UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
June 11, 2007 (June 7, 2007)
ZIX CORPORATION
(Exact name of registrant as specified in its charter)
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Texas
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0-17995
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75-2216818
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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2711 North Haskell Avenue
Suite 2200, LB 36
Dallas, Texas 75204-2960
(Address of principal executive offices) (Zip Code)
Registrants telephone number, including area code: (214) 370-2000
Not Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy
the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item 8.01 Other Events
Zix Corporation (the Company) held its 2007 Annual Meeting of Shareholders on June 7, 2007.
At the meeting, the following five matters were approved by the Companys shareholders:
(1) The shareholders elected as directors of the Company, Robert C. Hausmann, Charles N. Kahn
III, James S. Marston, Antonio R. Sanchez III, Paul E. Schlosberg, and Richard D. Spurr. The
following tabulation shows the votes with respect to this matter:
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Nominee
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Shares For
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Shares Withheld
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Robert C. Hausmann
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52,425,680
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907,984
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Charles N. Kahn III
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52,378,533
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955,131
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James S. Marston
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52,242,259
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1,091,405
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Antonio R. Sanchez III
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52,250,138
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1,083,526
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Paul E. Schlosberg
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52,300,697
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1,032,967
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Richard D. Spurr
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52,431,487
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902,177
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(2) The shareholders voted to amend the Zix Corporation 2006 Directors Stock Option Plan.
Attached as Exhibit 10.1 is the stock option plan, as amended. The following tabulation shows the
votes with respect to this matter:
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For
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19,718,482
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Against
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3,196,511
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Abstain
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172,138
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Broker NonVotes
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30,246,533
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The Companys five non-employee directors, pursuant to the amendments approved by the
shareholders, were granted options to acquire shares of the Companys common stock in respect of
their Board committee service. A form of the option agreements and individual vesting schedules
are attached as Exhibit 10.2.
(3) The shareholders voted to amend the Zix Corporation 2004 Stock Option Plan. Attached as
Exhibit 10.3 is the stock option plan, as amended. The following tabulation shows the votes with
respect to this matter:
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For
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19,249,430
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Against
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3,661,697
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Abstain
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176,004
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Broker NonVotes
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30,246,533
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(4) The shareholders voted to amend the Companys non-director stock option plans to grant
the Board of Directors (or a committee thereof) the authority to amend outstanding Company stock
option agreements. Attached as Exhibits 10.4 through 10.6 are the relevant stock option plans, as
amended. The following tabulation shows the votes with respect to this matter:
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For
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18,642,509
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Against
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4,245,906
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Abstain
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198,716
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Broker NonVotes
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30,246,533
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(5) The shareholders voted to approve a proposal to ratify the selection of Whitley Penn LLP
as the Companys independent registered public accounting firm. The following tabulation shows the
votes with respect to this matter:
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For
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51,900,444
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Against
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1,346,114
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Abstain
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87,106
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All five matters were approved.
Also, the Companys Chairman and Chief Executive Officer, Richard D. Spurr, made a
verbal presentation relating to the Companys business at the Annual Meeting. Substantially
the text of the remarks that Richard D. Spurr made were included in the Companys filing on
Form 8-K, filed June 7, 2007. Mr. Spurrs presentation at the Annual Meeting was preceded
by the following safe harbor statement by Mr. Ronald A. Woessner, the Chairman of the
Annual Meeting, pursuant to the Private Securities Litigation Reform Act of 1995:
I would like to read a statement regarding any forward looking statements that may be
made during Mr. Spurrs presentation, including his comments relating to the projected
2
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quarter financial results for the Company. The presentation may include
certain forward-looking statements that are based on the current beliefs of, or the
assumptions made by, or information currently available to ZixCorps management.
Forward-looking statements may include words such as anticipate, believe, estimate,
expect, hope, intend, may, project, will, could, should, or other similar
expressions. ZixCorps actual results, performance, prospects or opportunities in 2007 and
beyond could differ materially from those expressed in or implied by these statements.
Information concerning risk factors that could allow actual results to differ materially
from those expressed in or implied by these forward-looking
statements are contained in
ZixCorps filings with the Securities and
Exchange Commission. Except as required by
federal securities regulation, ZixCorp undertakes no obligation to publicly update or
revise any forward-looking statements for any reason after the date of this meeting.
3
Item 9.01. Financial Statements and Exhibits.
(c) Exhibits
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Exhibit No.
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Description
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10.1
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Zix Corporation 2006 Directors Stock Option Plan, amended and restated as of June 7, 2007.
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10.2
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Form of non-employee director stock option agreements and individual vesting
schedules with respect to June 7, 2007, option grants to non-employee
directors.
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10.3
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Zix Corporation 2004 Stock Option Plan, amended and restated as of June 7, 2007.
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10.4
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Zix Corporation 2003 New Employee Stock Option Plan, amended and restated as of June 7, 2007.
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10.5
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Zix Corporation 2001 Stock Option Plan, amended and restated as of June 7, 2007.
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10.6
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Zix Corporation 2001 Employee Stock Option Plan, amended and restated as of June 7, 2007.
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10.7
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Description of Zix Corporation 2007 Management Variable Compensation Plan.
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SIGNATURES
Pursuant to the requirements of the Exchange Act, the registrant has duly caused this report
to be signed on its behalf by the undersigned hereunto duly authorized.
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ZIX CORPORATION
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Date: June 11, 2007
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By:
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/s/ Barry W. Wilson
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Barry W. Wilson
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Chief Financial Officer and Treasurer
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4
Exhibit 10.1
ZIX CORPORATION 2006 DIRECTORS STOCK OPTION PLAN
(Amended and Restated as of June 7, 2007)
Section 1. Purpose
The purpose of the Zix Corporation 2006 Directors Stock Option Plan (hereinafter
called the Plan) is to advance the interests of Zix Corporation, a Texas corporation
(hereinafter called the Company), by strengthening the ability of the Company to attract,
on its behalf, and retain Non-Employee Directors (as defined below) of high caliber through
encouraging a sense of proprietorship by means of stock ownership.
Section 2. Definitions
Board shall mean the Board of Directors of the Company.
Code shall mean the Internal Revenue Code of 1986, as amended from time-to-time.
Committee shall mean the entire Board of Directors, or if the administration of the
Plan has been delegated to a committee of the Board, a committee selected by the Board and
comprised of at least two directors. To the extent necessary to comply with applicable
rules and regulations, the Committee shall consist of two or more independent directors.
Common Stock shall mean the Common Stock of the Company, par value $.01 per share.
Date of Grant shall mean the date on which an Option is granted under the Plan.
Designated Beneficiary shall mean the beneficiary designated by the Optionee, in a
manner determined by the Committee, to receive amounts due the Optionee in the event of the
Optionees death. In the absence of an effective designation by the Optionee, Designated
Beneficiary shall mean the Optionees estate.
Fair Market Value shall mean the closing sales price (or average of the quoted
closing bid and asked prices if there is no closing sales price reported) of the Common
Stock on the date specified as reported by the Nasdaq Stock Market, or by the principal
national stock exchange on which the Common Stock is then listed. If there is no reported
price information for such date, the Fair Market Value will be determined by the reported
price information for Common Stock on the day nearest preceding such date.
Non-Employee Director shall mean a member of the Board who is not an employee of the
Company or a subsidiary.
Option shall mean a nonqualified option to purchase shares of the Companys Common
Stock.
Optionee shall mean the person to whom an Option is granted under the Plan or who has
obtained the right to exercise an Option in accordance with the provisions of the Plan.
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Section 3. Administration
The Plan shall be administered by the Committee. The Committee shall have sole and
complete authority to adopt, alter and repeal such administrative rules, guidelines and
practices governing the operation of the Plan as it shall from time-to-time deem advisable,
and to construe, interpret and administer the terms and provisions of the Plan and the
agreements thereunder. The determinations and interpretations made by the Committee are
final and conclusive and binding on all persons.
Section 4. Eligibility
All Non-Employee Directors shall be eligible to receive awards of Options under the
Plan.
Section 5. Maximum Amount Available for Awards
Subject to the provisions of Section 9, the maximum number of shares of Common Stock in
respect of which Options may be granted under the Plan shall be 1,100,000 shares of Common
Stock. Shares of Common Stock may be made available from authorized but unissued shares of
the Company or from shares reacquired by the Company, including shares purchased in the open
market. In the event that an Option is terminated unexercised as to any shares of Common
Stock covered thereby, such shares shall thereafter be again available for award pursuant to
the Plan.
Section 6. Stock Options
(a) During the term of the Plan, on the day that any Non-Employee Director is first
appointed or elected to the Board, such director shall be granted nonqualified Options to
purchase 25,000 shares of Common Stock. The Options shall vest quarterly and pro-rata over
one year from the date of grant. Also, on the first business day in January of each year
during the term of the Plan, each Non-Employee Director that has served on the Board for at
least six months as of the grant date shall be granted nonqualified Options to purchase a
number of shares of Common Stock equal to the
greater
of (i) one-half of one percent of the
number of the Companys outstanding Common Stock shares (measured as of the immediately
preceding December 31) or (ii) 200,000 shares of Common Stock, divided by the
greater
of (A)
five or (B) the number of Non-Employee Directors that have served on the Board for at least
six months as of the Date of Grant;
provided that,
the number of shares of Common Stock
covered by any such January option grant shall not exceed 40,000 shares; and
provided
further that
, this 40,000 share limitation is exclusive of the option grants noted in
Section 6(b) below. The Options shall vest quarterly and pro-rata over three years from the
grant date. The exercise price of the 25,000 share option grants and of the January share
option grants shall be 100% of the Fair Market Value of the Common Stock on the Date of
Grant. The Options may not be exercised after the tenth anniversary of the Date of Grant.
(b) The following grants to each Non-Employee Director that served on the Board for at
least six months as of January 1, 2006, are hereby made, effective the date of the Companys
2006 Annual Meeting of Shareholders:
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A grant covering 38,838 shares, at an exercise price of the greater
or (i) $1.93 per share or (ii) the Fair Market Value of the Common Stock on the
Adoption Date (as defined below).
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The Options granted pursuant to this Section 6(b) shall vest as
follows: 1/12 of the shares of Common Stock subject to each Option grant (i.e.,
3,327 shares) shall vest on the date the Plan is approved by the Companys
shareholders, and the balance of the shares of Common Stock subject to each such
Option grant shall vest quarterly and pro-rata in 11 equal tranches, with the
first such option tranche vesting on July 3, 2006 and the last such option
tranche vesting on January 3, 2009.
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(c) During the term of the Plan, on the day that any Non-Employee Director is first
appointed to serve on the Board of Directors Audit Committee, Compensation Committee, or
the Nominating and Corporate Governance Committee, or their respective successors-in-interest, or on the day any Non-Employee Director is first appointed (or, if
later, the date the committee first becomes active) to serve on another eligible committee
of the Board, then such director shall be granted for annual service on each such committee,
nonqualified Options to purchase 5,000 shares of Common Stock, if serving as the chair of
the committee, or 3,000 shares of Common Stock, if serving as a member but not the chair of
the committee. The Options shall vest quarterly and pro-rata over three years from the date
of grant. The exercise price of these share option grants shall be 100% of the Fair Market
Value of the Common Stock on the Date of Grant. The Options may not be exercised after the
tenth anniversary of the Date of Grant. For example, if a board member is serving as the
chair of one of the aforementioned committees, and as a member of the two other
aforementioned committees, then the board member shall receive Options to purchase 11,000
shares of Common Stock. For these purposes, an eligible committee means a Board committee
that has been duly authorized by the Board of Directors, is actively conducting the business
for which it was formed, and is reasonably expected, as determined either at the time of the
creation of the committee or at the time it begins actively conducting the business for
which it was formed, to have a term of nine months or more.
(d) Furthermore, effective the day of the Companys 2007 Annual Meeting of
Shareholders, each Non-Employee Director that is serving on any of the Audit Committee, the
Compensation Committee, or the Nominating and Corporate Governance Committee of the Board of
Directors shall be granted for service on each such committee
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nonqualified Options
to purchase 2,500 shares of Common Stock, if serving as the chair of the committee, or 1,500
shares of Common Stock, if serving as a member but not the chair of the committee. The
Options shall vest quarterly and pro-rata over three years from the date of grant. The
exercise price of these share option grants shall be 100% of the Fair Market Value of the
Common Stock on the Date of Grant. The Options may not be exercised after the tenth
anniversary of the Date of Grant. For example, if on the day of the Companys 2007 Annual
Meeting of Shareholders, a board member is serving as the chair of one of the aforementioned
committees, and as a member of the other two aforementioned committees, then the board
member shall receive Options to purchase 5,500 shares of Common Stock.
(e) Each Option hereunder shall be evidenced in writing, delivered to the Optionee, and
shall be exercisable at such times and subject to such terms and conditions as specified in
the applicable grant and agreement.
