Employment Offer Letter

Officer Severance Plan

Amendment to the Officer Severance Plan

Amended and Restated Officer Severance Plan

EX-10.1 2 v33433exv10w1.htm EXHIBIT 10.1

EXHIBIT 10.1

26601 W. Agoura Road
Calabasas, California 91302 USA
Tel: 877.FOR.IXIA
Fax: 818.871.1805
www.ixiacom.com

August 6, 2007



CONFIDENTIAL


Atul Bhatnagar
19193 Allendale Avenue
Saratoga, CA 95070

 

Via Federal Express

Dear Atul,

On behalf of Ixia (“Ixia” or the “Company”), I am pleased to offer you employment as President and Chief Operating Officer of the Company under the terms and conditions set forth in this letter. As President and Chief Operating Officer, you will report directly to the Chief Executive Officer of the Company and will have such duties and responsibilities as set forth in Ixia’s Bylaws and as may be delegated to you from time to time by the Chief Executive Officer or the Board of Directors. You will be principally responsible for managing the day-to-day operations of Ixia and for developing and implementing Ixia’s strategic and tactical goals.

Your start date will be September 4, 2007. Within 30 days following the commencement of your employment with Ixia, you will be appointed to the Board of Directors.

It is our expectation that if in the discretion of the Company’s Board of Directors you satisfactorily perform your duties and responsibilities as President and Chief Operating Officer, then you will be appointed as Chief Executive Officer and President of the Company to succeed Errol Ginsberg on or before February 1, 2008.

You agree to devote your full-time attention and best efforts to the performance and discharge of such duties and responsibilities and to perform and discharge such duties and responsibilities faithfully, diligently and to the best of your abilities.

Your starting annual base salary will be $375,000 payable in accordance with Ixia’s payroll policies as in effect at that time. You will be eligible to participate in the Company’s 2008 executive officer bonus plan, as approved by the Ixia Board of Directors, with a target bonus opportunity of 75% of your 2008 annual salary upon 100% achievement of the Company’s 2008 financial targets and a maximum bonus opportunity of up to 100% of your 2008 annual salary if the Company exceeds its 2008 financial targets.

 


 

Mr. Bhatnagar
August 6, 2007
Page 2

For 2007, you will be eligible to receive a discretionary bonus in the maximum amount of $100,000, based on the percentage degree to which you achieve certain individual business and/or strategic objectives assigned to you for 2007. The Compensation Committee of the Board of Directors, in its discretion, will determine the amount of your bonus no later than February 15, 2008, and any amount so determined will be paid within 30 days following the Compensation Committee’s determination.

As a new employee, you will be eligible to participate in Ixia’s benefit programs (e.g., medical, dental, life insurance, etc.), which are generally available to the Company’s executive officers. In addition, you will be designated as an “Eligible Officer” under Ixia’s Officer Severance Plan (a copy of which has been provided to you).

You will be offered the opportunity to participate in Ixia’s Employee Stock Purchase Plan and 401(k) Plan upon your satisfaction of the eligibility requirements for such Plans.

As part of your compensation package, I will recommend that the Company’s Compensation Committee grant to you, within 30 days following your start date, under the Company’s Amended and Restated 1997 Equity Incentive Plan (the “Plan”): (i) nonstatutory stock options (“NSOs”) to purchase 400,000 shares of Ixia Common Stock (“Option A”); (ii) NSOs to purchase 300,000 shares of Ixia Common Stock (“Option B”); and (iii) 15,000 Restricted Stock Units (“RSUs”). The exercise price of your Options will be equal to the closing sales price of Ixia Common Stock on the date on which the Options are granted.

Option A will vest and become exercisable with respect to 100,000 shares upon completion of one year of employment with the Company, and the remaining 300,000 shares subject thereto will vest and become exercisable, cumulatively, in 12 equal quarterly installments commencing on the last day of the first full calendar quarter following the initial vesting date of your option, as long as you remain an employee of the Company. Option B will vest and become exercisable as to all 300,000 shares subject thereto upon the Company’s achievement of certain financial goals.

Both Option A and Option B will be subject to the terms and provisions of the Plan and the Stock Option Agreements evidencing the grant of your Options. Both Option A and Option B will expire, to the extent previously unexercised, upon the earlier of four years from the vesting date of grant or 30 days (at a minimum) after you cease to be an employee of the Company. In addition to the foregoing principal terms, both Option A and Option B will include such other terms and conditions that are customarily included in options granted to employees of the Company.

