exv4w2



 







Exhibit 4.2




FORM OF WARRANT



THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR WITH ANY APPLICABLE STATE SECURITIES
LAWS, AND MAY NOT BE SOLD OR TRANSFERRED UNLESS (I) A REGISTRATION STATEMENT COVERING SUCH
SECURITIES IS EFFECTIVE UNDER THE SECURITIES ACT, (II) THE TRANSACTION IS EXEMPT FROM REGISTRATION
UNDER THE SECURITIES ACT AND, IF THE COMPANY REQUESTS, AN OPINION SATISFACTORY TO THE COMPANY TO
SUCH EFFECT HAS BEEN RENDERED BY COUNSEL, (III) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER
THE SECURITIES ACT OR (IV) THE TRANSFER IS TO AN AFFILIATE OF THE HOLDER AND SATISFIES THE
REQUIREMENTS OF THE SECURITIES PURCHASE AGREEMENT BETWEEN THE COMPANY AND THE PURCHASERS LISTED ON
SCHEDULE A THERETO.




ZIX CORPORATION




WARRANT




			
	 	 	 
	Warrant No. 2006-[ ]
	 	Dated: April 5, 2006          






     Zix Corporation, a Texas Corporation (the “Company”), hereby certifies that, for value
received, [               ] or its registered assigns (including permitted transferees, the
"Holder”), is entitled to purchase from the Company up to a total of [                ] shares (as adjusted from
time to time as provided in Section 9) of Common Stock (as defined below) (each such share,
a “Warrant Share” and all such shares, the “Warrant Shares”) at an exercise price equal to $1.54
per share (as adjusted from time to time as provided in Section 9, the “Exercise Price”), at any
time and from time to time from and after the six-month anniversary of the Original Issue Date
through and including October 5, 2011 (the “Expiration Date”), and subject to the following terms
and conditions. This Warrant is one of a series of similar warrants (the “Warrants”) issued
pursuant to that certain Securities Purchase Agreement, dated as of the Original Issue Date, by and
among the Company, the Holder and certain other purchasers listed on Schedule A thereto
(the “Purchase Agreement”), providing for the issuance and sale of Common Stock and Warrants by the
Company to the Holder and such other investors.



     1. Definitions. Capitalized terms used herein and not otherwise defined in this
Section 1 or elsewhere in this Warrant shall have the meanings set forth in the Purchase Agreement:



          “Affiliate” of any specified Person means any other Person directly or indirectly controlling,
controlled by or under direct or indirect common control with such specified Person. For purposes
of this definition, “control” as used with respect to any person or entity means the possession,
direct or indirect, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by contract or
otherwise.




 









 








          “Common Stock” means the Common Stock of the Company, par value $.01 per share, as constituted
on the Original Issue Date.




          “Company Offer” means any tender offer (including exchange offer), as amended from time to
time, made by the Company or any of its subsidiaries for the purchase (including the acquisition
pursuant to an exchange offer) of all or any portion of the outstanding shares of Common Stock,
except as permitted pursuant to Rule 10b-18 promulgated under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”).




          “Eligible Market” means any of the New York Stock Exchange, the American Stock Exchange or
Nasdaq.




          “Market Price” means, as to any security, (i) if the principal trading market for such
security is an exchange, the closing price per share for the immediately previous Trading Day in
which a sale was reported, as officially reported on any consolidated tape, (ii) if clause (i) is
not applicable, the closing bid price per share for the immediately previous Trading Day as set
forth by Nasdaq or on the OTC Bulletin Board or (iii) if clauses (i) and (ii) are not applicable,
the closing bid price per share for the immediately previous Trading Day as set forth in the
National Quotation Bureau sheet listing for such security. Notwithstanding the foregoing, if there
is no reported sales price or closing bid price, as the case may be, on any of the ten Trading Days
preceding the event requiring a determination of Market Price hereunder, then the Market Price
shall be determined in good faith by resolution of the Board of Directors of the Company, based on
the best information available to it.




          “Nasdaq” means the Nasdaq SmallCap Market or Nasdaq National Market.




          “Original Issue Date” means April 5, 2006.




          “Other Securities” refers to any capital stock (other than Common Stock) and other securities
of the Company or any other Person which the Holder of this Warrant at any time shall be entitled
to receive, or shall have received, upon the exercise of this Warrant, in lieu of or in addition to
Common Stock, or which at any time shall be issuable or shall have been issued in exchange for or
in replacement of Common Stock or Other Securities pursuant to Section 9 hereof or
otherwise.




