SUBSCRIPTION AGREEMENT
Exhibit 10.1
Gentlemen:
The undersigned (the “Investor”) hereby confirms its agreement with Phoenix Technologies Ltd.,
a Delaware corporation (the “Company”), as follows:
1. This Subscription Agreement, including the Terms and Conditions for Purchase of Shares
attached hereto as Annex I (collectively, this “Agreement”) is made as of the date set
forth below between the Company and the Investor.
2. The Company has authorized the sale and issuance to certain investors of up to an aggregate
of 5,800,000 shares (the “Shares”) of its Common Stock, par value $0.001 per share (the “Common
Stock”), subject to adjustment by the Company’s Board of Directors or a committee thereof, for a
purchase price of $2.25 per share (the “Purchase Price”).
3. The offering and sale of the Shares (the “Offering”) are being made pursuant to (a) an
effective Registration Statement on Form S-3, No. 333-159879 (the “Registration Statement”) filed
by the Company with the Securities and Exchange Commission (the “Commission”), including the
Prospectus, dated June 22, 2009, as amended on June 26, 2009, contained therein (the “Base
Prospectus”), (b) if applicable, certain “free writing prospectuses” (as that term is defined in
Rule 405 under the Securities Act of 1933, as amended (the “Act”)), that have been or will be filed
with the Commission and delivered to the Investor on or prior to the date hereof (the “Issuer Free
Writing Prospectus”), containing certain supplemental information regarding the Shares, the terms
of the Offering and the Company and (c) a Prospectus Supplement (the “Prospectus Supplement” and,
together with the Base Prospectus, the “Prospectus”) containing certain supplemental information
regarding the Shares and terms of the Offering that has been or will be filed with the Commission
and delivered to the Investor (or made available to the Investor by the filing by the Company of an
electronic version thereof with the Commission).
4. The Company and the Investor agree that the Investor will purchase from the Company and the
Company will issue and sell to the Investor the Shares of Common Stock set forth below for the
aggregate purchase price set forth below. The Shares shall be purchased pursuant to the Terms and
Conditions for Purchase of Shares attached hereto as Annex I and incorporated herein by
this reference as if fully set forth herein. The Investor acknowledges that the Offering is not
being underwritten by the placement agent (the “Placement
Agent”) named in the Prospectus
Supplement and that there is no minimum offering amount.
5. The manner of settlement of the Shares purchased by the Investor shall be determined by
such Investor as follows:
Delivery by crediting the account of the Investor’s prime broker (as specified by such
Investor on Exhibit A annexed hereto) with the Depository Trust Company (“DTC”)
through its Deposit/Withdrawal At Custodian (“DWAC”) system, whereby Investor’s prime
broker shall initiate a DWAC transaction on the Closing Date using its DTC participant
identification number, and released by Computershare Investor Services, the Company’s
transfer agent (the “Transfer Agent”), at the Company’s direction. NO LATER THAN ONE (1)
BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND THE COMPANY, THE
INVESTOR SHALL:
| (I) | DIRECT THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE CREDITED WITH THE SHARES ARE MAINTAINED TO SET UP A DWAC INSTRUCTING THE TRANSFER AGENT TO CREDIT SUCH ACCOUNT OR ACCOUNTS WITH THE SHARES, AND | ||
| (II) | REMIT BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE PURCHASE PRICE FOR THE SHARES BEING PURCHASED BY THE INVESTOR TO THE FOLLOWING ACCOUNT: |
JPMorgan Chase Bank, N.A.
ABA # 000000000
Account Name: Phoenix Technologies Ltd.
Account Number: 806025094
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
ABA # 000000000
Account Name: Phoenix Technologies Ltd.
Account Number: 806025094
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
IT IS THE INVESTOR’S RESPONSIBILITY TO (A) MAKE THE NECESSARY WIRE TRANSFER IN A TIMELY MANNER
AND (B) ARRANGE FOR SETTLEMENT BY WAY OF DWAC IN A TIMELY MANNER. IF THE INVESTOR DOES NOT DELIVER
THE AGGREGATE PURCHASE PRICE FOR THE SHARES OR DOES NOT MAKE PROPER ARRANGEMENTS FOR SETTLEMENT IN
A TIMELY MANNER, THE SHARES MAY NOT BE DELIVERED AT CLOSING TO THE INVESTOR OR THE INVESTOR MAY BE
EXCLUDED FROM THE CLOSING ALTOGETHER.
