1992 STOCK OPTION PLAN
(AMENDED AND RESTATED AS OF AUGUST 2000)
The purpose of the ZixIt Corporation 1992 Stock Option Plan
(hereinafter called the "Plan") is to advance the interests of ZixIt Corporation
(hereinafter called the "Company") by strengthening the ability of the Company
to attract and retain personnel of high caliber through encouraging a sense of
proprietorship by means of stock ownership.
Certain options granted under this Plan are intended to qualify as
"incentive stock options" pursuant to Section 422 of the Internal Revenue Code
of 1986, as amended from time to time (the "Code"), while certain other options
granted under this Plan will constitute nonqualified options.
As used in this Plan, and in any Option Agreement, as hereinafter
defined, the following terms shall have the following meanings, unless the
context otherwise requires:
(a) "Common Stock" shall mean the common stock of the Company, par value
$.01 per share, giving effect to the 3 shares for 2 shares stock split on the
record date of January 24, 1992 and the effective issuance date of February 13,
(b) "Committee" shall mean a committee of the Board of Directors comprised
of at least two directors. Members of the Committee shall be selected by the
Board of Directors. To the extent necessary to comply with the requirements of
Rule 16b-3, the Committee shall consist of two or more Non-employee Directors.
Also, if the requirements of Section 162(m) of the Code are intended to be met,
the Committee shall consist of two or more "outside directors" within the
meaning of Section 162(m) of the Code.
(c) "Date of Grant" shall mean the date on which a stock option is
granted pursuant to this Plan.
(d) "Effective Date" shall mean the first business day following the
date of the 1993 annual meeting of the shareholders of the Company.
(e) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
(f) "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 NASDAQ/NMS 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.
(g) "Non-employee Director" shall have the meaning given such term in
(h) "Optionee" shall mean the person to whom an option is granted under
this Plan or who has obtained the right to exercise an option in accordance with
the provisions of this Plan.
(i) "Plan Adoption Date" means the later of the date on which this Plan
is adopted by the Board of Directors of the Company and by the shareholders of
the Company in accordance with Rule 16b-3.
(j) "Rule 16b-3" shall mean Rule 16b-3 of the rules and regulations
under the Exchange Act as it may be amended from time to time and any successor
provision to Rule 16b-3 under the Exchange Act.
(k) "Subsidiary" shall mean any now existing or hereafter organized or
acquired corporation of which more than fifty percent (50%) of the issued and
outstanding voting stock is owned or controlled directly or indirectly by the
Company or through one or more Subsidiaries of the Company.
3. SHARES SUBJECT TO THIS PLAN
Except as otherwise provided by the provisions of Section 9 hereof, the
aggregate amount of Common Stock for which options may be granted under this
Plan shall not exceed 450,000 shares of Common Stock. Such shares may be
authorized and previously unissued shares or previously issued shares that have
been reacquired by the Company. Any shares of Common Stock subject to
unexercised portions of options granted under this Plan which shall have
terminated, been canceled, or expired may again be subject to the granting of
options under this Plan.
Notwithstanding herein anything to the contrary, to the extent
necessary to comply with the requirements of Rule 16b-3, this Plan shall be
administered by Committee. Options may be granted under this Section 4 only by
majority agreement of the members of the Committee. Stock Option Agreements
("Option Agreements"), in the form as approved by the Committee, and containing
such terms and conditions not inconsistent with the provisions of this Plan as
shall have been determined by the Committee, may be executed on behalf of the
Company by the President or any Vice President of the Company. The Committee
shall have complete authority to construe, interpret and administer the
provisions of this Plan and the provisions of the option agreements granted
hereunder; to prescribe, amend and rescind rules and regulations pertaining to
this Plan; and to make all other determinations necessary or deemed advisable in
the administration of this Plan. The determinations, interpretations and
constructions made by the Committee shall be final and conclusive.
Incentive stock options to purchase Common Stock may be granted under
Section 4 of this Plan to such employees of the Company or its Subsidiaries
(including any director who is also an employee of the Company or one of its
Subsidiaries) as shall be determined by the Committee. Nonqualified stock
options to purchase Common Stock may be granted under Section 4 of this Plan to
such employees or directors of the Company or its Subsidiaries as shall be
determined by the Committee. The Committee shall determine which persons are to
be granted options under Section 4 of this Plan, the number of options, the
number of shares subject to each option, the exercise price or prices of each
option, the vesting and exercise period of each option, whether an option may be
exercised as to less than all of the Common Stock subject thereto, and such
other terms and conditions of each option, if any, as are not inconsistent with
the provisions of this Plan. In addition, the Committee may, in its sole
discretion, provide for vesting of stock options to accelerate upon a change in
control of the Company as defined in an applicable Agreement ("Change in
Control") and enable an employee to "put" the excess of the fair market value
over the exercise price of the options to the Company in the event of a Change
in Control. In connection with the granting of incentive stock options, the
aggregate Fair Market Value (determined at the Date of Grant of an incentive
stock option) of the shares with respect to which incentive stock options are
exercisable for the first time by an Optionee during any calendar year (under
all such plans of the Optionee's employer corporation and its
parent and subsidiary corporations as defined in Section 424 of the Code) shall
not exceed $100,000 or such other amount as from time to time provided in
Section 422(d) of the Code or any successor provision.
6. EXERCISE PRICE
The purchase price or prices for Common Stock subject to an option (the
"Exercise Price") granted pursuant to Section 4 of this Plan shall be determined
by the Committee at the Date of Grant; provided, however, that (a) the Exercise
Price for any option shall not be less than 100% of the Fair Market Value of the
Common Stock on the Date of Grant, and (b) if the Optionee owns more than 10
percent of the total combined voting power of all classes of stock of the
Company or its parent or any of its subsidiaries, as more fully described in
Section 422(b)(6) of the Code or any successor provision (such shareholder is
referred to herein as a "10-Percent Stockholder"), the Exercise Price for any
incentive stock option granted to such Optionee shall not be less than 110% of
the Fair Market Value of the Common Stock on the Date of Grant.