Your RSUs will vest and the shares represented thereby will automatically be issued in eight equal quarterly installments, with the first installment vesting on November 15, 2007 and one additional installment vesting on the 15th day of the second month of each calendar quarter thereafter as long as you remain an employee of the Company. Your RSUs will be subject to the terms and provisions of the Plan and your RSU Agreement.

 


 

Mr. Bhatnagar
August 6, 2007
Page 3

Ixia will reimburse you for (i) the commissions and fees paid by you in connection with the sale of your current home, (ii) the closing costs you incur in connection with your purchase of a new home in the Los Angeles area (provided that such closing occurs prior to August 1, 2008), and (iii) up to a maximum of $30,000 for your actual reasonable out-of-pocket travel, moving and other expenses relating to your relocation to the Los Angeles area. In addition, the Company will pay you up to an additional $15,000 to reimburse you for unanticipated or incidental matters related to your relocation. The Company will also reimburse you for the reasonable costs of temporary housing in the Los Angeles area pending your relocation (up to a maximum of six months).

As a condition of commencing your employment with Ixia, you will be required to sign Ixia’s standard “Confidentiality and Non-Disclosure Agreement and Assignment of Rights” (a copy of which is enclosed herewith). In addition, due to immigration law requirements, it will be necessary for you to complete an Employee Eligibility Form (I-9). In connection therewith, we will need appropriate identification as set out on page two of the Employee Eligibility Form (I-9).

As with every Ixia employee, you reserve the right to terminate your employment at any time, and we reserve the right in our discretion to terminate your employment with immediate effect, for any reason or no reason, and without any liability for compensation or damages. We hope, however, that this will be a long and mutually beneficial relationship. Our offer is expressly subject to our completion and receipt of satisfactory background reference checks on you which we expect to complete within the next week.

This letter contains our entire understanding with respect to your employment with Ixia and supersedes all prior or contemporaneous representations, promises, discussions or agreements with respect to the subject matter hereof, whether written or oral, and whether made to you or with you by any employee, director or officer of, or any other person affiliated with, Ixia or any actual or perceived agent thereof. Ixia reserves the right to make reasonable minor changes to the terms and conditions of employment of all its employees (including you); such changes shall be notified by way of a general notice to all employees and shall take effect from the date of the notice (unless such other effective date is specified in the notice). Subject thereto, the provisions of this letter may be amended, modified, supplemented or waived only by a writing specifically identifying this letter and signed by you and by myself or the Chairman of the Ixia Board of Directors on behalf of Ixia. If you have any questions about the meaning of any of the terms or provisions included herein, please let me know at your earliest convenience.

This letter and the rights and obligations of the parties hereto shall be governed and construed under the laws of the State of California.

Atul, we believe that Ixia can provide you with a meaningful opportunity for professional growth and financial return. We look forward to working with you and believe that you can make a very significant, positive contribution to the success of Ixia. Our Company offers you an opportunity to put your experience, abilities, dedication, energy and creativity to excellent use. Welcome to the team!

 


 

Mr. Bhatnagar
August 6, 2007
Page 4

Please acknowledge your acceptance of this offer prior to August 9, 2007 by signing and dating the enclosed copy of this letter where indicated below and sending (i) to me either a copy of the signed agreement by fax (818.936.0564) or a pdf copy (errol@Ixiacom.com) and (ii) the signed copy to me at Ixia, 26601 W. Agoura Road, Calabasas, California 91302.

 

 

 

 

 

 

Sincerely,
 

 

 

/s/ Errol Ginsberg  

 

 

 

 

 

Errol Ginsberg
President and Chief Executive Officer 

 

 

Acknowledged and Accepted:

 

 

 

/s/ Atul Bhatnagar

 

Date: August 8, 2007

 

Atul Bhatnagar

 

 

 

 EXHIBIT 10.4
                                      IXIA
 
                             OFFICER SEVERANCE PLAN
 
 
1.      PURPOSE.
 
        The Ixia Officer Severance Plan (this "Plan") is intended to provide
severance benefits to salaried officers of Ixia ("Ixia" or the "Company") who
shall become eligible for benefits under this Plan. The purpose of this Plan is
to provide certain benefits to Eligible Officers during the transition period
following the loss of employment under circumstances outlined in this Plan. The
provisions herein are being offered and provided at the sole discretion of the
Company. This Plan is effective September 1, 2000.
 