          “Person” means any individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any kind.




          “Registration Statement” shall have the meaning set forth in the Purchase Agreement.




          “Trading Day” means (a) any day on which the Common Stock is listed or quoted and traded on
any Eligible Market or (b) if the Common Stock is not then quoted and traded on any Eligible
Market, then a day on which trading occurs on Nasdaq (or any successor thereto).




          “Transfer Agent” shall mean Computershare Investor Services, LLC or such other Person as the
Company may appoint from time to time.




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          “Warrant Shares” shall initially mean shares of Common Stock and, in addition, may include
Other Securities and Distributed Property (as defined in Section 9(d)) issued or issuable
from time to time upon exercise of this Warrant.




     2. Registration of Warrant. The Company shall register this Warrant, upon records to
be maintained by the Company for that purpose (the “Warrant Register”), in the name of the record
Holder hereof from time to time. The Company may deem and treat the registered Holder of this
Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to
the Holder, and for all other purposes, absent actual notice to the contrary.



     3. Registration of Transfers. The Company shall register the transfer of any portion
of this Warrant in the Warrant Register, upon surrender of this Warrant, with the Form of
Assignment attached hereto as Appendix A duly completed and signed, to the Company at its
address specified herein. Upon any such registration and transfer, a new warrant in substantially
the form of a Warrant (any such new warrant, a “New Warrant”), evidencing the portion of this
Warrant so transferred shall be issued to the transferee and a New Warrant evidencing the remaining
portion of this Warrant not so transferred, if any, shall be issued to the transferring Holder.
Each New Warrant evidencing the Warrant so transferred shall bear the appropriate restrictive
legend set forth in Section 4(k)(ii) of the Purchase Agreement. The acceptance of the New
Warrant by the transferee thereof shall be deemed the acceptance by such transferee of all of the
rights and obligations of a holder of a Warrant, and such transferee shall be subject to the terms
and conditions of the Purchase Agreement, including, without limitation, the restrictions on
transfer set forth in Section 4(j) of the Purchase Agreement.



     4. Exercise and Duration of Warrant.



          (a) This Warrant shall be exercisable by the registered Holder at any time and from time to
time on and after the six-month anniversary of the Original Issue Date through and including the
Expiration Date. At 5:00 P.M., Dallas, Texas time on the Expiration Date, the portion of this
Warrant not exercised prior thereto shall be and become void and of no value, regardless of whether
this Warrant shall be returned to the Company.




          (b) A Holder may exercise this Warrant by delivering to the Company (i) an exercise notice, in
the form attached hereto as Appendix B (the “Exercise Notice”), appropriately completed and
duly signed and (ii) payment of the Exercise Price for the number of Warrant Shares as to which
this Warrant is being exercised (as set forth in Section 4(c) below), and the date such
items are received by the Company is an “Exercise Date.” Execution and delivery of the Exercise
Notice shall have the same effect as cancellation of the original Warrant and issuance of a New
Warrant evidencing the right to purchase the remaining number of Warrant Shares, if any.




          (c) The Holder shall pay the Exercise Price (i) in cash, by certified bank check payable to
the order of the Company or by wire transfer of immediately available funds in accordance with the
Company’s instructions or (ii) if at any time on or after the six-month
anniversary of the Original Issue Date, (x) there is no effective Registration Statement
registering the resale of the Warrant Shares by the Holder and (y) the Market Price exceeds the
Exercise Price, by means of a “cashless exercise”, by presenting and surrendering to the Company
this




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Warrant, in which event the Company shall issue to the Holder the number of Warrant Shares
determined as follows:




	 	 	 	 	 	 	 
	 

	 	X
	 	=
	 	Y [(A-B)/A]
	 
	 	 	 	 	 	 
	 	 	where:	 	 
	 
	 	 	 	 	 	 
	 

	 	X
	 	=
	 	the number of Warrant Shares to
be issued to the Holder upon such cashless exercise;
	 
	 	 	 	 	 	 
	 

	 	Y
	 	=
	 	the number of Warrant Shares
with respect to which this Warrant is being exercised;
	 
	 	 	 	 	 	 
	 

	 	A
	 	=
	 	the Market Price on the
Exercise Date; and
	 
	 	 	 	 	 	 
	 

	 	B
	 	=
	 	the Exercise Price.






