PTEC » Topics » Item 1.01 Entry into a Material Definitive Agreement.

This excerpt taken from the PTEC 8-K filed Jul 24, 2008.

Item 1.01 Entry into a Material Definitive Agreement.

On July 24, 2008, Phoenix Technologies Ltd., a Delaware corporation ("Phoenix") announced it has agreed to acquire all of the outstanding shares of privately held General Software, Inc., a Washington corporation ("General Software"), pursuant to a Stock Purchase Agreement (the "Purchase Agreement") by and among Phoenix, General Software, the holder of the outstanding shares of General Software (the "Shareholder") and the representative of the Shareholder.

Under the terms of the Purchase Agreement, the total consideration for the outstanding shares of General Software will be approximately $20 million, including liabilities that will be assumed by Phoenix at closing. The net consideration to be paid to the General Software shareholder will be in the form of cash and Phoenix common stock.

The acquisition has been approved by the board of directors of Phoenix and the board of directors and shareholder of General Software and is subject to customary closing conditions.

The press release announcing the transaction is attached to this Current Report as Exhibit 99.1.





This excerpt taken from the PTEC 8-K filed Mar 27, 2008.

Item 1.01 Entry into a Material Definitive Agreement.

On March 27, 2008, Phoenix Technologies Ltd., a Delaware corporation ("Phoenix") announced it has agreed to acquire all of the outstanding shares of privately held BeInSync Ltd., a company incorporated under the laws of the State of Israel ("BeInSync") pursuant to a Share Purchase Agreement (the "Purchase Agreement") by and among Phoenix, BeInSync, the holders of the outstanding shares of BeInSync (the "Shareholders"), and the representative of the Shareholders.

Under the terms of the Purchase Agreement, the total consideration for the outstanding shares of BeInSync will be $22.1 million, including liabilities that will be assumed by Phoenix at closing. The net consideration to be paid to the BeInSync shareholders will be in the form of cash and Phoenix common stock.

The acquisition has been approved by the board of directors of Phoenix and the board of directors and shareholders of BeInSync and is subject to customary closing conditions.

The press release announcing the transaction is attached to this Current Report as Exhibit 99.1.






SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

         
    Phoenix Technologies Ltd.
          
March 27, 2007   By:   /s/ Timothy C. Chu
       
        Name: Timothy C. Chu
        Title: Vice President, General Counsel & Secretary


Exhibit Index


     
Exhibit No.   Description

 
99.1
  Press release dated March 27, 2008 announcing acquisition of BeInSync Ltd.
This excerpt taken from the PTEC 8-K filed Nov 7, 2006.

Item 1.01. Entry into a Material Definitive Agreement.

Indemnification Agreement

On November 1, 2006, in connection with Mr. Dale Fuller’s election to the board of directors, Phoenix Technologies Ltd. (“Phoenix” or the “Company”) and Mr. Fuller entered into the Company’s standard form of indemnification agreement for officers and directors. Under this indemnity agreement, to the extent not otherwise covered by the Company’s directors and officers insurance policy, the Company agrees to indemnify each of its officers and directors that are parties to this agreement for any expenses and costs incurred by such officer or director in the event that such officer or director is party to (or threatened to be a party to) a legal proceeding by reason of the fact that such officer or director is or was an agent of the Company, or by reason of anything done or not done by such officer or director in any such capacity.

The description in this Item 1.01 of the terms of the form of indemnification agreement is qualified in its entirety by reference to the full text of the form of indemnification agreement previously filed with the Securities and Exchange Commission as Exhibit 10.5 to the Form 8-K on September 11, 2006 and incorporated herein by reference.

This excerpt taken from the PTEC 8-K filed Sep 11, 2006.

Item 1.01. Entry into a Material Definitive Agreement.

On September 7, 2006, the Board of Directors of Phoenix Technologies Ltd. (the “Company”) announced the appointment of Woodson Hobbs as President and Chief Executive Officer of the Company, effective as of September 6, 2006. In connection with Mr. Hobbs’ appointment, the Company and Mr. Hobbs have reached agreement as to the basic terms of his employment, which are summarized as follows.

Offer Letter

Pursuant to Mr. Hobbs’ offer letter dated September 6, 2006, Mr. Hobbs will be an at-will employee of the Company. Mr. Hobbs’ annual base salary will be $420,000, payable semi-monthly. In addition, Mr. Hobbs will be eligible to receive a performance bonus, based on criteria established by the Company’s Board of Directors, currently targeted at 75% of Mr. Hobbs’ annual base salary. Along with the first installment of his semi-monthly salary payment, the Company will pay Mr. Hobbs $157,500, which is 50% of his first-year performance bonus. The payment of any bonus amounts thereafter will be solely at the discretion of the Board of Directors of the Company.

