exv10w3





Exhibit
10.3



PHOENIX TECHNOLOGIES LTD.




SEVERANCE AND CHANGE OF CONTROL AGREEMENT




     This Severance and Change of Control Agreement (the “Agreement”) was originally entered into
by and between Woodson Hobbs (“Executive”) and Phoenix Technologies Ltd. (the “Company”), effective
as of September 6, 2006. Effective as of November 16, 2009 (the “Effective Date”), this Agreement
is amended and restated as set forth below.



RECITALS




     1. It is possible that the Company could terminate Executive’s employment with the Company.
The Board of Directors of the Company (the “Board”) recognizes that such consideration can be a
distraction to Executive and can cause Executive to consider alternative employment opportunities.
The Compensation Committee of the Board (pursuant to its delegated authority) has determined that
it is in the best interests of the Company and its stockholders to assure that the Company will
have the continued dedication and objectivity of Executive, notwithstanding the possibility, threat
or occurrence of such a termination.



     2. The Compensation Committee of the Board believes that it is in the best interests of the
Company and its stockholders to provide Executive with an incentive to continue his employment and
to motivate Executive to maximize the value of the Company for the benefit of its stockholders.



     3. The Compensation Committee of the Board believes that it is imperative to provide Executive
with certain severance benefits upon certain terminations of Executive’s employment with the
Company. These benefits will provide Executive with enhanced financial security and incentive and
encouragement to remain with the Company.



     4. Certain capitalized terms used in the Agreement are defined in Section 6 below.



AGREEMENT




     NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto
agree as follows:



     1. Term of Agreement. This Agreement will have a term of four (4) years commencing on
the Effective Date and shall automatically renew for an additional four (4) year term unless the
Company provides written notice to Executive at least sixty (60) days prior to the end of the first
term of its intention not to renew this Agreement.



     2. At-Will Employment. The Company and Executive acknowledge that Executive’s
employment is and will continue to be at-will, as defined under applicable law. If Executive’s
employment terminates for any reason, Executive will not be entitled to any payments, benefits,
damages, awards or compensation other than as provided by this Agreement or any other agreements
between Executive and the Company.



					
	 	 	 	 	 
	 
	 	 	 	Initials: /s/ WH /s/ TC






 









 





     3. Severance Benefits.



          (a) Involuntary Termination other than for Cause, Disability or Death. If Executive
terminates his employment with the Company (or any parent or subsidiary of the Company) for Good
Reason or the Company (or any parent or subsidiary of the Company employing Executive) terminates
Executive’s employment with the Company (or any parent or subsidiary of the Company) for a reason
other than Cause, Executive’s Disability or Executive’s death, then, in addition to Executive’s
accrued vacation, expense reimbursements and any other benefits due to Executive through the date
of termination of employment in accordance with the Company’s then existing employee benefit plans,
policies and arrangements, and subject to Section 4, Executive will receive the following severance
benefits from the Company:




               (i) Severance Payments. Executive will be paid a severance amount equal to twelve
(12) months of Executive’s monthly base salary rate in effect on the date of termination, unless
the termination is for Good Reason following the reduction of Executive’s base salary, in which
case the severance amount will be based upon Executive’s base salary rate as in effect prior to
such reduction. This amount will be paid in a lump sum on the next payroll date following
Executive’s separation date.



               (ii) Bonus. If the Executive is terminated, the Executive shall be entitled to a
bonus equal to the number of full months of Executive’s employment with the Company during the
fiscal year in which the termination occurs, divided by twelve (12), and multiplied by the
Executive’s target bonus opportunity for such fiscal year, unless the termination is for Good
Reason following the reduction of Executive’s target bonus opportunity, in which case the severance
amount will be based upon Executive’s target bonus opportunity as in effect prior to such
reduction. This amount will be paid in a lump sum on the next payroll date following Executive’s
separation date.



               (iii) Continued Health Insurance Benefits. Executive will receive continuation of the
health, dental and vision insurance benefits provided to Executive and Executive’s eligible
dependents under the Company’s Benefit Plans at Company expense for a twelve (12) month period
commencing on Executive’s separation date (the “Severance Period”).



