AMENDED AND RESTATED SEPARATION PAY AGREEMENT
Exhibit 10.29
Execution Version
AMENDED AND RESTATED SEPARATION PAY AGREEMENT
THIS AMENDED AND RESTATED SEPARATION PAY AGREEMENT (this “Agreement”), dated December 18,
2008, is between Zix Corporation, a Texas corporation (the “Company”), and Xxxxx X. Xxxxxx
(“Employee”) and hereby amends and restates that certain Separation Pay Agreement, dated November
4, 2008, and effective as of October 16, 2008 between the parties.
WHEREAS, Employee is currently employed by the Company;
WHEREAS, Employee is willing to continue working for the Company on an “at will” basis;
NOW, THEREFORE, in consideration of the foregoing and of the respective covenants and
agreements of the parties herein contained, the parties agree as follows:
1. Definitions.
A. 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 Exchange Act that, together
with all Affiliates and Associates of such person, is 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 10% or more of the outstanding Common Stock. The term “Acquiring Person” shall
not include the Company, any majority-owned subsidiary of the Company, any employee benefit plan of
the Company or a majority—owned subsidiary of the Company, or any person to the extent such person
is holding Common Stock for or pursuant to the terms of any such plan. For the purposes of this
Agreement, a person who becomes an Acquiring Person by acquiring beneficial ownership of 10% or
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 10% or more of
the outstanding Common Stock.
B. 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.
C. Cause. “Cause” shall mean any of the following shall have occurred: (1) the
intentional and continued failure by Employee to substantially perform Employee’s employment
duties, such intentional action involving willful and deliberate malfeasance or gross negligence in
the performance of Employee’s duties (other than any such failure resulting from Employee’s
incapacity due to physical or mental illness), after written demand for substantial performance is
delivered by the Company’s Board of Directors (hereinafter, referred to as the “Board”) that
specifically identifies the manner in which the Board of Directors believes Employee has not
substantially performed Employee’s duties and that is not cured within five business days after
notice thereof by the Company to Employee; (2) the intentional engaging by Employee in misconduct
that is materially injurious to the Company; (3) the conviction of Employee or a plea of nolo
contendere, or the substantial equivalent to either of the foregoing, of or with respect to,
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any felony; (4) the commission of acts by Employee of moral turpitude that are injurious to
the Company; (5) a breach by Employee of the “confidentiality and invention” agreement between the
Company and Employee; (6) a breach by Employee of Employee’s obligations under this Agreement; or
(7) a breach by Employee of the Company’s “Code of Ethics for Senior Officers,” as currently in
effect or amended from time-to-time. For purposes of this definition, no act, or failure to act,
on Employee’s part shall be considered “intentional” unless done, or omitted to be done, by him not
in good faith and without reasonable belief that his action or omission was in, or not opposed to,
the best interest of the Company.
Notwithstanding the foregoing, Employee shall not be deemed to have been terminated for Cause
without (1) reasonable written notice to Employee, setting forth the reasons for the Company’s
intention to terminate for Cause; (2) an opportunity for Employee to be heard before the Board (or
an authorized representative thereof; and (3) delivery to Employee of a written notice of
termination from the Board (or its authorized representative) finding that, in the good faith
opinion of the Board (or its authorized representative), Employee engaged in the conduct set forth
above in clause (1) or (2) of the preceding paragraph or an event specified in clause (3), (4),
(5), (6) or (7) of the preceding paragraph has occurred.
D. Change in Control. A “Change in Control” of the Company shall have occurred if any
of the following events shall occur during the term of Employee’s employment:
(1) 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, the Company or its shareholders or Affiliates immediately
before such transaction beneficially own, immediately after or as a result of such
transaction, equity securities of the surviving or acquiring corporation or such
corporation’s parent corporation possessing less than 51% of the voting power of the
surviving or acquiring person or such person’s parent corporation;
(2) 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, the Company or
its shareholders or Affiliates immediately before such transaction beneficially own,
immediately after or as a result of such transaction, equity securities of the surviving or
acquiring corporation or such corporation’s parent corporation possessing less than 51% of
the voting power of the surviving or acquiring person or such person’s parent corporation
(provided that this provision shall not apply to a registered public offering of securities
of a subsidiary of the Company, which offering is not part of a transaction otherwise a part
of or related to a Change in Control);
(3) 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 any class of directors;
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(4) If, at any time, the Continuing Directors then serving on the Board cease for any
reason to constitute at least a majority thereof;
(5) 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
(6) Such other events that cause a Change in Control of the Company, as determined by
the Board in its sole discretion.
