exv10w1






Exhibit 10.1




EMPLOYMENT AGREEMENT



THIS EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into as of May 11, 2009, between
Ixia, a California corporation (“Employer”), and Richard A. Karp (“Executive”).




RECITALS



A. Prior to the execution of this Agreement, Executive has been an employee of Catapult
Communications Corporation (“Chariot”).



B. Employer has executed or plans to execute an Agreement and Plan of Merger (the “Merger
Agreement”) providing for the merger of a newly-formed subsidiary with and into Chariot, resulting
in Chariot becoming a wholly-owned subsidiary of Employer (the “Transaction”).



C. If the Closing (as defined in the Merger Agreement) of the Transaction occurs, Employer desires
to obtain the benefit of Executive’s service to Employer, and Executive is willing to perform such
services for Employer on the terms and conditions hereinafter set forth.



D. Employer has expended and will continue to expend a great deal of time, money and effort to
develop and maintain its proprietary, trade secret and other confidential business information
which, if misused or disclosed, could be very harmful to its business, including the Business (as
defined in the Merger Agreement) to be conducted by Employer after the Closing (the “Buyer
Business”).



E. Executive is the owner of approximately 25% of the issued and outstanding shares of capital
stock of Chariot. Upon the Closing, Employer will acquire all of Employee’s ownership interest in
Chariot, and Executive will receive from Employer in the Transaction substantial consideration in
exchanges for such shares.



F. Employer is unwilling to consummate the Transaction unless Executive agrees herein (i) to
commence employment with Executive as of the Effective Date pursuant to this Agreement, and (ii)
not to compete with Employer and the Buyer Business, as specified herein.



G. Executive acknowledges that (i) the services previously provided by him for Chariot and the
Business and the services to be performed by him for Employer and the Buyer Business (as defined
herein) are and will be of a special and unique character, and (ii) in order to assure Employer
that the Buyer Business will retain its value as a going concern and to preserve the goodwill
associated with the Buyer Business, it is necessary that Executive undertake not to utilize his
special knowledge of Chariot, the Business, Employer and the Buyer Business, to compete with
Employer and the Buyer Business as set forth herein.



NOW, THEREFORE, in consideration of the provisions and the mutual covenants of the parties
hereinafter set forth, it is hereby agreed as follows:




 









 





AGREEMENT




     1. Effective Date. Executive’s employment under this Agreement will commence on the date on
which the Effective Time occurs, as described in Section 3 of the Merger Agreement (the “Effective
Date”).



     2. Employment and Duties



          2.1 Full-Time Employment Period. During the six-month period commencing on the Effective Date
(the “Full-Time Employment Period”), Executive will perform services for Employer in the position
of Chief Evangelist, Wireless, or in such other capacity or capacities as may be approved from time
to time by Employer’s Board of Directors (the “Board”), and shall report directly to Atul Bhatnagar
or such other officer of Employer as may be designated by the Board. In such capacity or
capacities, Executive shall have such responsibilities, duties and authority as may from time to
time be assigned to Executive by Executive’s supervisor. Executive will perform his duties at the
offices of Employer to be located from time to time in or near Santa Clara, California, provided
that Executive may be required to do reasonable traveling in connection with the performance of his
duties hereunder. Employer agrees to continue the employment of Executive’s assistant at Chariot
for a period of six months following the Effective Date, on the same terms and conditions of
employment as are in effect as of May 10, 2009 and provided that the assistant shall also provide
support to other Chariot and Employer personnel assigned to her.




          2.2 Part-Time Employment Period.. During the eighteen-month period commencing immediately
upon expiration of the Full-Time Employment Period (the “Part-Time Employment Period” and, together
with the Full-Time Employment Period, the “Employment Period”), Employer shall continue to engage
Executive on a part-time basis. Executive shall be required to perform up to 40 hours of services
(in eight-hour, one -day increments) for Employer in each consecutive 90-day period during the
Part-Time Employment Period, during such weeks that are mutually agreeable to Executive and
Employer, and shall continue to have such responsibilities, duties and authority as may from time
to time be assigned to Executive by Executive’s supervisor. Executive will continue to perform his
duties at the offices of Employer to be located from time to time in or near Santa Clara,
California, provided that Executive may be required to do reasonable traveling in connection with
the performance of his duties hereunder.




     3. Exclusive Service; Compliance with Agreement, Law and Policies. During the Full-Time
Employment Period, Executive will loyally devote his exclusive and full-time efforts to his
employment with Employer hereunder. During the Employment Period, Executive will comply with the
terms of this Agreement, with all applicable laws and with the policies and procedures of Employer
applicable to officers of Employer. Executive may perform work for other entities (whether as an
employee or consultant) during the Part-Time Employment Period, so long as he is not in violation
of any other provision of this Agreement.



     4. Term of Agreement. The term of this Agreement will commence on the Effective Date and will
continue until (i) the close of business on the second-year anniversary of the Effective Date (or
the most recent business day prior thereto if such date is not a business day); or (ii) the earlier
termination of this Agreement pursuant to Section 6 hereof. Notwithstanding anything hereinto the
contrary, Executive’s employment with Employer during the Employment Period shall at all times be
“at-will,” meaning that Executive may resign at any time and that Employer reserves



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the right at any time to terminate Executive’s employment and this Agreement, for any or no
particular reason or cause, subject to the provisions set forth in Sections 6 and 7. The “at-will”
nature of Executive’s employment cannot be changed except by an express written agreement which
must be signed by an executive officer of Employer. Termination of this Agreement shall result in
the contemporaneous termination of the Employment Period.



