UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE
14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. )
Exchange Act of 1934 (Amendment No. )
Filed by the Registrant þ
Filed by a Party other than the Registrant o
Filed by a Party other than the Registrant o
Check the appropriate box:
| o | Preliminary Proxy Statement | |
| o | Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) | |
| o | Definitive Proxy Statement | |
| þ | Definitive Additional Materials | |
| o | Soliciting Material Pursuant to §240.14a-12 |
PHOENIX TECHNOLOGIES LTD.
Payment of Filing Fee (Check the appropriate box):
| þ | No fee required. | |
| o | Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. |
| (1) | Title of each class of securities to which transaction applies: | ||
| (2) | Aggregate number of securities to which transaction applies: | ||
| (3) | Per unit or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined): | ||
| (4) | Proposed maximum aggregate value of transaction: | ||
| (5) | Total fee paid: | ||
| o | Fee paid previously with preliminary materials. | |
| o | Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
| (1) | Amount Previously Paid: | ||
| (2) | Form, Schedule or Registration Statement No.: | ||
| (3) | Filing Party: | ||
| (4) | Date Filed: | ||
The attached supplement to the Phoenix Technologies Ltd. (the
“Company”) proxy statement and new proxy card are
being mailed to stockholders on or about February 13, 2007
in connection with the Company’s 2007 Annual Meeting of
Stockholders.
PHOENIX
TECHNOLOGIES LTD.
915 Murphy Ranch Road
Milpitas, California 95035
SUPPLEMENT TO PROXY STATEMENT
FOR THE 2007 ANNUAL MEETING OF STOCKHOLDERS
To Be Convened on February 14, 2007 at 10:00 AM, Pacific Standard Time
and Immediately Adjourned to February 26, 2007 at 9:00 AM, Pacific Standard Time
915 Murphy Ranch Road
Milpitas, California 95035
SUPPLEMENT TO PROXY STATEMENT
FOR THE 2007 ANNUAL MEETING OF STOCKHOLDERS
To Be Convened on February 14, 2007 at 10:00 AM, Pacific Standard Time
and Immediately Adjourned to February 26, 2007 at 9:00 AM, Pacific Standard Time
Phoenix Technologies Ltd. (the “Company” or
“Phoenix”) hereby supplements its Proxy Statement
dated January 25, 2007 for its 2007 Annual Meeting of
Stockholders of the Company scheduled to be held on
February 14, 2007 (the “Phoenix Proxy Statement”).
AS INDICATED BELOW, UNDER AGREEMENTS RECENTLY SIGNED WITH
ENTITIES REFERRED TO IN THIS SUPPLEMENT AS THE RAMIUS GROUP AND
AWM GROUP, THE BOARD OF DIRECTORS HAS DETERMINED THAT IS IN THE
BEST INTERESTS OF THE COMPANY’S STOCKHOLDERS TO CHANGE ITS
DIRECTOR NOMINEES FOR ELECTION AT THE 2007 ANNUAL MEETING AND IT
IS IMPORTANT THAT STOCKHOLDERS COMPLETE AND RETURN THE ENCLOSED
NEW YELLOW PROXY CARD TO ENSURE THAT THEIR
SHARES ARE VOTED FOR THE NEW NOMINEES.
BLUE AND WHITE PROXY CARDS ARE NO LONGER VALID AND WILL NOT
BE VOTED AT THE 2007 ANNUAL MEETING.
In addition, the Company’s Board of Directors has decided
to convene the 2007 Annual Meeting on February 14, 2007 and
prior to the opening of the polls, immediately adjourn the
meeting to February 26, 2007 at the Company’s offices
located at 915 Murphy Ranch Road, Milpitas, California,
commencing at 9:00 AM, Pacific Standard Time (the
“2007 Annual Meeting”). The Board of Directors has
decided to adjourn the meeting to allow additional time for the
Company’s stockholders to receive this Supplement to the
Phoenix Proxy Statement and the enclosed YELLOW proxy
card.
