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. 5)(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)
December 27, 2006
-----------------
(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 45 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 45 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)
11.0%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 719153108 13D Page 3 of 45 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 45 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)
13.0%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IA, OO
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 719153108 13D Page 5 of 45 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)
13.0%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IA, OO
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 719153108 13D Page 6 of 45 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)
13.0%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 719153108 13D Page 7 of 45 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)
13.0%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 719153108 13D Page 8 of 45 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)
13.0%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 719153108 13D Page 9 of 45 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)
13.0%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 719153108 13D Page 10 of 45 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)
13.0%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 719153108 13D Page 11 of 45 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 45 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 45 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
JEFFREY C. SMITH
--------------------------------------------------------------------------------
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 14 of 45 Pages
---------------------- ----------------------
The following constitutes Amendment No. 5 ("Amendment No. 5") to the
Schedule 13D filed by the undersigned. This Amendment No. 5 amends the Schedule
13D as specifically set forth.
Item 2 is hereby amended to add the following:
Philip Moyer and Jeffrey C. Smith are hereby added as
Reporting Persons to the Schedule 13D.
Philip Moyer ("Mr. Moyer") is a nominee for the Board of
Directors of the Issuer and his principal occupation is serving Chief Executive
Officer of the United States operations of Cassiopae, S.A. The principal
business address of Mr. Moyeris c/o Cassiopae, S.A., 174 quai de Jemmapes, 75010
Paris, France. Mr. Moyer is a citizen of the United States of America.
Jeffrey C. Smith ("Mr. Smith") is a nominee for the Board of
Directors of the Issuer and his principal occupation is serving as an Executive
Managing Director of Ramius Capital. The principal business address of Mr. Smith
is c/o Ramius Capital Group, L.L.C., 666 Third Avenue, 26th Floor, New York, New
York 10017. Mr. Smith is a citizen of the United States of America.
No Reporting Person has, during the last five years, been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors). No Reporting Person has, during the last five years, been party
to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
The final paragraph of Item 2(a) is hereby amended and restated as
follows:
Each of the foregoing is referred to as a "Reporting Person"
and collectively as the "Reporting Persons." As of December 29, 2006, the
Reporting Persons were the beneficial owners of, in the aggregate, 3,502,941
Shares, representing approximately 13.8% of the Shares presently outstanding.
Each of the Reporting Persons is party to that certain Joint Filing and
Solicitation Agreement, as further described in Item 6. Accordingly, the
Reporting Persons are hereby filing a joint Schedule 13D.
Item 4 is hereby amended to add the following:
The Reporting Persons continue to believe that the Shares of
the Issuer are undervalued and in order to maximize shareholder value, Ramius
Capital continues to be interested in acquiring the Issuer. The Reporting
Persons are currently considering various options available to them as
shareholders, and in order to preserve their rights and comply with the advance
notice requirements under the Issuer's bylaws, on December 27, 2006, Starboard
delivered a letter to the Issuer (the "Nomination Letter") nominating John
Mutch, Philip Moyer and Jeffrey C. Smith, as set forth therein, for election to
the Issuer's Board of Directors (the "Board") at the Issuer's 2007 annual
meeting of shareholders, or any other meeting of shareholders held in lieu
---------------------- ----------------------
CUSIP No. 719153108 13D Page 15 of 45 Pages
---------------------- ----------------------
thereof, and any adjournments, postponements, reschedulings or continuations
thereof (the "2007 Annual Meeting"). A copy of this letter is attached hereto as
Exhibit 6 and is incorporated herein by reference.
Item 5 is hereby amended and restated as follows:
The aggregate percentage of Shares reported owned by each
person named herein is based upon 25,437,936 Shares outstanding, which is the
total number of Shares outstanding as reported in the Issuer's Annual Report on
Form 10-K for the fiscal year ended September 30, 2006 filed with the Securities
and Exchange Commission on December 14, 2006.
A. Starboard
(a) As of December 29, 2006, Starboard beneficially owned
2,774,471 Shares.
Percentage: Approximately 11.0%
(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
since July 13, 2006.
B. Parche
(a) As of December 29, 2006, 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 since
July 13, 2006.
C. Admiral Advisors
(a) As of December 29, 2006, 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 13.0%
(b) 1. Sole power to vote or direct vote: 3,302,941
---------------------- ----------------------
CUSIP No. 719153108 13D Page 16 of 45 Pages
---------------------- ----------------------
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 since July 13, 2006.
D. Ramius
(a) As of December 29, 2006, 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 13.0%
(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 since
July 13, 2006.
E. C4S
(a) As of December 29, 2006, 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 13.0%
(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 since
July 13, 2006.
F. Mr. Cohen, Mr. Stark, Mr. Strauss and Mr. Solomon
(a) As of December 29, 2006, 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 13.0%
---------------------- ----------------------
CUSIP No. 719153108 13D Page 17 of 45 Pages
---------------------- ----------------------
(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 have
entered into any transactions in the Shares since July 13, 2006.
G. Mr. Mutch
(a) As of December 29, 2006, 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
since July 13, 2006.
H. Messrs. Moyer and Smith do not currently beneficially own any
Shares.
(d) No person other than the Reporting Persons is known to have
the right to receive, or the power to direct the receipt of dividends from, or
proceeds from the sale of, such Shares .
(e) Not applicable.
Item 6 is hereby amended to add the following:
On December 29, 2006, the Reporting Persons entered into a
Joint Filing and Solicitation Agreement in which, among other things, (a) the
parties agreed to the joint filing on behalf of each of them of statements on
Schedule 13D with respect to the securities of the Issuer to the extent required
under applicable securities laws, (b) the parties agreed to form the group for
the purpose of soliciting proxies or written consents for the election of the
persons nominated by Starboard to the Issuer's Board at the 2007 Annual Meeting
and for the purpose of taking all other actions incidental to the foregoing and
(c) Starboard and Parche shall have the right to pre-approve all expenses
incurred in connection with the group's activities and agreed to pay directly
all such pre-approved expenses on a pro rata basis between Starboard and Parche
based on the number of Shares in the aggregate held by each of Starboard and
Parche on the date hereof. A copy of this agreement is attached hereto as
Exhibit 7 and is incorporated herein by reference.
Pursuant to letter agreements, Starboard and Parche have
agreed to indemnify each of Messrs. Mutch, Moyer and Smith against claims
arising from the solicitation of proxies from the Issuer's shareholders at the
2007 Annual Meeting and any related transactions. A form of the letter agreement
is attached hereto as Exhibit 8 and is incorporated herein by reference.
---------------------- ----------------------
CUSIP No. 719153108 13D Page 18 of 45 Pages
---------------------- ----------------------
Admiral Advisors has agreed to compensate each of Messrs.