     5. Compensation and Benefits.



          5.1 Base Salary. As compensation for services rendered under this Agreement during the
Full-Time Employment Period, provided Executive is not in default of any obligation hereunder,
Executive shall be paid an aggregate base salary of $160,000, payable in accordance with Employer’s
standard payroll schedules in effect from time to time and subject to usual and required employee
payroll deductions, withholding and reductions. During the Part-Time Employment Period, provided
Executive is not in default of any obligation hereunder, Executive shall be paid $500 for each day
on which services are rendered under this Agreement. During the Part-Time Employment, Executive
shall also be entitled to compensation in the form of the continued vesting of the Options (as
described in Section 5.4) and any COBRA (as defined herein) benefits provided in Section 5.3(b).




          5.2 Bonus Plans. Executive acknowledges that Employer has not adopted an officer bonus plan
applicable to the Employment Period and, therefore, Executive shall not be entitled to participate
in any bonus plan during the Employment Period.




          5.3 Additional Benefits.




               (a) During the Full-Time Employment Period, Executive will be eligible to participate in
Employer’s employee benefit plans that are applicable to executive officers, including, without
limitation, any plans covering medical, dental, vision, life and disability, 401(k) plans and
educational assistance programs. Any such participation in such employee benefit plans will be
subject to the terms, conditions and limitations contained in the applicable plan documents and/or
policies, as well as applicable law; provided, however, that, to the extent permitted under such
plans, for purposes of his participation in, and vesting in the benefits under, such plans, he
shall be credited with his service to Chariot prior to the Effective Date. In general, Executive
will receive such benefits during the Full-Time Employment Period as Employer provides to its
executive officers, it being understood that Employer retains the right to establish, change or
terminate any such plans, programs and benefits from time to time at its sole discretion.
Additionally, Executive shall be entitled to paid vacation from July 20, 2009 through August 6,
2009, and one additional week of paid vacation in October 2009, during a week that is mutually
agreeable to Employer and Executive.



               (b) During the Part-Time Employment Period, Employer shall pay Executive’s premiums for
coverage of Executive and his eligible dependents under the Consolidated Omnibus Budget
Reconciliation Act “(“COBRA”).



          5.4 Equity Incentive. Within 30 days following the Effective Date, Employer shall grant to
Executive nonstatutory stock options to acquire up to 150,000 shares of Employer’s common stock
(the “Options”) under Employer’s 2008 Equity Incentive Plan. Such Options will vest in eight equal
quarterly installments commencing on September 30, 2009 and continuing



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through the term of this Agreement. The Options will in all respect be subject to the terms
and provisions of Employer’s 2008 Equity Incentive Plan and the agreement evidencing the Options;
provided, however, that, notwithstanding anything to the contrary that may be
contained in the applicable equity incentive plan and/or the agreement evidencing the Options,
Executive will have twenty-four (24) months following the date the Employment Period is terminated
in which to exercise any outstanding Options. Furthermore, all outstanding Options will vest in
full as to 100% of the unvested portion of the Option upon termination of the Employment Period if,
and only if, such termination is by Employer without Cause (as defined below) or by Executive with
Good Reason (as defined below).




          5.5 Expenses. Executive will be reimbursed for all reasonable and necessary expenses incurred
by Executive in performing his duties hereunder, provided that such expenses are in accordance with
the Employer’s applicable policies and are properly documented and accounted for in accordance with
such policies. Notwithstanding the foregoing, Executive shall be entitled to business class air
travel (or, if traveling on a flight with only two classes of service, the class above
economy/coach), and hotel accommodations of Executive’s choice.




     6. Termination.



          6.1 General. Further to Section 4 of this Agreement, this Agreement and Executive’s
employment with Employer hereunder may be terminated at any time as follows:




               (a) Mutual Written Agreement. Employer and Executive may agree in writing to terminate this
Agreement and the Employment Period.



               (b) Termination by Employer. Employer may terminate this Agreement and the Employment Period
hereunder at any time at Employer’s sole discretion, with or without “Cause” (as defined under
Section 6.2 below), effective immediately or as of such other time as may be agreed by the parties,
by giving written notice to Executive (except that no notice is required to be given in the event
of Executive’s death, in which case this Agreement and Executive’s employment hereunder will
automatically terminate). If Employer is effecting any such termination for Cause, Employer shall
state in the notice that the termination is for Cause and the basis for such termination under
Section 6.2.



               (c) Resignation by Executive. Executive may terminate this Agreement and the Employment
Period at any time, with or without “Good Reason” (as defined under Section 6.3 below), effectively
immediately or as of such other time as may be agreed by the parties, by giving written notice to
Employer. If Executive is effecting any such resignation for Good Reason, Executive shall state in
the notice that the termination is for Good Reason and the basis for such termination under Section
6.3; provided, however, that Executive’s resignation shall only be deemed to have
been for Good Reason if he provides the written notice to Employer of his resignation and of the
existence of Good Reason within 90 days after the initial existence of the condition and Employer
then fails to remedy the condition within 30 days after receipt of such notice.