All YELLOW proxy cards are solicited for the purposes set
forth therein by the Company’s Board of Directors. We do
not expect any matters not listed on the YELLOW proxy
card to come before the 2007 Annual Meeting. If any other matter
is presented, your signed YELLOW proxy card gives the
individuals named as proxy holders the authority to vote your
shares to the extent authorized by
Rule 14a-4(c)
under the Securities Exchange Act of 1934, as amended, which
would include matters that the proxy holders did not know were
to be presented at the 2007 Annual Meeting.
Capitalized terms used but not defined in this Supplement have
the meanings given to them in the Phoenix Proxy Statement.
REVISED
BOARD NOMINEES; TERMINATION OF RAMIUS SOLICITATION
On February 12, 2007, the Company entered into two
agreements (the “Agreements”) with certain entities
and individuals affiliated with Starboard Value and Opportunity
Master Fund Ltd. (the “Ramius Group”) (the
“Ramius Agreement”) and with certain entities (the
“AWM Group”) affiliated with AWM Investment Company,
Inc. (“AWM”) (the “AWM Agreement”),
respectively. Among other things, pursuant to the Ramius
Agreement and the AWM Agreement, the Company’s Board of
Directors has changed its nominees for election to Class 2
of the Board of Directors at the 2007 Annual Meeting from David
S. Dury and Taher Elgamel to John Mutch and Robert J. Majteles
(the “New Nominees”). Mr. Dury and
Mr. Elgamel will resign from the Board of Directors
immediately prior to the 2007 Annual Meeting, and Dale Fuller
will be appointed as Chairman of the Board of Directors
following Mr. Dury’s resignation. In addition, the
Ramius Group and the AWM Group have each agreed to vote in favor
of Mr. Majteles and Mr. Mutch, and the Ramius Group
has agreed to withdraw its nominees for election at the 2007
Annual Meeting and suspend its solicitation in opposition to the
Company.
GENERAL
Voting Securities. The record date for the
2007 Annual Meeting has not changed. Only stockholders of record
as of the close of business on January 10, 2007 will be
entitled to vote at the 2007 Annual Meeting and any adjournments
thereof. As of the record date, there were
25,574,579 shares of the Common Stock of the Company issued
and outstanding.
Color of the Proxy Card. YELLOW proxy
cards and voting instruction cards are being solicited on behalf
of the Company’s Board of Directors in favor of
(i) the proposal to elect John Mutch and Robert J. Majteles
as members of the Company’s Board of Directors and
(ii) the ratification of the selection of Ernst &
Young LLP as the Company’s independent registered public
accounting firm for the 2007 fiscal year. The Company’s
Board of Directors urges stockholders to sign, date and return
each YELLOW proxy card or voting instruction card
promptly. If a stockholder does not return the enclosed new
YELLOW proxy card (which contains the name of the New
Nominees), that stockholder’s shares cannot be counted in
the election of the New Nominees, whether or not the stockholder
previously returned a BLUE or WHITE proxy card. BLUE and WHITE
proxy cards are no longer valid and will not be voted at the
2007 Annual Meeting.
Quorum. The required quorum for transacting
business at the 2007 Annual Meeting is a majority of the votes
eligible to be cast by holders of shares of the Company’s
common stock issued and outstanding on the Record Date. Shares
that are voted “FOR”, “AGAINST”,
“ABSTAIN” or “WITHHOLD” on a matter are
treated as being present at the 2007 Annual Meeting for purposes
of establishing a quorum.
Required Vote for Each Proposal. Pursuant to
the Company’s bylaws, when a quorum is present, directors
(Proposal 1) may be elected by the vote of holders of
a plurality of shares present in person or represented by proxy
and entitled to vote on the election of directors. In all other
matters (such as Proposal 2), when a quorum is present, the
vote of a majority of the stock present in person or represented
by proxy and entitled to vote on the matter.