               (iv) Option Exercisability. The vested portion of any stock options or other
outstanding rights to purchase or receive shares of the Company’s common stock (including, without
limitation, stock appreciation rights, restricted stock units or similar awards) held by Executive
as of the termination date will remain exercisable until the earlier of (A) the expiration of the
original term of the applicable option or right (notwithstanding any provisions in the equity
agreement providing for earlier expiration of vested rights upon termination of employment) or (B)
(ii) the date twelve (12) months from the termination date.



               (v) Payments or Benefits Required by Law. Executive will receive such other
compensation or benefits from the Company as may be required by law.



          (b) Certain Terminations in Connection with a Change of Control. If Executive
terminates his employment with the Company (or any parent or subsidiary of the Company) for Good
Reason or the Company (or any parent or subsidiary of the Company employing Executive) terminates
Executive’s employment with the Company (or any parent or subsidiary of the Company)




					
	 	 	 	 	 
	 
	 	-2-
	 	Initials: /s/ WH /s/ TC






 









 




for a reason other than Cause, Executive’s Disability or Executive’s death from the period
beginning on the date of the signing of a definitive agreement for the Change of Control and ending
twelve (12) months following a Change of Control, then Executive shall receive the following:




               (i) Benefits under Sections 3(a)(i)-(v). The severance and other benefits set forth
in Sections 3(a)(i)-(v);



               (ii) Equity Acceleration.



                    (1) Restricted Stock and Other Equity Awards. Any shares of restricted stock granted
to the Executive and any other equity awards shall become 100% vested as of the date of such
termination and, if applicable, exercisable.



                    (2) Stock Options. All of the Executive’s stock options shall become fully vested and
exercisable as of the date of such termination.



                    (3) More Favorable Provisions. If the plan document or agreement governing any equity
award would provide greater vesting rights than those provided under Section 3(b)(ii)(1) or
3(b)(ii)(2), as applicable, then the provisions of the plan, or agreement, as applicable, shall
govern. In all other respects, such awards will continue to be subject to the terms and conditions
of the plans, if any, under which they were granted and any applicable agreements between the
Company and Executive.



          (c) Other Terminations. If Executive voluntarily terminates Executive’s employment
with the Company or any parent or subsidiary of the Company (other than for Good Reason) or if the
Company (or any parent or subsidiary of the Company) terminates Executive’s employment with the
Company (or any parent or subsidiary of the Company) for Cause, then Executive will (i) receive his
earned but unpaid base salary through the date of termination of employment, (ii) receive all
accrued vacation, expense reimbursements and any other benefits due to Executive through the date
of termination of employment in accordance with established Company plans, policies and
arrangements, and (iii) not be entitled to any other compensation or benefits (including, by way of
example but not limitation, accelerated vesting of any equity awards) from the Company except to
the extent provided under agreement(s) relating to any equity awards or as may be required by law
(for example, “COBRA” coverage under Section 4980B of the Internal Revenue Code of 1986, as amended
(the “Code”)); provided, that (1) Executive shall be able to exercise any options and retain any
restricted stock awards that are vested as of the date of termination of Executive’s employment and
(2) notwithstanding any other provision in this Agreement to the contrary, if Executive’s
employment with the Company (or any parent or subsidiary of the Company employing Executive) is
terminated as a result of Executive’s Disability or Executive’s death, then Executive shall also
receive continuation of the health, dental and vision insurance benefits provided to Executive and
Executive’s eligible dependents under the Company’s Benefit Plans at Company expense for a period
of twelve (12) months following Executive’s termination date.




          (d) Exclusive Remedy. In the event of a termination of Executive’s employment with
the Company (or any parent or subsidiary of the Company), and whether separate or in connection
with a Change of Control, the provisions of this Section 3 are intended to be and are exclusive and
in lieu of any other rights or remedies to which Executive may otherwise be entitled,




					
	 	 	 	 	 
	 
	 	-3-
	 	Initials: /s/ WH /s/ TC





 










 






whether at law, tort or contract, in equity, or under this Agreement. Executive will be
entitled to no benefits, compensation or other payments or rights upon termination of employment
other than those benefits expressly set forth in this Section 3.