          (d) If an exercise of this Warrant is to be made in connection with a registered public
offering or sale of the Company, such exercise may, at the election of the Holder, be conditioned
on the consummation of the public offering or sale of the Company, in which case such exercise
shall not be deemed effective until the consummation of such transaction.




          (e) The Company shall not effect the exercise of this Warrant, and the Holder shall not have
the right to exercise this Warrant, to the extent that after giving effect to such exercise, such
Person (together with such Person’s affiliates) would beneficially own in excess of 4.99% of the
shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes
of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by
such Person and its affiliates shall include the number of shares of Common Stock issuable upon
exercise of this Warrant with respect to which the determination of such sentence is being made,
but shall exclude shares of Common Stock which would be issuable upon (i) exercise of the
remaining, unexercised portion of this Warrant beneficially owned by such Person and its affiliates
and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities
of the Company beneficially owned by such Person and its affiliates (including, without limitation,
any convertible notes or convertible preferred stock or warrants) subject to a limitation on
conversion or exercise analogous to the limitation contained herein. Except as set forth in the
preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in
accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended. For purposes of
this Warrant, in determining the number of outstanding shares of Common Stock, the Holder may rely
on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent
Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and
Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or
(3) any other written notice by the Company setting forth the number of shares of Common Stock
outstanding. For any reason at any time, upon the written or oral request of the Holder, the
Company shall within two (2) Business Days confirm orally and in writing or by electronic mail to
the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding
shares of Common Stock shall be determined after giving effect to the conversion or exercise of
securities of the Company, including the Purchased Warrants, by the Holder and its affiliates




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since the date as of which such number of outstanding shares of Common Stock was reported. By written
notice to the Company, the Holder may from time to time increase or decrease the maximum percentage
to any other percentage not in excess of 9.99% specified in such notice; provided that (i) any such
increase will not be effective until the sixty-first (61st) day after such notice is delivered to
the Company, and (ii) any such increase or decrease will apply only to the Holder and not to any
other holder of Purchased Warrants.




     5. Delivery of Warrant Shares.



          (a) Upon exercise of this Warrant, the Company shall promptly, but in no event later than the
third (3rd) Trading Day following such exercise, issue or cause to be issued and deliver or cause
to be delivered to the Holder, in such name or names as the Holder may designate, a certificate for
the Warrant Shares issuable upon such exercise bearing (only if such legend is required by
Section 5(d) or applicable law) the restrictive legend set forth in Section 4(k)(i)
of the Purchase Agreement. The Holder, or any Person so designated by the Holder to receive the
Warrant Shares, shall be deemed to have become holder of record of such Warrant Shares as of the
Exercise Date.




          (b) This Warrant is exchangeable, upon the surrender hereof by the Holder at the principal
office of the Company or transfer agent, for new Warrants of like tenor representing in the
aggregate the purchase rights hereunder, and each of such new Warrants shall represent such portion
of such rights as is designated by the registered Holder at the time of such surrender. At the
request of the Holder (pursuant to a transfer of Warrants or otherwise), this Warrant may be
exchanged for one or more Warrants to purchase Common Stock. The Original Issue Date shall be
deemed to be the date of issuance hereof regardless of the number of times new certificates
representing the unexpired and unexercised rights formerly represented by this Warrant shall be
issued. Each warrant representing a portion of the rights hereunder constitutes a Warrant as
defined herein.




          (c) This Warrant is exercisable, either in its entirety or, from time to time, for a portion
of the number of Warrant Shares. Upon surrender of this Warrant following one or more partial
exercises, the Company shall promptly issue or cause to be issued, at its expense, a New Warrant
evidencing the right to purchase the remaining number of Warrant Shares.




          (d) THE HOLDER OF THIS WARRANT IS ENTITLED TO CERTAIN REGISTRATION RIGHTS WITH RESPECT TO THE
WARRANT SHARES ISSUABLE UPON EXERCISE HEREOF. SAID REGISTRATION RIGHTS ARE SET FORTH IN THE
PURCHASE AGREEMENT. If the Registration Statement contemplated in the Purchase Agreement is not
effective at the time of any issuance and the shares are not exempt from registration under Rule
144, the Warrant Shares shall be issued in certificated form and shall bear the restrictive legend
set forth in the Purchase Agreement.