Mutch and Moyer for being named as and serving as nominees for election as
directors of the Issuer pursuant to letter agreements (the "Compensation Letter
Agreements"). Pursuant to the terms of the Compensation Letter Agreements,
Admiral Advisors has agreed to pay each such nominee $5,000 in cash upon the
submission of the Nomination Letter by Starboard to the Company. Upon the filing
of a definitive proxy statement with the SEC relating to a solicitation of
proxies in favor of each such nominee's election as a director at the 2007
Annual Meeting, Admiral Advisors has agreed to allow each such nominee to
receive a profit participation with respect to the sale by Admiral Advisors or
its affiliates, as the case may be, of the last $20,000 worth of Shares (the
"Participation Shares") beneficially owned by either Admiral Advisors or its
affiliates, as the case may be, to a third party unaffiliated with any member of
the Ramius Group. Pursuant to the terms of the Compensation Letter Agreements,
each such nominee will be entitled to receive a cash payment equal to the
amount, if any, by which the proceeds received by Admiral Advisors or its
affiliates, as the case may be, from the sale of the Participation Shares
exceeds $20,000 in the aggregate. A form of the Compensation Letter Agreement is
attached hereto as Exhibit 9 and is incorporated herein by reference.
Item 7 is hereby amended to include the following exhibits:
6. Nomination Letter from Starboard to the Issuer, dated
December 27, 2006.
7. Joint Filing and Solicitation Agreement by and among the
Reporting Persons, dated December 29, 2006.
8. Form of Indemnification Letter Agreement.
9. Form of Compensation Letter Agreement.
10. Power of Attorney for Messrs. Mutch and Moyer.
---------------------- ----------------------
CUSIP No. 719153108 13D Page 19 of 45 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: January 2, 2007
STARBOARD VALUE AND ADMIRAL ADVISORS, LLC
OPPORTUNITY 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/ Morgan B. Stark
---------------------
Name: Morgan B. Stark
Title: Authorized Signatory
MORGAN B. STARK
/s/ Morgan B. Stark
----------------------------------------
Individually and as attorney-in-fact for
Peter A. Cohen, Jeffrey M. Solomon and
Thomas W. Strauss
JEFFREY C. SMITH
/s/ Jeffrey C. Smith
----------------------------------------
Individually and as attorney-in-fact for
John Mutch and Philip Moyer
---------------------- ----------------------
CUSIP No. 719153108 13D Page 20 of 45 Pages
---------------------- ----------------------
EXHIBIT INDEX
-------------
Exhibit Page
------- ----
6. Nomination Letter from Starboard to the Issuer, 21 to 34
dated December 27, 2006.
7. Joint Filing and Solicitation Agreement by and 34 to 37
among the Reporting Persons, dated December 29,
2006.
8. Form of Indemnification Letter Agreement. 38 to 40
9. Form of Compensation Letter Agreement. 41 to 43
10. Power of Attorney for Messrs. Mutch and Moyer. 44 to 45
---------------------- ----------------------
CUSIP No. 719153108 13D Page 21 of 45 Pages
---------------------- ----------------------
STARBOARD VALUE AND OPPORTUNITY MASTER FUND LTD.
C/O RAMIUS CAPITAL GROUP, L.L.C.
666 THIRD AVENUE, 26TH FLOOR
NEW YORK, NEW YORK 10017
December 27, 2006
BY FACSIMILE AND FEDERAL EXPRESS
Phoenix Technologies Ltd.
915 Murphy Ranch Road
Milpitas, California 95035
Attn: Corporate Secretary
Re: NOTICE OF SHAREHOLDER NOMINATION FOR ELECTION OF DIRECTORS FOR
THE 2007 ANNUAL MEETING OF SHAREHOLDERS OF PHOENIX
TECHNOLOGIES LTD.
DEAR SIR:
This letter is intended to serve as notice to Phoenix Technologies
Ltd., a Delaware corporation ("PTEC" or the "Company"), as to the nomination by
Starboard Value and Opportunity Master Fund Ltd., an exempted company organized
under the laws of the Cayman Islands ("Starboard"), of nominees for election to
the Board of Directors of PTEC (the "PTEC Board") at the 2007 annual meeting of
shareholders of PTEC, or any other meeting of shareholders held in lieu thereof,
and any adjournments, postponements, reschedulings or continuations thereof (the
"2007 Annual Meeting").
This letter and all Exhibits attached hereto are collectively referred
to as the "Notice." Starboard is the beneficial owner of 2,774,471 shares of
common stock, $.001 par value per share (the "Common Stock"), of PTEC, 1,000
shares of which are held of record. Through this Notice, Starboard hereby
nominates and notifies you of its intent to nominate John Mutch, Philip Moyer
and Jeffrey C. Smith as nominees (the "Nominees") to be elected to the PTEC
Board at the 2007 Annual Meeting. Starboard believes that the terms of three (3)
Class II directors currently serving on the PTEC Board expire at the 2007 Annual
Meeting. To the extent that there are in excess of three (3) vacancies on the
PTEC Board to be filled by election at the 2007 Annual Meeting or PTEC increases
the size of the PTEC Board above its existing size, Starboard reserves the right
to nominate additional nominees to be elected to the PTEC Board at the 2007
Annual Meeting. Additional nominations made pursuant to the preceding sentence
are without prejudice to the position of Starboard that any attempt to increase
the size of the current PTEC Board or to reconstitute or reconfigure the classes
on which the current directors serve constitutes an unlawful manipulation of
PTEC's corporate machinery. If this Notice shall be deemed for any reason by a
court of competent jurisdiction to be ineffective with respect to the nomination
of any of the Nominees nominated by Starboard at the 2007 Annual Meeting, or if
any individual Nominee shall be unable to serve for any reason, this Notice
shall continue to be effective with respect to the remaining Nominee and as to
any replacement Nominee(s) selected by Starboard.
---------------------- ----------------------
CUSIP No. 719153108 13D Page 22 of 45 Pages
---------------------- ----------------------
Below please find information required by Article I, Section 11 of the
Bylaws of PTEC, as amended (the "Phoenix Bylaws"), Regulation 14A of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and other
information concerning the Nominees for election as Class II directors at the
2007 Annual Meeting.
JOHN 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 (NASD:PRGN.PK) ("Peregrine"), a global enterprise software
provider, to assist Peregrine and its management in development of a plan of
reorganization, which ultimately led to Peregrine's emergence from bankruptcy.
From August 2003 to December 2005, Mr. Mutch served as President and Chief
Executive Officer of Peregrine, during which time he restructured and stabilized
its business operations and led Peregrine through its acquisition by
Hewlett-Packard. From December 1999 through August 2002, Mr. Mutch was the chief
executive officer of HNC Software, Inc. (NASD:HNCS) ("HNC"), 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, 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
(NASD:BRIO), 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. The residential address
of Mr. Mutch is P.O. Box 1590, Rancho Santa Fe, CA 92067. As of the date hereof,
Mr. Mutch beneficially owns 200,000 shares of Common Stock of PTEC. For
information regarding purchases and sales during the past two years by Mr. Mutch
in securities of PTEC (without conceding that any such information is required
to be disclosed in this Notice), please see EXHIBIT A.