     4. Conditions to Receipt of Severance.



          (a) Separation Agreement and Release of Claims. The receipt of any severance pursuant
to Section 3 will be subject to Executive signing and not revoking a separation agreement and
release of claims as attached hereto as Exhibit A on or before the sixtieth
(60th) day following Executive’s separation date. Subject to the foregoing, and any
delay required under Section 4(c) below, on the sixtieth (60th) day following
Executive’s separation date the Company shall commence payment of Executive’s severance benefits in
accordance with the terms of Section 3 (the “Severance Payment Date”).




          (b) Nonsolicitation. The receipt of any severance benefits pursuant to Section 3 will
be subject to Executive not violating the provisions of Section 7. In the event Executive breaches
the provisions of Section 7, all continuing payments and benefits to which Executive would have
been entitled pursuant to Section 3 will immediately cease.




          (c) Section 409A. Notwithstanding any provision of this Agreement to the contrary,
if, at the time of Executive’s termination of employment with the Company, Executive is a
“specified employee” as defined in Code Section 409A, then any cash severance to be paid pursuant
to Section 3 will not be paid during the six-month period following Executive’s termination of
employment, unless the Company reasonably determines that paying all or a portion of such amounts
immediately following Executive’s termination of employment would not result in the imposition of
additional tax under Code Section 409A, in which case that portion of such amounts which may be
paid without imposition of additional tax under Code Section 409A shall be paid on the Severance
Payment Date. To the extent that payment of any cash severance to Executive upon termination of
his employment is postponed as a result of the previous sentence, such payments will accrue
(without interest) and will become payable to Executive in a lump-sum amount on the earlier to
occur of (i) the first business day following such six-month period and (ii) Executive’s death.
For these purposes, each installment of the payments and benefits provided for in this Agreement is
a separate “payment” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i).




     5. Limitation on Payments.



          (a) In the event that the severance and other benefits provided for in this Agreement or
otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section
280G of the Code and (ii) but for this Section 5, would be subject to the excise tax imposed by
Section 4999 of the Code, then Executive’s severance benefits under this Agreement shall be payable
either




               (i) in full, or



               (ii) as to such lesser amount which would result in no portion of such severance benefits
being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts,
taking into account the applicable federal, state and local income taxes and the excise tax imposed
by Section 4999, results in the receipt by Executive on an after-tax basis, of the




					
	 	 	 	 	 
	 
	 	-4-
	 	Initials: /s/ WH /s/ TC





 









 







greatest amount of severance benefits under this Agreement, notwithstanding that all or some
portion of such severance benefits may be taxable under Section 4999 of the Code. Any
determination required under this Section 5 shall be made in writing by the Company’s independent
public accountants (the “Accountants”), whose determination shall be conclusive and binding upon
the Executive and the Company for all purposes. For purposes of making the calculations required
by this Section 5, the Accountants may make reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good faith interpretations concerning the application
of Sections 280G and 4999 of the Code. The Company and Executive shall furnish to the Accountants
such information and documents as the Accountants may reasonably request in order to make a
determination under this Section 5. The Company shall bear all costs the Accountants may
reasonably incur in connection with any calculations contemplated by this Section 5. Any necessary
reductions shall be implemented by reduction of payments to Executive in the following order: (1)
reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than
stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other
benefits paid to Executive. In the event that acceleration of vesting of equity award compensation
is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date
of grant of Executive’s equity awards.



     6. Definition of Terms. The following terms referred to in this Agreement will have
the following meanings:



          (a) Benefit Plans. “Benefit Plans” means plans, policies or arrangements that the
Company sponsors (or participates in) and that immediately prior to Executive’s termination of
employment provide Executive and/or Executive’s eligible dependents with medical, dental, and/or
vision benefits. Benefit Plans do not include any other type of benefit (including, but not by way
of limitation, disability, life insurance or retirement benefits). A requirement that the Company
provide Executive and Executive’s eligible dependents with coverage under the Benefit Plans will
not be satisfied unless the coverage is no less favorable than that provided to Executive and
Executive’s eligible dependents immediately prior to Executive’s termination of employment.
Notwithstanding any contrary provision of this Section 6(a), but subject to the immediately
preceding sentence, the Company may, at its option, satisfy any requirement that the Company
provide coverage under any Benefit Plan by (i) reimbursing Executive’s premiums under COBRA after
Executive has properly elected continuation coverage under COBRA (in which case Executive will be
solely responsible for electing such coverage for Executive and Executive’s eligible dependents),
or (ii) providing Executive and Executive’s eligible dependents with equivalent coverage that is
no less favorable under (or reimbursing Executive’s actual premiums pursuant to) a third party plan
that is reasonably available to Executive and Executive’s eligible dependents.




