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EXHIBIT 10.26
[XIONICS LOGO]
June 15, 1999
Xxxxxxx X. Xxxxx
Chief Financial Officer
Phoenix Technologies Ltd.
000 Xxxx Xxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Re: STOCK REPURCHASE
Dear Xx. Xxxxx:
This letter agreement (the "Agreement") sets forth the agreement of
Xionics Document Technologies, Inc. ("Xionics") and Phoenix Technologies Ltd.
("Phoenix") regarding the repurchase of 1,020,881 shares of Xionics' Common
Stock, par value $.01, currently held by Phoenix (the "Shares"), as follows:
1. PURCHASE AND SALE OF SHARES. Subject to the terms and conditions
hereinafter set forth and in reliance on the representations and warranties
contained herein, Xionics hereby agrees to repurchase from Phoenix, and Phoenix
hereby agrees to sell to Xionics, on the Closing Date (as defined below), all of
the Shares at the closing price of the Shares on the NASDAQ National Stock
Market on Friday, June 11, 1999, of $3.875 per Share.
2. CLOSING. On the Closing Date Xionics will pay to Phoenix, by wire
transfer of immediately available funds to an account specified by Xxxxxxx, the
total purchase price of $3,955,913.80; and Xxxxxxx will deliver to Xionics the
stock certificate evidencing the Shares, together with a duly executed stock
transfer power transferring the Shares to Xionics. The Closing Date shall be the
earliest practicable date on which Phoenix can deliver such stock certificates,
but in no event later than June 18, 1999.
3. REPRESENTATIONS AND WARRANTIES.
3.1. OF XIONICS. As of the date hereof and as of the Closing Date,
Xionics represents and warrants to Phoenix that:
(a) The execution, delivery and performance by Xionics of
this Agreement and the repurchase by Xionics of the Shares hereunder (i) are
within Xionics' corporate power and authority, (ii) have been duly authorized by
all necessary corporate proceedings, and (iii) do not conflict with or result in
any breach of any provision of, or require any consent or approval pursuant to,
the Certificate of Incorporation or By-Laws of Xionics or any law, regulation,
order, judgment, writ, injunction, license, permit, agreement or instrument.
(b) This Agreement constitutes the legally binding
obligation of Xionics, enforceable against Xionics in accordance with the terms
and provisions hereof.
(c) The redemption of the Shares by Xionics hereunder
will comply with all applicable requirements of the Delaware General Corporation
Law.
3.2. OF PHOENIX. As of the date hereof and as of the Closing Date,
Phoenix represents and warrants to Xionics that:
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(a) The execution, delivery and performance by Phoenix of
this Agreement and the sale by Xxxxxxx of the Shares hereunder (i) are within
Phoenix's corporate power and authority, (ii) have been duly authorized by all
necessary corporate proceedings, and (iii) do not conflict with or result in any
breach of any provision of, or require any consent or approval pursuant to, the
charter or bylaws of Phoenix or any law, regulation, order, judgment, writ,
injunction, license, permit, agreement or instrument.
(b) This Agreement constitutes the legally binding
obligation of Phoenix, enforceable against Phoenix in accordance with the terms
and provisions hereof.
(c) Phoenix is the legal and beneficial owner of the
Shares, has good and marketable title to the Shares, and has full right and
authority to sell the Shares hereunder, free and clear of all liens, security
interests and other encumbrances, and free and clear of all options, rights or
claims of any third party.
(d) Phoenix has, based on such financial and other
information as Phoenix has deemed appropriate, and based on its own business
judgment, made its own independent investment decision to sell the Shares to
Xionics on the terms set forth herein. Xxxxxxx has made its decision to enter
into this Agreement and to effect the transactions contemplated hereby with as
much knowledge and information regarding Xionics and its business and affairs as
Phoenix has deemed necessary or desirable.
(e) Other than the representations set forth in Section
3.1 of this Agreement and statements made by Xionics in documents filed in
accordance with the Securities Exchange Act of 1934, Phoenix has not relied on
any representation or warranty, express or implied, from Xionics in entering
into this Agreement.
4. GENERAL. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. The representations and warranties of the parties
set forth herein shall survive the Closing Date. This Agreement contains the
entire understanding of the parties with respect to, and supersedes all prior
agreements and understandings relating to, the subject matter hereof. This
Agreement shall not be amended except by a written instrument hereafter signed
by each of the parties hereto.
If Phoenix is in agreement with the foregoing, please so signify by
signing both originals of this Agreement in the space provided below and return
one original to my attention as soon as possible, retaining the other for your
records.
Sincerely,
XIONICS DOCUMENT TECHNOLOGIES, INC.
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Senior Vice President, Finance
and Administration and
Chief Financial Officer
AGREED TO AND ACCEPTED:
Phoenix Technologies Limited
By: /s/ Xxxxxxx X Xxxxx Date: June 15, 1999
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Title: Vice President/Chief
Financial Officer