PHILIP MOYER (AGE 41) is a private investor and entrepreneur. Since
October 2006, Mr. Moyer has been a shareholder and member of the Board of
Directors of Cassiopae, S.A., a French software company in the commercial
banking market, and serves as Chief Executive Officer of its United States
operations. From January 2006 to August 2006, Mr. Moyer was an
Entrepreneur-in-Residence for Safeguard Scientifics, Inc. (NYSE:SFE) and since
August 2006, he has served on its Information Technology Advisory Board. From
July 2003 to September 2005, Mr. Moyer served as General Manager, Professional
Services Industry for Microsoft Corp. (NASD:MSFT) ("Microsoft"). From July 2002
to July 2005, Mr. Moyer also served as Microsoft's General Manager of Global
Customers, during which time he was responsible for managing worldwide sales and
service teams for some of Microsoft's largest multi-national customers. From
July 1999 to July 2002, Mr. Moyer was General Manager of Microsoft's Services
Organizations (Consulting, Support, Technology Specialists, and Partners) in the
U.S. East Region. From 1991 to July 1999, Mr. Moyer held a variety of executive
and technical positions with Microsoft. Prior to joining Microsoft, Mr. Moyer
was the co-founder of Orion Systems Group, a software company that builds
education and government administration software. Mr. Moyer began his
professional career with GE Aerospace as a software engineer. Mr. Moyer holds a
B.S. in Computer Science from University of Pittsburgh. The principal business
address of Mr. Moyer is c/o Cassiopae, S.A., 174 quai de Jemmapes, 75010 Paris,
---------------------- ----------------------
CUSIP No. 719153108 13D Page 23 of 45 Pages
---------------------- ----------------------
France. The residential address of Mr. Moyer is 1124 Pebble Spring Drive,
Berwyn, PA 19312. As of the date hereof, Mr. Moyer does not own any securities
of PTEC nor has he made any purchases or sales of any securities of PTEC during
the past two years.
JEFFREY C. SMITH (AGE 34) is an Executive Managing Director of Ramius
Capital Group, L.L.C. ("Ramius Capital"), a private investment management firm,
a position he has held since July 2006 and was a Managing Director from January
2004. Mr. Smith currently heads Ramius Capital's Private Investment in Public
Equity business and co-heads Ramius Capital's Opportunistic Value Investing
business. He has been employed by Ramius Capital since January 1998. Prior to
joining Ramius Capital, he served as Vice President of Strategic Development and
Investor Relations for The Fresh Juice Company, Inc. (NASD:FRSH), a manufacturer
and distributor of fresh squeezed and frozen fresh squeezed citrus juices and
other non-carbonated beverages, from February 1996 until January 1998. From
August 1994 until February 1996, Mr. Smith was a financial analyst in the
Mergers and Acquisitions Department at LSG Advisors, a division of Societe
General Securities Corporation (now SG Cowen & Co., LLC). Mr. Smith served on
the Board of Directors of The Fresh Juice Company, Inc. from April 1996 until
February 1999 and Jotter Technologies, Inc., an Internet infomediary company,
from January 2000 to September 2000. Mr. Smith has served as a member of the
Board of Directors of S1 Corporation, a provider of internet based financial
services solutions, since May 2006. Mr. Smith has served as a member of the
Executive Committee of Register.com (Cayman) L.P., a provider of domain name
registration and internet services, since December 2005. Mr. Smith is a General
Securities Registered Representative. Mr. Smith received a B.S. in Economics
with concentrations in finance and accounting from the Wharton School of The
University of Pennsylvania. The principal business address of Mr. Smith is c/o
Ramius Capital Group, L.L.C., 666 Third Avenue, 26th Floor, New York, New York
10017. The residential address of Mr. Smith is 3 Howard Drive, Muttontown, NY
11791. As of the date hereof, Ramius Capital may be deemed to beneficially own
3,302,941 shares of Common Stock of PTEC. As of the date hereof, Mr. Smith does
not beneficially own any securities of PTEC nor has he made any purchases and
sales of any securities of PTEC during the past two years. For information
regarding purchases and sales during the past two years by Ramius Capital and
its affiliates in securities of PTEC (without conceding that any such
information is required to be disclosed in this Notice), please see EXHIBIT A.
Starboard and certain other affiliates of Ramius Capital have signed or
intend to sign letter agreements pursuant to which they agree to indemnify each
of Messrs. Mutch, Moyer and Smith against claims arising from the solicitation
of proxies from PTEC's shareholders in connection with the 2007 Annual Meeting
and any related transactions.
In addition, Admiral Advisors, LLC, a subsidiary of Ramius Capital
("Admiral"), has signed or intends to sign compensation letter agreements with
each of Messrs. Mutch and Moyer pursuant to which Admiral agrees to pay each
such nominee $5,000 in cash upon the submission of this letter by Starboard to
PTEC. Pursuant to such compensation letter agreements, Admiral will also agree
that upon the filing of a definitive proxy statement with the SEC relating to a
solicitation of proxies in favor of each such nominee's election as a director
at the 2007 Annual Meeting, Admiral will allow each such nominee to receive a
profit participation with respect to the sale by Admiral or its affiliates of
the last $20,000 worth of shares of Common Stock of PTEC beneficially owned by
Admiral to an unaffiliated third party.
---------------------- ----------------------
CUSIP No. 719153108 13D Page 24 of 45 Pages
---------------------- ----------------------
Ramius Capital has jointly filed a Schedule 13D with respect to the
Common Stock with certain other entities and persons pursuant to a joint filing
agreement. Mr. Mutch is a member of a Section 13(d) group that includes Ramius
Capital, Starboard and certain other affiliates of Ramius Capital and is a party
to the aforementioned joint filing agreement. Reference is made to the Schedule
13D initially filed on June 15, 2006, as it has been and may be amended from
time to time (the "Schedule 13D"), as filed and to be filed with the Securities
and Exchange Commission (the "SEC"), for information regarding other entities
that are or may be deemed to be members in a group described therein.
Other than as stated above, there are no arrangements or understandings
between Starboard and each Nominee or any other person or persons pursuant to
which the nominations described herein are to be made, other than the consents
by the Nominees to be named as a nominee in this Notice, to be named as a
nominee in any proxy statement filed by Starboard in connection with the
solicitation of PTEC shareholders and to serve as a director of PTEC, if so
elected. Such consents are attached hereto as EXHIBIT B.
