VOTING AGREEMENT
Exhibit 99.2
This Voting Agreement (the “Agreement”) is made and entered into as of August 17,
2010, by and among Pharaoh Acquisition Corp., a Delaware corporation (“Parent”), and the
undersigned stockholder (“Holder”) of Phoenix Technologies Ltd., a Delaware corporation
(the “Company”).
RECITALS
Pursuant to an Agreement and Plan of Merger, dated as of the date hereof (the “Merger
Agreement”), by and among Parent, Pharaoh Merger Sub Corp., a Delaware corporation and
wholly-owned subsidiary of Parent (“Merger Sub”), and the Company, Merger Sub is merging
with and into the Company (the “Merger”) and the Company, as the surviving corporation of
the Merger, will thereby become a wholly-owned subsidiary of Parent. Concurrently with the
execution and delivery of the Merger Agreement and as a condition and inducement to Parent and
Merger Sub to enter into the Merger Agreement, Parent has required that Holder enter into this
Agreement. In order to induce Parent to enter into the Merger Agreement, Holder is willing to make
certain representations, warranties, covenants and agreements with respect to the shares of common
stock, par value $0.001 per share, of the Company (“Company Common Stock”) beneficially
owned by Holder (within the meaning of Rule 13d-3 of the Exchange Act) and set forth beneath
Holder’s signature on the last page of this Agreement (the “Shares”). Capitalized terms
used herein but not defined shall have the meanings ascribed to them in the Merger Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
1. Agreement to Retain Shares.
a. Transfer. During the period beginning on the date hereof and ending on the
Expiration Date (as defined in Section 4 below), (1) except as contemplated by the Merger
Agreement, and except as provided in Section 1(b) below, Holder agrees not to, directly or
indirectly, sell, transfer, exchange or otherwise encumber or dispose of (including by merger,
consolidation or otherwise by operation of law) (“Transfer”) the Shares and further
acknowledges and agrees that any attempted Transfer of Shares or any interest therein in violation
of this Section 1(a) shall be null and void, and (2) Holder agrees that Holder will not,
and will not permit any entity under Holder’s control to, directly or indirectly, grant any proxies
or powers of attorney, deposit any of such Holder’s Shares into a voting trust or enter into a
voting agreement with respect to any of such Holder’s Shares, or enter into any agreement or
arrangement providing for any of the actions described in this clause (2).
b. Permitted Transfers. Section 1(a) shall not prohibit a transfer of Shares
by Holder to (i) any family member or trust for the benefit of any family member of (ii) any
affiliate, stockholder, member or partner of any Holder which is an entity, so long as the assignee
or transferee agrees to be bound by the terms of this Agreement and executes and delivers to the
parties hereto a written consent, reasonably satisfactory in form and substance to Parent,
memorializing such agreement.
c. New Shares. Holder agrees that any shares of Company Common Stock that Holder
purchases or with respect to which Holder otherwise acquires record or beneficial ownership after
the date of this Agreement and prior to the Expiration Date shall be subject to the terms and
conditions of this Agreement to the same extent as if they constituted Shares and for all purposes
shall be included in the definition of Shares.
d. Covenant of the Holder. Holder agrees with, and covenants that, (i) this Agreement
and the obligations hereunder shall attach to Shares and, notwithstanding any violation of the
transfer restrictions contained in this Agreement, shall be binding upon any person or entity to
which
legal or beneficial ownership shall pass, whether by operation of law or otherwise; and (ii)
such Holder shall not request that the Company register the transfer (book-entry or otherwise) of
any certificate or uncertificated interest representing any or all of the Shares, unless such
transfer is made in compliance with this Agreement.
2. Agreement to Vote Shares.
a. Holder agrees during the term of this Agreement to vote the Shares, and to cause any holder
of record of Shares to vote or execute a written consent or consents if stockholders of the Company
are requested to vote their shares through the execution of an action by written consent in lieu of
any such annual or special meeting of stockholders of the Company: (i) in favor of the Merger and
the Merger Agreement, at every meeting (or in connection with any action by written consent) of the
stockholders of the Company at which such matters are considered and at every adjournment or
postponement thereof; (ii) against (1) any Acquisition Proposal, (2) any action, proposal,
transaction or agreement which could reasonably be expected to result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company under the Merger
Agreement or of Holder under this Agreement and (3) any action, proposal, transaction or agreement
that could reasonably be expected to impede, interfere with, delay, discourage, adversely affect or
inhibit the timely consummation of the Merger or the fulfillment of Parent’s, the Company’s or
Merger Sub’s conditions under the Merger Agreement or change in any manner the voting rights of any
class of shares of the Company (including any amendments to the Company’s certificate of
incorporation or bylaws) (collectively, the “Covered Proposals”). This Agreement is
intended to bind Holder as a stockholder of the Company only with respect to the Covered Proposals.