               (d) Death or Disability of Executive. This Agreement shall automatically terminate upon the
death of Executive or a determination that Executive has a long-term disability. For purposes of
this Agreement, “long-term disability” shall mean a condition which substantially



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impairs Executive’s ability to perform his obligations hereunder for at least 90 consecutive
work days or for any 90 work days during any 180-day period.



Executive acknowledges and agrees that the transfer of Executive to another Employer Entity (as
defined below) or to different division of Employer shall not be deemed to be a termination of the
Employment Period and shall not constitute Good Reason in the absence of any other specific event
set forth in the definition of Good Reason under Section 6.2 below.




          6.2 Cause Defined. For purposes of this Agreement, “Cause” for Executive’s termination by
Employer will exist at any time after the happening of one or more of the following events
following the Effective Date:




               (a) willful refusal or failure to follow one or more important Employer policies, including
without limitation those set forth in the Code;



               (b) any conduct amounting to gross incompetence;



               (c) refusal or failure to perform material, appropriate duties;



               (d) embezzlement, misappropriation of any property or other asset of Employer or
misappropriation of a corporate opportunity of Employer;



               (e) conviction of Executive for or the entering of a plea of nolo contendere with respect to
any felony whatsoever or for any misdemeanor involving moral turpitude;



               (f) unlawful use (including being under the influence) or possession of illegal drugs on
Employer’s premises;



               (g) any material breach of Executive’s obligations under this Agreement other than his
obligations under Sections 8 (Executive Non-Compete and Non-Solicitation) and 9 (Confidentiality
and Assignment of Inventions) of this Agreement; or



               (h) any breach by Executive of his obligations under Sections 8 (Executive Non-Compete and
Non-Solicitation) and 9 (Confidentiality and Assignment of Inventions) of this Agreement or any
other nondisclosure or proprietary agreement with or on behalf of Employer;


provided, however, that for any acts described under sections (a), (b), (c) and (g), Employer must
provide written notice to Executive of the actions constituting Cause, with such notice to state
that Employer believes such actions constitute Cause, and allow Executive ten days to cure such
events, which period can be extended by up to five days in the event that Executive is outside the
United States on Company business during the ten-day period, in which case the ten-day period shall
be extended for such number of days (up to five days) as Executive is outside the United States.




          6.3 “Good Reason” Defined. For purposes of this Agreement, “Good Reason” means, without the
express written consent of Executive, the occurrence of one or more of the following events after
the Effective Date:




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               (a) a reduction by Employer in Executive’s base salary;



               (b) Employer’s requiring Executive to be based for two consecutive months or more at an office
more than 30 miles from Santa Clara, California;



               (c) the assignment to Executive of duties materially inconsistent with the duties associated
with Executive’s position upon commencement of his employment with Employer on the Effective Date;
or



               (d) the material breach of Employer’s obligations to Executive under this Agreement if such
breach has not been cured within ten days after written notice from Executive to Employer (and
provided that any such written notice from Executive shall be required to state that Executive
believes the breach constitutes a basis for Good Cause termination under this Agreement).



     7. Effect of Termination or Resignation.



          7.1 Termination by Employer for Cause, Death or Disability or Resignation by Executive without
Good Reason. In the event of any termination of this Agreement and Employer’s employment of
Executive by Employer hereunder either as a result of termination by Employer for Cause, as a
result of Executive’s death or long-term disability or resignation by Executive other than for Good
Reason:




               (a) Employer shall pay Executive (or Executive’s executor or personal representative in the
case of death) the compensation and benefits accrued and payable to Executive under Section 5
through the date of such termination; and



               (b) Executive’s (or Executive’s executor’s or personal representative’s in the case of death)
rights following any such termination under Employer’s equity incentive plans and under Employer’s
benefit plans of applicable to executive officers, including without limitation any medical,
dental, vision, life, disability and 401(k) plans then in effect, shall be determined under the
provisions of those plans for terminated employees.



          7.2 Termination by Employer without Cause or Resignation by Executive with Good Reason. In
the event of any termination of this Agreement and the Employment Period hereunder either as a
result of termination by Employer without Cause or resignation by Executive for Good Reason:




               (a) Employer shall pay to Executive the compensation and benefits payable to Executive under
Section 5 through the date of such termination; provided, that, if such termination occurs
prior to the expiration of the Full-Time Employment Period, Employer shall pay to Executive the
base salary payable to Executive under Section 5 through the end of the Full-Time Employment
Period;



               (b) Employer shall continue to pay Executive’s COBRA through the Part-Time Employment Period
to the extent required by Section 5.3(b); and



               (c) Executive’s rights following any such termination under Employer’s equity incentive plans
and under Employer’s benefit plans applicable to executive officers, including



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without limitation any medical, dental, vision, life, disability and 401(k) plans then in
effect but excluding any general severance policies of Employer, shall be determined under the
provisions of those plans for terminated employees.




          7.3 Termination Covered by Chariot Change in Control Agreement. Executive shall remain
eligible for severance benefits under his existing change in control severance benefits agreement
with Chariot, subject to the terms and conditions of that agreement, upon the termination of his
employment with Employer.