          (b) Cause. “Cause” means (i) a willful failure by Executive to substantially perform
Executive’s duties as an employee, other than a failure resulting from the Executive’s complete or
partial incapacity due to physical or mental illness or impairment, (ii) a willful act by Executive
that constitutes misconduct, (iii) circumstances where Executive intentionally or negligently
imparts material confidential information relating to the Company or its business to competitors or
to other third parties other than in the course of carrying out Executive’s duties, (iv) a material
violation by Executive of a federal or state law or regulation applicable to the business of the
Company, (v) a willful violation of a material Company employment policy or the Company’s insider
trading policy, (vi) any act or omission by Executive constituting dishonesty (other than a




					
	 	 	 	 	 
	 
	 	-5-
	 	Initials: /s/ WH /s/ TC





 









 






good faith expense account dispute) or fraud, with respect to the Company or any of its
affiliates, which is injurious to the financial condition of the Company or any of its affiliates
or is injurious to the business reputation of the Company or any of its affiliates, (vii)
Executive’s failure to cooperate with the Company in connection with any actions, suits, claims,
disputes or grievances against the Company or any of its officers, directors, employees,
stockholders, affiliates, divisions, subsidiaries, predecessor and successor corporations, and
assigns, whether or not such cooperation would be adverse to Executive’s own interest, or (viii)
Executive’s conviction or plea of guilty or no contest to a felony. Executive shall not be
considered to have committed an act included in the definition of “Cause” above if Executive fails
to meet performance goals established by the Company’s Board of Directors or if Executive otherwise
fails to meet the performance expectations of the Company’s Board of Directors (as opposed to any
act of misconduct described above in the definition of Cause). With respect to clauses (i), (ii),
(iii),(iv), (v), (vi), and (vii), the Executive shall be given thirty (30) days to cure such
misconduct after notice from the Company of the specific facts of such misconduct and the specific
steps necessary to cure such misconduct. Any determination of Cause shall be made by a majority of
the Board of Directors after giving the Executive the opportunity to present to the Board of
Directors with Executive’s counsel.




          (c) Change of Control. “Change of Control” means the occurrence of any of the
following:




               (i) the sale, lease, conveyance or other disposition of all or substantially all of the
Company’s assets to any “person” (as such term is used in Section 13(d) of the Securities Exchange
Act of 1934, as amended), entity or group of persons acting in concert;



               (ii) any person or group of persons becoming the “beneficial owner” (as defined in Rule 13d-3
under said Act), directly or indirectly, of securities of the Company representing 50% or more of
the total voting power represented by the Company’s then outstanding voting securities;



               (iii) a merger or consolidation of the Company with any other corporation, other than a merger
or consolidation that would result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity or its controlling entity) more than 50% of the total
voting power represented by the voting securities of the Company or such surviving entity (or its
controlling entity) outstanding immediately after such merger or consolidation; or



               (iv) a contest for the election or removal of members of the Board that results in the
replacement during any 12-month period of at least 50% of the incumbent members of the Board, whose
appointment is not endorsed by the majority of the incumbent members of the Board prior to such
contest.



          (d) Disability. “Disability” means that Executive has been unable to perform the
principal functions of his duties due to a physical or mental impairment, but only if such
inability has lasted or is reasonably expected to last for at least six (6) months. Whether
Executive has a Disability will be determined by the Board based on evidence provided by one or
more physicians selected or approved by the Board.




					
	 	 	 	 	 
	 
	 	-6-
	 	Initials: /s/ WH /s/ TC





 









 








