given full credit pursuant to such New Plan for purposes of satisfying all deductible, co-payments, coinsurance, offset and maximum out-of-pocket requirements applicable to such Continuing Employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance
with such New Plan; and (iii) credit the accounts of such Continuing Employees pursuant to any New Plan that is a flexible spending plan with any unused balance in the account of such Continuing Employee under a similar Old Plan.
As used herein, Company Benefit Plan means any plan, program, policy, practice, contract, agreement or other arrangement providing
for compensation or employee benefits, including each employment agreement, consulting agreement, independent contractor agreement, bonus, commission, stock option, stock purchase or other equity-based award, performance award, incentive
compensation, profit sharing, savings, retirement, pension, disability, life insurance, health or medical benefits, employee assistance program, sick leave, vacation or other paid time-off, deferred
compensation, severance, termination pay, post-employment or retirement benefits, retention, transaction bonus, change of control compensation, and fringe, welfare or other employee benefit or other similar plan, program, policy, practice, contract,
agreement or other arrangement providing for remuneration of any kind, whether or not in writing, whether funded or unfunded, including each employee benefit plan within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (ERISA) (whether or not subject to ERISA), in each case, which is sponsored, entered into, maintained, contributed to (or required to be sponsored, entered into, maintained or contributed
to) for the benefit of any current or former employee, consultant, independent contractor, or member of the Zix Board or with respect to which Zix or any of its subsidiaries (or any person under common control with Zix or any subsidiary or that,
together with Zix, could be deemed a single employer within the meaning of Section 4001(b)(1) of ERISA or within the meaning of Section 414(b), (c), (m) or (o) of the Internal Revenue Code at the relevant time) has any
liability, contingent or otherwise.
OpenTexts obligations with respect to the employee benefit matters are for the sole benefit of Zix and do not
create any rights for any Continuing Employees, including any rights to any continued employment with OpenText or any of its affiliates, or restrict in any way the right of Zix or its affiliates to terminate the services of any Continuing Employee.
Future Arrangements
The Merger Agreement
provides that, except as approved by the Zix Board, at all times during the period from the date of the Merger Agreement until the Effective Time, OpenText and Merger Sub will not, and will not permit any of their subsidiaries or controlled
affiliates to authorize, make or enter into, or commit or agree to enter into, any formal or informal arrangements or other understandings (whether or not binding) with any director or executive officer of Zix (i) regarding any continuing
employment or consulting relationship with the Surviving Corporation from and after the Effective Time, (ii) pursuant to which any such individual would be entitled to receive consideration of a different amount or nature than the Offer Price
in respect of such holders Shares or (iii) pursuant to which such individual would agree to provide, directly or indirectly, equity investment to OpenText, Merger Sub or Zix to finance any portion of the Transactions.
Except for certain agreements described in this Schedule 14D-9, or in the documents incorporated by reference herein,
between the Company and its executive officers and directors, no employment, equity contribution or other agreement, arrangement or understanding between any executive officer or director of Zix, on the one hand, and OpenText, Merger Sub, any of
their respective affiliates or Zix, on the other hand, existed as of the date of this Schedule 14D-9, and neither the Offer nor the Merger is conditioned upon any executive officer or director of Zix entering
into any such agreement, arrangement or understanding.
In addition, although such other arrangements have not been finalized as of the date of this
Schedule 14D-9, it is possible that Continuing Employees, including the executive officers, will enter into new compensation arrangements with OpenText or its affiliates. Such arrangements may include
agreements regarding future terms of employment, the right to receive equity or equity-based awards of OpenText or retention awards.
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