Except as set forth in this Notice (including the Exhibits hereto), (i)
during the past 10 years, no Nominee has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors); (ii) no Nominee directly
or indirectly beneficially owns any securities of PTEC; (iii) no Nominee owns
any securities of PTEC which are owned of record but not beneficially; (iv) no
Nominee has purchased or sold any securities of PTEC during the past two years;
(v) no part of the purchase price or market value of the securities of PTEC
owned by any Nominee is represented by funds borrowed or otherwise obtained for
the purpose of acquiring or holding such securities; (vi) no Nominee is, or
within the past year was, a party to any contract, arrangements or
understandings with any person with respect to any securities of PTEC,
including, but not limited to, joint ventures, loan or option arrangements, puts
or calls, guarantees against loss or guarantees of profit, division of losses or
profits, or the giving or withholding of proxies; (vii) no associate of any
Nominee owns beneficially, directly or indirectly, any securities of PTEC;
(viii) no Nominee owns beneficially, directly or indirectly, any securities of
any parent or subsidiary of PTEC; (ix) no Nominee or any of his associates was a
party to any transaction, or series of similar transactions, since the beginning
of PTEC's last fiscal year, or is a party to any currently proposed transaction,
or series of similar transactions, to which PTEC or any of its subsidiaries was
or is to be a party, in which the amount involved exceeds $60,000; (x) no
Nominee or any of his associates has any arrangement or understanding with any
person with respect to any future employment by PTEC or its affiliates, or with
respect to any future transactions to which PTEC or any of its affiliates will
or may be a party; and (xi) no Nominee has a substantial interest, direct or
indirect, by securities holdings or otherwise in any matter to be acted on at
the 2007 Annual Meeting.
THE NAME AND BUSINESS ADDRESS OF THE SHAREHOLDER GIVING THE NOTICE IS
AS FOLLOWS:
Starboard Value & Opportunity Master Fund Ltd USA
c/o Admiral Advisors, LLC
666 Third Avenue, 26th Floor
New York, NY 10017-3066
---------------------- ----------------------
CUSIP No. 719153108 13D Page 25 of 45 Pages
---------------------- ----------------------
THE CLASS AND NUMBER OF SHARES OF COMMON STOCK WHICH ARE HELD OF
RECORD, OWNED BENEFICIALLY AND REPRESENTED BY PROXY BY STARBOARD AS OF THE
RECORD DATE AND AS OF THE DATE HEREOF IS AS FOLLOWS:
The record date for the 2007 Annual Meeting has not been made publicly
available as of the date hereof. Starboard hereby represents that it is the
beneficial owner of 2,774,471 shares of Common Stock of PTEC, 1,000 shares of
which are held of record.
ALL OTHER INFORMATION FOR STARBOARD THAT WOULD BE REQUIRED TO BE FILED
FOR A PARTICIPANT IN A SOLICITATION SUBJECT TO SECTION 14 OF THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED IS AS FOLLOWS:
(a) ANY SUBSTANTIAL INTEREST, DIRECT OR INDIRECT, BY SECURITY HOLDINGS
OR OTHERWISE, OF STARBOARD IN ANY MATTER TO BE ACTED UPON AT THE 2007 ANNUAL
MEETING:
Starboard does not have a substantial interest in any matters to be
acted upon at the 2007 Annual Meeting except as otherwise set forth herein.
(b) STATE WITH RESPECT TO ALL SECURITIES OF THE REGISTRANT PURCHASED OR
SOLD WITHIN THE PAST TWO YEARS, THE DATES ON WHICH THEY WERE PURCHASED OR SOLD
AND THE AMOUNT PURCHASED OR SOLD ON EACH SUCH DATE:
Please see Exhibit A for information regarding purchases and sales
during the past two years by Starboard in securities of PTEC.
(c) THE AMOUNT OF SECURITIES OF PTEC OWNED BENEFICIALLY, DIRECTLY OR
INDIRECTLY, BY EACH OF THE PARTICIPANT'S ASSOCIATES AND THE NAME AND ADDRESS OF
EACH SUCH ASSOCIATE:
Name Business Address Beneficial Ownership
---- ---------------- --------------------
Parche, LLC 666 Third Avenue 528,470 shares
26th Floor
New York, New York 10017
Admiral Advisors, LLC 666 Third Avenue 3,302,941 shares
26th Floor
New York, New York 10017
Ramius Capital Group, L.L.C. 666 Third Avenue 3,302,941 shares
26th Floor
New York, New York 10017
C4S & Co., L.L.C. 666 Third Avenue 3,302,941 shares
26th Floor
New York, New York 10017
---------------------- ----------------------
CUSIP No. 719153108 13D Page 26 of 45 Pages
---------------------- ----------------------
Peter A. Cohen 666 Third Avenue 3,302,941 shares
26th Floor
New York, New York 10017
Morgan B. Stark 666 Third Avenue 3,302,941 shares
26th Floor
New York, New York 10017
Jeffrey M. Solomon 666 Third Avenue 3,302,941 shares
26th Floor
New York, New York 10017
Thomas W. Strauss 666 Third Avenue 3,302,941 shares
26th Floor
New York, New York 10017
Except as set forth in this Notice (including the Exhibits hereto), (i)
during the past 10 years, Starboard has not been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors); (ii)
Starboard does not directly or indirectly beneficially own any securities of
PTEC; (iii) Starboard does not own any securities of PTEC which are owned of
record but not beneficially; (iv) Starboard has not purchased or sold any
securities of PTEC during the past two years; (v) no part of the purchase price
or market value of the securities of PTEC owned by Starboard is represented by
funds borrowed or otherwise obtained for the purpose of acquiring or holding
such securities; (vi) Starboard is not, nor within the past year has been, a
party to any contract, arrangements or understandings with any person with
respect to any securities of PTEC, including, but not limited to, joint
ventures, loan or option arrangements, puts or calls, guarantees against loss or
guarantees of profit, division of losses or profits, or the giving or
withholding of proxies; (vii) no associate of Starboard owns beneficially,
directly or indirectly, any securities of PTEC; (viii) Starboard does not own
beneficially, directly or indirectly, any securities of any parent or subsidiary
of PTEC; (ix) neither Starboard nor any of its associates was a party to any
transaction, or series of similar transactions, since the beginning of PTEC's
last fiscal year, or is a party to any currently proposed transaction, or series
of similar transactions, to which PTEC or any of its subsidiaries was or is to
be a party, in which the amount involved exceeds $60,000; (x) neither Starboard
nor any of its associates has any arrangement or understanding with any person
with respect to any future employment by PTEC or its affiliates, or with respect
to any future transactions to which PTEC or any of its affiliates will or may be
a party; and (xi) Starboard does not have any substantial interest, direct or
indirect, by securities holdings or otherwise in any matter to be acted on at
the 2007 Annual Meeting.
* * *
---------------------- ----------------------
CUSIP No. 719153108 13D Page 27 of 45 Pages
---------------------- ----------------------
Please address any correspondence to Starboard Value and Opportunity
Master Fund Ltd., Attention: Jeffrey C. Smith, telephone (212) 845-7955,
facsimile (212) 845-7999 and Owen S. Littman, telephone (212) 201-4841,
facsimile (212) 845-7995 (with a copy to our counsel, Olshan Grundman Frome
Rosenzweig & Wolosky LLP, Park Avenue Tower, 65 East 55th Street, New York, New
York 10022, Attention: Steven Wolosky, Esq., telephone (212) 451-2333, facsimile
(212) 451-2222). The giving of this Notice is not an admission that any
purported procedures for notice concerning the nomination of directors to the
Board and submission of business proposals are legal, valid or binding, and
Starboard reserves the right to challenge their validity.
