As filed with the Securities and Exchange Commission on May 15, 2002
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) (Zip Code)
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1999 Stock Plan
1999 Director Option Plan
2001 Employee Stock Purchase Plan
(Full Title of the Plans)
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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
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Amount Proposed Proposed Amount of
To Be Maximum Offering Maximum Aggregate Registration
Title of Securities to be Registered Registered (1) Price Per Share Offering Price Fee
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Common Stock*
par value $.001 per share
1999 Stock Plan 950,000 $12.46 (2) $11,837,000 (2) $1,089.00
1999 Director Option Plan 90,000 $12.816 (3) $ 1,153,440 (3) $ 106.12
2001 Employee Stock Purchase Plan 200,000 $10.591 (4) $ 2,118,200 (4) $ 194.87
------------------------------------ ---------------- ---------------- ----------------
Total 1,240,000 $15,108,640 $1,389.99
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(1) This Registration Statement shall also cover any additional shares of Common Stock of the Registrant which become
issuable under the 1999 Stock Plan, the 1999 Director Option Plan or the 2001 Employee Stock Purchase Plan by reason
of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant's
receipt of consideration which results in an increase in the number of shares of the Registrant's outstanding
Common Stock.
(2) The estimated Proposed Maximum Offering Price Per Share was calculated pursuant to Rules 457(c) and 457(h) under the
Securities Act on the basis of $12.46 per share, the average of the high and low price of the Common Stock on the
Nasdaq National Market on May 10, 2002.
(3) The Proposed Maximum Offering Price Per Share represents a weighted average of the following estimates calculated in
accordance with Rule 457(h) under the Securities Act. With respect to 34,000 shares subject to outstanding options
to purchase Common Stock under the 1999 Director Option Plan, the Proposed Maximum Offering Price Per Share is equal
to the weighted average exercise price of $13.403 per share pursuant to Rule 457(h) under the Securities Act. With
respect to 56,000 shares of Common Stock not subject to outstanding options, the estimated Proposed Maximum Offering
Price Per Share was calculated pursuant to Rules 457(c) and 457(h) under the Securities Act on the basis of $12.46
per share, the average of the high and low price of the Common Stock on the Nasdaq National Market on May 10, 2002.
(4) The estimated Proposed Maximum Offering Price Per Share was calculated pursuant to Rules 457(c) and 457(h) under the
Securities Act on the basis of 85% of $12.46 per share, the average of the high and low price of the Common Stock
on the Nasdaq National Market on May 10, 2002.
* 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 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 latest annual report filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act");
(b) All reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered
by the Registrant's latest annual report;
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, filed with the
Securities and Exchange Commission on August 5, 1988, including
any amendment or report filed for the purpose of updating such
description; and
(d) The description of certain Preferred Share Purchase Rights that at
the present time are represented by and may only be transferred
with the Company's Common Stock, which description is contained in
the Company's Registration Statement on Form 8-A filed with the
Securities and Exchange Commission on October 28, 1999 pursuant to
the Exchange Act, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities
Inapplicable.
Item 5. Interests of Named Experts and Counsel
Inapplicable.
Item 6. Indemnification of Directors and Officers
Section 102 of the Delaware General Corporation Law allows a
corporation to eliminate the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, subject to certain exceptions. 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.
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
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the Delaware General Corporation Law, against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection with such proceeding; provided, however, that if the
person seeking indemnification initiated the proceeding in respect to which he
or she is seeking indemnification from the Registrant, the Registrant shall
provide such indemnification only if such proceeding was authorized by the
Registrant's Board of Directors. The right to indemnification includes the right
to be paid expenses incurred in defending any such proceeding in advance of its
final disposition; provided, however, that if the Delaware General Corporation
Law so requires, the payment of such expenses in advance of the final
disposition of a proceeding shall be made only upon delivery to the Registrant
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to indemnification.
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
Exhibit
Number Name
------- ----
4.1 1999 Stock Plan, as amended April 9, 2002 (incorporated
herein by reference to Exhibit 10.1 to the Registrant's Form
10-Q for the quarter ended March 31, 2002).
4.2 1999 Director Option Plan (incorporated herein by reference
to Exhibit 4.2 to Registrant's Registration Statement on
Form S-8 filed on December 5, 2001).
4.3 2001 Employee Stock Purchase Plan (incorporated herein by
reference to Exhibit 10.2 to the Registrant's Form 10-Q for
the quarter ended March 31, 2002).
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is included in
Exhibit 5.1 to this Registration Statement.
24.1 Power of Attorney is included on page five of this
Registration Statement.
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;
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(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.
(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 14th of May,
2002.
PHOENIX TECHNOLOGIES LTD.
(Registrant)
By: /s/ Albert E. Sisto
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Albert E. Sisto
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Linda V. Moore, Albert E. Sisto and John
M. Greeley jointly and severally, his attorneys-in-fact and agents, each with
the power of substitution and resubstitution, for him and in his name, place or
stead, in any and all capacities, to sign any amendments to this Registration
Statement on Form S-8, and to file such amendments, together with exhibits and
other documents in connection therewith, with the Securities and Exchange
Commission, granting to each attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as he might or could do in
person, and ratifying and confirming all that the attorney-in-facts and agents,
or his or her substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Albert E. Sisto Director, President and May 14, 2002
------------------- Chief Executive Officer (Principal
Albert E. Sisto Executive Officer)
/s/ John M. Greeley Vice President, Finance and May 14, 2002
------------------- Chief Financial Officer
John M. Greeley (Principal Financial Officer and
Principal Accounting Officer)
/s/ Taher Elgamal Director May 14, 2002
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Taher Elgamal
/s/ Edmund Jensen Director May 14, 2002
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Edmund Jensen
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/s/ Anthony P. Morris Director May 14, 2002
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Anthony P. Morris
/s/ Tony Sun Director May 14, 2002
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Tony Sun
/s/ George C. Huang Director May 14, 2002
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George C. Huang
A majority of the Board of Directors.
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EXHIBIT INDEX
Exhibit
Number Name
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4.1 1999 Stock Plan, as amended April 9, 2002 (incorporated herein by
reference to Exhibit 10.1 to the Registrant's Form 10-Q for the
quarter ended March 31, 2002).
4.2 1999 Director Option Plan (incorporated herein by reference to
Exhibit 4.2 to Registrant's Registration Statement on Form S-8
filed on December 5, 2001).
4.3 2001 Employee Stock Purchase Plan (incorporated herein by
reference to Exhibit 10.2 to the Registrant's Form 10-Q for the
quarter ended March 31, 2002).
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is included in
Exhibit 5.1 to this Registration Statement.
24 Power of Attorney is included on page five of this Registration
Statement.