PROPOSAL NO. 1 —
ELECTION OF DIRECTORS
The Company refers you to the section of the Phoenix
Technologies Proxy Statement captioned
“PROPOSAL NO. 1 — Election Of
Directors” for information about the current members of the
Company’s Board of Directors. Information about
Messrs. Mutch and Majteles, the New Nominees is set forth
below.
Messrs. Mutch and Majteles were nominated for election to
Class 2 of the Company’s Board of Directors pursuant
to the Ramius Agreement and the AWM Agreement described in this
Supplement. Prior to the termination of the proxy contest by the
Ramius Group, Mr. Mutch, who beneficially owns and controls
200,000 shares of the Company’s common stock, formed a
group with the Ramius Group and its affiliates, for the purpose
of soliciting proxies for the election of the persons nominated
by Ramius Group to the Company’s Board of Directors at the
2007 Annual Meeting. There is no other relationship between the
Company and each of the New Nominees.
The New Nominees for Class 2 Directors to be elected at the
2007 Annual Meeting will be elected to hold office until the
2010 Annual Meeting of Stockholders and until their successors
have been elected and qualified. The Company expects each
Nominee to be available to serve as a director. If, however, a
Nominee is unable or declines to serve for any reason, proxies
may be voted for such substitute nominee as the Board of
Directors may designate.
Set forth below is the name, age, business address, present
principal occupation, employment history and directorships of
publicly-held companies of each of the New Nominees for at least
the past five years. This information has been furnished to the
Company by the respective New Nominees. The New Nominees are not
currently serving as directors of the Company.
John Mutch. Mr. Mutch,
age 50, 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. From August 2003 to December 2005,
Mr. Mutch served as President and Chief Executive Officer
of Peregrine. From December 1999 through August 2002,
Mr. Mutch was the chief executive officer of HNC Software,
Inc., an enterprise analytics software provider. He also served
as president of HNC from May 2001 through August 2002.
Mr. Mutch joined HNC in 1997, and from 1997 to 1999 served
in various other senior executive positions,
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including vice president, marketing and president of HNC
Insurance Solutions. In 1994, Mr. Mutch founded MVenture
Holdings, Inc., a private equity fund that invests in public and
private technology companies, which became Mventure Holdings LLC
in 2002. 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. Mr. Mutch served
on the Board of Directors of Brio Software, a developer of
software products, from 2002 to 2003. Mr. Mutch holds a
B.S. from Cornell University and an M.B.A. From the University
of Chicago. The principal business address of Mr. Mutch is
c/o MV Advisors, LLC, 420 Stevens Avenue, Suite 270,
Solana Beach, CA 92075. Pursuant to the terms of the Agreements,
Mr. Mutch will become a member of the Company’s Audit
Committee. As of the date hereof, Mr. Mutch beneficially
owns 200,000 shares of common stock of the Company.
Robert J. Majteles. Mr. Majteles,
age 42, is the managing member of Treehouse Capital LLC
(“Treehouse”), an investment firm that he founded in
2001. Mr. Majteles holds a B.A. from Columbia University
and a J.D. from Stanford University. Mr. Majteles serves on
the boards of directors of Adept Technology, Inc., a company
that designs, manufactures and markets robotic systems, motion
control and machine vision technology; Macrovision Corporation,
a provider of distribution, commerce and consumption solutions
for software and entertainment content to the home video, PC
games, music, cable/satellite, consumer software, and enterprise
software industries; U.S. Auto Parts Network, Inc., an
online provider of aftermarket auto parts and accessories;
Vertical Communications, Inc., a provider of
IP-PBX
telephone systems; World Heart Corporation, a global medical
device company focused on the development, production and
commercialization of implantable ventricular assist devices; and
Unify Corporation, a provider of business process automation
solutions. In addition, Mr. Majteles is a Lecturer at the
Lester Center for Entrepreneurship, Haas School of Business,
University of California, Berkeley and is a Member of the Board
of Trustees of the Head-Royce School, Oakland, California. The
principal business address of Mr. Majteles is Treehouse
Capital, LLC, 1816 Fifth Street, Berkeley, CA 94710. Pursuant to
the terms of the Agreements, Mr. Majteles will become a
member of the Company’s Nominating and Governance
Committee. As of the date hereof, Mr. Majteles does not
beneficially own any shares of common stock of the Company.