          (e) Good Reason. “Good Reason” means that, without Executive’s express written
consent, any one of the following events occurs: (i) a material reduction in Executive’s title,
authority, status, or responsibilities, unless the Executive is provided with a comparable position
(i.e., a position of equal or greater organizational level, duties, authority, compensation and
status); provided, however, that after the Company is acquired and made part of a larger entity, if
Executive is not the chief executive officer of the successor entity or, if such successor
corporation has a parent company, the ultimate parent of the successor entity, such failure shall
constitute “Good Reason”; (ii) the reduction of Executive’s aggregate base salary or target bonus
opportunity as in effect immediately prior to such reduction (other than a reduction applicable to
executives generally, so long as Executive is not impacted more than the median percentage for the
other executives); (iii) a relocation of Executive’s principal place of employment by more than
forty (40) miles; (iv) the consummation of a tender offer of the Company that is not recommended by
the Board of Directors, but is approved by the Company’s stockholders; (v) failure of the Executive
to be nominated to the Board of Directors of the Company or, if applicable, its parent, or (vi) the
failure of any successor entity or, if applicable, its parent, to assume this Agreement pursuant to
Section 9 and to assume the offer letter between the Company and the Executive. With respect to
subsection (i) above, after the consummation of a Change in Control, the determination of whether
there was a material reduction in Executive’s title, authority, status, or responsibilities shall
be measured against Executive’s title, authority, status, or responsibilities immediately prior to
the consummation of the Change in Control.




     7. Restrictive Covenant.



          (a) Nonsolicit. For a period beginning on the Effective Date and ending twelve months
after Executive ceases to be employed by the Company (or any parent or subsidiary of the Company),
Executive, directly or indirectly, whether as employee, owner, sole proprietor, partner, director,
member, consultant, agent, founder, co-venturer or otherwise, will not solicit, induce or influence
any person to leave employment with the Company (or any parent or subsidiary of the Company).




          (b) Understanding of Covenants. Executive represents that he (i) is familiar with the
foregoing covenant not to solicit, and (ii) is fully aware of his obligations hereunder, including,
without limitation, the reasonableness of the length of time, scope and geographic coverage of this
covenant.




     8. Litigation. Executive agrees to cooperate with the Company beginning on the
Effective Date and thereafter (including following Executive’s termination of employment for any
reason), subject to the requirements of any employment or personal commitments at such time, by
making himself reasonably available to testify on behalf of the Company or any of its affiliates in
any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, and to
assist the Company, or any affiliate, in any such action, suit, or proceeding, by providing
information and meeting and consulting with the Board or its representatives or counsel, or
representatives or counsel to the Company, or any affiliate as reasonably requested. The Company
agrees to reimburse Executive for all expenses actually incurred in connection with his provision
of testimony or assistance, and with respect to any testimony or assistance provided after the end
of the Severance Period, to pay Executive a daily fee for any full day in which it requires his
services equal to the




					
	 	 	 	 	 
	 
	 	-7-
	 	Initials: /s/ WH /s/ TC





 









 







greater of Executive’s last base salary prior to termination of employment or the base salary
provided for originally in this Agreement.



     9. Successors.



          (a) The Company’s Successors. Any successor to the Company (whether direct or
indirect and whether by purchase, merger, consolidation, liquidation or otherwise) to all or
substantially all of the Company’s business and/or assets will assume the obligations under this
Agreement and agree expressly to perform the obligations under this Agreement in the same manner
and to the same extent as the Company would be required to perform such obligations in the absence
of a succession. For all purposes under this Agreement, the term “Company” will include any
successor to the Company’s business and/or assets which executes and delivers the assumption
agreement described in this Section 9(a) or which becomes bound by the terms of this Agreement by
operation of law.




          (b) The Executive’s Successors. The terms of this Agreement and all rights of
Executive hereunder will inure to the benefit of, and be enforceable by, Executive’s personal or
legal representatives, executors, administrators, successors, heirs, distributees, devisees and
legatees.




     10. Notice.



          (a) General. Notices and all other communications contemplated by this Agreement will
be in writing and will be deemed to have been duly given when personally delivered or when mailed
by U.S. registered or certified mail, return receipt requested and postage prepaid. In the case of
Executive, mailed notices will be addressed to him at the home address which he most recently
communicated to the Company in writing. In the case of the Company, mailed notices will be
addressed to its corporate headquarters, and all notices will be directed to the attention of its
General Counsel.




          (b) Notice of Termination. Any termination by the Company for Cause or by Executive
for Good Reason or as a result of a voluntary resignation will be communicated by a notice of
termination to the other party hereto given in accordance with Section 10(a) of this Agreement.
Such notice will indicate the specific termination provision in this Agreement relied upon, will
set forth in reasonable detail the facts and circumstances claimed to provide a basis for
termination under the provision so indicated, and, in the case of termination by the Company for
Cause or as a result of a voluntary resignation by Executive, will specify the termination date
(which will be not more than thirty (30) days after the giving of such notice).