     8. Non-Compete and Non-Solicitation.



          8.1 So long as Executive is an employee of or a consultant to Employer or any affiliated
entity (each, an “Employer Entity”) and in any event until the five-year anniversary of the
Effective Date (the “Non-Compete Period”) and in addition to and not in limitation of all other
applicable obligations of Executive hereunder, Executive shall not, directly or indirectly, either
for himself or for any other person or entity, directly or indirectly:




               (a) engage in any business or venture that competes, directly or indirectly, with the Buyer
Business as conducted by any Employer Entity on or after the Effective Date (a “Competing Business
Activity”) or enter into an employment, consulting or agency relationship with any entity or person
engaging in such a Competing Business Activity (a “Competitive Business”);



               (b) call upon or cause to be called upon, or solicit or assist in the solicitation of, in
connection with any Competing Business Entity or Competing Business Activity, any entity, agency,
person, firm, association, partnership or corporation that was a customer of Chariot prior to the
Effective Date or that is a customer of any Employer Entity during the Non-Compete Period for the
purpose of selling, licensing or supplying any products or services that are the same as, similar
to or competitive with the products or services sold or developed by the Business as conducted by
Chariot prior to the Effective Date and/or the Buyer Business as conducted by any Employer Entity
on or after the Effective Date; and/or



               (c) solicit, induce or attempt to solicit or induce any person to leave his or her employment,
agency, directorship or office with any Employer Entity.



          8.2 Employer and Executive specifically acknowledge and agree that the covenants set forth in
Section 8.1 are commercially reasonable and reasonably necessary, including without limitation with
respect to time period, geographic area and scope of business, to protect the interest in Chariot
that Employer will acquire in the Transaction.




          8.3 If any court or tribunal of competent jurisdiction shall refuse to enforce one or more of
the covenants contained in this Section 8 because (i) the time limit applicable thereto is deemed
unreasonable, or (ii) taken together, they are more extensive (whether as to geographic area, scope
of business or otherwise) than is deemed to be reasonable, it is expressly understood and agreed
that such covenant or covenants shall not be void, and that the time limitation or restrictions
contained therein (whether as to geographic area, scope of business or otherwise) shall be deemed
to be reduced to the extent necessary to permit the enforcement of such covenant or covenants.




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     9. Confidentiality and Assignment of Inventions. On or before the Effective Date, Executive
shall execute and enter into Employer’s standard Employee Agreement Concerning Works,
Confidentiality, Non-Disclosure, Non-Competition And Non-Solicitation, attached hereto
Attachment A.



     10. Executive’s Representations. Executive hereby represents and warrants that (i) the
execution, delivery and performance of this Agreement do not and shall not conflict with breach,
violate or cause a default under any contract, agreement, instrument, order, judgment or decree to
which Executive is a party or by which he is bound, (ii) Executive is not a party to or bound by
any employment agreement, non-compete agreement or confidentiality agreement with any other person
or entity other than any such agreements with Chariot, which agreements have been delivered by
Executive to Employer prior to execution of this Agreement, and (iii) upon the execution and
delivery of this Agreement by Employer, this Agreement shall be the valid and binding obligation of
Executive, enforceable in accordance with its terms.



     11. Severability. Nothing herein contained shall be construed to require the commission of
any act contrary to law. The determination that any provision of this Agreement is unenforceable
shall not terminate this Agreement or otherwise affect the other provisions of this Agreement, it
being the intention of the parties hereto that this Agreement shall be construed to permit the
equitable reformation of such provision to permit the enforcement of the remaining provisions of
this Agreement as if such unenforceable provision were not included herein.



     12. Equitable Relief. Executive acknowledges that the services to be rendered by Executive
are of a special, unique, extraordinary and intellectual character which gives them a peculiar
value, for the loss of which Employer cannot be reasonably or adequately compensated in damages,
and that a breach by Executive of the provisions of this Agreement will cause Employer irreparable
injury and damage. Executive therefore expressly agrees that Employer shall be entitled to
injunctive and other equitable relief to prevent a breach of this Agreement, or any part hereof,
and to secure its enforcement, in addition to all other remedies available to Executive.



     13. Notices. Any notice required or permitted to be given under the Agreement shall be in
writing and shall be deemed to have been given and received on (i) the date when personally
delivered, (ii) the next business day after deposit with a reputable courier service such as
Federal Express, provided receipt is confirmed by the sender, or (iii) three business days after
deposit with the United States Postal Service, registered or certified postage prepaid, in each
case addressed to the other party at the address shown below:


If to Employer:



Ixia

26601 W. Agoura Road

Calabasas, CA 91302

Attention: President and Chief Executive Officer

Facsimile No.: 818-444-3100



If to Executive:



Dr. Richard Karp





     or to such other address as either of them may designate to the other in writing.



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     14. Arbitration. In recognition of the mutual benefits of arbitration as a speedy,
cost-effective procedure for resolving disputes, and in lieu of any trial by jury, the parties
agree that except for the exclusions set forth in this Section 14, any dispute that cannot be
resolved by informal internal means and which relates to or arises out of Executive’s employment
with Employer, whether arising during or after employment and including matters arising out of or
pertaining to acts or omissions prior to the execution of this Agreement, will be exclusively
submitted to final and binding arbitration before JAMS under the then-applicable rules. The
arbitration shall be conducted in Santa Clara County, California. This agreement to arbitrate
specifically includes without limitation all claims under or relating to any federal, state or
local law or regulation prohibiting discrimination, harassment or discharge; any alleged or actual
contract; any Employer policy or benefit, entitlement to wages or other economic compensation; and
any claim for personal, emotional, physical, economic or other injury. Employer shall be
responsible for the filing fee and tribunal costs associated with any arbitration under this
Agreement. The arbitrator shall have no power or authority to add to or, except as otherwise
provided by Section 11 hereof, to detract from the agreements of the parties as set forth in this
Agreement, and the prevailing party shall recover costs and attorneys’ fees incurred in any such
arbitration. The only claims that are not covered by this agreement to arbitrate are (a) any
administrative charges or claims before governmental agencies that cannot legally be submitted to
mandatory arbitration; (b) any claim for benefits under any pension or benefit plan that provides
its own non-judicial dispute resolution procedure; or (c) any proceedings for injunctive relief as
contemplated by Section 12.