Stock Option Agreement

Pursuant to Mr. Hobbs’ stock option agreement, dated September 6, 2006, Mr. Hobbs is granted a non-qualified stock option on September 6, 2006, to purchase 900,000 shares of common stock of the Company, par value $0.001 per share, with an exercise price of $5.05, which is the closing price of the Company’s common stock on September 6, 2006. Subject to certain vesting acceleration contained in Mr. Hobbs’ severance and change of control agreement (as described below), 1/4 of the option will vest on September 6, 2007, and 1/48 of the option will vest each month thereafter, conditioned on Mr. Hobbs’ continued employment with the Company. Mr. Hobbs may elect to exercise this option with respect to unvested shares and enter into a restricted stock purchase agreement providing the Company with a repurchase right for the unvested shares. Such repurchase right will lapse at the same rate as the option would have otherwise vested.

Restricted Stock Purchase Agreement

Pursuant to Mr. Hobbs’ restricted stock purchase agreement dated September 6, 2006, Mr. Hobbs will receive on September 27, 2006, a grant of 100,000 shares of restricted stock. Subject to certain vesting acceleration in Mr. Hobbs’ severance and change of control agreement (as described below), the restricted stock vests (and the Company’s right to repurchase the stock lapses) with respect to 50% of the shares on September 6, 2008, and as to 12.5% of the shares every six months thereafter, conditioned on Mr. Hobbs’ continued employment with the Company.

 

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The options and restricted shares were granted outside of the terms of any existing Company incentive plan and without shareholder approval pursuant to NASDAQ Marketplace Rule 4350(i)(1)(A)(iv).

Severance and Change of Control Agreement

Pursuant to Mr. Hobbs’ severance and change of control agreement dated September 6, 2006, in the event that the Company terminates Mr. Hobbs’ employment for a reason other than “Cause” (as defined in the agreement), death, or disability, or if Mr. Hobbs terminates his employment with the Company for “Good Reason” (as defined in the agreement), Mr. Hobbs is entitled to the following: (i) all accrued vacation and other benefits due to Mr. Hobbs through the date of termination in accordance with the Company’s then existing employee benefit plans, (ii) continuing severance pay for a minimum of six (6) months from the date of such termination, and if Mr. Hobbs has been employed with the Company for at least four (4) months prior to the date of such termination, then up to a maximum of twelve (12) months of continuing severance pay, (iii) if Mr. Hobbs is terminated after the Company’s fiscal year ended September 20, 2007, a bonus equal to the full number of months of Mr. Hobbs’ employment with the Company during the fiscal year in which the termination occurs, divided by twelve (12), and multiplied by Mr. Hobbs’ bonus, if any, for the previous fiscal year, (iv) company paid coverage for Mr. Hobbs and his dependents for the time period in which the continuing severance payments under (ii) above are made, and (v) the vested portion of any stock options held by Mr. Hobbs on the date of such termination will remain exercisable for a period of six (6) months following such termination.

If, during the period beginning on the date a definitive agreement for a “Change of Control” (as defined in the agreement) of the Company is signed and ending twelve (12) months thereafter, Mr. Hobbs is terminated by the Company for a reason other than Cause, disability, or death, or if Mr. Hobbs terminates employment for Good Reason, Mr. Hobbs is entitled to the following: (i) the benefits described in items (i) through (v) in the paragraph immediately above, (ii) the 100,000 shares of restricted stock granted to Mr. Hobbs effective September 27, 2006, and any other equity awards granted to Mr. Hobbs (other than the stock options granted to Mr. Hobbs on September 6, 2006) shall become fully vested, (iii) if the change of control occurs: (A) by March 6, 2007, then 300,000 of the 900,000 options granted to Mr. Hobbs on September 6, 2006 shall become fully vested, (B) after March 6, 2007 and before September 6, 2007, then 600,000 of the 900,000 options granted to Mr. Hobbs on September 6, 2006 shall become fully vested, and (C) on or after September 6, 2007, then all 900,000 shares underlying the option shall become fully vested, (iv) if, as of the date of Mr. Hobbs’ termination of employment, the sum of (A) the severance payments to be made to Mr. Hobbs, (B) the unearned portion of Mr. Hobbs’ prepaid bonus of $157,500 for fiscal year 2007, and (C) the acceleration value any equity granted to Mr. Hobbs is less than $500,000, then the Company shall pay for the difference between $500,000 and the sum of items (A), (B), and (C).