     11. Miscellaneous Provisions.



          (a) No Duty to Mitigate. Executive will not be required to mitigate the amount of any
payment contemplated by this Agreement, nor will any such payment be reduced by any earnings that
Executive may receive from any other source.




          (b) Relinquishment of Titles and Positions. Executive agrees to promptly relinquish
all titles and positions then held by Executive with the Company and any subsidiary or affiliate of
the Company following any termination of Executive’s employment with the Company (or any parent or
subsidiary of the Company).




					
	 	 	 	 	 
	 
	 	-8-
	 	Initials: /s/ WH /s/ TC





 









 








          (c) Waiver. No provision of this Agreement will be modified, waived or discharged
unless the modification, waiver or discharge is agreed to in writing and signed by Executive and by
an authorized officer of the Company (other than Executive). No waiver by either party of any
breach of, or of compliance with, any condition or provision of this Agreement by the other party
will be considered a waiver of any other condition or provision or of the same condition or
provision at another time.




          (d) Headings. All captions and section headings used in this Agreement are for
convenient reference only and do not form a part of this Agreement.




          (e) Entire Agreement. This Agreement, the offer letter between Executive and the
Company dated September 6, 2006, the stock option agreement between Executive and the Company dated
September 6, 2006, the restricted stock purchase agreement between Executive and the Company dated
September 6, 2006, the terms of any other equity award agreements between the Company and Executive
(as modified by this Agreement) and any indemnification agreement between the Company and
Executive, constitute the entire agreement of the parties hereto and supersedes in their entirety
all prior representations, understandings, undertakings or agreements (whether oral or written and
whether expressed or implied) of the parties with respect to the subject matter hereof, including
without limitation, any formal offer letter or employment agreement by and between the Company and
Executive. No future agreements between the Company and Executive may supersede this Agreement,
unless they are in writing and specifically mention this Agreement.




          (f) Choice of Law. The laws of the State of California (without reference to its
choice of laws provisions) will govern the validity, interpretation, construction and performance
of this Agreement. Any legal action or other legal proceeding relating to this Agreement shall be
brought or otherwise commenced in any state or federal court located in Santa Clara County,
California and both parties expressly and irrevocably consent and submit to the jurisdiction of
each state and federal court located in Santa Clara County, California (and each appellate court
located in the State of California), in connection with any such legal proceeding; agree not to
assert (by way of motion, as a defense or otherwise), in any such legal proceeding commenced in any
state or federal court located in Santa Clara County, California, any claim that the party is not
subject personally to the jurisdiction of such court, that such legal proceeding has been brought
in an inconvenient forum, that the venue of such proceeding is improper or that this Agreement or
the subject matter of this Agreement may not be enforced in or by such court.




          (g) The Company’s obligation to make the payments provided for in this Agreement and otherwise
to perform its obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may have against the you or
others. Except as provided in the next sentence, all legal fees and expenses which may reasonably
incur as a result of any dispute or contest between Executive and the Company with respect to the
validity or enforceability of, or liability under, any provision of this Agreement, or any
guarantee of performance thereof (including as a result of any dispute or contest by Executive
about the amount of any payment pursuant to this Agreement), shall be paid promptly, by the
non-prevailing party in such dispute or contest. If the Executive is terminated as described in
Section 3(b) of this Agreement, the Company shall pay Executive’s legal fees promptly as incurred
with respect to such dispute or contest (irrespective of the outcome thereof).



					
	 	 	 	 	 
	 
	 	-9-
	 	Initials: /s/ WH /s/ TC






 









 








          (h) Severability. The invalidity or unenforceability of any provision or provisions
of this Agreement will not affect the validity or enforceability of any other provision hereof,
which will remain in full force and effect.




          (i) Income and Employment Taxes. Executive agrees that Executive shall be responsible
for any employee-side (but not employer-side) applicable taxes of any nature (including any
penalties or interest that may apply to such taxes) that the Company reasonably determines apply to
any payment made hereunder, that Executive’s receipt of any benefit hereunder is conditioned on
Executive’s satisfaction of any applicable withholding or similar obligations that apply to such
benefit, and that any cash payment owed hereunder will be reduced to satisfy any such withholding
or similar obligations that may apply.




