FORM OF ZIX CORPORATION EMPLOYEE STOCK OPTION AGREEMENT
Exhibit 10.2
This Employee Stock Option Agreement (“Option”) is effective as of the Grant Date set
forth in the Grant Detail section of this Option (“Grant Details”) with respect to the stock option
described in the Grant Details that are granted by Zix Corporation, a Texas corporation
(“Company”), to the person (“Optionee”) named in the Grant Details.
The Company wishes to recognize Optionee’s contributions to the Company and to encourage
Optionee’s sense of proprietorship in the Company by providing Optionee with the opportunity to
purchase shares of the Company’s common stock, par value $.01 per share (“Common Stock”).
The Company and Optionee agree as follows:
1 Non-Qualified Stock Option Grant
The Company hereby grants to Optionee the option to purchase up to the number of shares of
Common Stock shown as the Quantity in the Grant Details. The Option exercise price is the amount
per share shown as the Exercise Price in the Grant Details. This Option is subject to the terms set
forth in this Option and the terms of the Stock Option Plan described in the Grant Details (the
“Plan”). This Option is intended to be a nonqualified stock option, and it is not to be
characterized or treated as an incentive stock option, under applicable tax laws.
2 Grant Details
Optionee:
Grant Date:
Expiration Date:
Quantity:
Exercise Price:
Stock Option Plan:
Vesting Schedule:
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3 Term of Option
This Option automatically expires at 12:00 midnight on Expiration Date described in the Grant
Details. This Option may be terminated earlier by other provisions of the Plan or this Option.
3.1 Termination of Employment Other Than For “Cause”
a) This Option terminates 60 days after Optionee’s “Resignation.”
b) This Option terminates one year after Optionee ceases to be
employed by the Company or any Subsidiary due to death, “Disability,”
“Retirement” or termination of employment by the Company other than for
“Cause.”
3.2 Termination of Employment For “Cause”
This Option terminates immediately and automatically upon the Company or any Subsidiary
terminating the employment of Optionee for “Cause.”
4 Vesting of Option Shares
This Option will vest and become exercisable with respect to a number of shares of Common
Stock according to the Vesting Schedule described in the Grant Details, except that no shares of
Common Stock will vest and become exercisable during the periods described in section 3.1. Once
this Option has become exercisable with respect to a number of shares of Common Stock (“Vested
Shares”), it will remain exercisable as that number of shares, or any lesser number of shares,
until the expiration or termination of this Option.
5 Adjustment of Option
If the shares subject to this Option are adjustable pursuant to the Plan, the Board of
Directors or Committee may make any adjustment that it deems appropriate to the Quantity or the
Exercise Price.
5.1 Adjustment of Option for Certain Transactions
Subject to the terms of the Plan, if a merger, consolidation, sale of shares or similar
transaction occurs involving the Company and one or more other persons, and shares of stock,
other securities, cash or property become issuable or deliverable in exchange for Common
Stock as a part of the transaction, then this Option will be amended to create a right to
purchase or receive (at an aggregate exercise price for the adjusted Option equal to the
aggregate Exercise Price) the amount of shares of stock, other securities, cash or property
that would have been receivable for Common Stock in the transaction if the unexercised
Quantity of shares of Common Stock had been purchased immediately before the consummation of
the transaction.
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6 Modification of Option
At any time and from time-to-time, the Committee may execute an instrument providing for
modification, extension or renewal of this Option, provided that no such modification, extension or
renewal may (i) impair this Option holder’s rights in any respect without the written consent of
the holder or (ii) conflict with the provisions of Rule 16b-3 under the Exchange Act.
7 Who May Exercise Option
This Option is exercisable during Optionee’s lifetime only by Optionee. To the extent
exercisable after Optionee’s death, this Option may be exercised only by a person who has obtained
Optionee’s rights under this Option by will or under the laws of descent and distribution or
pursuant to a “qualified domestic relations order” as defined in the Code. If the person exercising
this Option is a transferee of Optionee by will or under the laws of descent and distribution or
pursuant to a “qualified domestic relations order,” the Exercise Notice must be accompanied by
appropriate proof of the right of such transferee to exercise this Option.