In the event that the payments under Mr. Hobbs’ severance and change in control agreement constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code (the “Code”) and would subject Mr. Hobbs to the excise tax under Section 4999 of the Code, Mr. Hobbs is entitled to the either (i) the full payments provided under the Severance and

 

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Change in Control Agreement, or (ii) such lesser amount which would result in no portion of such payments being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account all applicable income and excise taxes, would result in a greater after-tax benefit to Mr. Hobbs.

Mr. Hobbs’ right to receive the payments described in his Severance and Change of Control Agreement is subject to his signing and not revoking a separation and release of claims agreement with the Company.

Indemnification Agreement

The Company and Mr. Hobbs entered into the Company’s standard form of indemnification agreement for officers and directors. Under this agreement, to the extent not otherwise covered by the Company’s directors and officers insurance policy, the Company agrees to indemnify each of its officers and directors that are parties to this agreement for any expenses and costs incurred by such officer or director in the event that such officer or director is party to (or threatened to be a party to) a legal proceeding by reason of the fact that such officer or director is or was an agent of the Company, or by reason of anything done or not done by such officer or director in any such capacity.

The description in this Item 1.01 of the terms of the offer letter, stock option agreement, restricted stock purchase agreement, severance and change of control agreement, and standard form of indemnification agreement (collectively, the “Agreements”) is qualified in its entirety by reference to the full text of the Agreements filed as exhibits to this Current Report on Form 8-K and incorporated herein by reference.

This excerpt taken from the PTEC 8-K filed Aug 25, 2006.

Item 1.01. Entry into a Material Definitive Agreement.

On August 18, 2006, the Board of Directors approved a restricted stock grant under its 1999 Stock Plan (the “Plan”) to David Eichler, the Senior Vice President and Chief Financial Officer of the Company, of 15,000 shares in consideration of future services, and entered into a Restricted Stock Purchase Agreement (the “Agreement”) with Mr. Eichler.

The shares will vest and become nonforfeitable as to 50% of the shares on the two-year anniversary of the date of grant, and as to 12.5% every six months thereafter, conditioned on Mr. Eichler’s continued employment with the Company. Except as provided below, if Mr. Eichler terminates employment when all, or any portion, of these shares are unvested, then those shares which are unvested will be forfeited as of the day following his termination of employment.

In the event of a change of control, if the Company terminates Mr. Eichler’s employment with the Company for any reason other than death, disability, or cause within twelve months following the change of control, the unvested shares under the grant will vest immediately and in full.

The description in this Item 1.01 of the Agreement is qualified in its entirety by reference to the full text of the Agreement, a copy of which is attached hereto as Exhibit 10.1 and incorporated herein by reference.

This excerpt taken from the PTEC 8-K filed Jul 27, 2006.

Item 1.01. Entry into Material Definitive Agreement.

On July 25, 2006, the Board of Directors appointed Mr. Dury as the Board liaison to work with the management Operating Committee between meetings of the full Board of Directors. As compensation for serving as the Operating Committee Liaison, Mr. Dury will receive $7,000 per month and was granted an option under the Company’s 1999 Stock Plan to purchase 10,000 shares. The exercise price is $5.12, the price at close of the market on July 25, 2006, the date of the grant.

On July 25, 2006, the Company’s Board also created a Product Readiness Oversight Committee, composed of Messrs. Elgamal and Morris. As compensation for services rendered for serving on the Product Readiness Oversight Committee, Mr. Elgamal will receive $3,000 per month and Mr. Morris will receive $1,500 per month.

On July 25, 2006, the Board also created a Strategic Alternatives Committee, composed of Messrs. Dury and Morris. Between meetings of the full Board of Directors, the Strategic Alternatives Committee will work with Savvian LLC, the independent investment bank retained by the Company to assist it in assessing its strategic alternatives to maximize shareholder value. No assumption should be made that any transaction will be entered into or consummated as a result of this review. As compensation for services rendered in serving on the Strategic Alternatives Committee, Messrs. Dury and Morris will receive $3,000 per month.