          (e) If by the close of the third Trading Day after delivery of an Exercise Notice and payment
of the Exercise Price for the number of Warrant Shares as to which this
Warrant is being exercised, the Company fails to deliver to the Holder a certificate
representing the required number of Warrant Shares in the manner required pursuant to Section 5(a),
and if after such third Trading Day and prior to the receipt of such Warrant Shares, the Holder




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purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in
satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving
upon such exercise (a “Buy-In”), then the Company shall, within three Trading Days after the
Holder’s request and in the Holder’s sole discretion, either (1) pay in cash to the Holder an
amount equal to the Holder’s total purchase price (including brokerage commissions, if any) for the
shares of Common Stock so purchased (the “Buy-In Price”), at which point the Company’s obligation
to deliver such certificate (and to issue the Warrant Shares) shall terminate or (ii) promptly
honor its obligation to deliver to the Holder a certificate or certificates representing such
Warrant Shares and pay cash to the Holder in an amount equal to the excess (if any) of the Buy-In
Price over the product of (A) such number of Warrant Shares, multiplied by (B) the closing bid
price on the date of the event giving rise to the Company’s obligation to deliver such certificate.




     6. Charges, Taxes and Expenses.



          (a) Issuance and delivery of certificates for shares of Common Stock upon exercise of this
Warrant shall be made without charge to the Holder for any issue or transfer tax, transfer agent
fee or other incidental tax or expense in respect of the issuance of such certificates, all of
which taxes and expenses shall be paid by the Company; provided, however, that the Company shall
not be required to pay any tax which may be payable in respect of any transfer involved in the
registration of any certificates for Warrant Shares or Warrant in a name other than that of the
Holder. The Holder shall be responsible for all other tax liability that may arise as a result of
holding or transferring this Warrant or receiving Warrant Shares upon exercise hereof.




          (b) Notwithstanding any other provision of this Warrant, for income tax purposes, the Holder
and any assignee or transferee thereof shall agree that the Company and the Transfer Agent shall be
permitted to withhold from any amounts payable to the Holder or such assignee or transferee any
taxes required by law to be withheld from such amounts. Unless exempt from the obligation to do
so, the Holder and each assignee or transferee thereof shall execute and deliver to the Company or
the Transfer Agent, as applicable, properly completed Form W-8 or W-9, indicating that the Holder
or such assignee or transferee is not subject to back-up withholding for United Stated federal
income tax purposes. If such form is not delivered pursuant to the preceding sentence, the Holder,
assignee or transferee, as the case may be, shall have the burden of proving to the Company’s
reasonable satisfaction that it is exempt from such requirement.




     7. Replacement of Warrant. If this Warrant is mutilated, lost, stolen or destroyed,
the Company shall issue or cause to be issued in exchange and substitution for and upon
cancellation hereof, or in lieu of and in substitution for this Warrant, a New Warrant, but only
upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction
and customary and reasonable indemnity, if requested.



     8. Reservation of Warrant Shares. The Company covenants that it will at all times
reserve and keep available out of the aggregate of its authorized but unissued and otherwise
unreserved Common Stock, solely for the purpose of enabling it to issue Warrant Shares upon
exercise of this Warrant as herein provided, the number of Warrant Shares which are then



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issuable and deliverable upon the exercise of this entire Warrant, free from all taxes, liens, claims,
encumbrances with respect to the issuance of such Warrant Shares and will not be subject to any
pre-emptive rights or similar rights (taking into account the adjustments and restrictions of
Section 9 hereof). The Company covenants that all Warrant Shares so issuable and
deliverable shall, upon issuance and the payment of the applicable Exercise Price in accordance
with the terms hereof, be duly and validly authorized, issued, fully paid and nonassessable. The
Company will take all such action as may be necessary to assure that such shares of Common Stock
may be issued as provided herein without violation of any applicable law or regulation, or of any
requirements of any securities exchange or automated quotation system upon which the Common Stock
may be listed or quoted, as the case may be.




     9. Certain Adjustments. The Exercise Price and number of Warrant Shares issuable upon
exercise of this Warrant are subject to adjustment from time to time as set forth in this
Section 9.



          (a) Dividends. If the Company, at any time while this Warrant is outstanding, pays a
dividend on its Common Stock payable in additional shares of Common Stock or otherwise makes a
distribution on any class of capital stock that is payable in shares of Common Stock, then in each
such case the Exercise Price shall be multiplied by a fraction, (A) the numerator of which shall be
the number of shares of Common Stock outstanding immediately prior to the opening of business on
the day after the record date for the determination of stockholders entitled to receive such
dividend or distribution and (B) the denominator of which shall be the number of shares of Common
Stock outstanding immediately after such event. Any adjustment made pursuant to this Section
9(a) shall become effective immediately after the record date for the determination of
stockholders entitled to receive such dividend or distribution; provided, however, that if such
record date shall have been fixed and such dividend is not fully paid or if such distribution is
not fully made on the date fixed therefor, any such adjustment shall become effective as of the
time of actual payment of such dividends or distribution.