     15. Amendment and Waiver. This Agreement may be amended and any terms of it waived only by a
written instrument executed by both of the parties hereto, or in the case of a waiver, by the party
waiving compliance. The failure or waiver of either party at any time or times to require
performance of any provision hereof shall in no manner affect the right at a later time to enforce
the same or any other provision.



     16. Governing Law. This Agreement shall be governed and construed under and in accordance
with the laws of the State of California. The parties acknowledge that they each have, and will
continue to have, substantial contacts with the State of California, where Employer has its
headquarters as of the date of execution of this Agreement, and that the Buyer Business shall be
managed and directed from the State of California. Executive will receive policy and management
direction, and Confidential Information, from the State of California, and will participate in
meetings in the State of California (including telephonic participation from other locations)
during which he will receive, discuss and develop Confidential Information. To ensure that any
disputes arising under this Agreement are resolved in accordance with the parties’ expectations,
this Agreement shall be governed by and construed under the laws of the State of California and
applicable federal laws, as the parties agree that their expectations with respect to the scope and
enforcement of this Agreement, including without limitation Sections 8, 9, 11 and 12 are based on
California law, and that California law is therefore the most applicable law to this Agreement and
any disputes hereunder.



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     17. Entire Agreement. Executive acknowledges and agrees that he is not entering into this
Agreement in reliance upon any term or condition not stated herein; that this Agreement is the
entire agreement pertaining to the subject matter hereof; and that this Agreement supersedes any
and all prior or contemporaneous agreements, arrangements, negotiations and understandings between
or among Executive, Employer and/or Chariot, or any of them, whether oral or written, pertaining to
the Employment Period.



     18. Assignment. This Agreement and all rights hereunder are personal to Executive and may not
be transferred or assigned by Executive at any time. Employer’s rights, together with its
obligations hereunder, may be assigned to any parent, subsidiary, affiliate or successor, or in
connection with any sale, transfer or other disposition of all or substantially all of the Buyer
Business or of Employer’s business and assets; provided, however, that any such
assignee shall be required to assume Employer’s obligations hereunder.



     19. Survivability. Without prejudice to the survival of any of Executive’s other obligations
and/or Employer’s other rights, Executive and Employer expressly agree that Executive’s obligations
and/or Employer’s rights under Section 6 (with respect to the definition of Cause and Good Reason)
and Sections 7 through 21 will survive the expiration or termination of this Agreement.



     20. Independent Advice. Executive has been encouraged to consult with counsel of his choice
concerning this Agreement. Executive hereby acknowledges and represents that he has consulted
with, or has voluntarily declined to consult with, independent counsel regarding his rights and
obligations under this Agreement, and that he fully understands and is voluntarily agreeing to the
terms and conditions contained herein.



     21. Agreement Null and Void for Failure to Close Transaction. In the event this Agreement
does not become effective on or before October 1, 2009, it shall be deemed null and void.



     22. Section 409A Compliance. Notwithstanding anything to the contrary herein, the following
provisions shall apply to the extent that the severance benefits provided under Section 7.2
(collectively, the “Severance Benefits”) are subject to Section 409A of the Internal
Revenue Code of 1986, as amended, and the regulations and other published guidance thereunder
(collectively, “Section 409A”). The Severance Benefits shall not commence until Executive
has a “separation from service” for purposes of Section 409A. Each installment of the cash
severance payments under Section 7.2(a) shall be considered a “separate payment” for purposes of
Treas. Regs. Section 1.409A-2(b)(2)(i). The Severance Benefits are intended to satisfy the
exemptions from the application of Section 409A provided under Treas. Regs. Sections 1.409A-1(b)
(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such exemptions are not applicable to the
Severance Benefits and Executive is, upon separation from service, a “specified employee” for
purposes of Section 409A, then, solely to the extent necessary to avoid adverse personal tax
consequences for Executive under Section 409A, the timing of the Severance Benefits shall be
delayed as necessary until the earlier of (i) six (6) months and one (1) day after Executive’s
separation from service, and (ii) Executive’s death.




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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.




	 	 	 	 	 	 	 	 	 
	IXIA	 	 	 	EMPLOYEE  
	 
	 	 	 	 	 	 	 	 
	By:

	 	  /s/ Atul Bhatnagar
	 	 	 	  /s/ Richard A. Karp	 	 
	 

	 	 
	 	 	 	 	 	 
	Name:

	 	    Atul Bhatnagar
	 	 	 	    Richard A. Karp	 	 
	Title:

	 	    President & CEO	 	 	 	 	 	 






(Signature page to Employment Agreement)














 








Attachment A




Employee Agreement Concerning Works, Confidentiality, Non-Disclosure, Non-Competition And
Non-Solicitation




See attached.

