In connection with its assessment of strategic alternatives, the Board retained an independent compensation consultant to assist the Board in analyzing retention arrangements for the Company’s employees. After considering the recommendations of the consultant, on July 25, 2006, the Board approved certain compensation arrangements for the Company’s executive officers and certain other employees. The Board believes these arrangements are in the best interests of the shareholders of the Company, as they are intended to encourage the retention and maintain the focus of these employees in light of the current uncertainty involving the Company. In particular, the Board amended the existing Severance and Change of Control Agreements with Messrs. Eichler, Gibbs and Taylor (the “Operating Committee Members”) and with Messrs. Scharfglass VP, Engineering and van Bronkhorst VP, Marketing to affect the following changes: (i) add six months to the existing contract severance amounts; (ii) provide benefits for the same period covered by the cash severance amounts and (iii) for members of the Operating Committee, provide for 100% acceleration of options and restricted stock awards (on a double-trigger basis in connection with a change of control) where the current agreements only provide for 50% acceleration. The changes in these benefits will be applicable for one year following the July 25, 2006 amendment.

The Board also approved restricted stock grants to the Operating Committee Members and to Messrs. Scharfglass and van Bronkhorst covering the following number of shares: Eichler – 30,000 shares; Gibbs – 55,000 shares; Taylor – 50,000 shares; Scharfglass – 30,000 shares; van Bronkhorst – 20,000 shares. 50% of the restricted shares vest after two years. 12.5% of the restricted shares vest each six months thereafter. Vesting accelerates if the employment of the executive is terminated in connection with a change in control.

The Board also created a cash severance plan equal to 25% of base salary for a

 

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group of employees. Based on current payroll levels, the aggregate maximum payout under the plan would not be expected to exceed $1.8 million. The Board also approved restricted stock grants to a smaller group of employees in the aggregate amount of 141,000 shares.

 

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

PHOENIX TECHNOLOGIES LTD.
By:  

/s/ Scott C. Taylor

 

Scott C. Taylor

Senior Vice President, General Counsel and Secretary

Date: July 27, 2006

 

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This excerpt taken from the PTEC 8-K filed May 2, 2006.

Item 1.01. Entry into a Material Definitive Agreement.

On April 28, 2006, Phoenix Technologies Ltd. (the “Company”) entered into a severance and change of control agreement (“Severance Agreement”) with David Eichler, the Company’s Senior Vice President and Chief Financial Officer. The term of the Severance Agreement is three years.

The Severance Agreement for Mr. Eichler provides that in the event of the termination of his employment by the Company for any reason other than cause, death, disability or a change of control, the Company will continue to pay him for a severance period of six months following such termination. The severance amount to be paid to Mr. Eichler will be at a monthly rate equal to his monthly base salary then in effect. The Company will also provide Mr. Eichler with his then current medical, dental and vision benefits for a period of six months following termination. In addition, the vested portion of any stock options held by Mr. Eichler as of the termination date will remain exercisable for six months following termination.

In the event of the termination of Mr. Eichler’s employment within two months prior to or twelve months following a change of control of the Company, and such termination is (i) by the Company for any reason other than cause, death or disability or (ii) by Mr. Eichler for good reason, the Company will pay Mr. Eichler the severance and benefits described above. In addition, 100% of his unvested stock options and restricted stock will vest immediately upon termination.

This excerpt taken from the PTEC 8-K filed Mar 10, 2006.

Item 1.01. Entry into a Material Definitive Agreement.

On March 6, 2006, the stockholders of Phoenix Technologies Ltd. (the “Company”) approved the Phoenix Technologies Ltd. 2001 Employee Stock Purchase Plan, as Amended and Restated (the “Plan”), which was amended, among other things, to (a) increase the number of shares of common stock of the Company reserved for issuance under the Plan by 500,000 shares from 750,000 shares to 1,250,000 shares and (b) increase the maximum amount of compensation that a participant may contribute under the Plan through payroll deductions from 10% to 20%.

The description of the material terms and conditions of the Plan previously reported by the Company under the caption “Proposal No. 2 – Approval of the 2001 Employee Stock Purchase Plan, as Amended and Restated” in the Company’s Definitive Proxy Statement for the 2006 Annual Meeting of Stockholders as filed with the Securities and Exchange Commission on Schedule 14A on January 27, 2006 is incorporated herein by reference.

This excerpt taken from the PTEC 8-K filed Feb 24, 2006.

Item 1.01. Entry into a Material Definitive Agreement.

On February 17, 2006, Phoenix Technologies Ltd. (the “Company”) entered into a severance and change of control agreement (“Severance Agreement”) with Kort van Bronkhorst, the Company’s Vice President of Corporate Marketing. The term of the Severance Agreement is three years.