8 Method of Exercise
8.1 All Optionees
As a condition of exercising this Option with respect to any Vested Shares, Optionee
must have an established brokerage account with the Company’s authorized stock option
administrative brokerage, which is currently ▇▇▇▇▇▇▇ ▇▇▇▇▇ (“Broker”). At the time of
exercise, the Broker will pay to the Company on behalf of Optionee this Option Price times
the number of vested shares as to which this Option is being exercised. Such payment may
consist of (a) cash, (b) a certified cashier’s check or (c) at the Committee’s election, any
other consideration that the Committee determines is consistent with the Plan and applicable
law. Optionee must bear any transaction costs imposed by the Broker.
8.2 Non-Designated Optionees
An Optionee who has not been advised by the Company that Optionee is subject to the
exercise procedures described in section 8.3 may exercise an Option either by contacting the
Broker or by an electronic transaction initiated by the Optionee using the Optionee’s
account with the Broker described in section 8.1 via the Broker’s online system on the
website, and for either method under the procedures designated by the Broker.
8.3 Certain Designated Optionees
An Optionee who has been advised by the Company that Optionee is subject to the
exercise procedures described in this section 8.3, including Optionees who are subject to
Section 16 of the Exchange Act, may exercise an Option only through the procedures specified
by the Company, which depend on the Optionee’s particular designated status.
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As a condition of exercising this Option with respect to any Vested Shares, each
designated Optionee must provide to the Company (or its designee) at its principal executive
office a written notice satisfying the requirements of this section 8 (“Exercise Notice”).
The Exercise Notice must contain sufficient information to identify this Option being
exercised, including Optionee’s name, Exercise ▇▇▇▇▇, ▇▇▇▇▇ Date and Stock Option Plan. The
Exercise Notice must state the number of Vested Shares for which this Option is being
exercised. If the shares of Common Stock that are being purchased are to be evidenced by
more than one stock certificate, the Exercise Notice must state the number of shares of
Common Stock to be indicated on each stock certificate. The Exercise Notice is deemed to be
provided when it is delivered to the Company’s Corporate Secretary. After receiving the
Exercise Notice from Optionee, the Company will determine whether this Option is subject to
any restrictions and is otherwise eligible for exercise.
If the Company determines that the designated Option is eligible for exercise, the
Company will, depending on the Optionee’s particular designated status, either:
a) Authorize the Broker to allow the Optionee to exercise the
Option, and authorize the Optionee to exercise the Option by contacting the
Broker. The Broker will not allow Optionee to exercise the Option unless
Optionee has provided the Exercise Notice to the Company and the Company has
authorized the exercise.
b) Authorize the Optionee to exercise the Option either by
contacting the Broker or by an electronic transaction initiated by the Optionee
using the Optionee’s account with the Broker described in section 8.1 via the
Broker’s online system on the website, and for either method under the
procedures designated by the Broker.
9 Restrictions on Exercise
Notwithstanding anything to the contrary in this Option:
c) Company is not obligated to issue fractional Shares.
d) Optionee cannot exercise this Option in order to purchase less
than 100 Option Shares unless the number of then Vested Shares is less than
100.
e) Optionee cannot exercise this Option if exercise or the
delivery of Shares would violate any applicable law or any rule of any
securities exchange on which the Shares are then listed.
f) Optionee cannot exercise this Option if exercise or the
delivery of shares would in the Company’s sole discretion constitute a
violation of any Company rule or policy, including but not limited to block
trades, windows and black-out periods.
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10 Noncompetition Agreement
The grant of this Option and the exercise of Optionee’s rights under this Option are subject
to and conditioned upon Optionee’s full compliance with Optionee’s Confidentiality and Invention
Agreement with the Company or its Subsidiary. If in any dispute between Optionee and the Company or
its Subsidiary a court or arbitrator determines that Optionee did not comply in any respect with
the that agreement, the Company will be entitled to receive from Optionee all Option Shares, or if
Optionee has sold, transferred or otherwise disposed of this Option Shares the excess of the fair
market value of this Option Shares on the date of sale, transfer or other disposition and the
Exercise Price. This provision will survive any termination or expiration of this Option.
11 Payment and Tax Withholding
As a condition of exercising this Option with respect to any Vested Shares, Optionee must make
prior arrangements for the payment of the Exercise Price and arrangements for any withholding tax
obligations. The Company may take such steps to withhold any taxes that it is required to withhold
in connection with the exercise of this Option.