          (b) Stock Splits. If the Company, at any time while this Warrant is outstanding, (i)
subdivides outstanding shares of Common Stock into a larger number of shares (through a stock split
or otherwise), or (ii) combines outstanding shares of Common Stock into a smaller number of shares
(through a reverse stock split or otherwise), then in each such case the Exercise Price shall be
multiplied by a fraction, (A) the numerator of which shall be the number of shares of Common Stock
outstanding immediately before such event and (B) the denominator of which shall be the number of
shares of Common Stock outstanding immediately after such event. Any adjustment pursuant to this
Section 9(b) shall become effective immediately after the effective date of such
subdivision or combination.




          (c) Reclassifications. A reclassification of the Common Stock (other than any such
reclassification in connection with a merger or consolidation to which Section 9(e)
applies) into shares of any other class of stock shall be deemed:




               (i) a distribution by the Company to the holders of its Common Stock of such shares of such
other class of stock for the purposes and within the meaning of this Section 9; and



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               (ii) if the outstanding shares of Common Stock shall be changed into a larger or smaller
number of shares of Common Stock as part of such reclassification, such change shall be deemed a
subdivision or combination, as the case may be, of the outstanding shares of Common Stock for the
purposes and within the meaning of Section 9(b).



          (d) Other Distributions. If the Company, at any time while this Warrant is outstanding,
distributes to holders of Common Stock (i) evidences of its indebtedness, (ii) any security (other
than a distribution of Common Stock covered by Section 9(a)), (iii) rights or warrants to
subscribe for or purchase any security or (iv) any other asset (in each case, “Distributed
Property”), then in each such case the Exercise Price in effect immediately prior to the record
date fixed for determination of stockholders entitled to receive such distribution (and the
Exercise Price thereafter applicable) shall be adjusted (effective on and after such record date)
to equal the product of such Exercise Price multiplied by a fraction, (A) the numerator of which
shall be Market Price on such record date less the then fair market value per share of the
Distributed Property distributed in respect of one outstanding share of Common Stock, which, if the
Distributed Property is other than cash or marketable securities, shall be as determined in good
faith by the Board of Directors of the Company, and (B) the denominator of which shall be the
Market Price on such record date.




          (e) Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the
Company effects any merger or consolidation of the Company with or into another Person, (ii) the
Company effects any sale of all or substantially all of its assets in one or a series of related
transactions or (iii) there shall occur any merger of another Person into the Company whereby the
Common Stock is cancelled, converted or reclassified into or exchanged for other securities, cash
or property (in any such case, a “Fundamental Transaction”), then, as a condition to the
consummation of such Fundamental Transaction, the Company shall (or, in the case of any Fundamental
Transaction in which the Company is not the surviving entity, the Company shall take all reasonable
steps to cause such other Person to) execute and deliver to each Holder of Warrants a written
instrument providing that:




               (x) so long as any Warrant remains outstanding on such terms and subject to such conditions as
shall be as nearly equivalent as may be practicable to the provisions set forth in this Warrant,
each Warrant, upon the exercise thereof at any time on or after the consummation of such
Fundamental Transaction, shall be exercisable into, in lieu of Common Stock issuable upon such
exercise prior to such consummation, the securities or other property (the “Substituted Property”)
that would have been received in connection with such Fundamental Transaction by a holder of the
number of shares of Common Stock into which such Warrant was exercisable immediately prior to the
consummation of such Fundamental Transaction, assuming such holder of Common Stock:



                    (A) is not a Person with which the Company consolidated or into which the Company merged or
which merged into the Company or to which such sale or transfer was made, as the case may be (a
“Constituent Person”), or an Affiliate of a Constituent Person; and



                    (B) failed to exercise such Holder’s rights of election, if any, as to the kind or amount of
securities, cash and other property receivable in connection with such



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Fundamental Transaction (provided, however, that if the kind or amount of securities, cash or other property receivable in
connection with such Fundamental Transaction is not the same for each share of Common Stock held
immediately prior to such Fundamental Transaction by a Person other than a Constituent Person or an
Affiliate thereof and in respect of which such rights of election shall not have been exercised (a
“Non-Electing Share”), then, for the purposes of this Section 9(e), the kind and amount of
securities, cash and other property receivable in connection with such Fundamental Transaction by
each Non-Electing Share shall be deemed to be the kind and amount so receivable per share by a
plurality of the Non-Electing Shares); and




               (y) the rights and obligations of the Company (or, in the event of a transaction in which the
Company is not the surviving Person, such other Person) and the Holders in respect of Substituted
Property shall be as nearly equivalent as may be practicable to the rights and obligations of the
Company and Holders in respect of Common Stock hereunder.