The Severance Agreement for Mr. van Bronkhorst provides that in the event of the termination of his employment by the Company for any reason other than cause, death, disability or a change of control, the Company will continue to pay him for a severance period of six months following such termination. The severance amount to be paid to Mr. van Bronkhorst will be at a monthly rate equal to his monthly base salary then in effect. The Company will also provide Mr. van Bronkhorst with his then current medical, dental and vision benefits for a period of six months following termination. In addition, the vested portion of any stock options held by Mr. van Bronkhorst as of the termination date will remain exercisable for six months following termination.

In the event of the termination of Mr. van Bronkhorst’s employment within two months prior to or twelve months following a change of control of the Company, and such termination is (i) by the Company for any reason other than cause, death or disability or (ii) by Mr. van Bronkhorst for good reason, the Company will pay Mr. van Bronkhorst the severance and benefits described above. In addition, 50% of his unvested stock options and restricted stock will vest immediately upon termination.

This excerpt taken from the PTEC 8-K filed Jan 24, 2006.

Item 1.01. Entry into a Material Definitive Agreement.

 

On January 18, 2006, Phoenix Technologies Ltd. (the “Company”) entered into a severance and change of control agreement (“Severance Agreement”) with W. Curtis Francis, the Company’s Senior Vice President, Corporate Strategy and Development Division. The term of the Severance Agreement is three years.

 

The Severance Agreement for Mr. Francis provides that in the event of the termination of his employment by the Company for any reason other than cause, death, disability or a change of control, or if Mr. Francis terminates his employment for good reason, the Company will continue to pay him for a severance period of six months following such termination. The severance amount to be paid to Mr. Francis will be at a monthly rate equal to his monthly base salary then in effect. The Company will also provide Mr. Francis with his then current medical, dental and vision benefits for a period of six months following termination. In addition, the vested portion of any stock options held by Mr. Francis as of the termination date will remain exercisable for six months following termination.

 

In the event of the termination of Mr. Francis’s employment within two months prior to or twelve months following a change of control of the Company, and such termination is (i) by the Company for any reason other than cause, death or disability or (ii) by Mr. Francis for good reason, the Company will pay Mr. Francis the severance and benefits described above. In addition, 50% of his unvested stock options and restricted stock will vest immediately upon termination.

 

This excerpt taken from the PTEC 8-K filed Jan 17, 2006.

Item 1.01. Entry into a Material Definitive Agreement.

 

On January 11, 2006, Phoenix Technologies Ltd. (the “Company”) entered into severance and change of control agreements (“Severance Agreements”) with the following executive officers (“Executives”): Albert E. Sisto, Chairman of the Board of Directors, President and Chief Executive Officer; David L. Gibbs, Senior Vice President and General Manager, Worldwide Field Operations Division; Ramesh V. Kesanupalli Senior Vice President and General Manager of the Worldwide Product Operations Division; and Scott C. Taylor, Vice President, General Counsel and Secretary. The term of each Severance Agreement is three years.

 

The Severance Agreement for Mr. Sisto provides that in the event of the termination of his employment by the Company for any reason other than cause, death, disability or a change of control or if Mr. Sisto terminates his employment for good reason, the Company will continue to pay him for a severance period of 24 months following such termination. The Severance Agreement for Mr. Gibbs provides that the Company will continue to pay him for an initial severance period of 12 months following such termination of his employment, and Mr. Gibbs may receive up to six months of additional severance pay if he has not been re-employed at the end of his initial severance period. This additional severance for Mr. Gibbs will cease when Mr. Gibbs is re-employed. The Severance Agreements for Mr. Kesanupalli and Mr. Taylor provide that the Company will continue to pay them for a severance period of six months following such termination of their employment.

 

The severance amount to be paid to each Executive will be at a monthly rate equal to the Executive’s monthly base salary then in effect. The Company will also provide each Executive with his then current medical, dental and vision benefits for a period of six months following termination except that Mr. Sisto will receive such benefits for a period of 18 months following termination. In addition, the vested portion of any stock options held by the Executive as of the termination date will remain exercisable for six months following termination.

 

In the event of the termination of the Executive’s employment within two months prior to or twelve months following a change of control of the Company, and such termination is (i) by the Company for any reason other than cause, death or disability or (ii) by the Executive for good reason, the Company will pay the Executive the severance and benefits described above. In addition, 50% of the Executive’s unvested stock options and restricted stock will vest immediately upon termination.

 

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