6. The Investor represents that, except as set forth below, (a) it has had no position, office or
other material relationship within the past three years with the Company or persons known to it to
be affiliates of the Company, (b) it is not a member of the Financial Industry Regulatory
Authority, Inc. or an Associated Person (as such term is defined under the NASD Membership and
Registration Rules Section 1011) as of the Closing, and (c) neither the Investor nor any group of
Investors (as identified in a public filing made with the Commission) of which the Investor is a
part in connection with the Offering of the Shares, acquired, or obtained the right to acquire, 20%
or more of the Common Stock (or securities convertible into or exercisable for Common Stock) or the
voting power of the Company on a post-transaction basis. Exceptions:
(If no exceptions, write “none.” If left blank, response will be deemed to be “none.”)
7. The Investor represents that it has received (or otherwise had made available to it by the
filing by the Company of an electronic version thereof with the Commission) the Base Prospectus,
which is a part of the Company’s Registration Statement, the documents incorporated by reference
therein and any Issuer Free Writing Prospectus (collectively, the “Disclosure Package”), prior to
or in connection
- 2 -
with the receipt of this Agreement. The Investor acknowledges that, prior to the delivery of this
Agreement to the Company, the Investor will receive certain additional information regarding the
Offering, including pricing information (the “Offering Information”). Such information may be
provided to the Investor by any means permitted under the Act, including the Prospectus Supplement,
an Issuer Free Writing Prospectus (if any) and oral communications.
8. No offer by the Investor to buy Shares will be accepted and no part of the Purchase Price will
be delivered to the Company until the Investor has received the Disclosure Package and Offering
Information and the Company has accepted such offer by countersigning a copy of this Agreement, and
any such offer may be withdrawn or revoked, without obligation or commitment of any kind, at any
time prior to the Company (or Placement Agent on behalf of the Company) sending (orally, in writing
or by electronic mail) notice of its acceptance of such offer. An indication of interest will
involve no obligation or commitment of any kind until the Investor has been delivered the
Disclosure Package and Offering Information and this Agreement is accepted and countersigned by or
on behalf of the Company.
9. The Company acknowledges that the only material, non-public information relating to the Company
or its subsidiaries that the Company, its employees or agents has provided to the Investor in
connection with the Offering prior to the date hereof is the existence of the Offering, and the
Investor has agreed to maintain the confidentiality of this information until such information has
been publicly disclosed as provided in Section 13 of the Terms and Conditions set forth on
Annex I hereof.
- 3 -
Number of Shares: |
||||||
| Purchase Price Per Share: $ | ||||||
| Aggregate Purchase Price: $ | ||||||
Please confirm that the foregoing correctly sets forth the agreement between us by signing in
the space provided below for that purpose.
| Dated as of: June __, 2009 | ||||||
| INVESTOR | ||||||
| By: | ||||||
| Print Name: | ||||||
| Title: | ||||||
| Address: | ||||||
Agreed and Accepted
this ___ day of June, 2009:
this ___ day of June, 2009:
| PHOENIX TECHNOLOGIES LTD. |
||||
| By: | ||||
| Title: | ||||
- 4 -
ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
1. Authorization and Sale of the Shares. Subject to the terms and conditions of this
Agreement, the Company has authorized the sale of the Shares.
2. Agreement to Sell and Purchase the Shares; Placement Agent.
2.1 At the Closing (as defined in Section 3.1), the Company will sell to the Investor,
and the Investor will purchase from the Company, upon the terms and conditions set forth herein,
the number of Shares set forth on the last page of the Agreement to which these Terms and
Conditions for Purchase of Shares are attached as Annex I (the “Signature Page”) for the
aggregate purchase price therefor set forth on the Signature Page.
2.2 The Company proposes to enter into substantially this same form of Subscription Agreement
with certain other investors (the “Other Investors”) and expects to complete sales of Shares to
them. The Investor and the Other Investors are hereinafter sometimes collectively referred to as
the “Investors,” and this Agreement and the Subscription Agreements executed by the Other Investors
are hereinafter sometimes collectively referred to as the “Agreements.”