(f) The Committee may impose such conditions with respect to the exercise of Options
(that are consistent with the foregoing principles), including without limitation, any
relating to the application of federal or state securities laws and any relating to the
exercisability of the Option following separation from service on the Board, as it may deem
necessary or advisable. For a director that separates from service in good standing and
that has served on the Companys Board of Directors at least five years as of the date of
the separation from service, any options granted to such director, whether under the Plan or
any predecessor plan providing for option
3
grants to the Companys Board, and that are vested as of the separation from service
date, may be exercised through the last business day of December of the calendar year in
which the one year anniversary of the directors separation from service occurs.
(g) No shares shall be delivered pursuant to any exercise of an Option until cash
payment in full of the option price therefor is received by the Company. If the shares to be
purchased are covered by an effective registration statement under the Securities Act of
1933, any Option may be exercised by a broker-dealer acting on behalf of an Optionee if (i)
the broker-dealer has received from the Optionee instructions signed by the Optionee
requesting the Company to deliver the shares of Common Stock subject to such Option to the
broker-dealer on behalf of the Optionee and specifying the account into which such shares
should be deposited, (ii) adequate provision has been made with respect to the payment of
any withholding taxes due upon such exercise, and (iii) the broker-dealer and the Optionee
have otherwise complied with Section 220.3(e)(4) of Regulation T, 12 CFR Part 220, or any
successor provision. The Company shall have the right to deduct from all amounts paid to an
Optionee in cash (whether under the Plan or otherwise) any taxes the Company withholds in
respect of Options under the Plan.
(h) The Company shall not be required to issue any fractional shares upon the exercise
of any Options granted under the Plan. No Optionee or such Optionees legal representatives,
legatees or distributees, as the case may be, will be, or will be deemed to be, a holder of
any shares subject to an Option unless and until said Option has been exercised and the
purchase price of the shares in respect of which the Option has been exercised has been
paid. Unless otherwise provided in the agreement applicable thereto, an Option shall not be
exercisable except by the Optionee or by a person who has obtained the Optionees rights
under the Option by will or under the laws of descent and distribution or pursuant to a
qualified domestic relations order as defined in the Code, and no right or interest of any
Optionee shall be subject to any lien, obligation or liability of the Optionee.
Section 7. Plan Amendments
The Board may amend, abandon, suspend or terminate the Plan or any portion thereof at
any time in such respects as it may deem advisable in its sole discretion, provided that no
amendment shall be made without stockholder approval if such amendment is material or if
stockholder approval is necessary to comply with any tax or regulatory requirement.
Section 8. Restrictions on Issuance of Options and Option Share
s
The Company shall not be obligated to issue any shares upon the exercise of any Option
granted under the Plan unless: (a) the shares pertaining to such Option have been registered
under applicable securities laws or are exempt from such registration; (b) if required, the
prior approval of such sale or issuance has been obtained from any state regulatory body
having jurisdiction; and (c) in the event the Common Stock has been listed on any exchange,
the shares pertaining to such Option have been duly listed on such exchange in accordance
with the procedure specified therefor. The Company shall be under no obligation to effect or
obtain any listing, registration, qualification, consent or approval with respect to shares
pertaining to any Option granted under the Plan. If the shares to be issued upon the
exercise of any Option granted under the Plan are intended to be issued by the Company in
reliance upon the exemptions from the registration requirements of applicable federal and
state securities laws, the recipient of the Option, if so requested by the Company, shall
furnish to the Company such evidence and representations, including an opinion of counsel
satisfactory to it as the Company may reasonably request.
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The Company shall not be liable for damages due to a delay in the delivery or issuance
of any stock certificates for any reason whatsoever, including, but not limited to, a delay
caused by listing, registration or qualification of the shares of Common Stock pertaining to
any Option granted under the Plan upon any securities exchange or under any federal or state
law or the effecting or obtaining of any consent or approval of any governmental body.
The Committee may impose such other restrictions on the ownership and transfer of
shares issued pursuant to the Plan as it deems desirable; any such restrictions shall be set
forth in the agreement applicable thereto.
Section 9. Adjustment to Shares
In the event that the Committee shall determine that any stock dividend,
recapitalization, reorganization, merger, consolidation, split-up, spin-off, combination,
exchange of shares, warrants or rights offering to purchase Common Stock at a price
substantially below Fair Market Value or other similar corporate event affects the Common
Stock such that an adjustment is required in order to preserve the benefits or potential
benefits intended to be made available under the Plan, then the Committee shall adjust
appropriately any or all of (a) the number and kind of shares that thereafter may be
optioned under the Plan, (b) the number and kind of shares subject of Options and (c) the
exercise price with respect to any of the foregoing and/or, if deemed appropriate, make
provision for cash payment to an Optionee or a person who has an outstanding Option;
provided, however,
that the number of shares subject to any Option shall always be a whole
number.
Section 10. Effective Date; Term
The Plan, including the option grants provided for in Sections 6(b) shall be subject to
the approval of the Companys shareholders, and shall be null and void if not approved by
the Companys shareholders. No Options may be granted under the Plan after the tenth year
anniversary of the Adoption Date as specified below.
IN WITNESS WHEREOF, the Company has caused this Plan to be amended and restated and
executed on its behalf as of the 7th day of June 2007.
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Zix Corporation
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By:
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/s/ Ronald A. Woessner
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Title:
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SVP
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Date:
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6/7/07
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5
Exhibit 10.2
ZIX CORPORATION
OUTSIDE DIRECTOR
STOCK OPTION AGREEMENT
(2006 DIRECTORS STOCK OPTION PLAN)
THIS STOCK OPTION AGREEMENT (Agreement) is made and entered into as of the date set forth on
the signature page attached hereto (the Signature Page) with respect to the stock options granted
by Zix Corporation, a Texas corporation (the Company), to the Optionee (Optionee) listed on the
signature page hereto.
WHEREAS, Zix Corporation (the Company) wishes to recognize the contributions of the Optionee
to the Company and to encourage the Optionees sense of proprietorship in the Company by owning the
common stock, par value $.01 per share (the Common Stock), of the Company;
NOW, THEREFORE, in consideration of the mutual agreements and covenants contained herein, the
Company hereby grants to the Optionee a nonqualified stock option (Option) to purchase up to a
total number of shares of the Common Stock set forth on the Signature Page at the price per share
(the Option Price) set forth on the Signature Page on the terms and conditions and subject to the
restrictions as set forth in this Agreement and the provisions in the Zix Corporation 2006
Directors Stock Option Plan (which is incorporated herein by reference) (the Plan), which is
referenced on the Signature Page. All defined terms contained herein shall have the meanings
ascribed to them in the Plan, except as otherwise provided herein.
1.
Definitions
.
a.
Acquiring Person
. An Acquiring Person shall mean any person (including any
person as such term is used in Sections 13(d)(3) or 14(d)(2) of the Exchange Act that, together
with all Affiliates and Associates of such person, is the beneficial owner (as the term beneficial
owner is defined under Rule 13d-3 or any successor rule or regulation promulgated under the
Exchange Act) of 10% or more of the outstanding Common Stock. The term Acquiring Person shall
not include the Company, any majority-owned subsidiary of the Company, any employee benefit plan of
the Company or a majority-owned subsidiary of the Company, or any person to the extent such person
is holding Common Stock for or pursuant to the terms of any such plan. For the purposes of this
Agreement, a person who becomes an Acquiring Person by acquiring beneficial ownership of 10% or
more of the Common Stock at any time after the date of this Agreement shall continue to be an
Acquiring Person whether or not such person continues to be the beneficial owner of 10% or more of
the outstanding Common Stock.
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b.
Affiliate and Associate
. Affiliate and Associate shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under the
Exchange Act in effect on the date of this Agreement.
c.
Cause
. Cause shall mean the willful engaging by the Optionee in illegal conduct
or gross misconduct that is materially and demonstrably injurious to the Company or its
subsidiaries. For purposes of this definition, no act or failure to act on the part of the Optionee
shall be considered willful unless it is done, or omitted to be done, by the Optionee in bad faith
or without reasonable belief that the Optionees action or omission was in the best interest of the
Company.
d.
Change in Control
. A Change in Control of the Company shall have occurred if
during the term of this Agreement, any of the following events shall occur:
(i) The Company is merged, consolidated or reorganized into or with another corporation
or other legal person and as a result of such merger, consolidation or reorganization, the
Company or its shareholders or Affiliates immediately before such transaction beneficially
own, immediately after or as a result of such transaction, equity securities of the
surviving or acquiring corporation or such corporations parent corporation possessing less
than fifty-one percent (51%) of the voting power of the surviving or acquiring person or
such persons parent corporation;
(ii) The Company sells all or substantially all of its assets to any other corporation
or other legal person and as a result of such sale, the Company or its shareholders or
Affiliates immediately before such transaction beneficially own, immediately after or as a
result of such transaction, equity securities of the surviving or acquiring corporation or
such corporations parent corporation possessing less than fifty-one percent (51%) of the
voting power of the surviving or acquiring person or such persons parent corporation
(provided that this provision shall not apply to a registered public offering of securities
of a subsidiary of the Company, which offering is not part of a transaction otherwise a part
of or related to a Change in Control);
(iii) Any Acquiring Person has become the beneficial owner (as the term beneficial
owner is defined under Rule 13d-3 or any successor rule or regulation promulgated under the
Exchange Act) of securities which, when added to any securities already owned by such
person, would represent in the aggregate 35% or more of the then outstanding securities of
the Company which are entitled to vote to elect any class of directors;
(iv) If, at any time, the Continuing Directors then serving on the Board of Directors
of the Company cease for any reason to constitute at least a majority thereof; or
(v) Any occurrence that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A or any successor rule or regulation promulgated under the
Exchange Act.
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e.
Continuing Director
.
A Continuing Director shall mean a director of the Company
who (i) is not an Acquiring Person or an Affiliate or Associate thereof, or a representative of an
Acquiring Person or nominated for election by an Acquiring Person, and (ii) was either a member of
the Board of Directors of the Company on the date of this Agreement or subsequently became a
director of the Company and whose initial election or initial nomination for election by the
Companys shareholders was approved by a majority of the Continuing Directors then on the Board of
Directors of the Company.
f.
Exchange Act
. Exchange Act shall mean the Securities Exchange Act of 1934, as
amended.
g.
Option Shares
. Option Shares shall mean the Common Stock shares received upon
exercise of the Option.
h.
Transfer
. Transfer (or any derivative thereof) means a direct or indirect
assignment, sale, transfer, license, lease, pledge, encumbrance, hypothecation or execution,
attachment or similar process.
2.
Term of Option
. The term of the Option shall expire at 12:00 midnight on the date
set forth on the Signature Page attached hereto (the Expiration Date or stated term), except as
such term may be otherwise shortened by the other provisions of the Plan or this Agreement.
3.
Exercise of Option
.
a.
Exercise
. The Option shall become exercisable as set forth in the Signature Page.
However, this Option shall become exercisable upon the occurrence of a Change in Control as to all
options that have not vested as of the occurrence of the Change in Control. Once the Option has
become exercisable with respect to a certain number of shares as provided above, it shall
thereafter be exercisable as to all of that number of shares, or as to any part thereof, until the
expiration or termination of the Option. However, the Option may not be exercised as to less than
100 shares at any one time (or the remaining shares then purchasable under the Option, if less than
100 shares).
b.
Adjustment
. In the event there is any adjustment to the Common Stock pursuant to
Section 9 of the Plan, the Board of Directors or Committee shall make such adjustment as it deems
appropriate to the number of shares subject to the Option or to the exercise price listed above, or
both. If a merger, consolidation, sale of shares, or similar transaction involving the Company, on
the one hand, and one or more persons, on the other hand, with respect to the Company occurs, and,
as a part of such transaction, shares of stock, other securities, cash or property shall be
issuable or deliverable in exchange for Common Stock, then the Optionee shall be entitled to
purchase or receive (in lieu of the Option Shares that the Optionee would otherwise be entitled to
purchase or receive hereunder), the number of shares of stock, other securities, cash or property
to which that number of shares of Common Stock would have been entitled in connection with such
transaction (and, at an aggregate exercise price equal to the aggregate exercise price hereunder
that would have
-3-
been payable if that number of shares of Common Stock had been purchased on the exercise of
the Option immediately before the consummation of the transaction).
c.
Accelerated Vesting
. The Option shall become fully exercisable (i) upon the
occurrence of a Change of Control, if the Optionee is still a director of the Company on the date
of the occurrence of the Change of Control or (ii) if the Optionee is removed from the Board of
Directors of the Company by a vote of the shareholders other than for Cause. If either of such
events occurs, the Option may be exercised at any time or times thereafter until the expiration or
termination of the Option.
d.