Very truly yours,
STARBOARD VALUE AND OPPORTUNITY
MASTER FUND LTD.
By: /s/ Mark R. Mitchell
---------------------------------
Name: Mark R. Mitchell
Title: Authorized Signatory
---------------------- ----------------------
CUSIP No. 719153108 13D Page 28 of 45 Pages
---------------------- ----------------------
EXHIBIT A
TRANSACTIONS IN SECURITIES OF PTEC
DURING THE PAST TWO YEARS
Shares of Common Stock Price Per Date of
Purchased / (Sold) Share($) Purchase / Sale
------------------ -------- ---------------
STARBOARD VALUE AND OPPORTUNITY MASTER FUND LTD.
------------------------------------------------
84,000 5.6000 11/16/2005
38,724 6.0617 11/18/2005
6,468 5.9439 11/18/2005
21,000 6.2378 11/21/2005
17,808 6.2992 11/28/2005
12,600 6.2332 11/29/2005
4,200 6.3506 11/30/2005
4,200 6.3637 12/1/2005
117,600 6.3500 12/2/2005
8,400 6.3500 12/2/2005
21,000 6.9092 12/12/2005
42,000 5.2474 5/11/2006
42,000 5.2497 5/11/2006
27,720 5.2483 5/12/2006
32,172 5.2292 5/12/2006
140,868 5.3694 5/15/2006
33,600 5.2875 5/15/2006
32,340 5.2883 5/15/2006
27,048 5.4610 5/16/2006
25,200 5.4790 5/17/2006
22,428 5.6225 5/18/2006
21,000 5.8289 5/19/2006
7,896 5.4995 5/22/2006
21,756 5.4763 5/23/2006
29,736 5.4223 5/24/2006
3,836 5.5000 5/25/2006
52,248 5.7617 5/30/2006
16,800 5.7825 5/31/2006
7,115 5.7500 5/31/2006
8,400 5.7600 6/1/2006
5,325 5.7500 6/1/2006
8,400 5.7700 6/1/2006
---------------------- ----------------------
CUSIP No. 719153108 13D Page 29 of 45 Pages
---------------------- ----------------------
12,432 5.7454 6/2/2006
51,820 5.7500 6/5/2006
46,200 5.5806 6/5/2006
63,355 5.4857 6/6/2006
7,171 5.6398 6/7/2006
25,200 5.5867 6/7/2006
19,271 5.5876 6/8/2006
3,780 5.6433 6/9/2006
25,378 5.6387 6/12/2006
16,800 5.6500 6/12/2006
51,912 5.6846 6/13/2006
20,412 5.6498 6/14/2006
12,600 5.6800 6/14/2006
131,124 5.7125 6/15/2006
8,400 5.7416 6/19/2006
3,482 5.7500 6/21/2006
16,800 4.0900 6/22/2006
71,400 4.0000 6/22/2006
12,600 3.9500 6/23/2006
42,000 3.9000 6/23/2006
51,280 4.0690 6/28/2006
8,400 4.1300 6/28/2006
80,002 4.1430 6/29/2006
35,801 4.4558 6/30/2006
189,000 4.5500 6/30/2006
823,963 5.1000 7/13/2006
PARCHE, LLC
-----------
9,870 5.7500 6/5/2006
8,800 5.5806 6/5/2006
*182,156 5.5200 6/6/2006
12,068 5.4857 6/6/2006
1,366 5.6398 6/7/2006
4,800 5.5867 6/7/2006
3,671 5.5876 6/8/2006
720 5.6433 6/9/2006
4,834 5.6387 6/12/2006
3,200 5.6500 6/12/2006
9,888 5.6846 6/13/2006
------------------
* Shares were acquired in private transactions with various transferors for
which Ramius Capital Group, L.L.C. or an affiliate serves as the investment
manager, the managing member or the managing member of the investment manager.
---------------------- ----------------------
CUSIP No. 719153108 13D Page 30 of 45 Pages
---------------------- ----------------------
3,888 5.6498 6/14/2006
2,400 5.6800 6/14/2006
24,976 5.7125 6/15/2006
1,600 5.7416 6/19/2006
663 5.7500 6/21/2006
3,200 4.0900 6/22/2006
13,600 4.0000 6/22/2006
2,400 3.9500 6/23/2006
8,000 3.9000 6/23/2006
9,768 4.0690 6/28/2006
1,600 4.1300 6/28/2006
15,238 4.1430 6/29/2006
6,819 4.4558 6/30/2006
36,000 4.5500 6/30/2006
156,945 5.1000 7/13/2006
JOHN MUTCH
----------
55,000 5.2400 5/31/2006
45,000 5.6400 6/5/2006
90,000 4.0037 6/23/2006
10,000 3.8500 6/23/2006
PHILIP MOYER
------------
NONE
JEFFREY C. SMITH
----------------
NONE
---------------------- ----------------------
CUSIP No. 719153108 13D Page 31 of 45 Pages
---------------------- ----------------------
EXHIBIT B
NOMINEE CONSENTS
---------------------- ----------------------
CUSIP No. 719153108 13D Page 32 of 45 Pages
---------------------- ----------------------
JOHN MUTCH
c/o MV Advisors LLC
420 Stevens Avenue, Suite 270
Solana Beach, CA 92075
December 20, 2006
Phoenix Technologies Ltd.
915 Murphy Ranch Road
Milpitas, California 95035
Attn: Corporate Secretary
Dear Sir:
You are hereby notified that the undersigned consents to (i) being
named as a nominee in the notice provided by Starboard Value and Opportunity
Master Fund Ltd. ("Starboard") of its intention to nominate the undersigned as a
director of Phoenix Technologies Ltd. ("Phoenix") at the 2007 annual meeting of
stockholders, or any other meeting of stockholders held in lieu thereof, and any
adjournments, postponements, reschedulings or continuations thereof (the "Annual
Meeting"), (ii) being named as a nominee in any proxy statement filed by
Starboard in connection with the solicitation of proxies or written consents for
election of the undersigned at the Annual Meeting, and (iii) serving as a
director of Phoenix if elected at the Annual Meeting.
Very truly yours,
/s/ John Mutch
-----------------
John Mutch
---------------------- ----------------------
CUSIP No. 719153108 13D Page 33 of 45 Pages
---------------------- ----------------------
PHILIP MOYER
December 22, 2006
Phoenix Technologies Ltd.
915 Murphy Ranch Road
Milpitas, California 95035
Attn: Corporate Secretary
Dear Sir:
You are hereby notified that the undersigned consents to (i) being
named as a nominee in the notice provided by Starboard Value and Opportunity
Master Fund Ltd. ("Starboard") of its intention to nominate the undersigned as a
director of Phoenix Technologies Ltd. ("Phoenix") at the 2007 annual meeting of
stockholders, or any other meeting of stockholders held in lieu thereof, and any
adjournments, postponements, reschedulings or continuations thereof (the "Annual
Meeting"), (ii) being named as a nominee in any proxy statement filed by
Starboard in connection with the solicitation of proxies or written consents for
election of the undersigned at the Annual Meeting, and (iii) serving as a
director of Phoenix if elected at the Annual Meeting.