 





IXIA



EMPLOYEE AGREEMENT CONCERNING WORKS, CONFIDENTIALITY,

NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION


(New Employees)



     In consideration of and as an essential condition to the offer by Ixia, a California
corporation with its principal place of business located at Ixia, 26601 West Agoura Road,
Calabasas, CA 91302 (the “Company”), to hire the undersigned (the “Employee”) as an employee of the
Company, the Employee and the Company hereby agree effective as of the ______ day of _______________,
200___, as follows:



     1. Works.



          1.1 For purposes of this Agreement, “Works” shall mean ideas, designs, concepts, techniques,
inventions, discoveries and works of authorship, whether or not patentable or protectible by
copyright or as a mask work, and whether or not reduced to practice, including, without limitation,
devices, processes, trade secrets, formulas, techniques, compositions of matter, computer software
programs, mask works and methods, together with any improvements thereon or thereto, derivative
works made therefrom and know-how related thereto.




          1.2 The Employee will promptly disclose in writing to the Board of Directors or the President
of the Company every Work made, conceived, developed or reduced to practice, in whole or in part,
solely by the Employee or jointly with others, either (i) during the term of the employment
relationship of the Employee with the Company, whether or not the Employee believes the Work to
have been made, conceived, developed or reduced to practice within the course and scope of the
employment relationship of the Employee with the Company and whether or not the Employee believes
the Work to be protected under the provisions of Section 2870 of the California Labor Code (a copy
of which is attached hereto as Schedule A) or (ii) after the termination of the employment
relationship of the Employee with the Company, if such Work is made through the use of Confidential
Information or any of the Company’s equipment, facilities, supplies, trade secret information or
time, or results from any work performed by the Employee for the Company.




          1.3 The Employee hereby agrees that all Works made, conceived, developed or reduced to
practice, in whole or in part, solely by the Employee or jointly with others, either during or
after the term of the employment relationship of the Employee with the Company, if such Works are
made through the use of any of the Confidential Information or any of the Company’s equipment,
facilities, supplies, trade secret information or time, or result from any work performed by the
Employee for the Company, or relate to the Company’s business during the term of the employment of
the Employee by the Company or the Company’s actual or demonstrably anticipated research and
development during such term of employment, shall belong exclusively to the Company and shall be
deemed part of the Confidential Information for purposes of this Agreement whether or not fixed in
a tangible medium of expression. Without limiting the foregoing, the Employee agrees that all such
Works shall be deemed to be “works made for hire” under the U.S. Copyright Act of 1976, as amended,
and that the Company shall be deemed the author and owner thereof, provided that in the event and
to the extent such Works are determined not to constitute “works made for hire” as a matter of law,
the Employee hereby irrevocably assigns and transfers to the Company the entire right, title and
interest, domestic and foreign, of the Employee in and to such Works. This Agreement shall be
construed in



 









 






accordance with the provisions of Section 2870 of the California Labor Code relating to
inventions made by an employee, and, accordingly, this Agreement is not intended to, and shall not
be interpreted to, assign to or vest in the Company any of the Employee’s rights in any Works other
than those described in the first sentence of this Section 1.3.




          1.4 The Employee agrees to keep and maintain adequate and current written records (in the form
of notes, sketches, drawings or in other appropriate forms) of all Works made by the Employee,
which records shall be available at all times to the Company and shall remain the sole property of
the Company.




          1.5 The Employee agrees to assist the Company, both during and subsequent to the employment
relationship of the Employee with the Company, in obtaining and enforcing for the Company’s own
benefit patents, copyrights, mask work rights, trade secret rights and other legal protections in
any and all countries for any and all Works made by the Employee (in whole or in part), the rights
to which belong to or have been assigned to the Company pursuant to this Agreement. Upon request,
the Employee will execute all applications, assignments, instruments and papers and perform all
acts that the Company or its counsel may deem necessary or desirable to obtain or enforce any and
all such patents, copyrights, mask work rights, trade secret rights and other legal protections in
such Works and otherwise to protect the interests of the Company therein.




          1.6 The Company agrees to bear all expenses which it causes to be incurred by the Employee in
assigning, obtaining, maintaining and enforcing said patents, copyrights, trade secret rights, mask
work rights and other legal protections in accordance with this Agreement.




          1.7 The obligations of this Section 1 shall continue beyond the termination of the employment
relationship, and these obligations shall be binding upon the assigns, executors, administrators
and other legal representatives of the Employee. No rights are hereby conveyed in Works, if any,
made by the Employee prior to the commencement of the employment relationship of the Employee with
the Company which are identified in Schedule B attached hereto and incorporated herein; provided,
however, that any improvements, whether or not patentable or copyrightable and whether or not
reduced to practice, made to or on, or any derivative works made from, any of the listed Works
after commencement of the employment of the Employee by the Company are subject to the terms of
this Section 1. The Employee further agrees to notify the Company in writing before the Employee
makes any disclosure to, or performs any work on behalf of, the Company which appears to threaten
or conflict with any proprietary or other rights the Employee claims in any Work, and in the event
of the failure of the Employee to give such notice, the Employee will make no claim against the
Company with respect to any such Work.




          1.8 The Employee understands that utilization of the Works is in the sole discretion of the
Company, and that the Company is not obligated to develop, market or otherwise use any device or
product.