2.      DEFINITIONS.
 
        As used herein, the terms identified below shall have the meanings
indicated:
 
        (a) "ADMINISTRATOR" means the Compensation Committee of the Board of
Directors of the Company (or such other committee as may be appointed by the
Board to administer this Plan); and, in the absence of any such committee, shall
mean the Board of Directors of the Company.
 
        (b) "ANNUAL COMPENSATION" means the regular rate of annual base salary
paid by the Company to an Eligible Officer in his capacity as such with respect
to a calendar year (or any portion thereof if such person was not or will not be
an Eligible Officer for the entire calendar year) during the Employment Period
plus any bonus payments, commissions and incentive compensation earned by such
officer for services rendered to the Company during the immediately preceding
calendar year (all as shown on the Company's payroll records) and excluding
automobile allowances, pension payments, 401(k) matching contributions, gains
realized in connection with the exercise of a stock option or participation in a
stock option or purchase program, employer contributions for benefits,
relocation payments, expense reimbursements, noncash compensation and similar
payments.
 
        (c) "BOARD" means the Board of Directors of the Company.
 
        (d) "CAUSE" Termination by Ixia of an officer's employment for "Cause"
means termination as a result of:
 
            (i)    death or long-term disability;
 
            (ii)   a course of persistent conduct amounting to gross
                   incompetence;
 
            (iii)  any absence (excluding vacations, illnesses or leaves of
                   absence) from work for more than ten consecutive work days or
                   chronic absences from
 
                   work (also excluding vacations, illnesses or leaves of
                   absence), all of which are neither authorized, justified nor
                   excused;
 
            (iv)   willful and persistent refusal or failure, after multiple
                   explicit written notices and reasonable time to comply, to
                   perform material, appropriate duties or to follow important
                   Company policies;
 
            (v)    refusal, after explicit multiple written notices and
                   reasonable time to comply, to obey any lawful resolution of
                   the Board;
 
            (vi)   embezzlement or other unlawful appropriation of property or
                   other asset of the Company or unlawful appropriation of a
                   corporate opportunity of the Company;
 
            (vii)  offer, payment, solicitation or acceptance of any unlawful
                   bribe or kickback with respect to the Company's business;
 
            (viii) indictment or conviction of the officer for or the entering
                   of a plea of nolo contendere with respect to any felony
                   whatsoever or for any misdemeanor involving moral turpitude;
 
            (ix)   any act or failure to act by the officer that is widely
                   reported in the general or trade press or otherwise and which
                   achieves a general notoriety and which act or failure to act
                   involves conduct that is illegal or generally considered
                   immoral or scandalous;
 
            (x)    any intentional material breach of the officer's obligations
                   to the Company under any nondisclosure or proprietary
                   agreement with or on behalf of the Company or any material
                   unauthorized disclosure of any important and confidential
                   information of the Company; or
 
            (xi)   unlawful use (including being under the influence) or
                   possession of illegal drugs on Company premises.
 
        (e) "CHANGE IN CONTROL" A "Change in Control" of the Company shall be
deemed to have occurred at such time as (i) any "person" (as such term is used
in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934 (the
"Exchange Act")) becomes after the effective date of this Plan the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 50% or more of the
combined voting power of the Company's then outstanding securities; (ii) during
any period of 12 consecutive months, individuals who at the beginning of such
period constitute the Board cease for any reason to constitute at least a
majority thereof unless the election, or the nomination for election by the
Company's shareholders, of each new director was approved by a vote of at least
a majority of the directors then still in office who were directors at the
beginning of the period; (iii) there occurs the closing of a merger or
consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) more than 50% of the combined
voting power of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation; or (iv) the
shareholders of the Company approve a plan of liquidation of the Company or an
agreement for the sale or disposition (other than in the ordinary course of
business) by the Company of all or substantially all of the Company's assets (or
any transaction having essentially the same effect).
 
        (f) "CEO" means the Chief Executive Officer of the Company or, if no
person is then serving as Chief Executive Officer, the President of the Company.
 
        (g) "ELIGIBLE OFFICERS" mean only those duly elected or appointed
officers of the Company that are expressly designated as "Eligible Officers" by
the Board for the purposes of this Plan pursuant to resolutions duly adopted by
the Board.
 
        (h) "EMPLOYMENT PERIOD" means the aggregate period of time during which
an individual has been employed as a duly elected or appointed Eligible Officer
(other than solely as Chairman of the Board, Secretary and/or Assistant
Secretary) by the Company prior to the Termination Date.
 
