exv10w1












Exhibit 10.1




February 25, 2010




Mr. Thomas Lacey

7914 Indian Arrow Court

Orangevale, CA 95662




Dear Tom:




On behalf of Phoenix Technologies Ltd. (the “Company”), I am pleased to offer you employment as
President and Chief Executive Officer, reporting to the Board of Directors of the Company. Your
employment with the Company will commence on the date both parties sign this offer letter (the
“Offer Letter”), which we anticipate to be February 25, 2010 (“Hire Date”). On your Hire Date, the
Board of Directors will grant you an option to purchase 400,000 shares of the Company’s common
stock pursuant to the stock option agreement attached hereto as Exhibit A (“Stock Option
Agreement”), and will authorize a grant of 425,000 shares of restricted stock to you effective as
of the Hire Date, pursuant to the restricted stock agreement attached hereto as Exhibit B
(“Restricted Stock Purchase Agreement”). In addition, on your Hire Date, you will be offered the
severance and change of control agreement attached hereto as Exhibit C (the “Severance and
Change of Control Agreement”). Furthermore, on your Hire Date, you will be appointed as a member
of the Board of Directors of the Company.




Your base salary will be $250,000 annually, payable semi-monthly at the rate of $10,417, subject to
applicable withholding and deductions. Additionally, you will be eligible to receive a performance
bonus, based on criteria established by the Board of Directors, targeted at 100% of your base
salary and payable quarterly. The Company agrees to guarantee the payment of 100% of your
first-year performance bonus, which will be payable quarterly in the amount of $62,500, subject to
applicable withholding and deductions. The payment of any bonus amounts thereafter will be solely
at the discretion of the Board of Directors. The Board of Directors will review your compensation
annually in accordance with its established performance review process.




The option granted on your Hire Date will have an exercise price equal to the closing sales price
of the Company’s common stock on your Hire Date. The option will vest with respect to
1/48th of the shares subject to the option each month, so that the option is fully
vested on the fourth anniversary of your Hire Date. The option will be a nonqualified stock
option. The restricted stock grant will vest and become non-forfeitable as follows: 25,000 shares
on the Hire Date and then 1/48th of the balance of the shares each month, so that the
restricted stock grant will be fully vested on the fourth anniversary of the Hire Date. Both grants
of options and restricted stock and the tax withholding provisions of each grant shall be approved
by the Compensation Committee or the Board of Directors so that such grants and any withholding of
shares to satisfy tax withholding obligations from such grants comply with Rule 16b-3 promulgated
under the




 









 








Securities and Exchange Act of 1934, as amended, as exempt purchases (for the grants) and exempt
sales (for the withholding of shares).




The Severance and Change of Control Agreement provides, among other things, for the accelerated
vesting of your stock option and restricted share grants in the event that you are terminated
without “Cause” or for “Good Reason” in connection with a “Change of Control” (as these terms are
defined in the Severance and Change of Control Agreement). You will also be entitled to the
benefits that the Company makes available to employees at its Milpitas, California location. The
provisions of the benefits offered by the Company will be more fully explained in materials
provided under separate cover.




An additional document is attached as Exhibit D to this letter: An Employee Invention
Assignment and Proprietary Information Agreement, which contains provisions that require you to
hold in confidence any proprietary information received as an employee of the Company, and to
assign to the Company any inventions that you make while employed by the Company. We wish to
impress upon you the importance of not bringing with you any confidential or proprietary
information of any former employer.




The Company will enter into an indemnification agreement with you in the form attached hereto as
Exhibit E.




The Company will also arrange a corporate apartment for your use during the work week near the
Company’s headquarters in Milpitas, California, and cover or reimburse you for the rent for such
apartment as well as reasonable utility expenses.




The Company’s obligation to make the payments provided for in this Offer Letter 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. All
legal fees and expenses which may reasonably incur as a result of any dispute or contest between
you 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 you about the amount of any payment pursuant to this Agreement), shall be
paid promptly, by the non-prevailing party in such dispute or contest.




This Offer Letter shall be governed by and construed in accordance with the laws of the State of
California, without reference to principles of conflict of laws. Any legal action or other legal
proceeding relating to this Offer Letter 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 Offer Letter or the subject matter of this Offer Letter may not
be enforced in or by such court.




 









 








This Offer Letter does not constitute a contract of employment for a fixed term, but will instead
create an “employment at will” relationship. This Offer Letter is contingent upon a satisfactory
check of your background and verification of your legal right to work in the United States. This
Offer Letter supersedes any prior representations or agreements written, verbal or otherwise
regarding the terms described above.




I believe that you will find great opportunities and professional challenges at Phoenix
Technologies, and I am confident that you will significantly contribute to the Company’s success.
Please confirm your acceptance of this offer by signing the attached copy of this Offer Letter in
the space provided and returning it, along with the other documents attached hereto, to Timothy C.
Chu, Vice President, General Counsel and Secretary of the Company.




Sincerely,






	 	 	 

	/s/ Jeffrey C. Smith
 


	 	 







Jeffrey C. Smith

Chairman of the Board

Phoenix Technologies Ltd.




Acknowledgment:




I accept the employment offer as stated above.




	 	 	 

	/s/ Thomas Lacey
 

Thomas Lacey