          Such written instrument shall provide for adjustments which, for events subsequent to the
effective date of such written instrument, shall be as nearly equivalent as may be practicable to
the adjustments provided for in Section 9. The above provisions of this Section
9(e) shall similarly apply to successive Fundamental Transactions.




          (f) Adjustment of Number of Warrant Shares. Simultaneously with any adjustment to the
Exercise Price pursuant to paragraphs (a) through (d) of this Section 9, the number of
Warrant Shares that may be purchased upon exercise of this Warrant shall be increased or decreased
proportionately, so that after such adjustment the aggregate Exercise Price payable hereunder for
the increased or decreased number of Warrant Shares shall be the same as the aggregate Exercise
Price payable for the Warrant Shares immediately prior to such adjustment.




          (g) Calculations. All calculations under this Section 9 shall be made to the nearest
cent or the nearest 1/100th of a share, as applicable. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held by or for the account of the
Company, and the disposition of any such shares shall be considered an issue or sale of Common
Stock.




          (h) Adjustments to be Carried Forward. Notwithstanding any provision of this Section
9, no adjustment of the Exercise Price shall be required until such adjustment has a value
equal to or greater than $0.05; provided, however, that any adjustments which by reason of this
Section 9(h) are not required to be made shall be carried forward and either (i) included
in the earlier any subsequent required adjustment and/or (ii) accounted for in connection with the
full or partial exercise of this Warrant pursuant to Section 4.




          (i) Notice of Adjustments. Upon the occurrence of each adjustment pursuant to this
Section 9, the Company will promptly deliver to the Holder a certificate executed by the
Company’s Chief Financial Officer setting forth, in reasonable detail, the event requiring such
adjustment and the method by which such adjustment was calculated, the adjusted Exercise Price
and the adjusted number or type of Warrant Shares or other securities issuable upon exercise of
this Warrant (as applicable). The Company will retain at its office copies of all such
certificates and cause the same to be available for inspection at said office during normal
business hours by




9









 







the Holder or any prospective purchaser of the Warrant designated by the Holder.




          (j) Notice of Corporate Events. If the Company (i) declares a dividend or any other
distribution of cash, securities or other property in respect of its Common Stock, including,
without limitation, any granting of rights or warrants to subscribe for or purchase any capital
stock of the Company or any subsidiary of the Company, (ii) authorizes, approves, enters into any
agreement contemplating, or solicits stockholder approval for, any Fundamental Transaction or (iii)
authorizes the voluntary dissolution, liquidation or winding up of the affairs of the Company, then
the Company shall deliver to the Holder a notice describing the material terms and conditions of
such transaction at least 15 calendar days prior to the applicable record or effective date on
which a Person would need to hold Common Stock in order to participate in or vote with respect to
such transaction and the Company will take all steps reasonably necessary in order to ensure that
the Holder is given the practical opportunity to exercise this Warrant prior to such time;
provided, however, that the failure to deliver such notice or any defect therein shall not affect
the validity of the corporate action required to be described in such notice.




     10. Fractional Shares. The Company shall not be required to issue or cause to be
issued fractional Warrant Shares on the exercise of this Warrant. If any fraction of a Warrant
Share would, except for the provisions of this Section, be issuable upon exercise of this Warrant,
the Company shall make a cash payment to the Holder equal to (a) such fraction multiplied by (b)
the Market Price on the Exercise Date of one full Warrant Share.



     11. Restricted Securities; Registration Rights. The Holder represents and warrants
that it (i) understands that the Warrant and the Warrant Shares have not been registered under the
Securities Act and (ii) understands the restrictions set forth on the legend printed on the face of
this Warrant. The Warrant Shares shall be entitled to the rights conferred thereon under the
Purchase Agreement, including without limitation the registration rights provided in Section
5 thereof.