        (i) "GOOD REASON" means, without the express written consent of the
officer, the occurrence after, or concurrently in connection with, a Change of
Control of the Company of any of the following:
 
            (i)    a reduction by the Company (or the surviving and controlling
                   company if other than the Company (the "Acquiror")) in the
                   officer's annual base salary as in effect on the date
                   immediately prior to the Change in Control of the Company;
 
            (ii)   the Company or the Acquiror requiring the officer to be based
                   for six months or more at a Company office more than 30 miles
                   from the Company's offices at which such officer was
                   principally employed immediately prior to the date of the
                   Change in Control of the Company except for required and
                   appropriate travel on the Company's or the Acquiror's
                   business to an extent substantially consistent with the
                   officer's business travel obligations immediately prior to
                   the Change in Control of the Company;
 
            (iii)  the assignment to the officer of duties significantly
                   inconsistent with the position in the Company that such
                   officer held immediately prior to the Change in Control of
                   the Company, or a significantly adverse change in the nature
                   or status of the officer's responsibilities or the conditions
                   of the officer's employment from those in effect immediately
                   prior to such Change in Control;
 
            (iv)   the failure by the Company or the Acquiror to continue in
                   effect any compensation or benefit plan or perquisites in
                   which the officer participates immediately prior to the
                   Change in Control of the Company which is material to the
                   officer's total compensation, unless an at least equally
                   beneficial arrangement (embodied in an ongoing, substitute or
                   alternative plan) has been made with respect to such plan, or
                   the failure by the Company or the Acquiror to continue such
                   officer's participation therein (or in such ongoing,
                   substitute or alternative plan) on a basis at least as
                   favorable, both in terms of the amount of benefits provided
                   and the level of the officer's participation relative to
                   comparably situated participants, as existed immediately
                   prior to such Change in Control; or
 
            (v)    the failure by the Company or the Acquiror to continue to
                   provide the officer with benefits substantially similar to
                   those enjoyed by such officer under any of the Company's life
                   insurance, medical, dental, accident, or disability plans in
                   which the officer was participating immediately prior to such
                   Change in Control of the Company or the taking of any action
                   by the Company or the Acquiror which would directly or
                   indirectly materially reduce any of such benefits.
 
        (j) "SEVERANCE ALLOWANCE" means the aggregate gross amount of severance
payments determined in accordance with Section 4(a) of this Plan to be paid to
an Eligible Officer who is entitled to receive severance benefits under this
Plan.
 
        (k) "TERMINATION DATE" means the date on which an Eligible Officer
ceases to be a duly elected or appointed officer of the Company (other than
Chairman of the Board, Secretary and/or Assistant Secretary).
 
3.      ELIGIBILITY.
 
        (a) Only Eligible Officers shall be eligible to receive benefits under
this Plan.
 
        (b) Ixia will pay severance benefits under this Plan on account of the
termination of an Eligible Officer's employment with Ixia only if the conditions
set forth in Section 5 are fulfilled and such termination is non-temporary and:
 
            (i)    the result of a reduction in force (an involuntary separation
                   without Cause and due to elimination of position or a layoff
                   of personnel);
 
            (ii)   the result of Ixia's belief that the officer is unable to
                   fulfill or is not fulfilling the requirements of or should
                   not hold an officer position for a reason other than for
                   Cause;
 
            (iii)  the result of such officer having submitted to the Company
                   his/her written resignation or offer of resignation (even if
                   such indicates that such
 
                   resignation is "voluntary") upon and in accordance with (A)
                   the request by the Board in writing or pursuant to a duly
                   adopted resolution of the Board or (B) with respect to all
                   Eligible Officers other than the Chief Executive Officer of
                   the Company, the written request of the Chief Executive
                   Officer of the Company;
 
            (iv)   the result of a divestment by Ixia of the operating unit in
                   which such officer works and which unit is sold, conveyed or
                   transferred to another corporation or entity (whether in
                   connection with a sale of assets, stock or other form of
                   transaction) and the officer is not offered employment by the
                   acquiring corporation or entity on substantially the same or
                   comparable terms and conditions as his/her employment with
                   Ixia;
 
            (v)    the result of an otherwise voluntary separation following the
                   Company requiring the officer to be based more than 30 miles
                   from the Company's offices at which such officer was
                   principally employed and such officer declines to relocate
                   except for required and appropriate travel on the Company's
                   business consistent with the officer's prior business travel
                   obligations;
 
            (vi)   the result of an otherwise voluntary separation within 30
                   days following a greater than 10% reduction by the Company of
                   the Eligible Officer's annual base salary as in effect from
                   time to time; or
 
            (vii)  for the convenience of Ixia or otherwise for any reason other
                   than one or more of the reasons set forth in Section 3(c).
 