Method of Exercise
. To exercise the Option with respect to any vested shares of
Common Stock hereunder, the Optionee shall provide written notice (the Exercise Notice) to the
Company at its principal executive office. The Exercise Notice shall be deemed given when
deposited in the U. S. mails, postage prepaid, addressed to the Company at its principal executive
office, or if given other than by deposit in the U.S. mails, when delivered in person to an officer
of the Company at that office. The date of exercise of the Option (the Exercise Date) shall be
the date of the postmark if the notice is mailed or the date received if the notice is delivered
other than by mail. The Exercise Notice shall state the number of shares in respect of which the
Option is being exercised and, if the shares for which the Option is being exercised are to be
evidenced by more than one stock certificate, the denominations in which the stock certificates are
to be issued. The Exercise Notice shall be signed by the Optionee and shall include the complete
address of such person, together with such persons social security number. If the Option is
exercised in full, the Optionee shall surrender this Agreement to the Company for cancellation. If
the Option is exercised in part, the Optionee shall surrender this Agreement to the Company so that
the Company may make appropriate notation hereon or cancel this Agreement and issue a new agreement
representing the unexercised portion of the Option.
At the time of exercise, the Optionee shall pay to the Company the Option Price times the
number of vested shares as to which the Option is being exercised. The Optionee shall make such
payment by delivering (a) cash, (b) a certified cashiers check or (c) at the Committees election,
any other consideration that the Committee determines is consistent with the Plan and applicable
law. If the shares to be purchased are covered by an effective registration statement under the
Securities Act of 1933, as amended, the Option may be exercised by a broker-dealer acting on behalf
of the Optionee if (a) the broker-dealer has received from the Optionee or the Company a fully- and
duly-endorsed agreement evidencing such Option, together with instructions signed by the Optionee
requesting the Company to deliver the shares of Common Stock subject to such Option to the
broker-dealer on behalf of the Optionee and specifying the account into which such shares should be
deposited, (b) adequate provision has been made with respect to the payment of any withholding
taxes due upon such exercise, and (c) the broker-dealer and the Optionee have otherwise complied
with Section 220.3(e)(4) of Regulation T, 12 CFR Part 220, or any successor provision.
The certificates for shares of Common Stock as to which the Option shall have been so
exercised shall be registered in the name of the Optionee and shall be delivered to the Optionee at
the address specified in the Exercise Notice. If applicable, the stock certificates shall contain
an appropriate legend referencing the transfer restrictions noted in Subparagraph 3.d. An Option
-4-
exercise shall be valid only if the Optionee makes payment or other arrangements relating to
the withholding tax obligations discussed in Paragraph 11. In the event the person exercising the
Option is a transferee of the Optionee by will or under the laws of descent and distribution, the
Exercise Notice shall be accompanied by appropriate proof of the right of such transferee to
exercise the Option.
4.
Who May Exercise Option
. The Option shall be exercisable during the lifetime of the
Optionee only by the Optionee. To the extent exercisable after the Optionees death, the Option
shall be exercised only by a person who has obtained the Optionees rights under the Option by will
or under the laws of descent and distribution.
5.
Termination of Option
. If the Optionees directorship is terminated by a vote of the
shareholders or directors for Cause, the Option shall automatically expire (and shall not
thereafter be exercisable) simultaneously with such termination. If the Optionees directorship
terminates for any other reason, except as otherwise provided in Paragraph 3.c. above, the Option
shall be exercisable with respect to the shares that were vested as of the termination date (a)
until the first anniversary of the date that the Optionee ceased to be a director of the Company or
(b) if the Optionee separates from service in good standing and the Optionee has served on the
Companys Board of Directors at least five years as of the date of the separation from service,
through the last business day of December of the calendar year in which the one year anniversary of
the directors separation from service occurs (or, in each case of (a) or (b), if the remaining
stated term of the Option is shorter, until 12:00 midnight on the Expiration Date). The Option
shall not thereafter be exercisable.
6.
No Rights as Shareholder
.
Neither the Optionee nor any person claiming under or through
the Optionee shall be or have any rights or privileges of a shareholder of the Company in respect
of any of the shares issuable upon the exercise of the Option, unless and until certificates
representing such shares shall have been issued (as evidenced by the appropriate entry on the books
of the Company or of a duly authorized transfer agent of the Company).
7.
State and Federal Securities Regulation
.
No shares shall be issued by the Company upon
the exercise of the Option unless and until any then-applicable requirements of state and federal
laws and regulatory agencies shall have been fully complied with to the satisfaction of the Company
and its counsel. The Company may suspend for a reasonable period or periods the time during which
the Option may be exercised if, in the opinion of the Company, such suspension is required to
enable the Company to remain in compliance with regulatory requirements relating to the issuance of
shares of Common Stock subject to the Option. The Option is subject to the requirement that, if at
any time the Company shall determine, in its discretion, that the listing, registration or
qualification of the shares of Common Stock subject to the Option upon any securities exchange or
under any state or federal law, or the consent or approval of any government regulatory body, is
necessary or desirable as a condition of, or in connection with, the granting or exercise of the
Option or the issue or purchase of shares under the Option, the Option may not be exercised in
whole or in part until such listing, registration, qualification, consent or approval shall have
been effected or obtained free of any conditions not acceptable to the Company. The Company shall
be under no obligation to effect or obtain any such listing, registration, qualification, consent
or approval if the Company shall determine, in its discretion, that such action would not be in the
best interest of the Company. The
Company shall not be liable for damages due to a delay in the delivery or issuance of any stock
certificates for any reason whatsoever, including, but not limited to, a delay caused by listing,
registration or qualification of the shares of Common Stock subject to an option upon any
securities exchange or under any federal or state law or the effecting or obtaining of any consent
or approval of any governmental body with respect to the granting or exercise of the Option or the
issue or purchase of shares under the Option.
-5-
8.
Modification of Options
.
At any time and from time-to-time, the Committee may execute
an instrument providing for modification, extension or renewal of the Option, provided that no such
modification, extension or renewal shall (i) impair the Option in any respect without the written
consent of the holder of the Option or (ii) conflict with the provisions of Rule 16b-3 under the
Exchange Act. Except as provided in the preceding sentence, no supplement, modification or
amendment of this Agreement or waiver of any provision of this Agreement shall be binding unless
executed in writing by all parties to this Agreement. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision of this Agreement
(regardless of whether similar), nor shall any such waiver constitute a continuing waiver unless
otherwise expressly provided.
9.
Continued Directorship Not Presumed
.
Nothing in this Agreement, the Plan or any
document describing it nor the grant of an option shall give the Optionee the right to continue as
a director of the Company.
10.
Option Issued Pursuant to Plan
. The Optionee accepts the Option herein subject to all
the provisions of the Plan, which are incorporated herein, including the provisions that authorize
the Committee to administer and interpret the Plan and provide that the Committees determinations
and interpretations with respect to the Plan are final and conclusive and binding on all persons
affected thereby.
11.
Tax Withholding
. Any provision of this Agreement to the contrary notwithstanding, the
Company may take such steps as it deems necessary or desirable for the withholding of any taxes
that it is required by law or regulation of any governmental authority, federal, state or local,
domestic or foreign, to withhold in connection with any of the shares of Common Stock subject
hereto.
12.
No Liability of Option
.
The Option is not liable for or subject to, in whole or in
part, the debts, contracts, liabilities or torts of the Optionee nor shall it be subject to
garnishment, attachment, execution, levy or other legal or equitable process.
13.
No Assignment
.
The Option is not Transferable otherwise than by will or the laws of
descent and distribution, and is exercisable during the Optionees lifetime only by him or her.
Without limiting the generality of the foregoing, the Option may not be Transferred (except as
aforesaid), and shall not be subject to execution, attachment or similar process, without the prior
written consent of the Company. Any attempted Transfer contrary to the provisions hereof shall be
void and ineffective for all purposes.
-6-
14.
Governing Law
.
This Agreement has been executed in, and shall be deemed to be
performable in, Dallas, Dallas County, Texas. The parties agree that this Agreement shall be
governed by and construed in accordance with the laws of the State of Texas (excluding its conflict
of laws rules). The parties further agree that the courts of the State of Texas, and any courts
whose jurisdiction is derivative on the jurisdiction of the courts of the State of Texas, shall
have personal jurisdiction over all parties to this Agreement.
15.
Entire Agreement
. Except for the Plan, this Agreement constitutes the entire agreement
between the parties pertaining to the subject matter hereof and supersedes all prior and
contemporaneous agreements, representations and understandings of the parties. No supplement,
modification or amendment of this Agreement shall be binding unless executed in writing by the
party to be charged therewith. No waiver of any of the provisions of this Agreement shall be
deemed, or shall, constitute a waiver of any other provision, whether or not similar, nor shall any
waiver constitute a continuing waiver.
16.
Duplicate Originals
.
Duplicate originals of this document shall be executed by both
the Company and the Optionee, each of which shall retain one duplicate original.
17.
Notice
.
Other than any Exercise Notice, any notice required or permitted to be given
under the Plan or this Agreement shall be in writing and delivered in person or sent by registered
or certified mail, return receipt requested, first-class postage prepaid, (i) if to the Optionee,
at the address shown on the books and records of the Company or at the Optionees place of
employment, or (ii) if to the Company, at 2711 N. Haskell Avenue, Suite 2200, Dallas, Texas
75204-2960, Attention: Vice President Finance & Administration, or any other address that may be
given by either party to the other party by notice pursuant to this Paragraph 17. Any notice other
than any Exercise Notice, if sent by registered or certified mail, shall be deemed to have been
given when received.
18.
Miscellaneous
.
a. The Option herein is intended to be a nonqualified stock option under applicable tax laws,
and it is not to be characterized or treated as an incentive stock option under such laws.
b. Subject to the limitations herein on the Transferability by the Optionee of the Option and
any shares of Common Stock, this Agreement shall be binding upon and inure to the benefit of the
representatives, executors, successors or beneficiaries of the parties hereto.
c. If any provision of this Agreement is declared or found to be illegal, unenforceable or
void, in whole or in part, then the parties shall be relieved of all obligations arising under such
provision, but only to the extent that it is illegal, unenforceable or void, it being the intent
and agreement of the parties that this Agreement shall be deemed amended by modifying such
provision to the extent necessary to make it legal and enforceable while preserving its intent or,
if that is not possible, by substituting therefor another provision that is legal and enforceable
and achieves the same objectives.
d. All section titles and captions in this Agreement are for convenience only, shall not be
deemed part of this Agreement, and in no way shall define, limit, extend or describe the scope or
-7-
intent of any provisions of this Agreement.
e. The parties shall execute all documents, provide all information and take or refrain from
taking all actions as may be necessary or appropriate to achieve the purposes of this Agreement.
f. No failure by any party to insist upon the strict performance of any covenant, duty,
agreement or condition of this Agreement or to exercise any right or remedy consequent upon a
breach thereof shall constitute a waiver of any such breach or any other covenant, duty, agreement
or condition.
g. In addition to all other rights or remedies available at law or in equity, the Company
shall be entitled to injunctive and other equitable relief to prevent or enjoin any violation of
the provisions of this Agreement.