E. Continuing Director. A “Continuing Director” shall mean a director of the Company
who (1) is not an Acquiring Person or an Affiliate or Associate thereof, or a representative of an
Acquiring Person or nominated for election by an Acquiring Person, and (2) was either (a) a member
of the Board on the date of this Agreement or (b) subsequently became a director of the Company and
whose initial election or initial nomination for election by the Company’s shareholders was
approved by a majority of the Continuing Directors then on the Board.
F. Company. The “Company” shall mean Zix Corporation, a Texas corporation, or its
successors in interest, as the context requires.
G. Exchange Act. “Exchange Act” shall mean the Securities Exchange Act of 1934, as
amended.
2. Termination Without Cause Payment. If the Company terminates Employee’s employment
other than for Cause, the Company shall pay to Employee an amount equal to nine (9) months
of Employee’s base salary, using Employee’s highest monthly base salary during the term of
Employee’s employment (the “Termination Without Cause Payment”) pursuant to Section 4.
3. Change In Control Payment. If Employee resigns from employment (subject to the notice
and cure provisions noted below) with the Company and its Affiliates following a Change in Control
for a “Change In Control Good Reason,” as such term is defined below, the Company shall pay to
Employee an amount equal to nine (9) months of Employee’s base salary, using Employee’s highest
monthly base salary during the term of Employee’s employment (the “Change In Control Payment”)
pursuant to Section 4.
A “Change In Control Good Reason” shall mean (i) a material diminution in the Employee’s
authority, duties or responsibilities, (ii) a material diminution in the Employee’s base salary,
(iii) a material change in the geographic location at which the Employee must perform services,
(iv) a material diminution in the authority, duties, or responsibilities of the supervisor to whom
the Employee is required to report, including a requirement that the Employee report to a corporate
officer or employee instead of the board of directors (or similar governing body), (v) a material
diminution in the budget over which the Employee retains authority, or (vi) any other event that
constitutes a material breach by the Company of the agreement under which the Employee provides
services.
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Notwithstanding the preceding provisions, Employee shall not be permitted to resign
employment for a “Change In Control Good Reason” until (a) Employee has provided to the Company
notice of the existence of the good reason condition within 90 days of its initial existence and
(b) the Company has not remedied the good reason condition within a period of 30 days from the
Company’s receipt of such notice. Following the satisfaction of (a) and (b), Employee must
exercise her right to resign for a Change in Control Good Reason within 60 days (i.e., such Change
in Control Good Reason resignation must occur within 180 days of the occurrence of the good reason
event), with the day immediately following the existence of the good reason condition being day
“1.”
4. Mode of Payment; Acceptance; No Overlapping Payments. The Termination Without Cause
Payment or Change In Control Payment, as applicable, shall be paid to Employee in nine (9) equal
monthly cash payments beginning as soon as practicable following her termination of employment but
no later than 60 days following such termination, subject to the Company’s receipt of a release in
a form reasonably satisfactory to the Company relating to employment matters. The Company will
provide the form release to Employee within 5 days of the date of the event giving rise to the
payment. In the event that Employee fails to execute such release within such 60 day time period,
she shall forfeit the Termination Without Cause Payment or Change in Control Payment, as
applicable. Employee shall be responsible for all applicable withholdings for taxes and other
withholdings required by applicable law and any amounts owed by Employee to Company, and Employee
shall pay the same to the Company promptly upon demand if not otherwise withheld. The Company’s
obligation to make the payments provided for in Sections 2 and 3 is absolute, and such payments
shall not be mitigated or offset by virtue of Employee obtaining new employment or failing to seek
new employment. Acceptance by Employee of the Termination Without Cause Payment (Section 2) or
Change In Control Payment (Section 3), as applicable, shall constitute a release by Employee of the
Company and its Affiliates, shareholders, officers, employees, directors and other agents from all
claims arising out of, relating to, or in connection with, Employee’s employment with, or
separation from employment with, the Company and its Affiliates.
Employee shall be entitled to receive pursuant to this Agreement only one of the following payments
(a) the Termination Without Cause Payment (Section 2), or (b) the Change In Control Payment
(Section 3) (i.e., not more than one of any such payments is payable pursuant to this Agreement).