     2. Disclosure and Protection of Confidential Information.



          2.1 For the purposes of this Agreement, “Confidential Information” means knowledge,
information and material which is proprietary to the Company or designated as Confidential
Information (or in another manner indicating its confidential nature) by the Company and not
generally known by non-Company personnel, of which the Employee may obtain knowledge or access
through or as a result of the employment of the Employee by the Company (including information
conceived,




2









 




originated, discovered or developed in whole or in part by the Employee). Confidential
Information includes, without limitation, (i) technical knowledge, information and material such as
trade secrets, concepts, designs, discoveries, ideas, processes, formulas, data, research,
know-how, improvements, Works (as defined in Section 1.1 of this Agreement), computer software
programs, source code, object code, documentation, diagrams, flow-charts, drawings and experimental
and developmental work techniques and (ii) marketing and other information such as customer lists,
price lists, pricing policies, marketing and business plans and strategies, product plans,
financial information and projections, management reports, forecasts, manuals, personnel records or
data, information regarding business or technical needs of customers, consultants, licensees or
suppliers and their methods of doing business and information regarding arrangements with
customers, consultants, licensees or suppliers. Confidential Information also includes any
information described above which the Company obtains from another party and which the Company
treats as proprietary or designates as confidential, whether or not owned or developed by the
Company.




          2.2 The Employee agrees, both during the employment of the Employee by the Company and after
termination of such employment, to hold in strict confidence and trust all Confidential Information
and not to reveal, report, publish, disclose or transfer, directly or indirectly, any Confidential
Information to any person or entity, or to utilize any Confidential Information for any purpose
except in the course and within the scope of the Employee’s work for the Company.




          2.3 The Employee will abide by any and all security rules and regulations, whether formal or
informal, that may from time to time be imposed by the Company for the protection of Confidential
Information, and will inform the Company of any defects in, or improvements that could be made to,
such rules and regulations.




          2.4 The Employee will notify the Company in writing immediately after the Employee receives a
subpoena, notice to produce, or other compulsory order or process of any court of law or government
agency if such document requires or may require disclosure or other transfer of Confidential
Information.




          2.5 All notes, data, reference materials, sketches, drawings, memoranda, documentation and
records in any way incorporating or reflecting any of the Confidential Information and all
proprietary rights therein, including copyrights, shall belong exclusively to the Company. Upon
the request of the Company and upon termination of the employment relationship of the Employee with
the Company, the Employee will promptly deliver to the Company all such materials and copies
thereof, and any and all other materials of a secret or confidential nature relating to the
Confidential Information, which are in the possession or under the control of the Employee, and the
Employee will not take with the Employee any documents or materials or copies thereof containing
any Confidential Information.




          2.6 Except to the extent that any such waiver is prohibited by law, the Employee hereby
forever waives and agrees never to assert in or with respect to any Work subject to this Agreement
the benefits of any provision of law known as “moral rights” or “droit moral” or any similar law in
any country of the world (including under Section 106A of the U.S. Copyright Act of 1976, as
amended). “Moral rights” or “droit moral” shall include any rights to claim authorship of a Work,
to object to or prevent the modification of any Work, or to withdraw any Work from circulation,
publication or distribution.




3









 





     3. Other Employment.



          3.1 The Employee acknowledges that the Company has a strict policy against using proprietary
information belonging to any other person or entity without the express permission of the owner of
that information. The Employee represents and warrants that the performance by the Employee of all
of the terms of this Agreement and as an employee of the Company will not result in any breach of
any duty owed by the Employee to a third party to keep in confidence or not to use any proprietary
information, knowledge or data acquired by the Employee in confidence or in trust prior to or
during the employment of the Employee by the Company, and the Employee agrees not to disclose to
the Company or to induce the Company to use any confidential or proprietary information belonging
to any of the previous employers of the Employee or to others.




     4. Restrictive Covenants.



          4.1 During the term of the employment of the Employee by the Company, without prior written
authorization of the Company, the Employee will not, directly or indirectly, engage or invest,
whether alone, as a partner or as an officer, director, employee or five percent or more
shareholder of another corporation, in any activity directly or indirectly competitive with or
adverse to the welfare of the Company with respect either to its then existing business or future
business plans.




          4.2 During the term of the employment of the Employee by the Company, the Employee will not,
without first obtaining the express prior written consent of the Company, render services for,
engage in or enter into the employment of, or act as an advisor or consultant to, any person, firm
or corporation engaged in or about to become engaged in a business anywhere in the United States
competitive with any business conducted or proposed to be conducted by the Company during the
employment of the Employee by the Company.




          4.3 During the term of the employment of the Employee by the Company, the Employee will not
solicit the business of any client, customer or supplier of the Company for the Employee’s own
benefit or for the benefit of any other party.




          4.4 During the term of employment of the Employee by the Company and for a period of one year
after termination for any reason of the employment of the Employee by the Company, the Employee
will not, directly or indirectly, solicit any other employee or consultant of the Company to leave
his or her employment or consulting relationship with the Company.




     5. Termination of Employment Relationship.



          5.1 Before accepting another employment or consulting relationship the Employee will provide,
and the Employee authorizes the Company to provide at any time before or after termination of the
employment relationship of the Employee with the Company, to each prospective or new employer, to
each prospective or new company hiring the Employee as a consultant and/or to each prospective or
new business partner, co-venturer, financial institution or other entity that has an interest in a
business owned, in whole or in part, by the Employee, a copy of this Agreement, including any
restrictive covenants to which the Employee may be subject, in order to provide notice to such
person or entity of the restrictions that this Agreement or any other agreement may impose on the
job or business responsibilities of the Employee.