Very truly yours,
/s/ Philip Moyer
-----------------
Philip Moyer
---------------------- ----------------------
CUSIP No. 719153108 13D Page 34 of 45 Pages
---------------------- ----------------------
JEFFREY C. SMITH
c/o Ramius Capital Group, L.L.C.
666 Third Avenue, 26th Floor
New York, New York 10017
December 20, 2006
Phoenix Technologies Ltd.
915 Murphy Ranch Road
Milpitas, California 95035
Attn: Corporate Secretary
Dear Sir:
You are hereby notified that the undersigned consents to (i) being
named as a nominee in the notice provided by Starboard Value and Opportunity
Master Fund Ltd. ("Starboard") of its intention to nominate the undersigned as a
director of Phoenix Technologies Ltd. ("Phoenix") at the 2007 annual meeting of
stockholders, or any other meeting of stockholders held in lieu thereof, and any
adjournments, postponements, reschedulings or continuations thereof (the "Annual
Meeting"), (ii) being named as a nominee in any proxy statement filed by
Starboard in connection with the solicitation of proxies or written consents for
election of the undersigned at the Annual Meeting, and (iii) serving as a
director of Phoenix if elected at the Annual Meeting.
Very truly yours,
/s/ Jeffrey C. Smith
--------------------
Jeffrey C. Smith
---------------------- ----------------------
CUSIP No. 719153108 13D Page 35 of 45 Pages
---------------------- ----------------------
JOINT FILING AND SOLICITATION AGREEMENT
WHEREAS, certain of the undersigned are stockholders, direct or
beneficial, of Phoenix Technologies Ltd., a Delaware corporation (the
"Company");
WHEREAS, Starboard Value and Opportunity Master Fund Ltd., a Cayman
Islands exempted company ("Starboard"), Parche, LLC, a Delaware limited
liability company ("Parche"), Admiral Advisors, LLC, a Delaware limited
liability company, Ramius Capital Group, L.L.C., a Delaware limited liability
company ("Ramius Capital"), C4S & Co., L.L.C., a Delaware limited liability
company, Peter A. Cohen, Morgan B. Stark, Thomas W. Strauss, Jeffrey M. Solomon,
John Mutch, Philip Moyer and Jeffrey C. Smith wish to form a group for the
purpose of seeking representation on the Board of Directors of the Company at
the 2007 annual meeting of stockholders of the Company, or any other meeting of
stockholders held in lieu thereof, and any adjournments, postponements,
reschedulings or continuations thereof (the "2007 Annual Meeting") and for the
purpose of taking all other action necessary to achieve the foregoing.
NOW, IT IS AGREED, this 29th day of December 2006 by the parties
hereto:
1. In accordance with Rule 13d-1(k)(1)(iii) under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), each of the undersigned
(collectively, the "Group") agrees to the joint filing on behalf of each of them
of statements on Schedule 13D, and any amendments thereto, with respect to the
securities of the Company. Each member of the Group shall be responsible for the
accuracy and completeness of his/its own disclosure therein, and is not
responsible for the accuracy and completeness of the information concerning the
other members, unless such member knows or has reason to know that such
information is inaccurate. Ramius Capital or its representative shall provide
each member of the Group with copies of all Schedule 13D filings and other
public filings to be filed on behalf of such member at least 24 hours prior to
the filing or submission thereof.
2. So long as this agreement is in effect, each of the undersigned
shall provide written notice to Olshan Grundman Frome Rosenzweig & Wolosky LLP
("Olshan") of (i) any of their purchases or sales of securities of the Company;
or (ii) any securities of the Company over which they acquire or dispose of
beneficial ownership. Notice shall be given no later than 24 hours after each
such transaction.
3. Each of the undersigned agrees to form the Group for the purpose of
soliciting proxies or written consents for the election of the persons nominated
by the Group to the Board of Directors of the Company at the 2007 Annual Meeting
and for the purpose of taking all other actions incidental to the foregoing.
4. Starboard and Parche shall have the right to pre-approve all
expenses incurred in connection with the Group's activities and agree to pay
directly all such pre-approved expenses on a pro rata basis between Starboard
and Parche based on the number of Shares in the aggregate beneficially owned by
each of Starboard and Parche on the date hereof.
---------------------- ----------------------
CUSIP No. 719153108 13D Page 36 of 45 Pages
---------------------- ----------------------
5. Each of the undersigned agrees that any SEC filing, press release or
stockholder communication proposed to be made or issued by the Group or any
member of the Group in connection with the Group's activities set forth in
Section 4 shall be first approved by Ramius Capital, or its representatives,
which approval shall not be unreasonably withheld.
6. The relationship of the parties hereto shall be limited to carrying
on the business of the Group in accordance with the terms of this Agreement.
Such relationship shall be construed and deemed to be for the sole and limited
purpose of carrying on such business as described herein. Nothing herein shall
be construed to authorize any party to act as an agent for any other party, or
to create a joint venture or partnership, or to constitute an indemnification.
Nothing herein shall restrict any party's right to purchase or sell securities
of the Company, as he/it deems appropriate, in his/its sole discretion, provided
that all such sales are made in compliance with all applicable securities laws.
7. This Agreement may be executed in counterparts, each of which shall
be deemed an original and all of which, taken together, shall constitute but one
and the same instrument, which may be sufficiently evidenced by one counterpart.
8. In the event of any dispute arising out of the provisions of this
Agreement or their investment in the Company, the parties hereto consent and
submit to the exclusive jurisdiction of the Federal and State Courts in the
State of New York.
9. Any party hereto may terminate his/its obligations under this
Agreement on 24 hours' written notice to all other parties, with a copy by fax
to Steven Wolosky at Olshan, Fax No. (212) 451-2222.
10. Each party acknowledges that Olshan shall act as counsel for both
the Group and Ramius Capital and its affiliates relating to their investment in
the Company.
11. Each of the undersigned parties hereby agrees that this Agreement
shall be filed as an exhibit to a Schedule 13D pursuant to Rule 13d-1(k)(1)(iii)
under the Exchange Act.
---------------------- ----------------------
CUSIP No. 719153108 13D Page 37 of 45 Pages
---------------------- ----------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
STARBOARD VALUE AND ADMIRAL ADVISORS, LLC
OPPORTUNITY 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/ Morgan B. Stark
-------------------
Name: Morgan B. Stark
Title: Authorized Signatory
/s/ Morgan B. Stark
--------------------
MORGAN B. STARK
Individually and as attorney-in-fact for Peter A.