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ZIX
CORPORATION
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Date:
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6/11/07
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By:
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/s/ Barry W. Wilson
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Barry W. Wilson
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Chief Financial Officer and Treasurer
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-8-
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Zix Corporation (TX)
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Signature Page
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2711 N. Haskell Avenue
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Sign and return to the legal department
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Suite 2200
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Dallas, Texas 75204
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United States
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Issuance Information
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Effective Date of Grant:
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June 07, 2007
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Name of optionee:
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Hausmann, Robert
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Number of Shares:
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2,500.00
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Exercise Price:
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$1.67
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Plan Name:
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2006 Directors Stock Option
Plan
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Expiration Date:
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June 06, 2017
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Vesting Schedule:
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Number of Shares:
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Vest Date:
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208.00
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September 07, 2007
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209.00
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December 07, 2007
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208.00
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March 07, 2008
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208.00
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June 07, 2008
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209.00
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September 07, 2008
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208.00
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December 07, 2008
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208.00
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March 07, 2009
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209.00
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June 07, 2009
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208.00
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September 07, 2009
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208.00
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December 07, 2009
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209.00
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March 07, 2010
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208.00
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June 07, 2010
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6/7/2007
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Equity Enterprise
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Page 1 of 1
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Zix Corporation (TX)
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Signature Page
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2711 N. Haskell Avenue
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Sign and return to the legal department
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Suite 2200
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Dallas, Texas 75204
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United States
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Issuance Information
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Effective Date of Grant:
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June 07, 2007
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Name of Optionee:
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Kahn, Charles
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Number of Shares:
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2,500.00
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Exercise Price:
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$1.67
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Plan Name:
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2006 Directors Stock Option
Plan
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Expiration Date:
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June 06, 2017
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Vesting Schedule:
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Number of Shares:
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Vest Date:
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208.00
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September 07, 2007
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209.00
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December 07, 2007
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208.00
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March 07, 2008
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208.00
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June 07, 2008
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209.00
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September 07, 2008
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208.00
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December 07, 2008
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208.00
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March 07, 2009
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209.00
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June 07, 2009
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208.00
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September 07, 2009
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208.00
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December 07, 2009
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209.00
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March 07, 2010
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208.00
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June 07, 2010
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6/7/2007
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Equity Enterprise
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Page 1 of 1
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Zix Corporation (TX)
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Signature Page
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2711 N. Haskell Avenue
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Sign and return to the legal department
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Suite 2200
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Dallas, Texas 75204
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United States
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Issuance Information
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Effective Date of Grant:
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June 07, 2007
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Name of Optionee:
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Marston James
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Number of Shares:
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4,000.00
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Exercise Price:
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$1.67
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Plan Name:
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2006 Directors Stock Option
Plan
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Expiration Date:
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June 06, 2017
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Vesting Schedule:
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Number of Shares:
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Vest Date:
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333.00
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September 07, 2007
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334.00
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December 07, 2007
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333.00
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March 07, 2008
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333.00
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June 07, 2008
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334.00
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September 07, 2008
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333.00
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December 07, 2008
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333.00
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March 07, 2009
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334.00
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June 07, 2009
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333.00
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September 07, 2009
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333.00
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December 07, 2009
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334.00
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March 07, 2010
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333.00
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June 07, 2010
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6/7/2007
|
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Equity Enterprise
|
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Page 1 of 1
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Zix Corporation (TX)
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2711 N. Haskell Avenue
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Signature Page
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Suite 2200
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Sign and return to the legal department
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Dallas, Texas 75204
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United States
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Issuance Information
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Effective Date of Grant:
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June 07, 2007
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Name of Optionee:
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Sanchez, Antonio Ill
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Number of Shares:
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1,500.00
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Exercise Price:
|
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$1.67
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Plan Name:
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2006 Directors Stock Option
Plan
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Expiration Date:
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June 06, 2017
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Vesting Schedule:
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Number of Shares:
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Vest Date:
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125.00
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September 07, 2007
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125.00
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December 07, 2007
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125.00
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March 07, 2008
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125.00
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June 07, 2008
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125.00
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September 07, 2008
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125.00
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December 07, 2008
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125.00
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March 07, 2009
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125.00
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June 07, 2009
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125.00
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September 07, 2009
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125.00
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December 07, 2009
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125.00
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March 07, 2010
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125.00
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June 07, 2010
|
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6/7/2007
|
|
Equity Enterprise
|
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Page 1 of 1
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Zix Corporation (TX)
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2711 N. Haskell Avenue
|
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Signature Page
|
Suite 2200
|
|
Sign and return to the legal department
|
Dallas, Texas 75204
|
|
|
United States
|
|
|
Issuance Information
|
|
|
|
|
Effective Date of Grant:
|
|
June 07, 2007
|
|
|
|
|
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|
|
Name of Optionee:
|
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Schlosberg, Paul
|
|
|
|
|
|
|
|
Number of Shares:
|
|
4,500.00
|
|
|
|
|
|
|
|
Exercise Price:
|
|
$1.67
|
|
|
|
|
|
|
|
Plan Name:
|
|
2006 Directors Stock Option
Plan
|
|
|
|
|
|
|
|
Expiration Date:
|
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June 06, 2017
|
|
|
|
|
|
|
|
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|
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Vesting Schedule:
|
|
Number of Shares:
|
|
Vest Date:
|
|
|
375 00
|
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September 07, 2007
|
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375.00
|
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December 07, 2007
|
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375.00
|
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March 07, 2008
|
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375.00
|
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June 07, 2008
|
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375.00
|
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September 07, 2008
|
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375.00
|
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December 07, 2008
|
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375.00
|
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March 07, 2009
|
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375.00
|
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June 07, 2009
|
|
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375.00
|
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September 07, 2009
|
|
|
375.00
|
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December 07, 2009
|
|
|
375.00
|
|
March 07, 2010
|
|
|
375.00
|
|
June 07, 2010
|
|
|
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|
6/7/2007
|
|
Equity Enterprise
|
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Page 1 of 1
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Exhibit 10.3
ZIX CORPORATION 2004 STOCK OPTION PLAN
(Amended and Restated as of June 7, 2007)
Section 1. Purpose
The purpose of the Zix Corporation 2004 Stock Option Plan (hereinafter called the
Plan) is to advance the interests of Zix Corporation (hereinafter called the Company)
by strengthening the ability of the Company to attract, on its behalf and on behalf of its
Subsidiaries (as hereinafter defined), and retain personnel of high caliber through
encouraging a sense of proprietorship by means of stock ownership.
Section 2. Definitions
Board of Directors shall mean the Board of Directors of the Company.
Code shall mean the Internal Revenue Code of 1986, as amended from time-to-time.
Committee shall mean a committee of the Board of Directors comprised of at least two
directors or the entire Board of Directors, as the case may be. Members of the Committee
shall be selected by the Board of Directors. To the extent necessary to comply with the
requirements of applicable rules and regulations, the Committee shall consist of two or
more independent directors. Also, if the requirements of §162(m) of the Code are intended
to be met, the Committee shall consist of two or more outside directors within the
meaning of § 162(m) of the Code.
Common Stock shall mean the common stock of the Company, par value $.01 per share.
Date of Grant shall mean the date on which an Option is granted pursuant to this
Plan.
Designated Beneficiary shall mean the beneficiary designated by the Optionee, in a
manner determined by the Committee, to receive amounts due the Optionee in the event of the
Optionees death. In the absence of an effective designation by the Optionee, Designated
Beneficiary shall mean the Optionees estate.
Exchange Act shall mean the Securities Exchange Act of 1934, as amended.
Fair Market Value shall mean the closing sale price (or average of the quoted
closing bid and asked prices if there is no closing sale price reported) of the Common
Stock on the date specified as reported by the Nasdaq Stock Market, or by the principal
national stock exchange on which the Common Stock is then listed. If there is no reported
price information for such date, the Fair Market Value will be determined by the reported
price information for Common Stock on the day nearest preceding such date.
Incentive Stock Option shall mean a stock option granted under Section 6 that is
intended to meet the requirements of Section 422 of the Code (or any successor provision).
Nonqualified Stock Option shall mean a stock option granted under Section 6 that is
not intended to be an Incentive Stock Option.
Option shall mean an Incentive Stock Option or a Nonqualified Stock Option.
1
Optionee shall mean the person to whom an option is granted under the Plan or who
has obtained the right to exercise an option in accordance with the provisions of the Plan.
Subsidiary shall mean any now existing or hereafter organized or acquired
corporation or other entity of which fifty percent (50%) or more of the issued and
outstanding voting stock or other economic interest is owned or controlled directly or
indirectly by the Company or through one or more Subsidiaries of the Company.
Section 3. Administration
The Plan shall be administered by the Committee. The Committee shall have sole and
complete authority to adopt, alter and repeal such administrative rules, guidelines and
practices governing the operation of the Plan as it shall from time-to-time deem advisable,
and to construe, interpret and administer the terms and provisions of the Plan and the
agreements thereunder. The determinations and interpretations made by the Committee are
final and conclusive.
Section 4. Eligibility
All employees and non-employee consultants and advisors (other than non-employee
directors) of the Company or any Subsidiary who, in the opinion of the Committee, have the
capacity for contributing in a substantial measure to the successful performance of the
Company are eligible to receive Options under the Plan.
Section 5. Maximum Amount Available for Options
(a) The maximum number of shares of Common Stock in respect of which Options may be
made under the Plan shall be a total of 5.0 million shares of Common Stock. Of that amount,
no participant may be granted Options for more than 2.4 million shares of Common Stock in
the aggregate during the term of the Plan. No more than 2.4 million shares of Common Stock
in the aggregate during the term of the Plan may be issued pursuant to Incentive Stock
Options. Shares of Common Stock may be made available from the authorized but unissued
shares of the Company or from shares reacquired by the Company, including shares purchased
in the open market. In the event that an Option is terminated unexercised as to any shares
of Common Stock covered thereby, such shares shall thereafter be again available for award
pursuant to the Plan.
(b) In the event that the Committee shall determine that any stock dividend,
recapitalization, reorganization, merger, consolidation, split-up, spin-off, combination,
exchange of shares, warrants or rights offering to purchase Common Stock at a price
substantially below fair market value, or other similar corporate event affects the Common
Stock such that an adjustment is required in order to preserve the benefits or potential
benefits intended to be made available under the Plan, then the Committee shall adjust
appropriately any or all of (1) the number and kind of shares which thereafter may be
optioned under the Plan and (2) the grant, exercise or conversion price and/or number of
shares with respect to the Options and/or, if deemed appropriate, make provision for cash
payment to an Optionee; provided, however, that the number of shares subject to any Option
shall always be a whole number.
Section 6. Stock Options
(a) Subject to the provisions of the Plan, the Committee shall have sole and complete
authority to determine the persons to whom Options shall be granted, the number of shares
to be covered by each Option, the option price therefor and the conditions and limitations
applicable to the exercise of the Option.
2
(b) The Committee shall have the authority to grant Incentive Stock Options, or to
grant Nonqualified Stock Options, or to grant both types of options. In the case of
Incentive Stock Options, the terms and conditions of such grants shall be subject to and
comply with the Code and relevant regulations. Incentive Stock Options to purchase Common
Stock may be granted to such employees of the Company or its Subsidiaries (including any
director who is also an employee of the Company or one of its Subsidiaries) as shall be
determined by the Committee. Nonqualified Stock Options to purchase Common Stock may be
granted to such eligible participants as shall be determined by the Committee. Neither the
Company nor any of its Subsidiaries or any of their respective directors, officers or
employees, shall be liable to any Optionee or other person if it is determined for any
reason by the Internal Revenue Service or any court having jurisdiction that any Incentive
Stock Option granted hereunder does not qualify for tax treatment as an Incentive Stock
Option under the then-applicable provisions of the Code.
(c) The Committee shall, in its discretion, establish the exercise price at the time
each Option is granted, which in the case of Nonqualified Stock Options, shall not be less
than 100% of the Fair Market Value of the Common Stock on the Date of Grant, or in the case
of grants of Incentive Stock Options, shall not be less than 100% of the Fair Market Value
of the Common Stock on the Date of Grant or such greater amount as may be prescribed by the
Code.
(d) Exercise
(1) Each Option shall be exercisable at such times and subject to such terms
and conditions as the Committee may, in its sole discretion, specify in the
applicable grant or thereafter; provided, however, that in no event may any Option
granted hereunder be exercisable after the expiration of ten years from the Date of
Grant. The Committee may impose such conditions with respect to the exercise of
Options, including without limitation, any relating to the application of federal or
state securities laws, as it may deem necessary or advisable.
(2) No shares shall be delivered pursuant to any exercise of an Option until
payment in full of the option price therefore is received by the Company. Such
payment may be made in cash, or its equivalent, or, if and to the extent permitted
by the Committee or under the terms of the applicable agreement, by exchanging shares of Common Stock owned by the Optionee (which are not the subject of any
pledge or other security interest), or by a combination of the foregoing, provided
that the combined value of all cash and cash equivalents and the Fair Market Value
of any such Common Stock so tendered to the Company, valued as of the date of such
tender, is at least equal to such option price.
If the shares to be purchased are covered by an effective registration statement under
the Securities Act of 1933, as amended, any Option may be exercised by a broker-dealer
acting on behalf of an Optionee if (a) the broker-dealer has received from the Optionee
instructions signed by the Optionee requesting the Company to deliver the shares of Common
Stock subject to such Option to the broker-dealer on behalf of the Optionee and specifying
the account into which such shares should be deposited, (b) adequate provision has been
made with respect to the payment of any withholding taxes due upon such exercise, and (c)
the broker-dealer and the Optionee have otherwise complied with Section 220.3(e)(4) of
Regulation T, 12 CFR Part 220, or any successor provision.
(3) The Company, in its sole discretion, may lend money to an Optionee,
guarantee a loan to an Optionee or otherwise assist an Optionee to obtain the cash
necessary to exercise all or any portion of an Option granted under the Plan.
3
(4) The Company shall not be required to issue any fractional shares upon the
exercise of any Options granted under this Plan. No Optionee nor an Optionees legal
representatives, legatees or distributees, as the case may be, will be, or will be
deemed to be, a holder of any shares subject to an Option unless and until said
Option has been exercised and the purchase price of the shares in respect of which
the Option has been exercised has been paid. Unless otherwise provided in the
agreement applicable thereto, an Option shall not be exercisable except by the
Optionee or by a person who has obtained the Optionees rights under the Option by
will or under the laws of descent and distribution or pursuant to a qualified
domestic relations order as defined in the Code.
(e) No Incentive Stock Options shall be exercisable (a) more than five years (or such
other period of time as from time-to-time provided in the then-applicable provisions of the
Code governing Incentive Stock Options) after the Date of Grant with respect to an Optionee
who owns ten percent or more of the outstanding Common Stock (within the meaning of the
Code), and (b) more than ten years after the Date of Grant with respect to all other
Optionees. No Nonqualified Stock Options shall be exercisable more than ten years after the
Date of Grant.