4









 








     6. Remedies.



          6.1 Because of the unique nature of the Confidential Information and the rights of the Company
hereunder, the Employee understands and agrees that the Company will suffer irreparable harm in the
event the Employee fails to comply with the Employee’s obligations under this Agreement and that
monetary damages will be inadequate to compensate the Company for such breach. In the event of a
breach or threatened breach by the Employee of the provisions of this Agreement, the Company shall
be entitled to an injunction restraining the Employee from violating the terms hereof, or from
disclosing to any person or entity, whether or not the Employee is then employed by or consulting
with such entity, or an officer, director or owner thereof, any confidential, proprietary or
privileged information, including but not limited to any Works referred to in Section 1 hereof and
any Confidential Information referred to in Section 2 hereof.




          6.2 Nothing herein shall be construed as prohibiting the Company from pursuing any other
remedies available to it for such breach or threatened breach of this Agreement including recovery
of damages from the Employee. Both parties hereto recognize that the services to be rendered by
the Employee during the term of the employment relationship of the Employee with the Company are
special, unique and of extraordinary character.




     7. Miscellaneous.



          7.1 THIS IS NOT AN EMPLOYMENT AGREEMENT. NOTHING IN THIS AGREEMENT GIVES THE EMPLOYEE ANY
RIGHT TO EMPLOYMENT OR CONTINUED EMPLOYMENT BY THE COMPANY OR IN ANY MANNER AFFECTS THE RIGHT OF
THE COMPANY TO TERMINATE THE EMPLOYMENT OF THE EMPLOYEE AT ANY TIME FOR ANY REASON, WITH OR WITHOUT
CAUSE.




          7.2 All notices under this Agreement shall be in writing, shall specifically reference this
Agreement and shall be deemed to be duly sent and given upon personal delivery, five days after
deposit in the U.S. mail by certified or registered mail, return receipt requested, with postage
prepaid, or one business day after deposit with a national courier service, addressed to the party
to be notified at such party’s address as set forth herein (if, however, a party has given the
other party due notice of another address for the sending of notices, then future notices shall be
sent to such new address).




          7.3 This Agreement contains the full and complete understanding of the parties with respect to
the subject matter hereof and supersedes all prior representations and understandings, whether oral
or written.




          7.4 No amendment, modification or waiver of this Agreement shall be valid unless made in
writing and signed by the parties hereto. Without limitation, the Company expressly does not waive
its right with respect to any failure by the Employee to disclose a Work in writing, even if the
Company’s past conduct has given the Employee a reasonable expectation that it would waive failure
by the Employee to disclose such Work to it.




          7.5 Neither this Agreement nor any benefits hereunder are assignable by the Employee, but the
terms and provisions hereof shall inure to the benefit of the Company’s successors and assigns.




5









 





          7.6 If either party fails to comply with any obligation under this Agreement, the party that
vindicates such party’s rights by means of legal proceedings shall be paid all its costs and
expenses, including, without limitation, all reasonable attorneys’ fees, by the party in violation
of this Agreement.




          7.7 While the provisions of this Agreement are considered by the parties to be reasonable
under the circumstances hereof, if any provision of this Agreement shall be adjudged to be void or
invalid for any reason whatsoever, but would be valid if part of the wording thereof were deleted
or changed, then such provision shall apply with such modifications as may be necessary to make it
valid and effective. In the event that one or more of the provisions of this Agreement is found to
be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein shall not in any way be affected or impaired thereby.




          7.8 This Agreement shall be construed in accordance with and governed by the laws of the State
of California applicable to contracts between residents of California which are wholly executed and
performed in California.




          7.9 This Agreement shall survive any termination for any reason whatsoever of the Employee’s
employment with the Company.




 




     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year
first written above.



	 	 	 	 	 	 	 	 
	IXIA

	 	EMPLOYEE
	 
	 	 	 	 	 	 
	By:

	 	 	 	Signature:	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	Name:

	 	 	 	Print Name: 	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	Title:

	 	 	 	Address:	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	 





6









 





SCHEDULE A



CALIFORNIA LABOR CODE



Section 2870. Employment agreements; assignment of rights




     (a) Any provision in an employment agreement which provides that an employee shall assign, or
offer to assign, any of his or her rights in an invention to his or her employer shall not apply to
an invention that the employee developed entirely on his or her own time without using the
employer’s equipment, supplies, facilities, or trade secret information except for those inventions
that either:



          (1) Relate at the time of conception or reduction to practice of the invention to the
employer’s business, or actual or demonstrably anticipated research or development of the employer;
or




          (2) Result from any work performed by the employee for the employer.




     (b) To the extent a provision in an employment agreement purports to require an employee to
assign an invention otherwise excluded from being required to be assigned under subdivision (a),
the provision is against the public policy of this state and is unenforceable.



7









 




SCHEDULE B


TO

EMPLOYEE AGREEMENT CONCERNING WORKS, CONFIDENTIALITY,

NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION


LIST OF WORKS



 

 

 

 

 

 

 

 

 

 

 

 

 




	 	 	 	 	 
	 

	 	 
	 	 
	 

	 	Company Initials
	 	Employee Initials







8