Cohen, Jeffrey M. Solomon and Thomas W. Strauss
/s/ Jeffrey C. Smith
--------------------
JEFFREY C. SMITH
Individually and as attorney-in-fact for John Mutch
and Philip Moyer
---------------------- ----------------------
CUSIP No. 719153108 13D Page 38 of 45 Pages
---------------------- ----------------------
STARBOARD VALUE AND OPPORTUNITY MASTER FUND LTD.
PARCHE, LLC
C/O ADMIRAL ADVISORS, LLC
666 THIRD AVENUE, 26TH FLOOR
NEW YORK, NEW YORK 10017
December __, 2006
[NAME OF NOMINEE]
[ADDRESS]
[ADDRESS]
Re: PHOENIX TECHNOLOGIES LTD.
Dear Mr. _________:
Thank you for agreeing to serve as a nominee for election to the Board
of Directors of Phoenix Technologies Ltd. ("Phoenix") in connection with the
proxy solicitation that Starboard Value and Opportunity Master Fund Ltd. and
Parche, LLC (collectively, the "Ramius Group") are considering undertaking to
nominate and elect directors at Phoenix's 2007 annual meeting of stockholders,
or any other meeting of stockholders held in lieu thereof, and any adjournments,
postponements, reschedulings or continuations thereof (the "Ramius Group
Solicitation"). Your outstanding qualifications, we believe, will prove a
valuable asset to Phoenix and all of its stockholders. This letter will set
forth the terms of our agreement.
The members of the Ramius Group agree to jointly and severally
indemnify and hold you harmless against any and all claims of any nature,
whenever brought, arising from the Ramius Group Solicitation and any related
transactions, irrespective of the outcome; PROVIDED, however, that you will not
be entitled to indemnification for claims arising from your gross negligence,
willful misconduct, criminal actions or material breach of the terms of this
agreement; PROVIDED FURTHER, that this indemnification agreement and all of the
Ramius Group's obligations hereunder shall terminate upon your becoming a
director of Phoenix. This indemnification will include any and all losses,
liabilities, damages, demands, claims, suits, actions, judgments, or causes of
action, assessments, costs and expenses, including, without limitation,
interest, penalties, reasonable attorneys' fees, and any and all reasonable
costs and expenses incurred in investigating, preparing or defending against any
litigation, commenced or threatened, any civil, criminal, administrative or
arbitration action, or any claim whatsoever, and any and all amounts paid in
settlement of any claim or litigation asserted against, resulting, imposed upon,
or incurred or suffered by you, directly or indirectly, as a result of or
arising from the Ramius Group Solicitation and any related transactions (each, a
"Loss").
In the event of a claim against you pursuant to the prior paragraph or
the occurrence of a Loss, you shall give the Ramius Group prompt written notice
of such claim or Loss (provided that failure to promptly notify the Ramius Group
shall not relieve us from any liability which we may have on account of this
---------------------- ----------------------
CUSIP No. 719153108 13D Page 39 of 45 Pages
---------------------- ----------------------
Agreement, except to the extent we shall have been prejudiced by such failure).
Upon receipt of such written notice, the Ramius Group will provide you with
counsel to represent you. Such counsel shall be reasonably acceptable to you. In
addition, you will be reimbursed promptly for all Losses suffered by you and as
incurred as provided herein. The Ramius Group may not enter into any settlement
of loss or claim without your consent unless such settlement includes a release
of you from any and all liability in respect of such claim.
You hereby agree to keep confidential and not disclose to any party,
without the consent of the Ramius Group, any confidential, proprietary or
non-public information (collectively, "Information") of the Ramius Group, its
affiliates or members of its Schedule 13D group which you have heretofore
obtained or may obtain in connection with your service as a nominee hereunder.
Notwithstanding the foregoing, Information shall not include any information
that is publicly disclosed by the Ramius Group, its affiliates or members of its
Schedule 13D group or any information that you can demonstrate is now, or
hereafter becomes, through no act or failure to act on your part, otherwise
generally known to the public.
Notwithstanding the foregoing, if you are required by applicable law,
rule, regulation or legal process to disclose any Information you may do so
provided that you first promptly notify the Ramius Group so that the Ramius
Group or any member thereof may seek a protective order or other appropriate
remedy or, in the Ramius Group's sole discretion, waive compliance with the
terms of this Agreement. In the event that no such protective order or other
remedy is obtained or the Ramius Group does not waive compliance with the terms
of this Agreement, you may furnish only that portion of the Information which
you are advised by counsel is legally required to be so disclosed and will
exercise reasonable efforts to obtain reliable assurance that confidential
treatment will be accorded such Information.
All Information, all copies thereof, and any studies, notes, records,
analysis, compilations or other documents prepared by you containing such
Information, shall be and remain the property of the Ramius Group and, upon the
request of a representative of the Ramius Group, all such information shall be
returned or, at the Ramius Group's option, destroyed by you, with such
destruction confirmed by you to the Ramius Group in writing.
You hereby agree to comply with all applicable laws, rules and
regulations in performing any services hereunder, as a nominee or otherwise.
This letter agreement shall be governed by the laws of the State of New
York, without regard to the principles of the conflicts of laws thereof.
---------------------- ----------------------
CUSIP No. 719153108 13D Page 40 of 45 Pages
---------------------- ----------------------
If you agree to the foregoing terms, please sign below to indicate your
acceptance.
Very truly yours,
STARBOARD VALUE AND OPPORTUNITY
MASTER FUND LTD.
By:
---------------------------------
Name:
Title: Authorized Signatory
PARCHE, LLC
By: Admiral Advisors, LLC, its managing member
By:
---------------------------------
Name:
Title: Authorized Signatory
ACCEPTED AND AGREED:
---------------------------
[NAME OF NOMINEE]
---------------------- ----------------------
CUSIP No. 719153108 13D Page 41 of 45 Pages
---------------------- ----------------------
ADMIRAL ADVISORS, LLC
666 THIRD AVENUE, 26TH FLOOR
NEW YORK, NEW YORK 10017
December __, 2006
[NAME OF NOMINEE]
[ADDRESS]
[Address]
Dear Mr. _________:
This letter sets forth our mutual agreement with respect to
compensation to be paid to you for your agreement to be named and serve as a
nominee of a group of investors (the "Ramius Group"), including Admiral
Advisors, LLC, a subsidiary of Ramius Capital Group, L.L.C. ("Admiral"), for
election as a director of Phoenix Technologies Ltd. (the "Company") at the
Company's 2007 annual meeting of stockholders, or any other meeting of
stockholders held in lieu thereof, and any adjournments, postponements,
reschedulings or continuations thereof (the "Annual Meeting").