2.3 Investor acknowledges that the Company has agreed to pay Xxxxxxx & Company, LLC (the
“Placement Agent”) a fee (the “Placement Fee”) in respect of the sale of Shares to the Investor.
2.4 The Company has entered into a Placement Agent Agreement, dated June 26, 2009 (the
“Placement Agreement”), with the Placement Agent that contains certain representations, warranties,
covenants and agreements of the Company that may be relied upon by the Investor, which shall be a
third party beneficiary thereof.
3. Closings and Delivery of the Shares and Funds.
3.1 Closing. The completion of the purchase and sale of the Shares (the “Closing”)
shall occur at a place and time (the “Closing Date”) to be specified by the Company and the
Placement Agent, and of which the Investors will be notified in advance by the Placement Agent, in
accordance with Rule 15c6-1 promulgated under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”). At the Closing, (a) the Company shall cause the Transfer Agent to deliver to the
Investor the number of Shares set forth on the Signature Page registered in the name of the
Investor or, if so indicated on the Investor Questionnaire attached hereto as Exhibit A, in
the name of a nominee designated by the Investor and (b) the aggregate purchase price for the
Shares being purchased by the Investor will be delivered by or on behalf of the Investor to the
Company.
3.2 Conditions to the Obligations of the Parties.
(a) Conditions to the Company’s Obligations. The Company’s obligation to issue and
sell the Shares to the Investor shall be subject to: (i) the receipt by the Company of the purchase
price for the Shares being purchased hereunder as set forth on the Signature Page and (ii) the
- 5 -
accuracy of the representations and warranties made by the Investor and the fulfillment of
those undertakings of the Investor to be fulfilled prior to the Closing Date.
(b) Conditions to the Investor’s Obligations. The Investor’s obligation to purchase
the Shares will be subject to the accuracy of the representations and warranties made by the
Company and the fulfillment of those undertakings of the Company to be fulfilled prior to the
Closing Date, including without limitation, those contained in the Placement Agreement, and to the
condition that the Placement Agent shall not have: (i) terminated the Placement Agreement pursuant
to the terms thereof or (ii) determined that the conditions to the closing in the Placement
Agreement have not been satisfied. The Investor’s obligations are expressly not conditioned on the
purchase by any or all of the Other Investors of the Shares that they have agreed to purchase from
the Company. The Investor understands and agrees that, in the event that the Placement Agent in
its sole discretion determines that the conditions to closing in the Placement Agreement have not
been satisfied or if the Placement Agent Agreement may be terminated for any other reason permitted
by such Agreement, then the Placement Agent may, but shall not be obligated to, terminate such
Agreement, which shall have the effect of terminating this Subscription Agreement pursuant to
Section 14 below.
3.3 Delivery of Funds.
No later than one (1) business day after the execution of this Agreement by the Investor
and the Company, the Investor shall remit by wire transfer the amount of funds equal to the
aggregate purchase price for the Shares being purchased by the Investor to the following account
designated by the Company and the Placement Agent pursuant to the terms of that certain Escrow
Agreement (the “Escrow Agreement”) dated as of the date hereof, by and among the Company, the
Placement Agent and JPMorgan Chase Bank, N.A. (the “Escrow Agent”):
JPMorgan Chase Bank, N.A.
ABA # 000000000
Account Name: Phoenix Technologies Ltd.
Account Number: 806025094
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
ABA # 000000000
Account Name: Phoenix Technologies Ltd.
Account Number: 806025094
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
Such funds shall be held in escrow until the Closing and delivered by the Escrow Agent on
behalf of the Investors to the Company upon the satisfaction, in the sole judgment of the Placement
Agent, of the conditions set forth in Section 3.2(b) hereof. The Placement Agent shall
have no rights in or to any of the escrowed funds, unless the Placement Agent and the Escrow Agent
are notified in writing by the Company in connection with the Closing that a portion of the
escrowed funds shall be applied to the Placement Fee. The Company agrees to indemnify and hold the
Escrow Agent harmless from and against any and all losses, costs, damages, expenses and claims
(including, without limitation, court costs and reasonable attorneys fees) (“Losses”) arising under
this Section 3.3 or otherwise with respect to the funds held in escrow pursuant hereto or
arising under the Escrow Agreement, unless it is finally, judicially determined that such Losses
resulted directly from the willful misconduct or gross negligence of the Escrow Agent. Anything in
this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for
any special, indirect or consequential loss or damage of any kind whatsoever (including but not
limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss
or damage and regardless of the form of action.