12 Shares Issued on Option Exercise
The shares of Common Stock purchased upon the exercise of this Option will be registered in
the name of Optionee at the address specified in the Exercise Notice. Any stock certificates issued
will contain an appropriate legend referencing any applicable transfer restrictions.
13 No Rights as Shareholder
Neither Optionee nor any person claiming under or through Optionee has any rights or
privileges of a shareholder of the Company in respect of any of the shares issuable upon the
exercise of this Option, unless and until Option Shares are registered in such person’s name, as
evidenced by the appropriate entry on the books of the Company or its duly authorized stock
registrar and transfer agent.
14 State and Federal Securities Regulation
No Option Shares will be issued by the Company upon the exercise of this Option unless and
until all legal requirements have been complied with to the satisfaction of the Company and its
counsel. The Company may restrict the periods during which this Option may be exercised if, in the
opinion of the Company and its counsel, such a restriction is desirable to comply with legal
requirements. This Option is subject to the requirement that, if the Company determines in its
discretion that the listing, registration or qualification of this Option Shares 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 this Option or the issuance or purchase of Option Shares, this Option may not be
exercised in whole or in part until such listing, registration, qualification, consent or
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approval has been effected or obtained free of any conditions not acceptable to the Company.
The Company has no obligation to effect or obtain any such listing, registration, qualification,
consent or approval if the Company determines, in its discretion, that such action would not be in
the best interest of the Company. The Company will not be liable to Optionee or anyone claiming
under or through Optionee for damages due to a delay in the delivery or issuance of any Option
Shares for any reason whatsoever, including, but not limited to, a delay caused by listing,
registration or qualification of this Option Shares 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 this Option or the issue or purchase of Option
Shares.
15 Continued Employment Not Guaranteed
Nothing in this Option, the Plan or any document describing it nor the grant of any option
gives Optionee the right to continue employment with the Company or any Subsidiary or affect the
right of the Company or a Subsidiary to terminate the employment of Optionee with or without Cause.
16 No Liability of Option
This Option is not liable for or subject to, in whole or in part, the debts, contracts,
liabilities or torts of Optionee nor is it subject to garnishment, attachment, execution, levy or
other legal or equitable process without the prior written consent of the Company (which consent
the Company may withhold or condition for any reason or for no reason).
17 No Assignment
This Option is not Transferable without the prior written consent of the Company (which
consent the Company may withhold or condition for any reason or for no reason) except that this
Option is Transferrable by will or the laws of descent and distribution or pursuant to a “qualified
domestic relations order” as defined in the Code. Any other attempted Transfer is void and
ineffective for all purposes. Subject to the Transferability limitations in this Option, this
Option is binding upon and inure to the benefit of the representatives, executors, successors or
beneficiaries of the parties hereto.
18 Notice
Other than any Exercise Notice, any notice required or permitted to be given under the Plan or
this Option must be in writing and delivered in person or sent by registered or certified mail,
return receipt requested, first-class postage prepaid (i) if to Optionee, at the address shown on
the books and records of the Company or at Optionee’s place of employment, or (ii) if to the
Company, at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate
Secretary, or any other address that is specified in a notice provided by one party to the other
party. Any notice, if sent by registered or certified mail, is deemed to effective upon actual
receipt.
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19 Defined Terms
All capitalized terms not defined in this Option have the meanings ascribed to them in the
Plan. Section references are to the sections of this Option unless otherwise specified. All section
titles and captions in this Option are for convenience only, will not be deemed part of this
Option, and in no way define, limit, extend or describe the scope or intent of any provisions of
this Option.
“Cause” means (i) the failure, in the sole opinion of the Company or a Subsidiary that employs
Optionee, of Optionee to adequately perform the duties assigned to Optionee (other than any such
failure resulting from Optionee’s Disability); (ii) the engagement by Optionee in misconduct that,
in the sole opinion of the Company or a Subsidiary that employs Optionee, is or may have the effect
of being materially injurious to the Company or its Subsidiaries; (iii) the conviction of Optionee
or plea of nolo contendere, or the substantial equivalent to either of the foregoing, of or with
respect to, any felony or crime of moral turpitude; or (iv) breach by Optionee of the
Confidentiality and Invention Agreement or any similar agreement between Optionee and the Company
or a Subsidiary that employs Optionee; except that, as to each of the foregoing, “Cause” instead
has the meaning given to that term in any employment agreement, severance agreement or similar
agreement between Optionee and the Company or a Subsidiary that employs Optionee (regardless of
whether such agreement exists on the date of this Option or is entered into hereafter).