5. Conflict of Interest. Without limiting the Employee’s obligations to comply with the
Company’s Code of Conduct and Code of Ethics, Employee agrees that during the term of Employee’s
employment, Employee shall not:
A. Engage, either directly or indirectly, in any activity which may involve a conflict
of interest with the Company or its Affiliates (a “Conflict of Interest”), including
ownership in any supplier, contractor, subcontractor, customer or other entity with which
the Company does business (other than as a shareholder of less than one percent (1%) of a
publicly-traded or private class of equity ownership); and
B. Employee shall not accept any material payment, service, loan, gift, trip,
entertainment or other favor from a supplier, contractor, subcontractor, customer or other
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entity with which the Company does business, and Employee shall promptly inform the
Board as to each offer received by Employee to engage in any such activity.
Employee agrees to disclose to the Company any other facts of which Employee becomes aware
that might involve or give rise to a Conflict of Interest or potential Conflict of Interest.
6. Non-competition. Beginning the date that Employee separates from employment with the
Company and through the nine (9) month anniversary of such separation from employment date,
Employee shall not:
A. Directly or indirectly, compete with the Company’s Email Encryption business or
e-Prescribing business or any other material line of business being conducted by the Company
(“Other Material Business’), in each case, as the Email Encryption line of business,
e-Prescribing line of business, or Other Material Business line of business is comprised as
of the date of the Employee’s separation from employment. For purposes of this Agreement,
“Competition” shall include, without limitation, engaging, directly or indirectly, in any
business, whether as proprietor, partner, joint venturer, employee, agent, officer,
director, consultant, advisor, or holder of more than one percent (1%) of any publicly
traded or private class of equity ownership of a business enterprise, that is competitive
with the Company’s Email Encryption business or e-Prescribing business or Other Material
Business;
B. Directly or indirectly, solicit to do, or do, competing business with (i) any person
that is a customer of the Company’s Email Encryption business or e-Prescribing business or
Other Material Business as of the date of the Employee’s separation from employment, or (ii)
any person that has been a customer of the Company’s Email Encryption business or
e-Prescribing business or Other Material Business within the six months preceding such date;
or
C. Directly or indirectly, solicit to hire, or hire, any person that is an employee of
the Company (including its affiliated companies) as of the date of the Employee’s separation
from employment, or was an employee within the 3 month period preceding such date, except by
way of bona-fide general advertising.
Although the Company and Employee have, in good faith, used their best efforts to make
the covenants of this Section reasonable in all pertinent respects, and it is not
anticipated, nor is it intended, by either party to this Agreement that any arbitrator or
court will find it necessary to reform any of such covenants to make it reasonable in all
pertinent respects, the Company and Employee understand and agree that if an arbitrator or
court determines it necessary to reform any of such covenants to make it reasonable in all
pertinent respects, damages, if any, for a breach of the non-competition covenant, as so
reformed, shall be deemed to accrue to the Company as and from the date of such a breach
only and so far as the damages for such breach related to an action that accrued within the
scope of the covenant as so reformed.
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7. Miscellaneous.
A. Pending Litigation Indemnification. During Employee’s employment and
following Employee’s separation from employment, with respect to any lawsuits currently
pending or hereafter asserted against the Company that pertain to (i) matters reasonably
within the purview of Employee’s job responsibilities while employed with the Company or
(ii) matters for which the Employee has particular knowledge, Employee agrees to cooperate
reasonably in the defense of the litigation thereof, including signing affidavits and making
himself or herself available for interviews, deposition preparation, deposition, and trial.
If Employee is requested to assist with litigation activities following Employee’s
separation from employment other than those litigation activities in which Employee would be
required to participate as a named party, the Company agrees to pay all reasonable
documented out-of-pocket costs up to a maximum of $1,000 per day incurred in connection with
such activities and lost income incurred during the period in which Employee assists with
such litigation activities (not to exceed the lesser of the amount of lost income or $10,000
in any one tax year). Such out-of-pocket reimbursement payments shall be made as soon as
practicable after Employee provides documentation of such out-of-pocket costs but no later
than the end of the tax year following the tax year in which such expenses were incurred.
The amount of expenses reimbursed to the Employee pursuant to this Section 7.A. during the
Employee’s tax year shall not impact the amount of such expenses eligible for reimbursement
during any other tax year of the Employee. Employee’s right to reimbursement of such
expenses shall not be subject to liquidation or exchange for another benefit. The lost
income reimbursement will be paid in a lump sum within 60 days after Employee provides
documentation of the same and such payment will be subject to the six month delay applicable
to specified employees under section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”). Without the Company’s prior consent, Employee agrees not to comment publicly
on any such litigation or any of the issues in the litigation. Without the Company’s prior
consent, Employee also agrees not to discuss any such litigation, or cooperate, with the
plaintiffs, their attorneys, or their representatives. The Company acknowledges that the
Employee has certain rights to indemnification as an officer of the Company as set forth in
the Company’s Restated Bylaws if the Employee is named as a party in litigation.