Except as expressly set forth in this Section 2(a), Holder shall not be restricted from
voting in favor of, against or abstaining with respect to any other matter presented to the
stockholders of the Company. Until the Expiration Date, Holder covenants and agrees not to enter
into any agreement or understanding with any person with respect to voting of its Shares on any
Covered Proposal which conflicts with the terms of this Agreement.
x. Xxxxxx further agrees that, until the Expiration Date, Holder will not, and will not permit
any entity under Holder’s control to, (A) solicit proxies or become a “participant” in a
“solicitation” (as such terms are defined in Rule 14A under the Exchange Act) in opposition to any
Covered Proposal, (B) initiate a stockholders’ vote with respect to an Acquisition Proposal or (C)
become a member of a “group” (as such term is used in Section 13(d) of the Exchange Act) with
respect to any voting securities of the Company with respect to an Acquisition Proposal.
c. Subject to the provisions set forth in Section 5 hereof, and as security for
Holder’s obligations under Section 2(a), until the Expiration Date, Holder hereby
irrevocably constitutes and appoints Parent and its or his designees as Holder’s attorney and proxy
in accordance with the General Corporation Law of the State of Delaware, with full power of
substitution and resubstitution, to cause the Shares to be counted as present at the Stockholder
Meeting, to vote his Shares at the Stockholder Meeting, however called, and to execute consents in
respect of his Shares with respect to the Covered Proposals. SUBJECT TO THE PROVISIONS SET FORTH IN
SECTION 5 HEREOF, THIS PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN
INTEREST. The power of attorney granted by holder herein is a durable power of attorney and shall
survive the dissolution, bankruptcy, death or incapacity of Holder. Upon the execution of this
Agreement, Holder hereby revokes any and all prior proxies or powers of attorney given by Holder
with respect to voting of the Shares on the Covered Proposals and agrees not to grant any
subsequent proxies or powers of attorney with respect to the voting of the Shares on any Covered
Proposal until after the Expiration Date. Holder understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon the Holder’s execution and delivery of this
Agreement and Holder’s granting of the proxy contained in this Section 2(c). Holder hereby
affirms that the proxy granted in this Section 2(c) is given in connection with the
execution of the Merger Agreement, and that such proxy is given to secure the performance of the
duties of Holder under this Agreement. If for any reason the proxy granted herein is found by a
court of
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competent jurisdiction to not be valid, then Holder agrees to vote the Shares in accordance
with Section 2(a). For Shares as to which Holder is the beneficial but not the record
owner, Holder shall take all necessary actions to cause any record owner of such Shares to
irrevocably constitute and appoint Parent and its designees as such record owner’s attorney and
proxy an irrevocable proxy to the same effect as that contained herein
3. Representations, Warranties and Covenants.
(I) Of Holder. Holder hereby represents, warrants and covenants to Parent that:
a. Holder (i) is the beneficial owner (as such term is defined in Rule 13d-3 under the
Exchange Act) of the Shares, free and clear of all Liens (other than those created by this
Agreement) and (ii) except pursuant hereto, there are no options, warrants or other rights,
agreements, arrangements or commitments of any character to which Holder is a party relating to the
pledge, disposition or voting of any of the Shares and there are no voting trusts or voting
agreements with respect to the Shares.
x. Xxxxxx does not beneficially own any shares of capital stock of the Company other than (i)
the Shares and (ii) any options, warrants or other rights to acquire any additional shares of
Company Common Stock or any security exercisable for or convertible into shares of Company Common
Stock, set forth on the signature page of this Agreement (collectively, “Options”).
x. Xxxxxx has the legal capacity, power and authority to enter into and perform all of
Holder’s obligations under this Agreement (including under the proxy granted in Section
2(c) above). This Agreement (including the proxy granted in Section 2(c) above) has
been duly and validly executed and delivered by Holder and constitutes a valid and binding
agreement of Holder, enforceable against Holder in accordance with its terms, subject to (a) laws
of general application relating to bankruptcy, insolvency and the relief of debtors and (b) rules
of law governing specific performance, injunctive relief and other equitable remedies.
d. None of the execution and delivery of this Agreement by Holder, the consummation by Holder
of the transactions contemplated hereby or compliance by Holder with any of the provisions hereof
will conflict with or result in a breach, or constitute a default (with or without notice of lapse
of time or both) under any provision of, any trust agreement, loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument or Applicable Law applicable to Holder or
to Holder’s property or assets.
e. Other than an amendment to Holder’s Schedule 13D on file with the U.S. Securities and
Exchange Commission, no consent, approval or authorization of, or designation, declaration or
filing with, any Governmental Authority or other Person on the part of Holder is required in
connection with the valid execution and delivery of this Agreement.
(II) Of Parent. Parent hereby represents, warrants and covenants to Holder that:
a. Parent has the legal capacity, power and authority to enter into and perform all of
Parent’s obligations under this Agreement. This Agreement has been duly and validly executed and
delivered by Parent and constitutes a valid and binding agreement of Parent, enforceable against
Parent in accordance with its terms, subject to (a) laws of general application relating to
bankruptcy, insolvency and the relief of debtors and (b) rules of law governing specific
performance, injunctive relief and other equitable remedies.
b. None of the execution and delivery of this Agreement by Parent, the consummation by Parent
of the transactions contemplated hereby or compliance by Parent with any of the provisions hereof
will conflict with or result in a breach, or constitute a default (with or without notice of lapse
of time or both) under any provision of, any trust agreement, loan or credit agreement, note, bond,
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mortgage, indenture, lease or other agreement, instrument or Applicable Law applicable to
Parent or to Parent’s property or assets.
c. No consent, approval or authorization of, or designation, declaration or filing with, any
Governmental Authority or other Person on the part of Parent is required in connection with the
valid execution and delivery of this Agreement.