The Company’s Board of Directors recommends that
stockholders vote FOR the election of Messrs. Mutch
and Majteles. Unless otherwise instructed, the proxy holders
will vote the new YELLOW proxy cards received by them for the
New Nominees.
SUMMARY
OF THE AGREEMENTS
Ramius Agreement. As provided in the Ramius
Agreement, the Company’s Board of Directors has determined
that it is in the best interests of the stockholders of the
Company to nominate John Mutch and Robert J. Majteles for
election to Class 2 of the Company’s Board of
Directors at the Company’s Annual Meeting and to recommend
that the Company’s stockholders vote for the New Nominees.
The Ramius Group has agreed to vote their shares in favor of the
New Nominees at the 2007 Annual Meeting. In addition, the
Company and the Ramius Group have agreed not to directly or
indirectly engage in any activities in opposition to the
election of the New Nominees as the sole directors elected at
the 2007 Annual Meeting. In addition, the Ramius Group agreed to
withdraw its nominees for election to the Company’s Board
of Directors, to not present any nominees or proposals at the
2007 Annual Meeting, and to terminate its proxy solicitation in
opposition to the Company.
Pursuant to the terms of the Ramius Agreement, the Company has
also agreed to take all action necessary in furtherance of (and
John Mutch agreed to vote in favor of): (i) the appointment
of John Mutch as a member of the Audit Committee, (ii) the
appointment of Robert J. Majteles as a member of the Nominating
and Governance Committee, and (iii) the election of Dale
Fuller as the new chairman of the Company’s Board of
Directors.
Under the Ramius 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 and any
of its controlled affiliates have agreed not to:
| • | acquire any voting securities of the Company in excess of the Standstill Limit (as defined below); | |
| • | other than pursuant to the Ramius 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, |
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| • | solicit, encourage or in any way participate in the solicitation of any proxies with respect to any voting securities of the Company; | |
| • | make any public announcement with respect to a merger, consolidation, business combination or other extraordinary transaction with or involving the Company in excess of the Standstill Limit; | |
| • | form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934; or | |
| • | publicly seek or request permission to do any of the foregoing. |
For purposes of the Ramius Agreement, “Standstill
Limit” means 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 the Preferred Share Rights Agreement, dated
as of October 22, 1999, between the Company and BankBoston,
N.A. The Ramius Agreement does not limit the Ramius Group from
public stating they oppose a merger or other extraordinary
transaction involving a third party.
Under the Ramius Agreement, the Company also agreed to review,
consider, and deliberate upon the corporate governance
recommendations of Institutional Shareholder Services.
Finally, under the terms of the Ramius Agreement, the Company
and the Ramius Group have agreed to a mutual release of all
claims that they may have against each other based upon events
occurring prior to the date of the execution of the Ramius
Agreement.
AWM Agreement. As provided in the AWM
Agreement, the Company’s Board of Directors has determined
that it is in the best interests of the stockholders of the
Company to nominate John Mutch and Robert J. Majteles for
election to Class 2 of the Company’s Board of
Directors at the 2007 Annual Meeting and to recommend that the
Company’s stockholders vote for the New Nominees. The AWM
Group has agreed to vote their shares in favor of the New
Nominees at the 2007 Annual Meeting. In addition, the Company
and the AWM Group have agreed not to directly or indirectly
engage in any activities in opposition to the election of the
New Nominees as the sole directors elected at the 2007 Annual
Meeting.