     12. No Rights as Shareholder. Except as otherwise specifically provided herein, this
Warrant (as distinguished from the Warrant Shares which may be purchased hereunder) does not
entitle its Holder to any rights of a shareholder of the Company, including, without limitation,
the right to vote or to consent to any action of the shareholders of the Company, to receive
dividends or other distributions, to exercise any preemptive right or to receive any notice of
meetings of shareholders of the Company or of any proceedings of the Company.



     13. Remedies. The Company stipulates that the remedies at law of the Holder of this
Warrant in the event of any default or threatened default by the Company in the performance of or
compliance with any of the terms of this Warrant are not and will not be adequate, and that such
terms may be specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms hereof or otherwise.



     14. Notices. Any and all notices or other communications or deliveries hereunder
(including without limitation any Exercise Notice) shall be in writing and shall be mailed by
certified mail, return receipt requested, or by a nationally recognized courier service or
delivered (in person or by facsimile), against receipt to the party to whom such notice or other



10









 







communication is to be given. The address for such notices or communications shall be as set forth
in the Purchase Agreement entered into by the Holder and the Company, or at such other address
provided by the Holder to the Company in writing. Any notice or other communication given by means
permitted by this Section 14 shall be deemed given at the time of receipt thereof.



     15. Warrant Agent. The Company shall serve as warrant agent under this Warrant. Upon
30 days’ written notice to the Holder (which notice shall state the proposed specific duties to be
undertaken by and responsibilities of such warrant agent), the Company may appoint a new warrant
agent, subject to the prior approval of the Holders of a majority of the Purchased Warrants then
outstanding, which approval shall not be unreasonably withheld. Any Person into which any new
warrant agent may be merged, any Person resulting from any consolidation to which any new warrant
agent shall be a party or any Person to which any new warrant agent transfers substantially all of
its corporate trust or stockholders services business shall be a successor warrant agent under this
Warrant without any further act. Any such successor warrant agent shall promptly cause notice of
its succession as warrant agent to be mailed (by first class mail, postage prepaid) to the Holder
at the Holder’s last address as shown on the Warrant Register. For the avoidance of doubt, in the
event of any conflict between this section and the assignment provisions of the following section
of this Warrant, such assignment provisions shall control.



     16. Miscellaneous. (a) The Company shall not assign this Warrant or any of its
rights or obligations hereunder, except (i) to a successor in interest in the event of a
Fundamental Transaction or (ii) upon the prior written consent of the Holder. This Warrant may be
assigned by the Holder, provided that such transfer is in compliance with the terms and conditions
of this Warrant and Section 4(j) of the Purchase Agreement and permitted by federal and
state securities laws. This Warrant shall be binding on and inure to the benefit of the parties
hereto and their respective successors and assigns. Subject to the preceding sentence, nothing in
this Warrant shall be construed to give to any Person other than the Company and the Holder any
legal or equitable right, remedy or cause of action under this Warrant. This Warrant may be
amended only in writing signed by the Company and the Holder and their successors and assigns. Any
waiver of any term, covenant, agreement or condition contained in this Warrant shall not be deemed
a waiver of any other term, covenant, agreement or condition, and any waiver of any default in any
such term, covenant, agreement or condition shall not be deemed a waiver of any later default
thereof or of any default of any other term, covenant, agreement or condition.



          (b) The Company will not, by amendment of its governing documents or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities
or any other voluntary action, avoid or seek to avoid the observance or performance of any of the
terms of this Warrant, but will at all times in good faith assist in the carrying out of all such
terms and in the taking of all such action as may be necessary or appropriate in order to protect
the rights of the Holder against impairment. Without limiting the generality of the foregoing, the
Company (i) will not increase the par value of any Warrant Shares above the amount payable therefor
upon exercise thereof, (ii) will take all such action as may be reasonably
necessary or appropriate in order that the Company may validly and legally issue fully paid
and nonassessable Warrant Shares on the exercise of this Warrant, free from all taxes, liens,
claims and encumbrances and (iii) will not close its stockholder books or records in any manner
which interferes with the timely exercise of this Warrant.




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          (c) This Warrant shall be governed by and construed and enforced in accordance with the laws
of the State of New York without regard to conflicts of laws principles thereof. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and Federal courts sitting in the
City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed herein (including with
respect to the enforcement of the Purchase Agreement), and hereby irrevocably waives, and agrees
not to assert any suit, action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is improper. Each party
hereby irrevocably waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in effect for notices
to it under this Warrant and agrees that such service shall constitute good and sufficient service
of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any
right to serve process in any manner permitted by law. THE PARTIES HEREBY WAIVE ALL RIGHTS TO A
TRIAL BY JURY.