7. TERM OF STOCK OPTIONS AND LIMITATIONS ON RIGHT TO EXERCISE
No incentive stock option granted pursuant to Section 4 of this Plan
shall be exercisable (a) more than five years after the Date of Grant with
respect to a 10-Percent Stockholder, and (b) more than ten years after the Date
of Grant with respect to all persons other than 10-Percent Stockholders. No
nonqualified stock option granted pursuant to Section 4 of this Plan shall be
exercisable more than ten years after the Date of Grant. The Company shall not
be required to issue any fractional shares upon the exercise of any options
granted under this Plan. No Optionee nor his 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. 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.
8. TERMINATION OF EMPLOYMENT
The Committee shall determine at the Date of Grant what conditions
shall apply to the exercise of an option granted under Section 4 in the event an
Optionee shall cease to be employed by the Company or a Subsidiary for any
reason. In the event of the death of an Optionee while in the employ or while
serving as a director of the Company or a Subsidiary, the option theretofore
granted to him shall be exercisable by the executor or administrator of the
Optionee's estate, or if the Optionee's estate is not in administration, by the
person or persons to whom the Optionee's right shall have passed under the
Optionee's will or under the laws of descent and distribution, within the year
next succeeding the date of death or such other period as may be specified in
the Option Agreement, but in no case later than the expiration date of such
option, and then only to the extent that the Optionee was entitled to exercise
such option at the date of his death. Neither this 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 services by the Company or
by a Subsidiary, nor to interfere in any way with his right or that of his
employer to terminate his employment or other services at any time (subject to
the terms of any applicable contract).
9. DILUTION OR OTHER ADJUSTMENTS
In the event that there is any change in the Common Stock subject to
this Plan or subject to options granted hereunder as the result of any stock
dividend on, dividend of or stock split or stock combination of, or any like
change in, stock of the same class or in the event of any change in the capital
structure of the Company, the Board of Directors or the Committee shall make
such adjustments with respect to options, or any provisions of this Plan, as it
deems appropriate to prevent dilution or enlargement of option rights.
10. EXPIRATION AND TERMINATION OF THIS PLAN
Options may be granted at any time under Section 4 of this Plan prior
to ten years from this Plan Adoption Date, as long as the total number of shares
which may be issued pursuant to options granted under this Plan does not (except
as provided in Section 9 above) exceed the limitations of Section 3 above. This
Plan may be abandoned, suspended or terminated at any time by the Board of
Directors of the Company except with respect to any options then outstanding
under this Plan.
11. RESTRICTIONS ON ISSUANCE OF SHARES
(a) The Company shall not be obligated to sell or issue any shares upon
the exercise of any option granted under this Plan unless:
(i) the shares with respect to which such option is being
exercised have been registered under applicable federal 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 with respect to which such option is being
exercised 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
issuable on any option.
If the shares to be issued upon the exercise of any option granted
under this Plan are intended to be issued by the Company in reliance upon the
exemptions from the registration requirements of applicable federal securities
laws, the Optionee, 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.
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 subject to an option 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 the option or the issue or purchase of shares under
(b) No option granted pursuant to this Plan shall be transferable by
the Optionee other than by will or the laws of descent and distribution or
pursuant to a "qualified domestic relations order" as defined in the Code.
(c) The Board of Directors or Committee may impose such other
restrictions on the ownership
and transfer of shares issued pursuant to this Plan as it deems desirable; any
such restrictions shall be set forth in any Option Agreement entered into
(d) 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 preestablished
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.
The proceeds to be received by the Company upon exercise of any option
granted under this Plan may be used for any proper purposes.
13. AMENDMENT OF THIS PLAN
The Board of Directors may amend this Plan from time to time in such
respects as it may deem advisable in its sole discretion or in order that the
options granted hereunder shall conform to any change in applicable laws,
including tax laws, or in regulations or rulings of administrative agencies or
in order that options granted or stock acquired upon exercise of such options
may qualify for simplified registration under applicable securities or other
laws; provided, however, that, to the extent required by Rule 16b-3 and the
Securities and Exchange Commission interpretations and releases thereunder, no
amendment may be made without the consent of shareholders which would materially
(a) increase the benefits accruing to participants under this Plan, (b) increase
the number of securities which may be issued under this Plan, other than in
accordance with Section 9 hereof, or (c) modify the requirements as to
eligibility for participation in this Plan.
14. PAYMENT UPON EXERCISE
Upon the exercise of any option granted under this Plan, the Company
may make financing available to the Optionee for the purchase of the Common
Stock that may be acquired pursuant to the exercise of such option on such terms
as the Committee shall specify. An Optionee may pay the Exercise Price of the
shares of Common Stock as to which an option is being exercised by the delivery
of cash, a certified cashier's check or, at the Company's option, by the
delivery of shares of Common Stock having a Fair Market Value on the date
immediately preceding the exercise date equal to the exercise price.
If the shares to be purchased are covered by an effective registration
statement under the Securities Act of 1933, as amended, any option granted under
this Plan 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
15. LIABILITY OF THE COMPANY
Neither the Company, its directors, officers or employees, nor any
Subsidiary which is in existence or hereafter comes into existence, shall be
liable to any Optionee or other person if it is determined for any
reason by the Internal Revenue Service or any court having jurisdiction that any
incentive stock option granted hereunder does not qualify for tax treatment as
an incentive stock option under Section 422 of the Code.
AMENDED AND RESTATED as of August 1, 2000.
By: /s/ Ronald A. Woessner