        (c) Notwithstanding Section 3(b), Ixia will not be obligated to pay
severance benefits to an Eligible Officer if the termination is the result of:
 
            (i)    voluntary separation (a separation, including retirement,
                   initiated by the officer), other than a voluntary separation
                   pursuant to Section 3(b)(ii), 3(b)(iii), 3(b)(iv), 3(b)(v) or
                   3(b)(vi) hereof;
 
            (ii)   retirement (other than at the time of reduction in force and
                   other than as a result of Section 3(b)(iii)), whether early
                   retirement, retirement at normal retirement age or retirement
                   following normal retirement age;
 
            (iii)  the Company having terminated such officer's employment for
                   Cause; or
 
            (iv)   the removal of an Eligible Officer from one or more officer
                   positions but such officer is offered and accepts (and
                   continuing to work at the Company in such new officer
                   position shall, among other methods, be a method of
                   acceptance) one or more other officer positions (other than
                   merely Secretary or Assistant Secretary) at the Company.
 
4.      AMOUNT AND PAYMENT OF BENEFITS.
 
        (a) SEVERANCE COMPENSATION. An Eligible Officer who is entitled to
receive severance benefits under this Plan shall receive a Severance Allowance
in an amount equal to the product of (i) such Eligible Officer's highest rate of
Annual Compensation during the Employment Period and (ii) a percentage
determined in accordance with the following table:
 
                                    HIGHEST OFFICE HELD AT OR PRIOR TO TERMINATION
                              ----------------------------------------------------------
          LENGTH OF
      EMPLOYMENT PERIOD          VP            SVP/EVP          CFO/COO         CEO/PRES
      -----------------       --------         -------          -------         --------
<S>                           <C>              <C>              <C>             <C>
 Less than One Year              50%              55%             60%              65%
 Equal to or more than
   One Year but less
   than Three Years              75%              80%             85%             100%
 Equal to or more than
   Three Years but less
   than Five Years              100%             105%            110%             200%
 Equal to or more than
   Five Years                   125%             130%            140%             300%
 
 
        (b) METHOD OF PAYMENT. A terminated officer's Severance Allowance will
normally be paid in 12 equal monthly installments, less all applicable
withholding taxes, commencing ten days after the effective date of the Agreement
required under Section 5 of his Plan.
 
        (c) HEALTH CARE INSURANCE CONTINUATION. Ixia (at its expense) will
continue, for a period of 18 months following the Termination Date, health care
coverage for the terminated officer and his/her family members who are
"qualified beneficiaries" (as such term is defined in the Consolidated Omnibus
Budget Reconciliation Act of 1985 ("COBRA")) under Ixia's group health plan(s)
generally available during such period to employees participating in such
plan(s) and at levels and with coverage no greater than those provided to such
terminated officer as of the Termination Date. Thereafter, such terminated
officer (at his/her expense) may elect coverage under a conversion health plan
available under Ixia's group health plan(s) from the Company's health insurance
carrier if and to the extent he/she is entitled to do so as a matter of right
under federal or state law.
 
        (d) OTHER BENEFIT PLANS. Except as otherwise expressly provided in this
Section 4 or as required by applicable law, a terminated officer shall have no
right to continue his/her participation in any Ixia benefit plan following such
officer's termination. Without limiting the generality of the foregoing, a
terminated officer shall not be entitled to participate in the Company's 401(k)
Plan or any similar plan following his/her Termination Date.
 
        (e) VACATION PAY. A terminated officer will be promptly paid for accrued
and unused vacation entitlement on and through the Termination Date.
 
        (f) OFFSET. To the maximum extent permitted by law, the Company may
offset any and all amounts due or otherwise owed to the Company by the
terminated officer against the severance payments due to the terminated officer
under this Plan.
 
        (g) SECTION 280G. Notwithstanding anything herein to the contrary, to
the extent that the Severance Allowance to be paid to an Eligible Officer
hereunder exceeds an amount equal to three times the Eligible Officer's base
compensation as determined pursuant to Code Section 280G, the amount of the
Severance Allowance shall be reduced to the minimum extent necessary to ensure
that the Severance Allowance does not exceed the amount determined pursuant to
Code Section 280G.
 