(f) In no event shall any Option granted to any employee who is classified as
non-exempt under the Fair Labor Standards Act of 1938 be exercisable less than six months
after the Date of Grant, except in the case of death, disability, retirement, a change in
control or other circumstances permitted by regulations under the Worker Economic
Opportunity Act (WEOA). Grants to such non-exempt employees shall not be based on
pre-established performance criteria, except as specifically permitted under the WEOA. Non-exempt employees shall be notified of the terms of their Options in accordance with the
WEOA, and exercise of such Options must be voluntary.
Section 7. General Provisions
(a) The Company and its Subsidiaries shall have the right to deduct from all amounts
paid to an Optionee in cash (whether under the Plan or otherwise) any taxes required by law
to be withheld in respect of Option exercises under the Plan. However, if permitted by the
Committee or under the terms of the applicable agreement, the Optionee may pay all or any
portion of the taxes required to be withheld by the Company or its Subsidiaries or paid by
the Optionee with respect to such Common Stock by electing to have the Company or its
Subsidiaries withhold shares of Common Stock, or by delivering previously owned shares of
Common Stock, having a Fair Market Value equal to the amount required to be withheld or
paid. The Optionee must make the foregoing election on or before the date that the amount
of tax to be withheld is determined. Any such election is irrevocable and subject to
disapproval by the Committee. If the Optionee is subject to the provisions of Section 16(b)
of the Exchange Act, then any such election shall be subject to the restrictions imposed by
applicable rules and regulations.
(b) Each Option hereunder shall be evidenced in writing, delivered to the Optionee,
and shall specify the terms and conditions thereof and any rules applicable thereto,
including, but not limited to, the effect on such Option of the death, retirement,
disability or other termination of employment of the Optionee and the effect thereon, if
any, of a change in control of the Company.
(c) Unless otherwise provided in the agreement applicable thereto, no Option shall be
assignable or transferable except by will or under the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined in the Code, and no right or
interest of any Optionee shall be subject to any lien, obligation or liability of the
Optionee.
4
(d) No person shall have any claim or right to be granted an Option. Further, the
Company and its Subsidiaries expressly reserve the right at any time to terminate the
employment of an Optionee free from any liability, or any claim under the Plan, except as
provided in any agreement entered into with respect to an Option. Neither the Plan nor any
Option granted hereunder is intended to confer upon any Optionee any rights with respect to
continuance of employment or other utilization of his or her services by the Company or by
a Subsidiary, nor to interfere in any way with his or her right or that of his or her
employer to terminate his or her employment or other services at any time (subject to the
terms of any applicable contract). The conditions to apply to the exercise of an Option in
the event an Optionee ceases to be employed by the Company or a Subsidiary for any reason
shall be determined by the Committee or specified in the written agreement evidencing the
Option.
(e) Subject to the provisions of the applicable Option, no Optionee or Designated
Beneficiary shall have any rights as a stockholder with respect to any shares of Common
Stock to be distributed under the Plan until he or she has become the holder thereof.
(f) The validity, construction, interpretation, administration and effect of the Plan
and of its rules and regulations, and rights relating to the Plan, shall be determined
solely in accordance with the laws of the State of Texas (without giving effect to its
conflicts of laws rules) and, to the extent applicable, federal law.
(g) The Plan was originally effective on May 6, 2004. No Options may be granted under
the Plan after May 6, 2014; however, all previous Options issued that have not expired
under their original terms or will not then expire at the time the Plan expires will remain
outstanding.
(h) Restrictions on Issuance of Shares
(1) The Company shall not be obligated to sell or issue any Shares upon the
exercise of any Option granted under the Plan unless: (i) the shares pertaining to
such Option have been registered under applicable federal and state securities laws
or are exempt from such registration; (ii) the prior approval of such sale or
issuance has been obtained from any state regulatory body having jurisdiction; and
(iii) in the event the Common Stock has been listed on any exchange, the shares
pertaining to such Option have been duly listed on such exchange in accordance with
the procedure specified therefor. The Company shall be under no obligation to effect
or obtain any listing, registration, qualification, consent or approval with respect
to shares pertaining to any Option granted under the Plan. If the shares to be
issued upon the exercise of any Option granted under the Plan are intended to be
issued by the Company in reliance upon the exemptions from the registration
requirements of applicable federal and state securities laws, the recipient of the
Option, if so requested by the Company, shall furnish to the Company such evidence
and representations, including an opinion of counsel, satisfactory to it, as the
Company may reasonably request.
(2) The Company shall not be liable for damages due to a delay in the delivery
or issuance of any stock certificates for any reason whatsoever, including, but not
limited to, a delay caused by listing, registration or qualification of the shares
of Common Stock pertaining to any Option granted under the Plan upon any securities
exchange or under any federal or state law or the effecting or obtaining of any
consent or approval of any governmental body.
(i) The Board of Directors or Committee may impose such other restrictions on the
ownership and transfer of shares issued pursuant to the Plan as it deems desirable; any
such restrictions shall be set forth in the applicable agreement.
5
(j) The Board of Directors may amend, abandon, suspend or terminate the Plan or any
portion thereof at any time in such respects as it may deem advisable in its sole
discretion, provided that no amendment shall be made without stockholder approval
(including an increase in the maximum number of shares of Common Stock in respect of which
Options may be made under the Plan) if such stockholder approval is necessary to comply
with any tax or regulatory requirement or exchange listing rules, including for these
purposes any approval requirement that is a prerequisite for exemptive relief under Section
16(b) of the Exchange Act.
(k) To preserve an Optionees rights under an Option in the event of a change in
control of the Company or an Optionees separation from employment, the Committee in its
discretion may, at the time an Option is made or any time thereafter, take one or more of
the following actions: (i) provide for the acceleration of any time period relating to the
exercise of the Option, (ii) provide for the purchase of the Option, upon the Optionees
request, for an amount of cash or other property that could have been received upon the
exercise or realization of the Option had the Option been currently exercisable or payable,
(iii) adjust the terms of the Option in a manner determined by the Committee to reflect the
change in control or to prevent the imposition of an excise tax under section 280G(b) of
the Code, (iv) cause the Option to be assumed, or new rights substituted therefor, by
another entity, or (v) make such other provision as the Committee may consider equitable
and in the best interests of the Company.
(l) Without limiting the generality of the authority given the Committee elsewhere in the
Plan, the Committee in its discretion has the authority to amend an outstanding option from
time-to-time, as follows:
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(i)
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to provide for the acceleration of the vesting of the Option in the event of a
change in control of the Company or in connection with an Optionees separation from
employment with the Company or other separation from service with the Company;
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(ii)
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to provide for one or more stated periods of time to exercise vested options
following the Optionees separation from employment with the Company or other
separation from service with the Company; or
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(iii)
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to provide for such other changes as the Committee may, in its discretion,
determine to be appropriate.
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IN WITNESS WHEREOF, the Company has caused this Plan to be amended and restated and
executed on its behalf as of the 7th day of June 2007.
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Zix Corporation
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By:
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/s/ Ronald A. Woessner
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Title:
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SVP
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Date:
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6/7/07
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6
Exhibit 10.4
ZIX CORPORATION 2003 NEW EMPLOYEE STOCK OPTION PLAN
(Amended and Restated as of June 7, 2007)
S
ection
1. Purpose
The purpose of the Zix Corporation 2003 New Employee Stock Option Plan (hereinafter called the
Plan) is to advance the interests of Zix Corporation (hereinafter called the Company) by
strengthening the ability of the Company to attract, on its behalf and on behalf of its
Subsidiaries (as hereinafter defined), personnel of high caliber through encouraging a sense of
proprietorship by means of stock ownership. The Plan, as written and as administered by the
Committee, is intended to comply with NASD Rule 4350(i)(1)(A)(iv), which provides that shareholder
approval is not required for issuer equity issuances to certain employees.
S
ection
2. Definitions
Board of Directors shall mean the Board of Directors of the Company.
Code shall mean the Internal Revenue Code of 1986, as amended from time-to-time.
Committee shall mean a committee of the Board of Directors comprised of a majority of
Independent Directors or a majority of the Companys Independent Directors, as the case may be.
Common Stock shall mean the Common Stock of the Company, par value $.01 per share.
Date of Grant shall mean the date on which an Option is granted pursuant to this Plan.
Exchange Act shall mean the Securities Exchange Act of 1934, as amended.
Fair Market Value shall mean the closing sale price (or average of the quoted closing bid
and asked prices if there is no closing sale price reported) of the Common Stock on the date
specified as reported by the Nasdaq National Market, or by the principal national stock exchange on
which the Common Stock is then listed. If there is no reported price information for such date,
the Fair Market Value will be determined by the reported price information for Common Stock on the
day nearest preceding such date.
Independent Director shall have the meaning given such term in NASDAQ Rule 4200(a)(14).
Nonqualified Stock Option shall mean a stock option granted under Section 6 that is not
intended to be an incentive stock option.
Option shall mean an option granted under the Plan.
Optionee shall mean the person to whom an option is granted under the Plan or who has
obtained the right to exercise an option in accordance with the provisions of the Plan.
Subsidiary shall mean any now existing or hereafter organized or acquired corporation or
other entity of which fifty percent (50%) or more of the issued and outstanding voting stock or
other economic interest is owned or controlled directly or indirectly by the Company or through one
or more Subsidiaries of the Company.
1
S
ection
3. Administration
The Plan shall be administered by the Committee. The Committee shall have sole and complete
authority to adopt, alter and repeal such administrative rules, guidelines and practices governing
the operation of the Plan as it shall from time-to-time deem advisable, and to construe, interpret
and administer the terms and provisions of the Plan and the agreements thereunder. The
determinations and interpretations made by the Committee are final and conclusive.
S
ection
4. Eligibility
The following persons are eligible to receive options under the Plan: employees (other than
officers or directors) of the Company or a Subsidiary that were not previously an employee or
director of the Company or a Subsidiary, or if previously such, have experienced a bona fide period
of non-employment with the Company and its Subsidiaries, in each case, if the option grant is in
connection with such person entering into employment with the Company or a Subsidiary and is
offered to them as an inducement for them to enter into such employment.
S
ection
5. Maximum Amount Available for Options
(a) The maximum number of shares of Common Stock in respect of which Options may be made under
the Plan shall be a total of 500,000 shares of Common Stock. Options that expire, lapse or are
cancelled or forfeited nonetheless continue to count against the 500,000 share limit. Shares of
Common Stock may be made available from the authorized but unissued shares of the Company or from
shares reacquired by the Company, including shares purchased in the open market. In the event that
an Option is terminated unexercised as to any shares of Common Stock covered thereby, such shares
shall thereafter be again available for award pursuant to the Plan.
(b) In the event that the Committee shall determine that any stock dividend, recapitalization,
reorganization, merger, consolidation, split-up, spin-off, combination, exchange of shares,
warrants or rights offering to purchase Common Stock at a price substantially below fair market
value, or other similar corporate event affects the Common Stock such that an adjustment is
required in order to preserve the benefits or potential benefits intended to be made available
under the Plan, then the Committee shall adjust appropriately any or all of (1) the number and kind
of shares which thereafter may be optioned under the Plan and (2) the grant, exercise or conversion
price and/or number of shares with respect to the Options and/or, if deemed appropriate, make
provision for cash payment to an Optionee;
provided
,
however
, that the number of
shares subject to any Option shall always be a whole number.
Section
6. Stock Options
(a) Subject to the provisions of the Plan, the Committee shall have sole and complete
authority to determine the persons to whom Options shall be granted, the number of shares to be
covered by each Option, the option price therefor and the conditions and limitations applicable to
the exercise of the Option.
(b) The Committee shall have the authority to grant Nonqualified Stock Options only.
Nonqualified Stock Options to purchase Common Stock may be granted to such eligible participants as
shall be determined by the Committee.
(c) The Committee shall, in its discretion, establish the exercise price at the time each
Option is granted, which in the case of Nonqualified Stock Options, shall not be less than 100% of
the Fair Market Value of the Common Stock on the Date of Grant. The exercise price of any
outstanding Options may not be repriced without the approval of the Companys stockholders
(obtained in accordance with applicable law), given in each specified instance.
2
(d) Exercise
(1) Each Option shall be exercisable at such times and subject to such terms and
conditions as the Committee may, in its sole discretion, specify in the applicable grant or
thereafter;
provided
,
however
, that in no event may any Option granted
hereunder be exercisable after the expiration of ten years from the Date of Grant, unless
otherwise permitted by the Committee. The Committee may impose such conditions with respect
to the exercise of Options, including without limitation, any relating to the application of
federal or state securities laws, as it may deem necessary or advisable.
(2) No shares shall be delivered pursuant to any exercise of an Option until payment in
full of the option price therefore is received by the Company. Such payment may be made in
cash, or its equivalent, or, if and to the extent permitted by the Committee or under the
terms of the applicable agreement, by exchanging shares of Common Stock owned by the
Optionee (which are not the subject of any pledge or other security interest), or by a
combination of the foregoing, provided that the combined value of all cash and cash
equivalents and the Fair Market Value of any such Common Stock so tendered to the Company,
valued as of the date of such tender, is at least equal to such option price.
