FORM OF AMENDED AND RESTATED
SEPARATION PAY AGREEMENT
THIS AMENDED AND
RESTATED SEPARATION PAY AGREEMENT (this “Agreement”),
entered into as of
, is made and entered into between Zix Corporation, a Texas
corporation (the “Company”), and
(“Employee”) and amends, restates, and supersedes that
certain separation pay agreement between the parties, dated
.
WHEREAS, Employee
is currently employed by the Company or a company controlled by,
controlling, or under common control with, the Company
(“Company Affiliate”);
WHEREAS, Employee
is willing to continue working for the Company or Company
Affiliate, as applicable, on an “at-will”
basis;
NOW, THEREFORE, in
consideration of the foregoing and of the respective covenants and
agreements of the parties herein contained, the parties agree as
follows:
1.
Termination Without Cause Payment/COBRA . If the
Employee’s employment with the Company or the employing
Company Affiliate, as applicable, is terminated by the Company or
the employing Company Affiliate other than “for cause”
(as defined below), then, subject to receiving a release reasonably
satisfactory to the Company relating to employment matters within
60 days of the employment separation date as described in
Section 2, the Company shall pay to Employee an amount equal
to six (6) months of base salary, using Employee’s
highest monthly base salary during the term of Employee’s
employment (the “Termination Without Cause Payment”).
Notwithstanding the preceding sentence, however, the parties
acknowledge and agree that if (i) a material portion of the
Company’s e-prescribing line of business, the Company’s
email encryption line of business, or any other material line of
business is sold, leased, licensed, or otherwise transferred for
value (the “Transfer”) to a non-Affiliate
(“Non-Affiliated Transferee”) and (ii) in
connection with such Transfer (a) the Company involuntarily
terminates the Employee’s employment with the Company or the
employing Company Affiliate, and (b) the Employee accepts
employment with the Non-Affiliated Transferee or one of its
affiliates, then the Employee shall forfeit the Termination Without
Cause Payment unless the Company agrees in writing as of the date
of the acceptance of such employment that the Employee is entitled
to receive such payment. The Termination Without Cause Payment
shall be paid as provided in Section 2 below.
Furthermore, as an
additional component of the Termination Without Cause Payment, if
Employee elects to continue health and/or dental insurance coverage
pursuant to the “COBRA” rules and regulations, then,
subject to receiving a release reasonably satisfactory to the
Company relating to employment matters within 60 days of the
employment separation date as described in Section 2, the
Company shall pay the insurance premiums directly to the insurer on
Employee’s behalf for a period of six months.
1
For
purposes of this Agreement, “for cause” shall mean any
of the following shall have occurred: (a) the conviction of
Employee or a plea of nolo contendere , or the substantial
equivalent to either of the foregoing, of or with respect to, any
felony; (b) the intentional and continued failure by Employee
to substantially perform Employee’s employment duties, such
intentional action involving willful and deliberate malfeasance or
gross negligence in the performance of Employee’s duties
(other than any such failure resulting from Employee’s
incapacity due to physical or mental illness), after written demand
for substantial performance is delivered by the Company or
employing Company Affiliate, as applicable, that specifically
identifies the manner in which the Company or the employing Company
Affiliate, as applicable, believes Employee has not substantially
performed Employee’s duties and that is not cured within five
busines
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