4. Termination. This Agreement shall terminate upon the earliest to occur of (i) the
Effective Time, (ii) the date on which the Merger Agreement is terminated in accordance with its
terms, (iii) the mutual written consent of the parties hereto, (iv) any material amendment to the
Merger Agreement, including any decrease in, or change in form of, the merger consideration and (v)
the End Date (as defined in the Merger Agreement as in effect on the date hereof) (the earliest of
such dates, the “Expiration Date”).
5. Fiduciary Duties. Notwithstanding anything in this Agreement to the contrary: (i)
Holder makes no agreement or understanding herein in any capacity other than in Holder’s capacity
as a beneficial owner of the Shares, (ii) nothing in this Agreement shall be construed to limit or
affect the Holder’s rights and obligations as a director, officer, or other fiduciary of the
Company, and (iii) Holder shall have no liability to Parent, Merger Sub or any of their Affiliates
under this Agreement as a result of any action or inaction by Holder acting in his capacity as a
director, officer, or other fiduciary of the Company.
6. Waiver of Appraisal and Dissenters’ Rights. Holder hereby waives, and agrees not
to assert or perfect, any rights of appraisal or rights to dissent from the Merger that Holder may
have by virtue of ownership of the Shares.
7. Miscellaneous.
a. Amendments and Waivers. Any term of this Agreement may be amended or waived with
the written consent of the parties or their respective successors and assigns. Any amendment or
waiver effected in accordance with this Section 7(a) shall be binding upon the parties and
their respective successors and assigns.
b. Governing Law; Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to principles of conflicts
of law thereof. Each of the parties hereto (i) consents to submit to the personal jurisdiction of
any federal court located in the State of Delaware or any Delaware state court in the event any
dispute arises out of this Agreement, (ii) agrees that it shall not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court and (iii) agrees
that it shall not bring any action relating to this Agreement in any court other than a federal or
state court sitting in the State of Delaware.
c. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND,
THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT CERTIFIES AND
ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL
ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS
WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7(c).
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d. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one instrument.
e. Titles and Subtitles. The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this Agreement.
f. Notices. Any notice required or permitted by this Agreement shall be in writing and
shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight
delivery service or confirmed facsimile, or 72 hours after being deposited in the regular mail as
certified or registered mail with postage prepaid, if such notice is addressed to the party to be
notified at such party’s address or facsimile number as set forth below, or as subsequently
modified by written notice.
g. Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, the parties agree to renegotiate such provision in good faith,
in order to maintain the economic position enjoyed by each party as close as possible to that under
the provision rendered unenforceable. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded
from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision
were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its
terms.
h. Specific Performance. Each of the parties hereto recognizes and acknowledges that a
breach of any covenants or agreements contained in this Agreement will cause Parent and Merger Sub
to sustain damages for which they would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such breach Parent shall be
entitled to the remedy of specific performance of such covenants and agreements and injunctive and
other equitable relief in addition to any other remedy to which they may be entitled, at law or in
equity and Holder will not oppose the seeking of such relief on the basis that Parent has an
adequate remedy at law. Holder hereby agrees that it will not seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with Parent seeking or obtaining
such equitable relief.
[Signature Page Follows]
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The parties have caused this Agreement to be duly executed on the date first above written.
| Parent: | Pharaoh Acquisition Corp. | |||||||
| By: | /s/ Xxxx Xxxxxx |
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| Name: Xxxx Xxxxxx | ||||||||
| Title: President | ||||||||
| Address: | 0000 Xxxxxxxxx Xxxxxx |
|||||||
| Xxxxx 0000 |
||||||||
| Xx Xxxxxxx, XX 00000 |
||||||||
| |
||||||||
| Attention: | Xxxx Xxxxxx |
|||||||
| Telephone: | (000) 000-0000 |
|||||||
| Facsimile: | (000) 000-0000 |
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[Signature page to voting agreement.]
| Holder: | Ramius LLC | |||||||
| By: | /s/ Xxxx Xxxxxxx |
|||||||
| Name: Xxxx Xxxxxxx | ||||||||
| Title: Authorized Signatory | ||||||||
| Address: | 000 Xxxxxxxxx Xxxxxx |
|||||||
| 00xx Xxxxx |
||||||||
| Xxx Xxxx, XX 00000 |
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| |
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| Attention: | Xxxxxxx X. Xxxxx/Xxxx Xxxxxxx |
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| Telephone: | 000-000-0000 / 000-000-0000 |
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| Facsimile: | 000-000-0000 / 000-000-0000 |
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Number of Shares of Company Common Stock
Beneficially Owned as of the Date of this
Agreement: |
5,103,500 | |||
[Number of Options Beneficially Owned as of
the Date of this Agreement:] |
||||
[Signature page to voting agreement.]