- 6 -
3.4 Delivery of Shares.
No later than one (1) business day after the execution of this Agreement by the Investor
and the Company, the Investor shall direct the broker-dealer at which the account or accounts
to be credited with the Shares being purchased by such Investor are maintained, which broker/dealer
shall be a DTC participant, to set up a DWAC instructing Computershare Investor Services, the
Company’s Transfer Agent, to credit such account or accounts with the Shares. Such DWAC
instruction shall indicate the settlement date for the deposit of the Shares, which date shall be
provided to the Investor by the Placement Agent. Simultaneously with the delivery to the Company
by the Escrow Agent of the funds held in escrow pursuant to Section 3.3 above, the Company
shall direct the Transfer Agent to credit the Investor’s account or accounts with the Shares
pursuant to the information contained in the DWAC.
4. Representations, Warranties and Covenants of the Investor.
The Investor acknowledges, represents and warrants to, and agrees with, the Company and the
Placement Agent that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is
qualified to make decisions with respect to, investments in shares presenting an investment
decision like that involved in the purchase of the Shares, including investments in securities
issued by the Company and investments in comparable companies, (b) has answered all questions on
the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as
of the date hereof and will be true and correct as of the Closing Date and (c) in connection with
its decision to purchase the number of Shares set forth on the Signature Page, has received and is
relying only upon the Disclosure Package and the documents incorporated by reference therein and
the Offering Information.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by
the Company or the Placement Agent that would permit an offering of the Shares, or possession or
distribution of offering materials in connection with the issue of the Shares in any jurisdiction
outside the United States where action for that purpose is required, (b) if the Investor is outside
the United States, it will comply with all applicable laws and regulations in each foreign
jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or
distributes any offering material, in all cases at its own expense and (c) the Placement Agent is
not authorized to make and has not made any representation, disclosure or use of any information in
connection with the issue, placement, purchase and sale of the Shares, except as set forth or
incorporated by reference in the Issuer Free Writing Prospectus (if any), the Base Prospectus or
the Prospectus Supplement.
4.3 (a) The Investor has full right, power, authority and capacity to enter into this
Agreement and to consummate the transactions contemplated hereby and has taken all necessary action
to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement
constitutes a valid and binding obligation of the Investor enforceable against the Investor in
accordance with its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting
parties’ rights generally and except as enforceability may be subject to general principles of
equity (regardless of whether such enforceability is considered in a proceeding in equity or at
law) and except as to the enforceability of
- 7 -
any rights to indemnification or contribution that may be violative of the public policy
underlying any law, rule or regulation (including any federal or state securities law, rule or
regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure
Package, the Offering Information or any other materials presented to the Investor in connection
with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor
has consulted such legal, tax and investment advisors and made such investigation as it, in its
sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
4.5 Since the date on which the Placement Agent first contacted the Investor about the
Offering, the Investor has not disclosed any information regarding the Offering to any third
parties (other than its legal, accounting and other advisors that are subject to a legal obligation
of confidentiality) and has not engaged in any purchases or sales of the securities of the Company
(including, without limitation, any Short Sales involving the Company’s securities). The Investor
covenants that it will not engage in any purchases or sales of the securities of the Company
(including Short Sales) or disclose any information about the Offering (other than to its legal,
accounting and other advisors that are subject to a legal obligation of confidentiality) prior to
the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor
agrees that it will not use any of the Shares acquired pursuant to this Agreement to cover any
short position in the Common Stock if doing so would be in violation of applicable securities laws.
For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in
Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box,
and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls,
short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act)
and similar arrangements (including on a total return basis), and sales and other transactions
through non-US broker dealers or foreign regulated brokers.
