannion@sapphireinvestorrelations.com
SOURCE: Phoenix Technologies Ltd.
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CUSIP No. 719153108 13D Page 34 of 34 Pages
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EXHIBIT B
FORM OF JOINDER AGREEMENT
The undersigned hereby agrees, effective as of the date hereof, to
become a party to that certain Agreement, dated as of February __, 2007, by and
among Phoenix Technologies Ltd. (the "Company" or "Phoenix Technologies"), and
the entities and natural persons listed on Schedule A thereto (collectively, the
"Ramius Group") (the "SETTLEMENT AGREEMENT"). By executing this Joinder
Agreement, the undersigned hereby agrees to be, and shall be, deemed a "Party"
and a member of the "Ramius Group" for all purposes of the Settlement Agreement,
entitled to the rights and subject to the obligations thereunder with respect to
the voting securities of the Company acquired from the Ramius Group.
The address and facsimile number to which notices may be sent to the
undersigned is as follows:
__________________________
__________________________
Facsimile No.: _____________
__________________________
Name:
Date: _____________