Severance and Change of Control Agreement



 Exhibit 10.1 
 PHOENIX TECHNOLOGIES LTD. 
 SEVERANCE AND CHANGE OF CONTROL AGREEMENT 
 This Severance and Change of Control Agreement (the “Agreement”) is made and entered into by and between Ira Scharfglass
(“Executive”) and Phoenix Technologies Ltd. (the “Company”), effective as of June 28, 2006 (the “Effective Date”). 
 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 an initial term of three
(3) years commencing on the Effective Date. Notwithstanding the previous sentence, in the event of a Change of Control within three years of the Effective Date, the term of this Agreement will extend through the one-year anniversary of such
Change of Control. 
 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.








 3. Severance Benefits. 
 (a) Termination other than for Cause. If 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, subject to Section 4, Executive will receive the following severance benefits
from the Company: 
 (i) Accrued Compensation. Executive will be entitled to receive all 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. 
 (ii) Severance Payments. Executive will be paid continuing payments of severance pay for six (6) months from the date of such termination at
a monthly rate equal to Executive’s monthly base salary rate, as then in effect. Such payments shall be paid periodically in accordance with the Company’s normal payroll policies. 
 (iii) Continued Benefits. Executive will receive Company-paid coverage during the first six (6) months following such termination for
Executive and Executive’s eligible dependents under the Company’s Benefit Plans. 
 (iv) Option Exercisability. The vested
portion of any stock options held by Executive as of the termination date will remain exercisable until the earlier of (i) the term of the applicable option or (ii) the date six (6) 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) for a reason
other than Cause, Executive’s Disability or Executive’s death within two (2) months prior to or twelve (12) months following a Change of Control, then (i) Executive shall receive the severance and other benefits set forth in
Section 3(a)(i)-(v), and (ii) 50% of the unvested shares subject to all of Executive’s outstanding rights to purchase or receive shares of the Company’s common stock (including, without limitation, through awards of stock
options, stock appreciation rights, restricted stock units or similar awards) whether acquired by Executive before or after the date of this Agreement and 50% of any of Executive’s shares of Company common stock subject to a Company right of
repurchase or forfeiture upon Executive’s termination of employment for any reason (whether acquired by Executive before or after the date of this Agreement), will immediately vest and, if applicable, become exercisable upon such termination.
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. 
  

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 (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 within two (2) months prior to or twelve (12) months following a Change of Control) or if 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) due to Executive’s death, Disability or 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”)). 
 (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, 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 in a form acceptable to the
Company. No severance pursuant to Section 3 will be paid or provided until the separation agreement and release of claims becomes effective. 
 (b) Noncompetition; 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. 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
such amounts immediately following Executive’s termination of employment would not result in the imposition of additional tax under Section 409A of the Code (“Section 409A”), in which case such amounts shall be paid in accordance
with normal payroll practices. If no cash severance is paid to Executive upon termination of his employment as a result of the previous sentence, on the first day following such six-month period, the Company will pay Executive a lump-sum amount
equal to the cumulative amounts that would have otherwise been paid to Executive pursuant to Section 3. Thereafter, Executive will receive his cash severance payments pursuant to Section 3 in accordance with the Company’s normal
payroll practices. 
  

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 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 
 (b) 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 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. Unless the Company and Executive otherwise agree in writing, 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. 
 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) instead providing coverage under a separate plan or plans providing coverage that is no less favorable or by paying Executive a lump sum payment sufficient to provide Executive and Executive’s eligible dependents with equivalent
coverage under a third party plan that is reasonably available to Executive and Executive’s eligible dependents. 
  

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 (b) Cause. “Cause” means a 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 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. 
 (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 removal from the Board of at least 50% of the incumbent members of the Board. 
 (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. 
  

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 (e) Good Reason. “Good Reason” means (without Executive’s consent)
(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 a reduction in duties, position or responsibilities solely by virtue of the Company being acquired and made part of a larger entity (as, for example, when the Chief Executive Officer of the Company remains as
such following a Change of Control but is not made the Chief Executive Officer of the acquiring corporation) shall not constitute an “Involuntary Termination”; (ii) the reduction of Executive’s aggregate base salary and target
bonus opportunity as in effect immediately prior to such reduction (other than a reduction applicable to executives generally); or (iii) a relocation of Executive’s principal place of employment by more than fifty (50) miles.

 7. Restrictive Covenants. 
 (a) Noncompete. For a period beginning on the Effective Date and ending twelve (12) months after Executive ceases to be employed by the Company (or any parent or subsidiary of the Company), Executive agrees to not, directly or
indirectly, engage in (whether as an employee, consultant, agent, proprietor, principal, partner, stockholder, corporate officer, director or otherwise), nor have any ownership interest in or participate in the financing, operation, management or
control of, any person, firm, corporation or business that competes with Company (or any parent or subsidiary of the Company). 
 (b)
Nonsolicit. For a period beginning on the Effective Date and ending twelve (12) 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: (i) solicit, induce or influence any person to leave employment with the Company (or any parent or subsidiary of the
Company); or (ii) directly or indirectly solicit business from any of the Company’s customers and users on behalf of any business that directly competes with the principal business of the Company (or any parent or subsidiary of the
Company). 
 (c) Understanding of Covenants. Executive represents that he (i) is familiar with the foregoing covenants not to
compete and 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 these covenants. 
 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), 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. 
  

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 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 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) Resignation as Director. Upon the Company’s written request, Executive agrees to promptly resign as a member of the Company’s Board of Directors following any termination of his employment with the Company (or any
parent or subsidiary of the Company). 
 (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. 
  

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 (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 constitutes 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. 
 (g) 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. 
 (h) Withholding. All payments made pursuant to this Agreement will be subject to withholding of applicable income and employment taxes.

 (i) 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] 
  

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

					
	COMPANY	 	 PHOENIX TECHNOLOGIES LTD.

			
		 	By:	 	 /s/ SCOTT C. TAYLOR

		 	Title:	 	Senior Vice President and General Counsel
		
	EXECUTIVE	 	 IRA SCHARFGLASS

			
		 	By:	 	 /s/ IRA C. SCHARFGLASS

		 	Title:	 	 Senior Vice President and General Manager of
 Worldwide Engineering Operations


  

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