5. Survival of Representations, Warranties and Agreements; Third Party Beneficiary.
Notwithstanding any investigation made by any party to this Agreement or by the Placement Agent,
all covenants, agreements, representations and warranties made by the Company and the Investor
herein will survive the execution of this Agreement, the delivery to the Investor of the Shares
being purchased and the payment therefor. The Placement Agent shall be a third party beneficiary
with respect to the representations, warranties and agreements of the Investor in Section 4
hereof.
6. Notices. All notices, requests, consents and other communications hereunder will be in
writing, will be mailed (a) if within the domestic United States by first-class registered or
certified airmail, or nationally recognized overnight express courier, postage prepaid, or by
facsimile or (b) if delivered from outside the United States, by International Federal Express or
facsimile, and (c) will be deemed given (i) if delivered by first-class registered or certified
mail domestic, three business days after so mailed, (ii) if delivered by nationally recognized
overnight carrier, one business day after so mailed, (iii) if delivered by International Federal
Express, two business days after so mailed and (iv) if delivered by facsimile, upon electronic
confirmation of receipt and will be delivered and addressed as follows:
(a) if to the Company, to:
Phoenix Technologies Ltd.
000 Xxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxx
Facsimile: (000) 000-0000
000 Xxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxx
Facsimile: (000) 000-0000
with copies to (which shall not constitute notice):
Xxxxxx Godward Kronish LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
- 8 -
(b) if to the Investor, at its address on the Signature Page hereto, or at such
other address or addresses as may have been furnished to the Company in writing.
7. Changes. This Agreement may not be modified or amended except pursuant to an instrument
in writing signed by the Company and the Investor.
8. Headings. The headings of the various sections of this Agreement have been inserted for
convenience of reference only and will not be deemed to be part of this Agreement.
9. Severability. In case any provision contained in this Agreement should be invalid,
illegal or unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein will not in any way be affected or impaired thereby.
10. Governing Law. This Agreement will be governed by, and construed in accordance with,
the internal laws of the State of New York, without giving effect to the principles of
conflicts of law that would require the application of the laws of any other jurisdiction.
11. Counterparts. This Agreement may be executed in two or more counterparts, each of which
will constitute an original, but all of which, when taken together, will constitute but one
instrument, and will become effective when one or more counterparts have been signed by each
party hereto and delivered to the other parties. The Company and the Investor acknowledge
and agree that the Company shall deliver its counterpart to the Investor along with the
Prospectus Supplement (or the filing by the Company of an electronic version thereof with
the Commission).
12. Confirmation of Sale. The Investor acknowledges and agrees that such Investor’s receipt
of the Company’s signed counterpart to this Agreement, together with the Prospectus
Supplement (or the filing by the Company of an electronic version thereof with the
Commission), shall constitute written confirmation of the Company’s sale of Shares to such
Investor.
13. Press Release. The Company and the Investor agree that the Company shall, prior to the
opening of the financial markets in New York City on the business day immediately after the
date hereof (a) issue a press release announcing the Offering and disclosing all material
information regarding the Offering and (b) file a current report on Form 8-K with the
Securities
- 9 -
and Exchange Commission including, but not limited to, a form of this Agreement as an
exhibit thereto.
14. Termination. In the event that the Placement Agreement is terminated by the Placement
Agent pursuant to the terms thereof, this Agreement shall terminate without any further
action on the part of the parties hereto.
- 10 -
Exhibit A
INVESTOR QUESTIONNAIRE
Pursuant to Section 3 of Annex I to the Agreement, please provide us with the
following information:
1.
|
The exact name that your Shares are to be registered in. You may use a nominee name if appropriate: | |||||
2.
|
The relationship between the Investor and the registered holder listed in response to item 1 above: | |||||
3.
|
The mailing address of the registered holder listed in response to item 1 above: | |||||
4.
|
The Social Security Number or Tax Identification Number of the registered holder listed in the response to item 1 above: | |||||
5.
|
Name of DTC Participant (broker-dealer at which the account or accounts to be credited with the Shares are maintained): | |||||
6.
|
DTC Participant Number: | |||||
7.
|
Name of Account at DTC Participant being credited with the Shares: | |||||
8.
|
Account Number at DTC Participant being credited with the Shares: | |||||