Pursuant to the terms of the AWM Agreement, the Company has also
agreed to take all action necessary in furtherance of:
(i) the appointment of John Mutch as a member of the Audit
Committee, (ii) the appointment of Robert J. Majteles as a
member of the Nominating and Governance Committee, and
(iii) the election of Dale Fuller as the new chairman of
the Company’s Board of Directors.
Under the AWM Agreement, the Company also agreed to review,
consider, and deliberate upon the corporate governance
recommendations of Institutional Shareholder Services.
THE COMPANY HAS FILED THE AGREEMENTS AS EXHIBITS TO A
CURRENT REPORT ON
FORM 8-K
DATED FEBRUARY 13, 2007. THE DESCRIPTIONS OF THE AGREEMENTS
IN THIS SUPPLEMENT ARE QUALIFIED BY THE FULL TEXT OF THOSE
DOCUMENTS.
YOUR VOTE IS IMPORTANT. THE BOARD OF DIRECTORS
ASKS YOU TO COMPLETE, SIGN AND RETURN THE ENCLOSED NEW
YELLOW PROXY CARD SO THAT YOUR VOTE MAY BE COUNTED, EVEN
IF YOU PLAN ON ATTENDING THE 2007 ANNUAL MEETING.
By Order of the Board of Directors
|
/s/ Scott
C. Taylor
|
Scott C. Taylor, Secretary
Milpitas, California
February 12, 2007
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Phoenix Technologies Ltd.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The
undersigned, revoking all prior proxies, hereby appoints Woodson
Hobbs and Rich Arnold, and each of them, each with power of substitution, as proxies to represent and vote as
designated herein all shares of stock of Phoenix Technologies Ltd. (the “Company”) which the
undersigned would be entitled to vote if personally present at the
2007 Annual Meeting of Stockholders
of the Company, and at any and all
adjournments of that meeting. The 2007 Annual Meeting of Stockholders
of the Company will be convened on February 14, 2007 at
10:00 a.m. Pacific Standard Time and immediately adjourned to be
held on February 26, 2007 at the offices of the Company located
at 915 Murphy Ranch Road, Milpitas, CA, at 9:00 a.m. Pacific
Standard Time.
THE PROXY, WHEN PROPERLY EXECUTED AND RETURNED, WILL BE VOTED IN THE MANNER DIRECTED HEREIN BY THE
UNDERSIGNED STOCKHOLDER. IF NO DIRECTION IS GIVEN, THIS PROXY WILL BE VOTED FOR ELECTION OF MESSRS.
MUTCH AND MAJTELES AND FOR PROPOSAL 2. IN THEIR DISCRETION, THE PROXIES ARE ALSO AUTHORIZED TO VOTE
UPON SUCH OTHER MATTERS AS MAY PROPERLY COME BEFORE THE MEETING OR ANY ADJOURNMENT OF THAT MEETING.
CONTINUED AND TO BE SIGNED ON THE REVERSE SIDE
SEE REVERSE SIDE SIDE
A-Election of Directors
This proxy will be voted as directed. In the absence of contrary direction, this proxy will be
voted FOR the election of the directors listed below.
| 1. | To elect the following to the Board of Directors as Class 2 Directors. | |||||||
| FOR | WITHHOLD | |||||||
| 01 — John Mutch | o | o | ||||||
| 02 — Robert J. Majteles | o | o | ||||||
B-Issue
This proxy will be voted as directed. In the absence of contrary direction, this proxy will be
voted FOR the proposal below.
| FOR | AGAINST | ABSTAIN | ||||||
2.
|
To ratify the selection of Ernst & Young LLP as the Company’s independent registered public accounting firm for the current fiscal year. | o | o | o |
Sign, Date and Return the Proxy Card Promptly Using the Enclosed Envelope.
Please sign exactly as your name appears on stock
certificates. If the stock is registered in the names of two
or more persons, each should sign. Executors, administrators,
trustees, guardians, attorneys and corporate officers should
add their titles.
| Dated: |
Signature of Shareowner(s) / Title(s)
Signature of Shareowner(s) / Title(s)