“Disability” means any medically determinable physical or mental impairment that, in the
opinion of the Committee, based upon medical reports and other evidence satisfactory to the
Committee, can reasonably be expected to prevent Optionee from performing substantially all of his
or her customary duties of employment (with or without reasonable accommodation) for a continuous
period of not less than 12 months.
“Option Shares” means shares of Common Stock received upon exercise of this Option.
“Resignation” means the voluntary termination by Optionee of employment by the employing
Subsidiary and, if applicable, Company under circumstances other than voluntary Retirement.
“Retirement” means the termination of Optionee’s employment in accordance with the
requirements of a written retirement plan, policy or rule of the Company or employing Subsidiary,
as applicable.
“Subsidiary” means any legal entity that is directly or indirectly controlled by the Company.
“Transfer” (or any variation thereof) means a direct or indirect assignment, sale, transfer,
license, lease, pledge, encumbrance, hypothecation or execution, attachment or similar process.
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20 Miscellaneous
20.1 Governing Law
This Option has been executed by the Company in, and is deemed to be performable in,
the City of Dallas, Dallas County, Texas. This Option is governed by and will be construed,
interpreted and enforced in accordance with the laws of the State of Texas (excluding its
conflict of laws rules).
20.2 Injunctive Relief
In addition to all other rights or remedies available at law or in equity, the Company
is entitled to injunctive and other equitable relief to prevent or enjoin any violation of
the provisions of this Option.
20.3 Consent to Jurisdiction and Venue
With respect to all matters relating to this Option or Option Shares, the parties
consent to the personal jurisdiction of the courts of the State of Texas, and any courts
whose jurisdiction is derivative of the jurisdiction of the courts of the State of Texas,
and to venue in the courts in Dallas County, Texas.
20.4 Entire Agreement
This Option and the Plan together constitute the entire agreement between the parties
pertaining to the subject matter hereof and supersede all prior and contemporaneous
agreements, representations and understandings of the parties Notwithstanding anything to
the contrary in the previous sentence, if Optionee is a party to any agreement with the
Company or a Subsidiary which contains any provision that conflicts with this Option, such
as a provision with respect to vesting or exercise rights in connection with an involuntary
separation or a change in control of the Company, then the terms of that agreement will
control and govern this Option. If any provision of this Option or any such agreement
conflicts with the Plan, the terms of the Plan will control and govern this Option and that
agreement.
20.5 Modifications in Writing
Except as provided in sections 5 and 6, no supplement, modification or amendment of
this Option or waiver of any provision of this Option is binding unless it is in a writing
signed by all parties to this Option.
20.6 No Deemed Waivers
No failure by any party to insist upon the strict performance of any covenant, duty,
agreement or condition of this Option or to exercise any right or remedy consequent upon a
breach thereof will constitute a waiver of any such breach or any other covenant,
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duty, agreement or condition. No waiver of any of provision of this Option will be
deemed to occur, or to constitute a waiver of any other provision of this Option, or to
constitute a continuing waiver, unless that waiver is in a writing signed by the party
against whom the waiver is asserted.
20.7 Blue-penciling
If any provision of this Option is declared or found to be illegal, unenforceable or
void, in whole or in part, then the parties will 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 Option will 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.
20.8 Further Acts
The parties will 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
Option.
21 Option Issued Pursuant to Plan
Optionee accepts this Option subject to the provisions of this Option and the Plan, which are
incorporated herein, including the provisions that authorize the Committee to administer and
interpret the Plan and provide that the Committee’s determinations and interpretations with respect
to the Plan are final and conclusive and binding on all persons affected thereby.
22 Electronic Signatures
This Option may be digitally signed by Optionee. By accepting this Option on the Broker’s
online system, Optionee agrees to the terms of this Stock Option Agreement together with the
pertinent Plan documents found in the Communications Center on the Broker’s website. By failing to
accept this Option on the Broker’s online system, Optionee forfeits all rights to this Option and
under this Option. Evidence of Optionee’s acceptance of this Option will be captured and stored in
electronic format in the Broker’s database, and that electronic acceptance will create and evidence
a binding contract between Optionee and the Company.
| ZIX CORPORATION |
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| Date: | By: | |||
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||
| Chief Financial Officer | ||||
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