exv10w4



 





Exhibit 10.4




ZIX CORPORATION 2003 NEW EMPLOYEE STOCK OPTION PLAN

(Amended and Restated as of June 7, 2007)




Section
1. Purpose




     The purpose of the Zix Corporation 2003 New Employee Stock Option Plan (hereinafter called the
“Plan”) is to advance the interests of Zix Corporation (hereinafter called the “Company”) by
strengthening the ability of the Company to attract, on its behalf and on behalf of its
Subsidiaries (as hereinafter defined), personnel of high caliber through encouraging a sense of
proprietorship by means of stock ownership. The Plan, as written and as administered by the
Committee, is intended to comply with NASD Rule 4350(i)(1)(A)(iv), which provides that shareholder
approval is not required for issuer equity issuances to certain employees.



Section 2. Definitions




     “Board of Directors” shall mean the Board of Directors of the Company.



     “Code” shall mean the Internal Revenue Code of 1986, as amended from time-to-time.



     “Committee” shall mean a committee of the Board of Directors comprised of a majority of
Independent Directors or a majority of the Company’s Independent Directors, as the case may be.



     “Common Stock” shall mean the Common Stock of the Company, par value $.01 per share.



     “Date of Grant” shall mean the date on which an Option is granted pursuant to this Plan.



     “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.



     “Fair Market Value” shall mean the closing sale price (or average of the quoted closing bid
and asked prices if there is no closing sale price reported) of the Common Stock on the date
specified as reported by the Nasdaq National Market, or by the principal national stock exchange on
which the Common Stock is then listed. If there is no reported price information for such date,
the Fair Market Value will be determined by the reported price information for Common Stock on the
day nearest preceding such date.



     “Independent Director” shall have the meaning given such term in NASDAQ Rule 4200(a)(14).



     “Nonqualified Stock Option” shall mean a stock option granted under Section 6 that is not
intended to be an incentive stock option.



     “Option” shall mean an option granted under the Plan.



     “Optionee” shall mean the person to whom an option is granted under the Plan or who has
obtained the right to exercise an option in accordance with the provisions of the Plan.



     “Subsidiary” shall mean any now existing or hereafter organized or acquired corporation or
other entity of which fifty percent (50%) or more of the issued and outstanding voting stock or
other economic interest is owned or controlled directly or indirectly by the Company or through one
or more Subsidiaries of the Company.



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Section 3. Administration




     The Plan shall be administered by the Committee. The Committee shall have sole and complete
authority to adopt, alter and repeal such administrative rules, guidelines and practices governing
the operation of the Plan as it shall from time-to-time deem advisable, and to construe, interpret
and administer the terms and provisions of the Plan and the agreements thereunder. The
determinations and interpretations made by the Committee are final and conclusive.



Section 4. Eligibility




     The following persons are eligible to receive options under the Plan: employees (other than
officers or directors) of the Company or a Subsidiary that were not previously an employee or
director of the Company or a Subsidiary, or if previously such, have experienced a bona fide period
of non-employment with the Company and its Subsidiaries, in each case, if the option grant is in
connection with such person entering into employment with the Company or a Subsidiary and is
offered to them as an inducement for them to enter into such employment.



Section 5. Maximum Amount Available for Options




     (a) The maximum number of shares of Common Stock in respect of which Options may be made under
the Plan shall be a total of 500,000 shares of Common Stock. Options that expire, lapse or are
cancelled or forfeited nonetheless continue to count against the 500,000 share limit. Shares of
Common Stock may be made available from the authorized but unissued shares of the Company or from
shares reacquired by the Company, including shares purchased in the open market. In the event that
an Option is terminated unexercised as to any shares of Common Stock covered thereby, such shares
shall thereafter be again available for award pursuant to the Plan.



     (b) In the event that the Committee shall determine that any stock dividend, recapitalization,
reorganization, merger, consolidation, split-up, spin-off, combination, exchange of shares,
warrants or rights offering to purchase Common Stock at a price substantially below fair market
value, or other similar corporate event affects the Common Stock such that an adjustment is
required in order to preserve the benefits or potential benefits intended to be made available
under the Plan, then the Committee shall adjust appropriately any or all of (1) the number and kind
of shares which thereafter may be optioned under the Plan and (2) the grant, exercise or conversion
price and/or number of shares with respect to the Options and/or, if deemed appropriate, make
provision for cash payment to an Optionee; provided, however, that the number of
shares subject to any Option shall always be a whole number.



Section 6. Stock Options




     (a) Subject to the provisions of the Plan, the Committee shall have sole and complete
authority to determine the persons to whom Options shall be granted, the number of shares to be
covered by each Option, the option price therefor and the conditions and limitations applicable to
the exercise of the Option.