1. CASH PAYMENT; PROFIT PARTICIPATION. In consideration of your
agreement to be named and serve as nominee of the Ramius Group for
election as a director of the Company at the Annual Meeting, the
undersigned hereby agrees to (i) pay you $5,000 in cash upon the
Ramius Group submitting a letter to the Company nominating you for
election as a director of the Company (with such payment to be
made as soon as reasonably practicable after you have been
nominated) and (ii) in the event the Ramius Group files a
definitive proxy statement with the U.S. Securities and Exchange
Commission (the "Proxy Statement") relating to a solicitation of
proxies in favor of your election as a director of the Company at
the Annual Meeting (the date of such filing being hereinafter
referred to as the "Proxy Filing Date"), to allow you to receive a
profit participation with respect to the sale by Admiral or its
affiliates, as the case may be, of the last $20,000 worth of
shares of the Company's common stock (the "Participation Shares")
beneficially owned by Admiral to a third party unaffiliated with
any member of the Ramius Group. The number of Participation Shares
shall be determined by dividing $20,000 by the closing price of
the Company's common stock on the Proxy Filing Date (the "Proxy
Date Closing Price"). Your profit participation shall entitle you
to receive a cash payment equal to the amount, if any, by which
the proceeds received by Admiral or its affiliates, as the case
may be, from the sale of the Participation Shares exceeds $20,000
in the aggregate (the "Contingent Payment").
2. RIGHTS AS A STOCKHOLDER. Your right to receive the Contingent
Payment shall not entitle you to any rights as a stockholder of
the Company, including, without limitation, any voting rights or
disposition rights with respect to the Participation Shares.
---------------------- ----------------------
CUSIP No. 719153108 13D Page 42 of 45 Pages
---------------------- ----------------------
3. FORFEITURE OF PROFIT PARTICIPATION. The profits related to the
Participation Shares will be paid to you in all circumstances upon
and subject to the sale of the Participation Shares except (i) if
you are not named in the Proxy Statement or if you withdraw your
consent to serve as a director nominee of the Ramius Group after
the filing of the Proxy Statement, (ii) if elected to the
Company's Board of Directors, you voluntarily cease to serve as a
director of the Company prior to the expiration of your term,
(iii) if you are in breach of your obligations under the
indemnification agreement between us.
4. NON-TRANSFERABILITY. Your right to the profits related to the
Participation Shares is non-transferable.
5. ENTIRE AGREEMENT. AMENDMENT. This letter agreement contains the
entire agreement between you and the undersigned and supersedes
other oral and written agreements previously entered into by you
and the undersigned concerning the same subject matter. This
letter agreement may be modified or rescinded only with the
written consent of both parties.
6. GOVERNING LAW. The validity, interpretation, construction and
performance of this letter agreement shall be governed by the laws
of the State of New York, without regard to its principles of
conflict of laws, and by applicable laws of the United States. The
parties hereto consent to the jurisdiction of the New York State
and United States courts located in New York County, New York for
the resolution of any disputes hereunder and agree that venue
shall be proper in any such court notwithstanding any principle of
forum non conveniens and that service of process on the parties
hereto in any proceeding in any such court may be effected in the
manner provided herein for the giving of notices. The parties
hereto waive trial by jury in respect of any such proceeding.
7. BINDING EFFECT. This letter agreement shall bind and inure to the
benefit of you and your heirs, successors and assigns. If Admiral
transfers all of the Company's common stock owned by it to an
affiliate, Admiral, as a condition thereof, shall cause such
affiliate to assume the obligations of Admiral under this letter
agreement.
8. COUNTERPARTS. This letter agreement may be executed in
counterparts, each of which shall be deemed an original, and all
of which, taken together, shall constitute one and the same
instrument.
---------------------- ----------------------
CUSIP No. 719153108 13D Page 43 of 45 Pages
---------------------- ----------------------
ADMIRAL ADVISORS, LLC
By:
---------------------------------
Name:
Title:
Accepted and Agreed to:
---------------------------
[NAME OF NOMINEE]
---------------------- ----------------------
CUSIP No. 719153108 13D Page 44 of 45 Pages
---------------------- ----------------------
POWER OF ATTORNEY
Know all by these presents, that each of the undersigned hereby
constitutes and appoints Jeffrey C. Smith signing singly, the undersigned's true
and lawful attorney-in-fact to take any and all action in connection with (i)
the undersigned's beneficial ownership of, or participation in a group with
respect to, securities of Phoenix Technologies Ltd. (the "Company") directly or
indirectly beneficially owned by Ramius Capital Group, L.L.C. or any of its
affiliates (collectively, the "Ramius Group") and (ii) the proxy solicitation of
the Ramius Group to elect the Ramius Group's slate of director nominees to the
board of directors of the Company at the 2007 annual meeting of shareholders of
the Company (the "Solicitation"). Such action shall include, but not be limited
to:
1. executing for and on behalf of the undersigned all Schedules 13D
required to be filed under Section 13(d) of the Securities Exchange Act of 1934
(the "Exchange Act") and the rules thereunder in connection with the
undersigned's beneficial ownership of, or participation in a group with respect
to, securities of the Company or the Solicitation;
2. executing for and on behalf of the undersigned all Forms 3, 4 and 5
required to be filed under Section 16(a) of the Securities Exchange Act of 1934
and the rules thereunder in connection with the undersigned's beneficial
ownership of, or participation in a group with respect to, securities of the
Company or the Solicitation;
3. executing for and on behalf of the undersigned all Joint Filing and
Solicitation Agreements or similar documents pursuant to which the undersigned
shall agree to be a member of the Ramius Group;
4. performing any and all acts for and on behalf of the undersigned
that may be necessary or desirable to complete and execute any such document,
complete and execute any amendment or amendments thereto, and timely file such
form with the United States Securities and Exchange Commission and any stock
exchange or similar authority; and
5. taking any other action of any type whatsoever in connection with
the Solicitation, including entering into any settlement agreement, that in the
opinion of such attorney-in-fact, may be of benefit to, in the best interest of,
or legally required by, the undersigned, it being understood that the documents
executed by such attorney-in-fact on behalf of the undersigned pursuant to this
Power of Attorney shall be in such form and shall contain such terms and
conditions as such attorney-in-fact may approve in such attorney-in-fact's
discretion.
The undersigned hereby grants to each such attorney-in-fact full power
and authority to do and perform any and every act and thing whatsoever
requisite, necessary, or proper to be done in the exercise of any of the rights
and powers herein granted, as fully to all intents and purposes as the
undersigned might or could do if personally present, with full power of
substitution or revocation, hereby ratifying and confirming all that such
attorney-in-fact, or such attorney-in-fact's substitute or substitutes, shall
lawfully do or cause to be done by virtue of this Power of Attorney and the
rights and powers herein granted. The undersigned acknowledges that the
foregoing attorney-in-fact, in serving in such capacity at the request of the
undersigned, is not assuming any of the undersigned's responsibilities to comply
with Section 13(d), Section 16 or Section 14 of the Exchange Act.
This Power of Attorney shall remain in full force and effect until the
undersigned is no longer a member of the Ramius Group unless earlier revoked by
the undersigned in a signed writing delivered to the foregoing attorney-in-fact.
---------------------- ----------------------
CUSIP No. 719153108 13D Page 45 of 45 Pages
---------------------- ----------------------
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 29th day of December 2006.
/s/ John Mutch
-------------------------------------
JOHN MUTCH
/s/ Philip Moyer
-------------------------------------
PHILIP MOYER