          (d) Neither party shall be deemed in default of any provision of this Warrant, to the extent
that performance of its obligations or attempts to cure a breach hereof are delayed or prevented by
any event reasonably beyond the control of such party, including, without limitation, war,
hostilities, acts of terrorism, revolution, riot, civil commotion, national emergency, epidemic,
fire, flood, earthquake, force of nature, explosion, embargo, or any other Act of God, or any act
or order of any court, government or governmental agency specifically referencing this Warrant,
provided that such party gives the other party written notice thereof promptly upon discovery
thereof and uses commercially reasonable efforts to cure or mitigate the delay or failure to
perform.




          (e) The headings herein are for convenience only, do not constitute a part of this Warrant and
shall not be deemed to limit or affect any of the provisions hereof.




          (f) In case any one or more of the provisions of this Warrant shall be deemed invalid or
unenforceable in any respect, the validity and enforceability of the remaining terms and provisions
of this Warrant shall not in any way be affected or impaired thereby and the parties will attempt
in good faith to agree upon a valid and enforceable provision which shall be a commercially
reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision
in this Warrant.




[SIGNATURE PAGE FOLLOWS]




12









 








     IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its authorized
officer as of the date first indicated above.



	 	 	 	 	 
	 	ZIX CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Warrant





 









 





APPENDIX A




FORM OF ASSIGNMENT




(to be completed and signed only upon transfer of Warrant)




     FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
                                                                                 the right represented by the within Warrant to purchase                                 shares
of Common Stock of Zix Corporation (as adjusted from time to time as provided in Section 9 of the
Warrant) to which the within Warrant relates and appoints                                                              attorney to
transfer said right on the books of Zix Corporation with full power of substitution in the
premises.



Dated:____________




	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	(Signature must conform in all respects to name of
Holder as specified on face of the Warrant)
	 
	 	 	 	 	 	 
	 

	 	Address of Transferee:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 





In the presence of:




                                                            




 









 





APPENDIX B




FORM OF EXERCISE NOTICE




(To be executed by the Holder to exercise the right to purchase

shares of Common Stock under the foregoing Warrant)




To: Zix Corporation



The undersigned is the Holder of Warrant No. 2006-___(the “Warrant”) issued by Zix Corporation, a
Texas Corporation (the “Company”). Capitalized terms used herein and not otherwise defined have
the respective meanings set forth in the Warrant.





	1.	 	The Warrant is currently exercisable to purchase a total of                      Warrant Shares, as
adjusted from time to time as provided in Section 9 of the Warrant.
	 
	2.	 	The undersigned Holder hereby exercises its right to purchase                      Warrant Shares pursuant to the
Warrant.
	 
	3.	 	The Holder intends that payment of the Exercise Price shall be made as (check one):




Cash Exercise                    



Cashless Exercise                    





	4.	 	If the Holder has elected a Cash Exercise, the Holder shall pay the sum of $                     to the
Company in accordance with the terms of the Warrant.
	 
	5.	 	If the Holder has elected a Cashless Exercise, a certificate shall be issued to the Holder
for the number of shares equal to the whole number portion of the product of the calculation
set forth below, which is                     . The Company shall pay a cash adjustment in respect of
the fractional portion of the product of the calculation set forth below in an amount equal to
the product of the fractional portion of such product and the Market Price on the Exercise
Day, which product is                     .




X = Y[(A-B)/A]



X = the number of Warrant Shares to be issued to the Holder.



Number of Warrant Shares being exercised:                                          (“Y”).



Market Price on the Exercise Date:                                         (“A”).



Exercise Price:                                         (“B”)





	6.	 	Pursuant to this exercise, the Company shall deliver to the Holder Warrant Shares in
accordance with the terms of the Warrant.





 









 






	7.	 	Following this exercise, the Company shall promptly issue or cause to be issued, at its
expense, a New Warrant to the Holder evidencing the right to purchase the remaining number of
Warrant Shares pursuant to Section 5 of the Warrant.
	 
	8.	 	The Holder of this Warrant confirms the validity of, and reaffirms as of the date hereof, the
representations and warranties set forth on Section 4 of the Purchase Agreement with respect
to such Holder.





	 	 	 	 	 	 	 
	Dated:                     	 	Name of Holder:	 	 
	 
	 	 	 	 	 	 
	 

	 	(Print)	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	(Signature must conform in all respects to name of
Holder as specified on the face of the Warrant)






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