     (b) The Committee shall have the authority to grant Nonqualified Stock Options only.
Nonqualified Stock Options to purchase Common Stock may be granted to such eligible participants as
shall be determined by the Committee.



     (c) The Committee shall, in its discretion, establish the exercise price at the time each
Option is granted, which in the case of Nonqualified Stock Options, shall not be less than 100% of
the Fair Market Value of the Common Stock on the Date of Grant. The exercise price of any
outstanding Options may not be repriced without the approval of the Company’s stockholders
(obtained in accordance with applicable law), given in each specified instance.



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     (d) Exercise




     (1) Each Option shall be exercisable at such times and subject to such terms and
conditions as the Committee may, in its sole discretion, specify in the applicable grant or
thereafter; provided, however, that in no event may any Option granted
hereunder be exercisable after the expiration of ten years from the Date of Grant, unless
otherwise permitted by the Committee. The Committee may impose such conditions with respect
to the exercise of Options, including without limitation, any relating to the application of
federal or state securities laws, as it may deem necessary or advisable.




     (2) No shares shall be delivered pursuant to any exercise of an Option until payment in
full of the option price therefore is received by the Company. Such payment may be made in
cash, or its equivalent, or, if and to the extent permitted by the Committee or under the
terms of the applicable agreement, by exchanging shares of Common Stock owned by the
Optionee (which are not the subject of any pledge or other security interest), or by a
combination of the foregoing, provided that the combined value of all cash and cash
equivalents and the Fair Market Value of any such Common Stock so tendered to the Company,
valued as of the date of such tender, is at least equal to such option price.




     If the shares to be purchased are covered by an effective registration statement under
the Securities Act of 1933, as amended, any Option may be exercised by a broker-dealer
acting on behalf of an Optionee if (a) the broker-dealer has received from the Optionee
instructions signed by the Optionee requesting the Company to deliver the shares of Common
Stock subject to such Option to the broker-dealer on behalf of the Optionee and specifying
the account into which such shares should be deposited, (b) adequate provision has been made
with respect to the payment of any withholding taxes due upon such exercise, and (c) the
broker-dealer and the Optionee have otherwise complied with Section 220.3(e)(4) of
Regulation T, 12 CFR Part 220, or any successor provision.




     (3) The Company, in its sole discretion, may lend money to an Optionee, guarantee a
loan to an Optionee or otherwise assist an Optionee to obtain the cash necessary to exercise
all or any portion of an Option granted under the Plan.




     (4) The Company shall not be required to issue any fractional shares upon the exercise
of any Options granted under this Plan. No Optionee nor an Optionee’s legal
representatives, legatees or distributees, as the case may be, will be, or will be deemed to
be, a holder of any shares subject to an Option unless and until said Option has been
exercised and the purchase price of the shares in respect of which the Option has been
exercised has been paid. Unless otherwise provided in the agreement applicable thereto, an
Option shall not be exercisable except by the Optionee or by a person who has obtained the
Optionee’s rights under the Option by will or under the laws of descent and distribution or
pursuant to a “qualified domestic relations order” as defined in the Code.



     (e) In no event shall any Option granted to any employee who is classified as “non-exempt”
under the Fair Labor Standards Act of 1938 be exercisable less than six months after the Date of
Grant, except in the case of death, disability, retirement, a change in control or other
circumstances permitted by regulations under the Worker Economic Opportunity Act (“WEOA”). Grants
to such non-exempt employees shall not be based on pre-established performance criteria, except as
specifically permitted under the WEOA. Non-exempt employees shall be notified of the terms of
their Options in accordance with the WEOA, and exercise of such Options must be voluntary.



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Section 7. General Provisions




     (a) The Company and its Subsidiaries shall have the right to deduct from all amounts paid to
an Optionee in cash (whether under the Plan or otherwise) any taxes required by law to be withheld
in respect of Option exercises under the Plan. However, if permitted by the Committee or under the
terms of the applicable agreement, the Optionee may pay all or any portion of the taxes required to
be withheld by the Company or its Subsidiaries or paid by the Optionee with respect to such Common
Stock by electing to have the Company or its Subsidiaries withhold shares of Common Stock, or by
delivering previously owned shares of Common Stock, having a Fair Market Value equal to the amount
required to be withheld or paid. The Optionee must make the foregoing election on or before the
date that the amount of tax to be withheld is determined. Any such election is irrevocable and
subject to disapproval by the Committee.



     (b) Each Option hereunder shall be evidenced in writing, delivered to the Optionee, and shall
specify the terms and conditions thereof and any rules applicable thereto, including, but not
limited to, the effect on such Option of the death, retirement, disability or other termination of
employment of the Optionee and the effect thereon, if any, of a change in control of the Company.



     (c) Unless otherwise provided in the agreement applicable thereto, no Option shall be
assignable or transferable except by will or under the laws of descent and distribution or pursuant
to a “qualified domestic relations order” as defined in the Code, and no right or interest of any
Optionee shall be subject to any lien, obligation or liability of the Optionee.