5.      CONDITION PRECEDENT TO SEVERANCE BENEFITS.
 
        (a) Notwithstanding anything herein to the contrary and in consideration
for and as a condition precedent to the payment of severance or any other
benefits under this Plan, an Eligible Officer otherwise entitled to receive
payments or benefits under this Plan shall, following his/her Termination Date,
execute and deliver to the Company a written separation agreement (the
"Agreement"), in the form of agreement attached hereto as ATTACHMENT I. Except
as otherwise provided in the last sentence of Section 5(b), an Eligible Officer
shall not have any rights whatsoever to receive severance benefits under this
Plan unless he or she timely executes and delivers to the Company the Agreement.
The obligations set forth in the Agreement shall be in addition to any existing
and continuing duties that such Eligible Officer may otherwise have under law to
the Company as a result of his/her former capacity as an officer, employee,
director, shareholder or otherwise.
 
        (b) Not later than 20 days after an Eligible Officer's Termination Date,
the Company shall provide such Eligible Officer with the Agreement for his/her
execution. Unless such Agreement is duly executed and returned by the Eligible
Officer to the Company within 21 days after he or she receives it or the
Eligible Officer correctly disputes or otherwise correctly disagrees with the
Company's determination of the severance payments payable under this Plan and
has made a timely claim in accordance with Section 8(a) hereof, such officer
shall be deemed to have waived and forfeited his/her rights to severance
payments and benefits under this Plan and the Company shall have no further
obligations whatsoever to such Eligible Officer under this Plan. If the Company
shall not provide the Agreement to the Eligible Officer within 20 days after
such Officer's Termination Date, the Company shall be deemed to have waived the
condition set forth in this Section 5 and the Eligible Officer shall not be
required to execute the Agreement as a condition to receiving any severance
payments or other benefits under this Plan.
 
6.      CHANGE IN CONTROL PROVISIONS.
 
        (a) The provisions of this Section 6 shall apply only in the event that
a Change in Control of the Company shall occur.
 
        (b) In the event that a Change in Control of the Company shall occur,
Ixia will pay the severance benefits provided in this Plan to an Eligible
Officer who elects to terminate his/her employment unilaterally (i) within one
year of such Change in Control for any reason, with or without "Good Reason" or
(ii) within two years of such Change in Control for "Good Reason." The
provisions of this Section 6 shall automatically expire two years after a Change
in Control occurs and an Eligible Officer shall not be eligible to claim
benefits under this Plan, including Section 6, thereafter.
 
        (c) In the event that an officer's employment with the Company is
terminated for any reason prior to the Change in Control of the Company, and
subsequently a Change in Control of the Company occurs, such officer shall not
be entitled to any benefits under this Section 6 unless such termination was in
connection with or otherwise directly because of such anticipated Change in
Control.
 
7.      ADMINISTRATION OF THIS PLAN.
 
        This Plan shall be interpreted and administered for the Company by the
Administrator who shall also be the named fiduciary of this Plan. The
Administrator shall administer this Plan in accordance with its terms and shall
have all powers necessary to carry out this Plan's provisions on behalf of the
Company. The Administrator shall have discretionary authority on behalf of the
Company to determine reasonably and in good faith all questions arising in the
administration, interpretation and application of this Plan and to construe the
terms of this Plan, including any disputed or doubtful terms or the eligibility
of an Eligible Officer for any benefit hereunder. Except as otherwise expressly
provided in this Plan, the Administrator shall have no power or authority to add
to, subtract from or modify any of the terms of this Plan, or to change or
modify any of the benefits provided by this Plan, or to waive or fail to apply
any requirements for eligibility for a benefit under this Plan.
 
8.      CLAIMS FOR BENEFITS.
 
        (a) In the event an Eligible Officer disputes or otherwise disagrees
with the Company's determination of the severance benefits payable to him or her
and desires to make a claim (a "claimant") with respect to any of the benefits
provided hereunder, the claimant shall so notify, in writing, the Administrator
by actual receipt or registered mail (addressed to the "Officer Severance Plan
Administrator," Ixia, 26601 West Agoura Road, Calabasas, California 91302) and
shall submit evidence of events constituting a termination of employment with
the Company. Any claim with respect to any of the benefits provided under this
Plan shall be made in writing within 90 days of the later of his/her becoming
aware of the event which the claimant asserts entitles him or her to severance
benefits or the Company notifying him or her of its determination of the
severance benefits payable to him or her under this Plan as a result of the
occurrence of that event. Failure by the claimant to submit his/her claim within
such 90-day period shall bar the claimant from disputing the Company's
notification to him or her of its determination of the severance benefits
payable to him or her under this Plan as a result of the occurrence of that
event.
 