          (j) Counterparts. This Agreement may be executed in counterparts, each of which will
be deemed an original, but all of which together will constitute one and the same instrument.




[Remainder of Page Intentionally Left Blank]




					
	 	 	 	 	 
	 
	 	-10-
	 	Initials: /s/ WH /s/ TC





 









 








     IN WITNESS WHEREOF, each of the parties has executed this amended and restated Agreement, in
the case of the Company by its duly authorized officer, as of the day and year set forth above.



	 	 	 	 	 
	COMPANY 	PHOENIX TECHNOLOGIES LTD.

 	 
	 	By:  	/s/ Timothy C. Chu
 	 
	 	 	Name: 	Timothy C. Chu 	 
	 	 	Title:	Vice President, General Counsel and Secretary 	 
	 
	EXECUTIVE 	WOODSON HOBBS

 	 
	 	By:  	/s/ Woodson Hobbs
 	 
	 	 	Title:  	President and Chief Executive Officer 	 




					
	 	 	 	 	 
	 
	 	-11-
	 	Initials: /s/ WH /s/ TC





 









 







	 	 	 	 	 



Exhibit a




Release Agreement





     I understand that my position with Phoenix Technologies, Ltd. (the “Company”)
terminated effective ______, 20___ (the “Separation Date”). The Company has agreed that if I
choose to sign this Release, the Company will extend to me certain benefits (minus the standard
withholdings and deductions, if applicable) pursuant to the terms of the Severance and Change of
Control Agreement (the “Agreement”) entered into as of September 6, 2006, between me and the
Company, as amended and restated on ______, 2009, and any agreements incorporated therein by
reference. I understand that I am not entitled to such severance benefits unless I sign this
Release. I understand that, regardless of whether I sign this Release, the Company will pay me all
of my accrued salary and vacation through the Separation Date and any unreimbursed business
expenses, to which I am entitled by law.



     In consideration for the severance benefits I am receiving under the Agreement, I hereby
release the Company and its officers, directors, agents, attorneys, employees, shareholders,
parents, subsidiaries, and affiliates from any and all claims, liabilities, demands, causes of
action, attorneys’ fees, damages, or obligations of every kind and nature, whether they are now
known or unknown, arising at any time prior to the date I sign this Release. This general release
includes, but is not limited to: all federal and state statutory and common law claims, claims
related to my employment or the termination of my employment or related to breach of contract,
tort, wrongful termination, discrimination, wages or benefits, or claims for any form of equity or
compensation. Notwithstanding the release in the preceding sentence, I am not releasing any right
of indemnification or any right to payments under any Company insurance policy I may have for any
liabilities arising from my actions within the course and scope of my employment with the Company
or within the course and scope of my role as a member of the Board of Directors and/or officer of
the Company, nor am I releasing my right to receive any severance benefits pursuant to the
Agreement.



     I UNDERSTAND THAT THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. In
giving this release, which includes claims which may be unknown to me at present, I hereby waive
the benefit of any provision of California law, and of any other jurisdiction, which is similar to
the following: “A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if known by him must have
materially affected his settlement with the debtor.”



     I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have
under the federal Age Discrimination in Employment Act of 1967, as amended (“ADEA”). I also
acknowledge that the consideration given for the waiver in the above paragraph is in addition to
anything of value to which I was already entitled. I have been advised by this writing, as
required by the ADEA that: (a) my waiver and release do not apply to any claims that may arise
after my signing of this Release; (b) I should consult with an attorney prior to executing this
Release; (c) I have twenty-one (21) days within which to consider this Release (although I may
choose to voluntarily execute this Release earlier); (d) I have seven (7) days following the
execution of this release to revoke the Release; and (e) this Release will not be effective until
the eighth day after this Release has been signed by me.




					
	 	 	 	 	 
	 
	 	-12-
	 	Initials: 





 









 






     I UNDERSTAND THAT THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.



	 	 	 	 	 
	 	 	 
	 	By:  	 	 
	 	 	Woodson Hobbs 	 
	 
	 	Date: 	 
	 




					
	 	 	 	 	 
	 
	 	-13-
	 	Initials: