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 Optionee’s death. In the absence of an
effective designation by the Optionee, Designated Beneficiary shall
mean the Optionee’s 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
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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
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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 a
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