        (b) In the event that a claim which is made by a claimant is wholly or
partially denied, the claimant will receive from the Administrator within 60
days of the claimant's above-referenced notice a written explanation of the
reason for denial and the claimant or his/her duly authorized representative may
appeal the denial of the claim to the Administrator at any time within 60 days
after the receipt by the claimant of written notice from the Administrator of
the denial of the claim. In connection therewith, the claimant or his/her duly
authorized representative may request a review of the denied claim, may review
pertinent documents, and may submit issues and comments in writing. Upon receipt
of a request for review of a denied claim, the Administrator shall make a
decision with respect thereto and, not later than 60 days after receipt of a
request for review, shall furnish the claimant with a decision on the review in
writing, including the specific reasons for the decision written in a manner
reasonably calculated to be understandable by the claimant or the claimant's
attorney or accountant, as well as specific reference to the pertinent
provisions of this Plan upon which the decision is based. In reaching
its decision, the Administrator shall have the discretionary authority in good
faith to determine on behalf of the Company all questions arising under this
Plan.
 
9.      MISCELLANEOUS PROVISIONS.
 
        (a) If an Eligible Officer shall become entitled to receive benefits or
payments from the Company pursuant to the provisions of any statute, rule or
regulation of the United States or any state, territory, commonwealth or
political subdivision thereof as the result of a plant or facility shutdown or
closing, or the change in the control or ownership of the Company (other than
unemployment benefits), the amount of severance benefits payable hereunder shall
be offset dollar for dollar and reduced by such benefits otherwise payable to
the Eligible Officer under such statute, rule or regulation.
 
        (b) The failure of the Company to enforce at any time any of the
provisions of this Plan, or to require at any time performance of any of the
provisions of this Plan, shall in no way be construed to be a waiver of these
provisions, nor in any way to affect the validity of this Plan or any part
thereof, or the right of the Company thereafter to enforce every provision.
 
        (c) Except as may be required by law, no benefit which shall be payable
under this Plan to any Eligible Officer shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or
charge, and any attempt to alienate, sell, transfer, assign, pledge, encumber or
charge all or any part of the benefit shall be void; provided, however, in the
event of the death of a terminated officer prior to the end of the period over
which such officer is entitled to receive severance benefits under this Plan,
the severance benefits payable hereunder shall be paid to the estate of such
officer or to the person who acquired the rights to such benefits by bequest or
inheritance. Except as may be provided by law, no benefit shall in any manner be
liable for, or subject to, the debts, contracts, liabilities, engagements or
torts of any Eligible Officer, nor shall it be subject to attachment or legal
process for, or against, the Eligible Officer and the same shall not be
recognized under this Plan.
 
        (d) The definitions and criteria set forth herein are solely for the
purpose of defining Plan eligibility. No legal rights to employment are created
or implied by this Plan, nor are any conditions or restrictions hereby placed on
termination of employment. Unless the employee has a written employment
agreement binding on Ixia which provides otherwise, employment with Ixia is
employment-at-will. This means termination of employment may be initiated by the
officer or by Ixia at any time for any reason which is not unlawful, with or
without cause.
 
        (e) This Plan shall be construed, administered and governed under and by
the laws of the State of California and the laws of the United States to the
extent they preempt state law or are otherwise applicable to this Plan.
 
        (f) This Plan constitutes the entire Officer Severance Plan for the
Company and supersedes all previous representations, understandings and plans
with respect to officer severance, and any such representations, understandings
and plans with respect to officer severance are hereby canceled and terminated
in all respects.
 