If the shares to be purchased are covered by an effective registration statement under
the Securities Act of 1933, as amended, any Option may be exercised by a broker-dealer
acting on behalf of an Optionee if (a) the broker-dealer has received from the Optionee
instructions signed by the Optionee requesting the Company to deliver the shares of Common
Stock subject to such Option to the broker-dealer on behalf of the Optionee and specifying
the account into which such shares should be deposited, (b) adequate provision has been made
with respect to the payment of any withholding taxes due upon such exercise, and (c) the
broker-dealer and the Optionee have otherwise complied with Section 220.3(e)(4) of
Regulation T, 12 CFR Part 220, or any successor provision.
(3) The Company, in its sole discretion, may lend money to an Optionee, guarantee a
loan to an Optionee or otherwise assist an Optionee to obtain the cash necessary to exercise
all or any portion of an Option granted under the Plan.
(4) The Company shall not be required to issue any fractional shares upon the exercise
of any Options granted under this Plan. No Optionee nor an Optionees legal
representatives, legatees or distributees, as the case may be, will be, or will be deemed to
be, a holder of any shares subject to an Option unless and until said Option has been
exercised and the purchase price of the shares in respect of which the Option has been
exercised has been paid. Unless otherwise provided in the agreement applicable thereto, an
Option shall not be exercisable except by the Optionee or by a person who has obtained the
Optionees rights under the Option by will or under the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined in the Code.
(e) In no event shall any Option granted to any employee who is classified as non-exempt
under the Fair Labor Standards Act of 1938 be exercisable less than six months after the Date of
Grant, except in the case of death, disability, retirement, a change in control or other
circumstances permitted by regulations under the Worker Economic Opportunity Act (WEOA). Grants
to such non-exempt employees shall not be based on pre-established performance criteria, except as
specifically permitted under the WEOA. Non-exempt employees shall be notified of the terms of
their Options in accordance with the WEOA, and exercise of such Options must be voluntary.
3
S
ection
7. General Provisions
(a) The Company and its Subsidiaries shall have the right to deduct from all amounts paid to
an Optionee in cash (whether under the Plan or otherwise) any taxes required by law to be withheld
in respect of Option exercises under the Plan. However, if permitted by the Committee or under the
terms of the applicable agreement, the Optionee may pay all or any portion of the taxes required to
be withheld by the Company or its Subsidiaries or paid by the Optionee with respect to such Common
Stock by electing to have the Company or its Subsidiaries withhold shares of Common Stock, or by
delivering previously owned shares of Common Stock, having a Fair Market Value equal to the amount
required to be withheld or paid. The Optionee must make the foregoing election on or before the
date that the amount of tax to be withheld is determined. Any such election is irrevocable and
subject to disapproval by the Committee.
(b) Each Option hereunder shall be evidenced in writing, delivered to the Optionee, and shall
specify the terms and conditions thereof and any rules applicable thereto, including, but not
limited to, the effect on such Option of the death, retirement, disability or other termination of
employment of the Optionee and the effect thereon, if any, of a change in control of the Company.
(c) Unless otherwise provided in the agreement applicable thereto, no Option shall be
assignable or transferable except by will or under the laws of descent and distribution or pursuant
to a qualified domestic relations order as defined in the Code, and no right or interest of any
Optionee shall be subject to any lien, obligation or liability of the Optionee.
(d) No person shall have any claim or right to be granted an Option. Further, the Company and
its Subsidiaries expressly reserve the right at any time to terminate the employment of an Optionee
free from any liability, or any claim under the Plan. Neither the Plan nor any Option granted
hereunder is intended to confer upon any Optionee any rights with respect to continuance of
employment or other utilization of his or her services by the Company or by a Subsidiary, nor to
interfere in any way with his or her right or that of his or her employer to terminate his or her
employment or other services at any time. The conditions to apply to the exercise of an Option in
the event an Optionee ceases to be employed by the Company or a Subsidiary for any reason shall be
determined by the Committee or specified in the written agreement evidencing the Option.
(e) Subject to the provisions of the applicable Option, no Optionee or permitted assignee
shall have any rights as a stockholder with respect to any shares of Common Stock to be distributed
under the Plan until he or she has become the holder thereof.
(f) The validity, construction, interpretation, administration and effect of the Plan and of
its rules and regulations, and rights relating to the Plan, shall be determined solely in
accordance with the laws of the State of Texas (without giving effect to its conflicts of laws
rules) and, to the extent applicable, federal law.
(g) Restrictions on Issuance of Shares
(1) The Company shall not be obligated to sell or issue any Shares upon the exercise of
any Option granted under the Plan unless: (i) the shares pertaining to such Option have been
registered under applicable federal and state securities laws or are exempt from such
registration; (ii) the prior approval of such sale or issuance has been obtained from any
state regulatory body having jurisdiction; and (iii) in the event the Common Stock has been
listed on any exchange, the shares pertaining to such Option have been duly listed on such
exchange in accordance with the procedure specified therefor. The Company shall be under no
obligation to effect or obtain any listing, registration, qualification, consent or approval
with respect to shares pertaining to any
4
Option granted under the Plan. If the shares to be issued upon the exercise of any Option
granted under the Plan are intended to be issued by the Company in reliance upon the
exemptions from the registration requirements of applicable federal and state securities
laws, the recipient of the Option, if so requested by the Company, shall furnish to the
Company such evidence and representations, including an opinion of counsel, satisfactory to
it, as the Company may reasonably request.
(2) The Company shall not be liable for damages due to a delay in the delivery or
issuance of any stock certificates for any reason whatsoever, including, but not limited to,
a delay caused by listing, registration or qualification of the shares of Common Stock
pertaining to any Option granted under the Plan upon any securities exchange or under any
federal or state law or the effecting or obtaining of any consent or approval of any
governmental body.
(h) The Board of Directors or Committee may impose such other restrictions on the ownership
and transfer of shares issued pursuant to the Plan as it deems desirable; any such restrictions
shall be set forth in the applicable agreement.
(i) The Board of Directors may amend, abandon, suspend or terminate the Plan or any portion
thereof at any time in such respects as it may deem advisable in its sole discretion, provided that
no amendment shall be made without stockholder approval if such stockholder approval is necessary
to comply with any tax or regulatory requirement or listing rules. The Plan has not been submitted
for stockholder approval.
(j) To preserve an Optionees rights under an Option in the event of a change in control of
the Company or an Optionees separation from employment, the Committee in its discretion may, at
the time an Option is made or any time thereafter, take one or more of the following actions: (i)
provide for the acceleration of any time period relating to the exercise of the Option, (ii)
provide for the purchase of the Option, upon the Optionees request, for an amount of cash or other
property that could have been received upon the exercise or realization of the Option had the
Option been currently exercisable or payable, (iii) adjust the terms of the Option in a manner
determined by the Committee to reflect the change in control or to prevent the imposition of an
excise tax under section 280G(b) of the Code, (iv) cause the Option to be assumed, or new rights
substituted therefor, by another entity, or (v) make such other provision as the Committee may
consider equitable and in the best interests of the Company.
(k) Without limiting the generality of the authority given the Committee elsewhere in the
Plan, the Committee in its discretion has the authority to amend an outstanding option from
time-to-time, as follows:
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(i)
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to provide for the acceleration of the vesting of the Option in the event of a
change in control of the Company or in connection with an Optionees separation from
employment with the Company or other separation from service with the Company;
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(ii)
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to provide for one or more stated periods of time to exercise vested options
following the Optionees separation from employment with the Company or other
separation from service with the Company; or
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(iii)
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to provide for such other changes as the Committee may, in its discretion,
determine to be appropriate.
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5
IN WITNESS WHEREOF, the Company has caused the Plan to be executed on its behalf as of the
7
th
day of June 2007.
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ZIX CORPORATION
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By:
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/s/ Ronald A. Woessner
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Title:
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SVP
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Date:
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6/7/07
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6
Exhibit 10.5
ZIX CORPORATION 2001 STOCK OPTION PLAN
(Amended and Restated as of June 7, 2007)
SECTION 1.
Purpose
. The purpose of the Zix Corporation 2001 Stock Option Plan (hereinafter
called the 2001 Plan) is to advance the interests of Zix Corporation (hereinafter called the
Company) by strengthening the ability of the Company to attract, on its behalf and on behalf of
its Subsidiaries (as hereinafter defined), and retain personnel of high caliber through encouraging
a sense of proprietorship by means of stock ownership.
SECTION 2.
Definitions
.
Board of Directors shall mean the Board of Directors of the Company.
Code shall mean the Internal Revenue Code of 1986, as amended from time-to-time.
Committee shall mean a committee of the Board of Directors comprised of at least two
directors or the entire Board of Directors, as the case may be. Members of the Committee shall be
selected by the Board of Directors. To the extent necessary to comply with the requirements of Rule
16b-3, the Committee shall consist of two or more Non-employee Directors. Also, if the requirements
of §162(m) of the Code are intended to be met, the Committee shall consist of two or more outside
directors within the meaning of §162(m) of the Code.
Common Stock shall mean the Common Stock of the Company, par value $.01 per share.
Date of Grant shall mean the date on which an Option is granted pursuant to this 2001 Plan.
Designated Beneficiary shall mean the beneficiary designated by the Optionee, in a manner
determined by the Committee, to receive amounts due the Optionee in the event of the Optionees
death. In the absence of an effective designation by the Optionee, Designated Beneficiary shall
mean the Optionees estate.
Exchange Act shall mean the Securities Exchange Act of 1934, as amended.
Fair Market Value shall mean the closing sale price (or average of the quoted closing bid
and asked prices if there is no closing sale price reported) of the Common Stock on the date
specified as reported by The Nasdaq Stock Market, or by the principal national stock exchange on
which the Common Stock is then listed. If there is no reported price information for such date, the
Fair Market Value will be determined by the reported price information for Common Stock on the day
nearest preceding such date.
Incentive Stock Option shall mean a stock option granted under Section 6 that is intended to
meet the requirements of Section 422 of the Code (or any successor provision).
Non-employee Director shall have the meaning given such term in Rule 16b-3.
Nonqualified Stock Option shall mean a stock option granted under Section 6 that is not
intended to be an Incentive Stock Option.
Option shall mean an Incentive Stock Option or a Nonqualified Stock Option.
Optionee shall mean the person to whom an option is granted under the 2001 Plan or who has
1
obtained the right to exercise an option in accordance with the provisions of the 2001 Plan.
Rule 16b-3 shall mean Rule 16b-3 of the rules and regulations under the Exchange Act as it
may be amended from time-to-time and any successor provision to Rule 16b-3 under the Exchange Act.
Subsidiary shall mean any now existing or hereafter organized or acquired corporation or
other entity of which fifty percent (50%) or more of the issued and outstanding voting stock or
other economic interest is owned or controlled directly or indirectly by the Company or through one
or more Subsidiaries of the Company.
SECTION 3.
Administration
. The 2001 Plan shall be administered by the Committee. The
Committee shall have sole and complete authority to adopt, alter and repeal such administrative
rules, guidelines and practices governing the operation of the 2001 Plan as it shall from
time-to-time deem advisable, and to construe, interpret and administer the terms and provisions of
the 2001 Plan and the agreements thereunder. The determinations and interpretations made by the
Committee are final and conclusive.
SECTION 4.
Eligibility
. All employees and non-employee consultants and advisors (other than
Non-employee Directors) who, in the opinion of the Committee, have the capacity for contributing in
a substantial measure to the successful performance of the Company are eligible to receive Options
under the 2001 Plan.
SECTION 5.
Maximum Amount Available for Options
.
(a) The maximum number of shares of Common Stock in respect of which Options may be made under
the 2001 Plan shall be a total of 2,525,000 shares of Common Stock. Of that amount, no participant
may be granted Options for more than 1,000,000 shares of Common Stock in the aggregate during the
term of the 2001 Plan. Options that expire, lapse or are cancelled or forfeited do not count
against theses share limits. Shares of Common Stock may be made available from the authorized but
unissued shares of the Company or from shares reacquired by the Company, including shares purchased
in the open market. In the event that an Option is terminated unexercised as to any shares of
Common Stock covered thereby, such shares shall thereafter be again available for award pursuant to
the 2001 Plan.
(b) In the event that the Committee shall determine that any stock dividend, recapitalization,
reorganization, merger, consolidation, split-up, spin-off, combination, exchange of shares,
warrants or rights offering to purchase Common Stock at a price substantially below fair market
value, or other similar corporate event affects the Common Stock such that an adjustment is
required in order to preserve the benefits or potential benefits intended to be made available
under the 2001 Plan, then the Committee shall adjust appropriately any or all of (1) the number and
kind of shares which thereafter may be optioned under the 2001 Plan and (2) the grant, exercise or
conversion price and/or number of shares with respect to the Options and/or, if deemed appropriate,
make provision for cash payment to an Optionee;
provided
,
however
, that the number
of shares subject to any Option shall always be a whole number.
