UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 20, 2010
PHOENIX TECHNOLOGIES LTD.
(Exact Name of Registrant as Specified in its Charter)
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| Delaware
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0-17111
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04-2685985 |
| (State or Other Jurisdiction of
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(Commission File Number)
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(I.R.S. Employer Identification |
| Incorporation)
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No.) |
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| 915 Murphy Ranch Road, Milpitas, California
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95035 |
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(Zip Code) |
Registrant’s telephone number, including area code: (408) 570-1000
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy
the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c)) |
Item 8.01. Other Events
As previously disclosed, on August 25, 2010, Phoenix Technologies Ltd. (“Phoenix”) received an
unsolicited non-binding proposal from a third party, affiliates of Gores Capital Partners III, L.P.
(“Gores”, previously identified only as the “Competing Bidder”), to acquire all of the securities
of Phoenix following the execution of the Agreement and Plan of Merger (the “Marlin Merger
Agreement”), dated August 17, 2010, between Phoenix and affiliates of Marlin Capital Partners
(“Marlin”). The non-binding proposal from Gores was subject to satisfactory completion of its due
diligence and the negotiation of definitive agreements.
On October 20, 2010, Gores submitted a definitive offer and revised proposal to Phoenix, in the
form of an Agreement and Plan of Merger (the “Gores Merger Agreement”) and other related agreements
executed by Gores, to acquire all of the outstanding securities of Phoenix for cash consideration
of $4.05 per share. Under the Marlin Merger Agreement, the merger consideration is $3.85 per
share. The proposed acquisition by Gores will be structured as a tender offer to stockholders of
Phoenix. Except for the merger consideration and the tender offer structure of the transaction,
the terms of the Gores Merger Agreement are substantially identical to the Marlin Merger Agreement.
Immediately following the submission of Gores’ revised proposal, on October 20, 2010, the board of
directors of Phoenix (the “Board”) held a meeting and determined, in accordance with the terms of
the Marlin Merger Agreement and after consulting with its financial and legal advisors, that the
revised proposal received from Gores constitutes a Superior Proposal (as such term is defined in
the Marlin Merger Agreement).
Thereafter, on October 20, 2010 and pursuant to the terms of the Marlin Merger Agreement, the Board
gave written notice to Marlin of its determination that the revised proposal from Gores constitutes
a Superior Proposal, and the notice included copies of the Gores Merger Agreement and related
agreements. Under the terms of the Marlin Merger Agreement, if Marlin does not make, within three
business days following the receipt of such notice, a binding written proposal (the “Matching
Proposal”) that would cause the revised proposal received from Gores to no longer constitute a
Superior Proposal, Phoenix will be entitled to terminate the Marlin Merger Agreement and enter into
the Gores Merger Agreement. Pursuant to the terms of the Marlin Merger Agreement, Phoenix intends
to negotiate in good faith with Marlin with respect to a Matching Proposal. In the event of a
termination of the Marlin Merger Agreement by Phoenix, Marlin will be entitled to a termination fee
of $4.15 million from Phoenix.
In light of the developments disclosed above, Phoenix expects that it will hold but immediately
adjourn its special meeting of stockholders on October 25, 2010 to a later date to be announced at
the meeting.
Important Additional Information About the Merger and Where You Can Find It.
In connection with the proposed transaction and the special meeting of Phoenix stockholders to
approve the transaction, Phoenix has filed a definitive proxy statement with the Securities and
Exchange Commission on September 22, 2010. INVESTORS AND SECURITY HOLDERS ARE STRONGLY ADVISED TO
READ THE PROXY STATEMENT AND OTHER FILED DOCUMENTS WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL
CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION. Investors and security holders may
obtain a free copy of the proxy statement and other documents filed by Phoenix at the Securities
and Exchange Commission’s website at www.sec.gov. The proxy statement and other relevant
documents may also be obtained for free from Phoenix by directing such request to Phoenix
Technologies Ltd., c/o Investor Relations, 915 Murphy Ranch Rd., Milpitas, CA, telephone: (408)
570-1000.
Phoenix and its directors, executive officers and certain other members of its management and
employees may be deemed to be participants in the solicitation of proxies from its stockholders in
connection with the proposed merger. Certain information regarding the interests of such directors
and executive officers is included in the Phoenix Proxy Statement for its 2010 Annual Meeting of
Stockholders filed with the Securities and Exchange Commission on December 30, 2009, and
information concerning all of the Phoenix participants in the solicitation are included in the
definitive proxy statement relating to the proposed merger filed on September 22, 2010. Each of
these documents is, or will be, available free of charge at the Securities and Exchange
Commission’s website at www.sec.gov and from Phoenix Technologies Ltd., c/o Investor
Relations, 915 Murphy Ranch Rd., Milpitas, CA, telephone: (408) 570-1000.
Forward-Looking Statements
This document contains certain forward-looking statements about Phoenix that are subject to risks
and uncertainties that could cause actual results to differ materially from those expressed or
implied in the forward-looking statements. These factors include, but are not limited to, the
outcome of the Superior Proposal submitted by Gores or any Matching Proposal submitted by Marlin;
the occurrence of any event, change or other circumstances that could give rise to the termination
of the Marlin Merger Agreement and the execution of the Gores Merger Agreement; the outcome of any
legal proceedings that have or may be instituted against the Company; the risk that the proposed
transaction disrupts current plans and operations; and other risks that are set forth in the “Risk
Factors” and other sections of Phoenix’s filings with the Securities and Exchange Commission. Many
of the factors that will determine the outcome of the merger are beyond Phoenix’s ability to
control or predict. Phoenix undertakes no obligation to revise or update any forward-looking
statements, or to make any other forward-looking statements, whether as a result of new
information, future events or otherwise.