B. Waiver. No waiver of any provision of this Agreement shall be deemed, or
shall constitute, a waiver of any other provision, whether or not similar, nor shall any
waiver constitute a waiver of any continuing or succeeding breach of such provision, a
waiver of the provision itself, or a waiver of any right under this Agreement. No waiver
shall be binding unless executed in writing by the party making the waiver.
C. Limitation of Rights. Nothing in this Agreement, except as specifically
stated in this Agreement, is intended to confer any rights or remedies under or by reason of
this Agreement on any persons other than the parties to it and their respective permitted
successors and assigns and other legal representatives.
D. Remedies. Employee hereby agrees that a violation of the provisions of
Section 5, Section 6, or Section 7.A. would cause irreparable injury to the Company for
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which it would have no adequate remedy at law. Accordingly, in the event of any such
violation, the Company shall be entitled to preliminary and other injunctive relief. Any
such injunctive relief shall be in addition to any other remedies to which the Company may
be entitled at law or in equity, or otherwise.
E. Notice. Any consent, notice, demand, or other communication regarding any
payment required or permitted hereby must be in writing to be effective and shall be deemed
to have been received on the date delivered, if personally delivered, or the date received,
if delivered otherwise, addressed to the applicable party at the address for such party set
forth below or at such other address as such party may designate by like notice:
The Company:
Zix Corporation
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000, XX 36
Xxxxxx, Xxxxx 00000-0000, Attn: General Counsel
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000, XX 36
Xxxxxx, Xxxxx 00000-0000, Attn: General Counsel
If to Employee, to the address on file in the Company’s records.
F. Entirety and Amendments. This Agreement embodies the entire agreement
between the parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings relating to the subject matter hereof This Agreement is the
separation pay agreement referred to in that certain employment offer letter addressed to
Employee, dated October 6, 2008.
G. Successors and Assigns. This Agreement will be binding upon and inure to
the benefit of the parties to this Agreement and any successors-in-interest to the Company,
but otherwise, neither this Agreement nor any rights or obligations under this Agreement may
be assigned by Employee.
H. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Texas (excluding its conflict of laws
rules) and applicable federal law.
I. Cumulative Remedies. No remedy in this Agreement conferred upon any party
is intended to be exclusive of any other benefit or remedy, and each and every such remedy
shall be cumulative and shall be in addition to every other benefit or remedy given under
this Agreement or now or hereafter existing at law or in equity or by statute or otherwise.
No single or partial exercise by any party of any right, power, or remedy under this
Agreement shall preclude any other or further exercise thereof.
J. Multiple Counterparts. This Agreement may be executed in a number of identical
counterparts, each of which constitute collectively, one agreement; but making proof of this
Agreement, it shall not be necessary to produce or account for more than one counterpart.
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K. Descriptive Headings. The headings, captions, and arrangements used in this
Agreement are for convenience only and shall not be deemed to limit, amplify, or modify the
terms of this Agreement, nor affect the meaning hereof.
L. Arbitration. The Company and the Employee acknowledge that they have
executed that certain mutual alternate dispute resolution agreement, dated October 24, 2008
(the “Arbitration Agreement”). The Company and the Employee agree that, except as otherwise
provided in the Arbitration Agreement, all claims, demands, causes of action, disputes,
controversies, or other matters in question (“Claims”), whether sounding in contract, tort,
or otherwise and whether provided by statute or common law, arising under this Agreement or
the Employee’s employment (or its termination) are governed by the Arbitration Agreement.
M. 409A Compliance. This Agreement, as amended, is intended to be exempt from
and/or comply with the requirements (and not otherwise be subject to the interest and
penalty taxes of) section 409A of the Code and the regulations and other guidance issued
thereunder, and shall be interpreted in a manner consistent with that intent.
Notwithstanding the foregoing, in the event there is a failure under this Agreement to
comply with section 409A of the Code, the Company shall have the discretion to accelerate
any payment hereunder of “nonqualified deferred compensation” (within the meaning of section
409A of the Code), but only to the extent of the amount required to be included in income as
a result of such failure.
IN WITNESS WHEREOF, the parties have executed this Agreement effective on the date and year
first above written.
| ZIX CORPORATION | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx
|
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| Date: | 12-26-08
|
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| EMPLOYEE | ||||||
| /s/ Xxxxx X. Xxxxxx | ||||||
| Xxxxx X. Xxxxxx | ||||||
| Date: | 12-24-08 | |||||
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