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 Optionee’s 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 Optionee’s 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 corporation’s
parent corporation possessing less than fifty-one percent (51%) of
the voting power of the surviving or acquiring person or such
person’s 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 corporation’s parent corporation
possessing less than fifty-one percent (51%) of the voting power of
the surviving or acquiring person or such person’s 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 Company’s 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
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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
person’s 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.
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