SECTION 6.
Stock Options
.
(a) Subject to the provisions of the 2001 Plan, the Committee shall have sole and complete
authority to determine the persons to whom Options shall be granted, the number of shares to be
covered by each Option, the option price therefor and the conditions and limitations applicable to
the exercise of the Option.
(b) The Committee shall have the authority to grant Incentive Stock Options, or to grant
Nonqualified Stock Options, or to grant both types of options. In the case of Incentive Stock
Options, the terms and
2
conditions of such grants shall be subject to and comply with the Code and
relevant regulations. Incentive Stock Options to purchase Common Stock may be granted to such
employees of the Company or its Subsidiaries (including any director who is also an employee of the
Company or one of its Subsidiaries) as shall be determined by the Committee. Nonqualified Stock
Options to purchase Common Stock may be granted to such eligible participants as shall be
determined by the Committee. Neither the Company nor any of its Subsidiaries or any of their
respective directors, officers or employees, shall be liable to any Optionee or other person if it
is determined for any reason by the Internal Revenue Service or any court having jurisdiction that
any Incentive Stock Option granted hereunder does not qualify for tax treatment as an Incentive
Stock Option under the then-applicable provisions of the Code.
(c) The Committee shall, in its discretion, establish the exercise price at the time each
Option is granted, which in the case of Nonqualified Stock Options, shall not be less than 100% of
the Fair Market Value of the Common Stock on the Date of Grant, or in the case of grants of
Incentive Stock Options, shall not be less than 100% of the Fair Market Value of the Common Stock
on the Date of Grant or such greater amount as may be prescribed by the Code.
(d) Exercise
(1) Each Option shall be exercisable at such times and subject to such terms and conditions
as the Committee may, in its sole discretion, specify in the applicable grant or thereafter;
provided
,
however
, that in no event may any Option granted hereunder be
exercisable after the expiration of ten years from the Date of Grant. The Committee may impose
such conditions with respect to the exercise of Options, including without limitation, any
relating to the application of federal or state securities laws, as it may deem necessary or
advisable.
(2) No shares shall be delivered pursuant to any exercise of an Option until payment in
full of the option price therefore is received by the Company. Such payment may be made in cash,
or its equivalent, or, if and to the extent permitted by the Committee or under the terms of the
applicable agreement, by exchanging shares of Common Stock owned by the Optionee (which are not
the subject of any pledge or other security interest), or by a combination of the foregoing,
provided that the combined value of all cash and cash equivalents and the Fair Market Value of
any such Common Stock so tendered to the Company, valued as of the date of such tender, is at
least equal to such option price.
If the shares to be purchased are covered by an effective registration statement under the
Securities Act of 1933, as amended, any Option may be exercised by a broker-dealer acting on
behalf of an Optionee if (a) the broker-dealer has received from the Optionee instructions signed
by the Optionee requesting the Company to deliver the shares of Common Stock subject to such
Option to the broker-dealer on behalf of the Optionee and specifying the account into which such shares should be deposited, (b) adequate provision has been made with respect to the payment of
any withholding taxes due upon such exercise, and (c) the broker-dealer and the Optionee have
otherwise complied with Section 220.3(e)(4) of Regulation T, 12 CFR Part 220, or any successor
provision.
(3) The Company, in its sole discretion, may lend money to an Optionee, guarantee a loan to
an Optionee or otherwise assist an Optionee to obtain the cash necessary to exercise all or any
portion of an Option granted under the 2001 Plan.
(4) The Company shall not be required to issue any fractional shares upon the exercise of
any Options granted under this 2001 Plan. No Optionee nor an Optionees legal representatives,
legatees or distributees, as the case may be, will be, or will be deemed to be, a holder of any shares subject to an Option unless and until said Option has been exercised and the purchase
price of the shares in respect
3
of which the Option has been exercised has been paid. Unless otherwise provided in the agreement applicable thereto, an Option shall not be exercisable
except by the Optionee or by a person who has obtained the Optionees rights under the Option by
will or under the laws of descent and distribution or pursuant to a qualified domestic
relations order as defined in the Code.
(e) No Incentive Stock Options shall be exercisable (a) more than five years (or such other
period of time as from time-to-time provided in the then-applicable provisions of the Code
governing Incentive Stock Options) after the Date of Grant with respect to an Optionee who owns ten
percent or more of the outstanding Common Stock (within the meaning of the Code), and (b) more than
ten years after the Date of Grant with respect to all other Optionees. No Nonqualified Stock
Options shall be exercisable more than ten years after the Date of Grant.
(f) In no event shall any Option granted to any employee who is classified as non-exempt
under the Fair Labor Standards Act of 1938 be exercisable less than six months after the Date of
Grant, except in the case of death, disability, retirement, a change in control or other
circumstances permitted by regulations under the Worker Economic Opportunity Act (WEOA). Grants
to such non-exempt employees shall not be based on pre-established performance criteria, except as
specifically permitted under the WEOA. Non- exempt employees shall be notified of the terms of
their Options in accordance with the WEOA, and exercise of such Options must be voluntary.
SECTION 7.
General Provisions
.
(a) The Company and its Subsidiaries shall have the right to deduct from all amounts paid to
an Optionee in cash (whether under the 2001 Plan or otherwise) any taxes required by law to be
withheld in respect of Option exercises under the 2001 Plan. However, if permitted by the Committee
or under the terms of the applicable agreement, the Optionee may pay all or any portion of the
taxes required to be withheld by the Company or its Subsidiaries or paid by the Optionee with
respect to such Common Stock by electing to have the Company or its Subsidiaries withhold shares of
Common Stock, or by delivering previously owned shares of Common Stock, having a Fair Market Value
equal to the amount required to be withheld or paid. The Optionee must make the foregoing election
on or before the date that the amount of tax to be withheld is determined. Any such election is
irrevocable and subject to disapproval by the Committee. If the Optionee is subject to the
provisions of Section 16(b) of the Exchange Act, then any such election shall be subject to the
restrictions imposed by Rule 16b-3.
(b) Each Option hereunder shall be evidenced in writing, delivered to the Optionee, and shall
specify the terms and conditions thereof and any rules applicable thereto, including, but not
limited to, the effect on such Option of the death, retirement, disability or other termination of
employment of the Optionee and the effect thereon, if any, of a change in control of the Company.
(c) Unless otherwise provided in the agreement applicable thereto, no Option shall be
assignable or transferable except by will or under the laws of descent and distribution or pursuant
to a qualified domestic relations order as defined in the Code, and no right or interest of any
Optionee shall be subject to any lien, obligation or liability of the Optionee.
(d) No person shall have any claim or right to be granted an Option. Further, the Company and
its Subsidiaries expressly reserve the right at any time to terminate the employment of an Optionee
free from any liability, or any claim under the 2001 Plan, except as provided in any agreement
entered into with respect to an Option. Neither the 2001 Plan nor any Option granted hereunder is intended to
confer upon any Optionee any rights with respect to continuance of employment or other utilization
of his or her services by the Company or by a Subsidiary, nor to interfere in any way with his or
her right or that of his or her employer to terminate his or her employment or other services at
any time (subject to the terms of any applicable contract). The conditions to apply to the exercise
of an Option in the event an Optionee
4
ceases to be employed by the Company or a Subsidiary for any reason shall be determined by the Committee or specified in the written agreement evidencing the
Option.
(e) Subject to the provisions of the applicable Option, no Optionee or Designated Beneficiary
shall have any rights as a stockholder with respect to any shares of Common Stock to be distributed
under the 2001 Plan until he or she has become the holder thereof.
(f) The validity, construction, interpretation, administration and effect of the 2001 Plan and
of its rules and regulations, and rights relating to the 2001 Plan, shall be determined solely in
accordance with the laws of the State of Texas (without giving effect to its conflicts of laws
rules) and, to the extent applicable, federal law.
(g) The 2001 Plan was originally effective on May 15, 2001. No Options may be granted under
the 2001 Plan after May 14, 2011; however, all previous Options issued that have not expired under
their original terms or will not then expire at the time the 2001 Plan expires will remain
outstanding.
(h) Restrictions on Issuance of Shares
(1) The Company shall not be obligated to sell or issue any Shares upon the exercise of any
Option granted under the 2001 Plan unless: (i) the shares pertaining to such Option have been
registered under applicable federal and state securities laws or are exempt from such
registration; (ii) the prior approval of such sale or issuance has been obtained from any state
regulatory body having jurisdiction; and (iii) in the event the Common Stock has been listed on
any exchange, the shares pertaining to such Option have been duly listed on such exchange in
accordance with the procedure specified therefor. The Company shall be under no obligation to
effect or obtain any listing, registration, qualification, consent or approval with respect to shares pertaining to any Option granted under the 2001 Plan. If the shares to be issued upon the
exercise of any Option granted under the 2001 Plan are intended to be issued by the Company in
reliance upon the exemptions from the registration requirements of applicable federal and state
securities laws, the recipient of the Option, if so requested by the Company, shall furnish to
the Company such evidence and representations, including an opinion of counsel, satisfactory to
it, as the Company may reasonably request.
(2) The Company shall not be liable for damages due to a delay in the delivery or issuance
of any stock certificates for any reason whatsoever, including, but not limited to, a delay
caused by listing, registration or qualification of the shares of Common Stock pertaining to any
Option granted under the 2001 Plan upon any securities exchange or under any federal or state
law or the effecting or obtaining of any consent or approval of any governmental body.
(i) The Board of Directors or Committee may impose such other restrictions on the ownership
and transfer of shares issued pursuant to the 2001 Plan as it deems desirable; any such
restrictions shall be set forth in the applicable agreement.
(j) The Board of Directors may amend, abandon, suspend or terminate the 2001 Plan or any
portion thereof at any time in such respects as it may deem advisable in its sole discretion,
provided that no amendment shall be made without stockholder approval (including an increase in the
maximum number of shares of Common Stock in respect of which Options may be made under the 2001
Plan) if such stockholder approval is necessary to comply with any tax or regulatory requirement or exchange
listing rules, including for these purposes any approval requirement that is a prerequisite for
exemptive relief under Section 16(b) of the Exchange Act.
(k) To preserve an Optionees rights under an Option in the event of a change in control of
the Company or an Optionees separation from employment, the Committee in its discretion may, at
the time
5
an Option is made or any time thereafter, take one or more of the following actions: (i)
provide for the acceleration of any time period relating to the exercise of the Option, (ii)
provide for the purchase of the Option, upon the Optionees request, for an amount of cash or other
property that could have been received upon the exercise or realization of the Option had the
Option been currently exercisable or payable, (iii) adjust the terms of the Option in a manner
determined by the Committee to reflect the change in control or to prevent the imposition of an
excise tax under section 280G(b) of the Code, (iv) cause the Option to be assumed, or new rights
substituted therefor, by another entity, or (v) make such other provision as the Committee may
consider equitable and in the best interests of the Company.
(l) Without limiting the generality of the authority given the Committee elsewhere in the
Plan, the Committee in its discretion has the authority to amend an outstanding option from
time-to-time, as follows:
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(i)
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to provide for the acceleration of the vesting of the Option in the event of a
change in control of the Company or in connection with an Optionees separation from
employment with the Company or other separation from service with the Company;
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(ii)
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to provide for one or more stated periods of time to exercise vested options
following the Optionees separation from employment with the Company or other
separation from service with the Company; or
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(iii)
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to provide for such other changes as the Committee may, in its discretion,
determine to be appropriate.
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AMENDED AND RESTATED as of June 7, 2007.
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Zix Corporation
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By:
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/s/ Ronald A. Woessner
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Title:
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SVP
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Date:
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6/7/07
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6
Exhibit 10.6
ZIX CORPORATION 2001 EMPLOYEE STOCK OPTION PLAN
(Amended and Restated as of June 7, 2007)
S
ection
1. Purpose
The purpose of the Zix Corporation 2001 Employee Stock Option Plan (hereinafter called the
Plan) is to advance the interests of Zix Corporation (hereinafter called the Company) by
strengthening the ability of the Company to attract, on its behalf and on behalf of its
Subsidiaries (as hereinafter defined), and retain personnel of high caliber through encouraging a
sense of proprietorship by means of stock ownership.
S
ection
2. Definitions
Board of Directors shall mean the Board of Directors of the Company.
Code shall mean the Internal Revenue Code of 1986, as amended from time-to-time.
Committee shall mean a committee of the Board of Directors comprised of at least two
directors or the entire Board of Directors, as the case may be. Members of the Committee shall be
selected by the Board of Directors.
Common Stock shall mean the Common Stock of the Company, par value $.01 per share.
Date of Grant shall mean the date on which an Option is granted pursuant to this Plan.
