Exhibit 10.32
Execution Copy
FORM OF AMENDED AND RESTATED
SEVERANCE AGREEMENT
THIS AMENDED AND
RESTATED SEVERANCE AGREEMENT (this “Agreement”), dated
, is made and entered into between Zix Corporation, a Texas
corporation (the “Company”), and
(“Employee”) and restates, amends, and supersedes that
certain severance agreement between the parties, dated
.
WHEREAS, Employee
is currently employed by the Company;
WHEREAS, Employee
is willing to continue working for the Company or an Affiliate, as
applicable, on an “at will” basis, if
applicable;
NOW, THEREFORE, in
consideration of the foregoing and of the respective covenants and
agreements of the parties herein contained, the parties agree as
follows:
1.1 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 Securities Exchange Act
of 1934, as amended (the “Exchange Act”)) that,
together with all Affiliates and Associates of such person, is the
beneficial owner of 35% or more of the outstanding Common Stock of
the Company. The term “Acquiring Person” shall not
include the Company, any subsidiary of the Company, any employee
benefit plan of the Company, (or trust with respect thereto) or
subsidiary of the Company, or any person holding Common Stock of
the Company for or pursuant to the terms of any such plan. For
purposes of this Agreement, a person who becomes an Acquiring
Person by acquiring beneficial ownership of 35% of 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 35% or more of the
outstanding Common Stock.
1.2 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.
1.3 Cause .
For “Cause” shall mean any of the following shall have
occurred:
(a) The conviction
of Employee of 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, such demand not to be unreasonable, is delivered by
the Company or an Affiliate, as applicable, that specifically
identifies the manner in which the Company or the Affiliate, as
applicable, believes Employee has not substantially performed
Employee’s duties and which continues beyond a period of 10
business days immediately after notice thereof by the Company to
Employee;
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(c) The
intentional wrongdoing by Employee that is materially injurious to
the Company or employing Affiliate, as applicable; or
(d) Acts by
Employee of moral turpitude that are injurious to the
Company.
For purposes of
this definition, no act, or failure to act, on the part of Employee
shall be deemed to be “intentional” unless done, or
omitted to be done, by Employee not in good faith and without
reasonable belief that Employee’s action or omission was in
the best interests of the Company or the employing Affiliate, or
both, as applicable.
1.4 Change in
Control . A “Change in Control” of the Company
shall have occurred if at any time during the term of this
Agreement any of the following events shall occur:
(a) The Company is
merged, consolidated or reorganized into or with another
corporation or other legal person, other than an Affiliate, and as
a result of such merger, consolidation or reorganization less than
50.1% of the combined voting power to elect directors of the
then-outstanding securities of the remaining corporation or legal
person or its ultimate parent immediately after such transaction is
owned, directly or indirectly, in the aggregate by persons who were
shareholders, directly or indirectly, of the Company immediately
prior to such merger, consolidation, or reorganization;
(b) The Company
sells all or substantially all of its assets to any other
corporation or other legal person, other than an Affiliate, and as
a result of such sale, less than 50.1% of the combined voting power
to elect directors of the then-outstanding securities of such
corporation or legal person or its ultimate parent immediately
after such transaction is owned, directly or indirectly, in the
aggregate by persons who were shareholders, directly or indirectly,
of the Company immediately prior to such sale;
(c) 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 directors;
(d) If, at any
time, the Continuing Directors then serving on the Board of
Directors of the Company (“Board”) cease for any reason
to constitute at least a majority thereof;
(e) 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; or
(f) Such other
events that cause a change in control of the Company, as determined
by the Board in its sole discretion.
1.5 Change in
Control Payments . “Change in Control Payments”
shall mean one and a half (1-1/2) times the higher of
(i) Employee’s annual base salary in effect on the date
of the
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Change in
Control or (ii) Employee’s highest annual base salary
during the term of Employee’s employment with the
Company.
1.6 Code .
“Code” shall mean the Internal Revenue Code of 1986, as
amended.
1.7 Continuing
Director . A “Continuing Director” shall mean a
director of the Company who (i) is not an Acquiring Person, an
Affiliate or Associate, a representative of an Acquiring Person or
nominated for election by an Acquiring Person, and (ii) was
either a member of ‘the Board on the date of this Agreement
or subsequently became a director of the Company and
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