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securities of the Company, or call or seek to call a meeting of the Companys stockholders or initiate any stockholder proposal for action by the Companys stockholders or seek the
removal of any director from the Board, in each case inconsistent with the recommendations of the Board; (c) offer, seek, propose or indicate an interest in, any merger, consolidation or business combination, of the Company or any subsidiary of
the Company; and (d) otherwise act to seek to control or influence the management, board of directors or policies of the Company or any of its subsidiaries.
Transfer Restrictions
Subject to certain exceptions,
until the earlier of (x) the 12-month anniversary of the Closing Date and (y) a Change of Control (as defined in the Series A Certificate of Designations and the Series B Certificate of Designations)
or entry into a definitive agreement that would result in a Change of Control, True Wind may not transfer any Preferred Stock or any Common Stock issued upon conversion of the Series A Preferred Stock, other than to certain permitted transferees;
and until the earlier of (x) the 2-year anniversary of the Closing Date and (y) a Change of Control or entry into a definitive agreement that would result in a Change of Control, True Wind will not
make any short sale of, grant any option for the purchase of, or enter into any hedging or similar transaction of, any shares of Preferred Stock or Common Stock.
Voting Agreement
Subject to certain exceptions, so long
as True Wind beneficially owns shares of Preferred Stock and/or Common Stock that represent, in the aggregate and on an as-converted basis, at least 5% of the then-outstanding Common Stock, True Wind must take
such action as may be required so that all of the shares of Series A Preferred Stock or Common Stock beneficially owned by True Wind and entitled to vote at such meeting of stockholders are voted (i) in favor of each director nominated and
recommended by the Board for election at any such meeting, (ii) against any stockholder nominations for director which are not approved and recommended by the Board for election at any such meeting, (iii) in favor of the Companys say-on-pay proposal and any proposal by the Company relating to equity compensation that has been approved by the compensation committee of the Board and
(iv) in favor of the Companys proposal for ratification of the appointment of the Companys independent registered public accounting firm; provided, that True Wind is under no obligation to vote in the same manner as
recommended by the Board or in any other manner, other than in True Winds sole discretion, with respect to any other matter;; True Wind shall be present, in person or by proxy, at all meetings of the stockholders of the Company so that all
shares of Series A Preferred Stock or Common Stock beneficially owned by the True Wind may be counted for the purposes of determining the presence of a quorum and voted in accordance with this paragraph at such meetings.
Participation Rights
Subject to certain exceptions,
until the later of (A) the date True Wind no longer beneficially owns shares of Preferred Stock and/or Common Stock that represent, in the aggregate and on an as-converted basis, at least 5% of the
then-outstanding Common Stock, and (B) the four-year anniversary of the Closing Date, if the Company or a subsidiary of the Company proposes to issue equity securities of any kind, then True Wind will have a right to participate in such
transaction based on its pro rata ownership of the Common Stock then outstanding (on an as-converted basis), pursuant to the terms of the Investment Agreement.
Stockholder Approval
The Investment Agreement requires
Zix to include in its proxy statement prepared and filed with the Securities Exchange Commission for its 2019 annual meeting of stockholders a proposal for shareholders to approve the issuance of shares of Common Stock to True Wind in connection
with any future conversion of the Preferred Stock into Common Stock, including after giving effect to the conversion of shares of Series B Preferred Stock into shares of Series A Preferred Stock in accordance with the terms of such Preferred Stock,
and in connection with any issuance of Common Stock pursuant to, or upon conversion, exercise or exchange of, any securities issued pursuant to True Winds participation under the Investment Agreement that would, absent such approval, violate
Nasdaq Listing Rule 5635 (the Stockholder Approval). No shares of the Series A Preferred Stock issued under the Investment Agreement may be voted for such approval.