Designated Beneficiary shall mean the beneficiary designated by the Optionee, in a manner
determined by the Committee, to receive amounts due the Optionee in the event of the Optionees
death. In the absence of an effective designation by the Optionee, Designated Beneficiary shall
mean the Optionees estate.
Exchange Act shall mean the Securities Exchange Act of 1934, as amended.
Fair Market Value shall mean the closing sale price (or average of the quoted closing bid
and asked prices if there is no closing sale price reported) of the Common Stock on the date
specified as reported by the Nasdaq National Market, or by the principal national stock exchange on
which the Common Stock is then listed. If there is no reported price information for such date,
the Fair Market Value will be determined by the reported price information for Common Stock on the
day nearest preceding such date.
Non-employee Director shall have the meaning given such term in Rule 16b-3.
Nonqualified Stock Option shall mean a stock option granted under Section 6 that is not
intended to be an incentive stock option.
Option shall mean an option granted under the Plan.
Optionee shall mean the person to whom an option is granted under the Plan or who has
obtained the right to exercise an option in accordance with the provisions of the Plan.
Rule 16b-3 shall mean Rule 16b-3 of the rules and regulations under the Exchange Act as it
may be amended from time-to-time and any successor provision to Rule 16b-3 under the Exchange Act.
1
Subsidiary shall mean any now existing or hereafter organized or acquired corporation or
other entity of which fifty percent (50%) or more of the issued and outstanding voting stock or
other economic interest is owned or controlled directly or indirectly by the Company or through one
or more Subsidiaries of the Company.
S
ection
3. Administration
The Plan shall be administered by the Committee. The Committee shall have sole and complete
authority to adopt, alter and repeal such administrative rules, guidelines and practices governing
the operation of the Plan as it shall from time-to-time deem advisable, and to construe, interpret
and administer the terms and provisions of the Plan and the agreements thereunder. The
determinations and interpretations made by the Committee are final and conclusive.
S
ection
4. Eligibility
All employees and non-employee consultants and advisors (other than officers of the Company
and members of the Board of Directors) who, in the opinion of the Committee, have the capacity for
contributing in a substantial measure to the successful performance of the Company are eligible to
receive Options under the Plan.
S
ection
5. Maximum Amount Available for Options
(a) The maximum number of shares of Common Stock in respect of which Options may be made under
the Plan shall be a total of 300,000 shares of Common Stock. Options that expire, lapse or are
cancelled or forfeited nonetheless continue to count against the 300,000 share limit. Shares of
Common Stock may be made available from the authorized but unissued shares of the Company or from
shares reacquired by the Company, including shares purchased in the open market. In the event that
an Option is terminated unexercised as to any shares of Common Stock covered thereby, such shares
shall thereafter be again available for award pursuant to the Plan.
(b) In the event that the Committee shall determine that any stock dividend, recapitalization,
reorganization, merger, consolidation, split-up, spin-off, combination, exchange of shares,
warrants or rights offering to purchase Common Stock at a price substantially below fair market
value, or other similar corporate event affects the Common Stock such that an adjustment is
required in order to preserve the benefits or potential benefits intended to be made available
under the Plan, then the Committee shall adjust appropriately any or all of (1) the number and kind
of shares which thereafter may be optioned under the Plan and (2) the grant, exercise or conversion
price and/or number of shares with respect to the Options and/or, if deemed appropriate, make
provision for cash payment to an Optionee;
provided
,
however
, that the number of
shares subject to any Option shall always be a whole number.
Section
6. Stock Options
(a) Subject to the provisions of the Plan, the Committee shall have sole and complete
authority to determine the persons to whom Options shall be granted, the number of shares to be
covered by each Option, the option price therefor and the conditions and limitations applicable to
the exercise of the Option.
(b) The Committee shall have the authority to grant Nonqualified Stock Options only.
Nonqualified Stock Options to purchase Common Stock may be granted to such eligible participants as
shall be determined by the Committee.
2
(c) The Committee shall, in its discretion, establish the exercise price at the time each
Option is granted, which in the case of Nonqualified Stock Options, shall not be less than 100% of
the Fair Market Value of the Common Stock on the Date of Grant.
(d) Exercise
(1) Each Option shall be exercisable at such times and subject to such terms and
conditions as the Committee may, in its sole discretion, specify in the applicable grant or
thereafter;
provided
,
however
, that in no event may any Option granted
hereunder be exercisable after the expiration of ten years from the Date of Grant. The
Committee may impose such conditions with respect to the exercise of Options, including
without limitation, any relating to the application of federal or state securities laws, as
it may deem necessary or advisable.
(2) No shares shall be delivered pursuant to any exercise of an Option until payment in
full of the option price therefore is received by the Company. Such payment may be made in
cash, or its equivalent, or, if and to the extent permitted by the Committee or under the
terms of the applicable agreement, by exchanging shares of Common Stock owned by the
Optionee (which are not the subject of any pledge or other security interest), or by a
combination of the foregoing, provided that the combined value of all cash and cash
equivalents and the Fair Market Value of any such Common Stock so tendered to the Company,
valued as of the date of such tender, is at least equal to such option price.
If the shares to be purchased are covered by an effective registration statement under
the Securities Act of 1933, as amended, any Option may be exercised by a broker-dealer
acting on behalf of an Optionee if (a) the broker-dealer has received from the Optionee
instructions signed by the Optionee requesting the Company to deliver the shares of Common
Stock subject to such Option to the broker-dealer on behalf of the Optionee and specifying
the account into which such shares should be deposited, (b) adequate provision has been made
with respect to the payment of any withholding taxes due upon such exercise, and (c) the
broker-dealer and the Optionee have otherwise complied with Section 220.3(e)(4) of
Regulation T, 12 CFR Part 220, or any successor provision.
(3) The Company, in its sole discretion, may lend money to an Optionee, guarantee a
loan to an Optionee or otherwise assist an Optionee to obtain the cash necessary to exercise
all or any portion of an Option granted under the Plan.
(4) The Company shall not be required to issue any fractional shares upon the exercise
of any Options granted under this Plan. No Optionee nor an Optionees legal
representatives, legatees or distributees, as the case may be, will be, or will be deemed to
be, a holder of any shares subject to an Option unless and until said Option has been
exercised and the purchase price of the shares in respect of which the Option has been
exercised has been paid. Unless otherwise provided in the agreement applicable thereto, an
Option shall not be exercisable except by the Optionee or by a person who has obtained the
Optionees rights under the Option by will or under the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined in the Code.
(e) No Nonqualified Stock Options shall be exercisable more than ten years after the Date of
Grant.
(f) In no event shall any Option granted to any employee who is classified as non-exempt
under the Fair Labor Standards Act of 1938 be exercisable less than six months after the Date of
Grant,
3
except in the case of death, disability, retirement, a change in control or other
circumstances permitted by regulations under the Worker Economic Opportunity Act (WEOA). Grants
to such non-exempt employees shall not be based on pre-established performance criteria, except as
specifically permitted under the WEOA. Non-exempt employees shall be notified of the terms of
their Options in accordance with the WEOA, and exercise of such Options must be voluntary.
S
ection
7. General Provisions
(a) The Company and its Subsidiaries shall have the right to deduct from all amounts paid to
an Optionee in cash (whether under the Plan or otherwise) any taxes required by law to be withheld
in respect of Option exercises under the Plan. However, if permitted by the Committee or under the
terms of the applicable agreement, the Optionee may pay all or any portion of the taxes required to
be withheld by the Company or its Subsidiaries or paid by the Optionee with respect to such Common
Stock by electing to have the Company or its Subsidiaries withhold shares of Common Stock, or by
delivering previously owned shares of Common Stock, having a Fair Market Value equal to the amount
required to be withheld or paid. The Optionee must make the foregoing election on or before the
date that the amount of tax to be withheld is determined. Any such election is irrevocable and
subject to disapproval by the Committee.
(b) Each Option hereunder shall be evidenced in writing, delivered to the Optionee, and shall
specify the terms and conditions thereof and any rules applicable thereto, including, but not
limited to, the effect on such Option of the death, retirement, disability or other termination of
employment of the Optionee and the effect thereon, if any, of a change in control of the Company.
(c) Unless otherwise provided in the agreement applicable thereto, no Option shall be
assignable or transferable except by will or under the laws of descent and distribution or pursuant
to a qualified domestic relations order as defined in the Code, and no right or interest of any
Optionee shall be subject to any lien, obligation or liability of the Optionee.
(d) No person shall have any claim or right to be granted an Option. Further, the Company and
its Subsidiaries expressly reserve the right at any time to terminate the employment of an Optionee
free from any liability, or any claim under the Plan. Neither the Plan nor any Option granted
hereunder is intended to confer upon any Optionee any rights with respect to continuance of
employment or other utilization of his or her services by the Company or by a Subsidiary, nor to
interfere in any way with his or her right or that of his or her employer to terminate his or her
employment or other services at any time. The conditions to apply to the exercise of an Option in
the event an Optionee ceases to be employed by the Company or a Subsidiary for any reason shall be
determined by the Committee or specified in the written agreement evidencing the Option.
(e) Subject to the provisions of the applicable Option, no Optionee or Designated Beneficiary
shall have any rights as a stockholder with respect to any shares of Common Stock to be distributed
under the Plan until he or she has become the holder thereof.
(f) The validity, construction, interpretation, administration and effect of the Plan and of
its rules and regulations, and rights relating to the Plan, shall be determined solely in
accordance with the laws of the State of Texas (without giving effect to its conflicts of laws
rules) and, to the extent applicable, federal law.
(g) The Plan was originally effective on May 4, 2001. No Options may be granted under the
Plan after May 3, 2011; however, all previous Options issued that have not expired under their
original terms or will not then expire at the time the Plan expires will remain outstanding.
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(h) Restrictions on Issuance of Shares
(1) The Company shall not be obligated to sell or issue any Shares upon the exercise of
any Option granted under the Plan unless: (i) the shares pertaining to such Option have been
registered under applicable federal and state securities laws or are exempt from such
registration; (ii) the prior approval of such sale or issuance has been obtained from any
state regulatory body having jurisdiction; and (iii) in the event the Common Stock has been
listed on any exchange, the shares pertaining to such Option have been duly listed on such
exchange in accordance with the procedure specified therefor. The Company shall be under no
obligation to effect or obtain any listing, registration, qualification, consent or approval
with respect to shares pertaining to any Option granted under the Plan. If the shares to be
issued upon the exercise of any Option granted under the Plan are intended to be issued by
the Company in reliance upon the exemptions from the registration requirements of applicable
federal and state securities laws, the recipient of the Option, if so requested by the
Company, shall furnish to the Company such evidence and representations, including an
opinion of counsel, satisfactory to it, as the Company may reasonably request.
(2) The Company shall not be liable for damages due to a delay in the delivery or
issuance of any stock certificates for any reason whatsoever, including, but not limited to,
a delay caused by listing, registration or qualification of the shares of Common Stock
pertaining to any Option granted under the Plan upon any securities exchange or under any
federal or state law or the effecting or obtaining of any consent or approval of any
governmental body.
(i) The Board of Directors or Committee may impose such other restrictions on the ownership
and transfer of shares issued pursuant to the Plan as it deems desirable; any such restrictions
shall be set forth in the applicable agreement.
(j) The Board of Directors may amend, abandon, suspend or terminate the Plan or any portion
thereof at any time in such respects as it may deem advisable in its sole discretion.
(k) To preserve an Optionees rights under an Option in the event of a change in control of
the Company or an Optionees separation from employment, the Committee in its discretion may, at
the time an Option is made or any time thereafter, take one or more of the following actions: (i)
provide for the acceleration of any time period relating to the exercise of the Option, (ii)
provide for the purchase of the Option, upon the Optionees request, for an amount of cash or other
property that could have been received upon the exercise or realization of the Option had the
Option been currently exercisable or payable, (iii) adjust the terms of the Option in a manner
determined by the Committee to reflect the change in control or to prevent the imposition of an
excise tax under section 280G(b) of the Code, (iv) cause the Option to be assumed, or new rights
substituted therefor, by another entity, or (v) make such other provision as the Committee may
consider equitable and in the best interests of the Company.
(l) Without limiting the generality of the authority given the Committee elsewhere in the
Plan, the Committee in its discretion has the authority to amend an outstanding option from
time-to-time, as follows:
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(i)
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to provide for the acceleration of the vesting of the Option in the event of a
change in control of the Company or in connection with an Optionees separation from
employment with the Company or other separation from service with the Company;
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(ii)
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to provide for one or more stated periods of time to exercise vested options
following the Optionees separation from employment with the Company or other
separation from service with the Company; or
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(iii)
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to provide for such other changes as the Committee may, in its discretion,
determine to be appropriate.
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IN WITNESS WHEREOF, the Company has caused the Plan to be executed on its behalf as of the
7
th
day of June 2007.
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ZIX CORPORATION
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By:
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/s/ Ronald A. Woessner
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Title:
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SVP
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Date:
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6/7/07
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