     (d) No person shall have any claim or right to be granted an Option. Further, the Company and
its Subsidiaries expressly reserve the right at any time to terminate the employment of an Optionee
free from any liability, or any claim under the Plan. Neither the Plan nor any Option granted
hereunder is intended to confer upon any Optionee any rights with respect to continuance of
employment or other utilization of his or her services by the Company or by a Subsidiary, nor to
interfere in any way with his or her right or that of his or her employer to terminate his or her
employment or other services at any time. The conditions to apply to the exercise of an Option in
the event an Optionee ceases to be employed by the Company or a Subsidiary for any reason shall be
determined by the Committee or specified in the written agreement evidencing the Option.



     (e) Subject to the provisions of the applicable Option, no Optionee or permitted assignee
shall have any rights as a stockholder with respect to any shares of Common Stock to be distributed
under the Plan until he or she has become the holder thereof.



     (f) The validity, construction, interpretation, administration and effect of the Plan and of
its rules and regulations, and rights relating to the Plan, shall be determined solely in
accordance with the laws of the State of Texas (without giving effect to its conflicts of laws
rules) and, to the extent applicable, federal law.



     (g) Restrictions on Issuance of Shares




     (1) The Company shall not be obligated to sell or issue any Shares upon the exercise of
any Option granted under the Plan unless: (i) the shares pertaining to such Option have been
registered under applicable federal and state securities laws or are exempt from such
registration; (ii) the prior approval of such sale or issuance has been obtained from any
state regulatory body having jurisdiction; and (iii) in the event the Common Stock has been
listed on any exchange, the shares pertaining to such Option have been duly listed on such
exchange in accordance with the procedure specified therefor. The Company shall be under no
obligation to effect or obtain any listing, registration, qualification, consent or approval
with respect to shares pertaining to any



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Option granted under the Plan. If the shares to be issued upon the exercise of any Option
granted under the Plan are intended to be issued by the Company in reliance upon the
exemptions from the registration requirements of applicable federal and state securities
laws, the recipient of the Option, if so requested by the Company, shall furnish to the
Company such evidence and representations, including an opinion of counsel, satisfactory to
it, as the Company may reasonably request.




     (2) The Company shall not be liable for damages due to a delay in the delivery or
issuance of any stock certificates for any reason whatsoever, including, but not limited to,
a delay caused by listing, registration or qualification of the shares of Common Stock
pertaining to any Option granted under the Plan 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.



     (h) The Board of Directors or Committee may impose such other restrictions on the ownership
and transfer of shares issued pursuant to the Plan as it deems desirable; any such restrictions
shall be set forth in the applicable agreement.



     (i) The Board of Directors may amend, abandon, suspend or terminate the Plan or any portion
thereof at any time in such respects as it may deem advisable in its sole discretion, provided that
no amendment shall be made without stockholder approval if such stockholder approval is necessary
to comply with any tax or regulatory requirement or listing rules. The Plan has not been submitted
for stockholder approval.



     (j) To preserve an Optionee’s rights under an Option in the event of a change in control of
the Company or an Optionee’s separation from employment, the Committee in its discretion may, at
the time an Option is made or any time thereafter, take one or more of the following actions: (i)
provide for the acceleration of any time period relating to the exercise of the Option, (ii)
provide for the purchase of the Option, upon the Optionee’s request, for an amount of cash or other
property that could have been received upon the exercise or realization of the Option had the
Option been currently exercisable or payable, (iii) adjust the terms of the Option in a manner
determined by the Committee to reflect the change in control or to prevent the imposition of an
excise tax under section 280G(b) of the Code, (iv) cause the Option to be assumed, or new rights
substituted therefor, by another entity, or (v) make such other provision as the Committee may
consider equitable and in the best interests of the Company.



     (k) Without limiting the generality of the authority given the Committee elsewhere in the
Plan, the Committee in its discretion has the authority to amend an outstanding option from
time-to-time, as follows:




	 	(i)	 	to provide for the acceleration of the vesting of the Option in the event of a
change in control of the Company or in connection with an Optionee’s separation from
employment with the Company or other separation from service with the Company;
	 
	 	(ii)	 	to provide for one or more stated periods of time to exercise vested options
following the Optionee’s separation from employment with the Company or other
separation from service with the Company; or
	 
	 	(iii)	 	to provide for such other changes as the Committee may, in its discretion,
determine to be appropriate.




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     IN WITNESS WHEREOF, the Company has caused the Plan to be executed on its behalf as of the
7th day of June 2007.



	 	 	 	 	 
	 	 	ZIX CORPORATION
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Ronald A. Woessner
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Title:
	 	SVP
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Date:
	 	6/7/07
	 

	 	 	 	 






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