        (g) Subject to the limitations herein provided, this Plan and each
provision hereof may be amended, modified, supplemented, terminated or waived at
any time by the Board. Each such amendment, modification, supplement,
termination or waiver shall be in writing, shall be promptly sent in writing to
each Eligible Officer and shall be effective on the date on or after such Board
action as is specified by the Board; provided, however, that (i) no such action
shall have the effect of retroactively changing or depriving any terminated
officers of their rights to benefits payable with respect to events occurring
prior to the effective date of such amendment, modification, supplement,
termination or waiver unless the explicit written consent or waiver of such
officer thereto is obtained; (ii) no such action shall retroactively materially
diminish the rights under this Plan of an officer who is an Eligible Officer at
the date on which such amendment, modification, supplement, termination or
waiver is approved by the Board unless (a) the explicit written consent thereto
or waiver by such officer is obtained or (b) the Board specifies that such
action shall not become effective with respect to those officers who are
Eligible Officers on the date such action is duly approved by the Board until at
least 12 months have elapsed after such officers have been notified in writing
of the Board's approval of such action; and (iii) no such action shall be taken
within a period of two years following a Change in Control. Except as expressly
provided herein, no course of dealing between the parties hereto and no delay in
exercising any right, power or remedy conferred hereby or now or hereafter
existing at law, in equity, by statute or otherwise, shall operate as a waiver
of, or otherwise prejudice, any such right, power or remedy.
 
                                      IXIA
 
 
                                            /S/ ERROL GINSBERG
                                      ------------------------------------------
                                      Errol Ginsberg
                                      Chief Executive Officer and  President
 
Date:   September 1, 2000
 
 
 
                                  ATTACHMENT I
 
                         EMPLOYMENT SEPARATION AGREEMENT
 
 
        THIS EMPLOYMENT SEPARATION AGREEMENT (the "Agreement"), which includes
Exhibits A, B and C hereto which are incorporated herein by this reference, is
entered into by and between IXIA, a California corporation ("Ixia"), and
____________________ ("Former Employee"), and shall become effective when
executed by both parties hereto (the "Effective Date").
 
                                    RECITALS
 
        A. Former Employee ceased to be an employee and officer of Ixia on
_______________, 20___ (the "Termination Date").
 
        B. Former Employee desires to receive severance benefits under Ixia's
Officer Severance Plan dated September ___, 2000 (the "Severance Plan"), which
benefits are stated in the Severance Plan to be contingent upon, among other
things, Former Employee's entering into this Agreement and undertaking the
obligations set forth herein.
 
        C. Ixia and Former Employee desire to set forth their respective rights
and obligations with respect to Former Employee's separation from Ixia and to
finally and forever settle and resolve all matters concerning Former Employee's
past services to Ixia.
 
                                    AGREEMENT
 
        NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and conditions set forth herein, the receipt and sufficiency of
which are hereby acknowledged, Ixia and Former Employee hereby agree as follows:
 
1.      DEFINITIONS
 
        As used herein, the following terms shall have the meanings set forth
below:
 
        1.1 "INCLUDES;" "INCLUDING." Except where followed directly by the word
"only," the terms "includes" or "including" shall mean "includes, but is not
limited to," and "including, but not limited to," respectively.
 
        1.2 "SEVERANCE COVERED PERIOD." The term "Severance Covered Period"
shall mean a period of time commencing upon the effective date of this Agreement
and ending on the date on which the last installment of the Severance Allowance
is due and payable pursuant to Section 6.2 of this Agreement.
 
        1.3 OTHER CAPITALIZED TERMS. Capitalized terms (other than those
specifically defined herein) shall have the same meanings ascribed to them in
the Severance Plan.
<PAGE>   12
 
 
2.      MUTUAL REPRESENTATIONS, WARRANTIES AND COVENANTS
 
        Each party hereto represents, warrants and covenants (with respect to
itself/himself only) to the other party hereto that, to its/his respective best
knowledge and belief as of the date of each party's respective signature below:
 
        2.1 FULL POWER AND AUTHORITY. It/he has full power and authority to
execute, enter into and perform its/his obligations under this Agreement; this
Agreement, after execution by both parties hereto, will be a legal, valid and
binding obligation of such party enforceable against it/him in accordance with
its terms; it/he will not act or omit to act in any way which would materially
interfere with or prohibit the performance of any of its/his obligations
hereunder, and no approval or consent other than as has been obtained of any
other party is necessary in connection with the execution and performance of
this Agreement.
 
        2.2 EFFECT OF AGREEMENT. The execution, delivery and performance of this
Agreement and the consummation of the transactions hereby contemplated:
 
            (a) will not interfere or conflict with, result in a breach of,
constitute a default under or violation of any of the terms, provisions,
covenants or conditions of any contract, agreement or understanding, whether
written or oral, to which it/he is a party (including, in the case of Ixia, its
bylaws and articles of incorporation each as amended to date) or to which it/he
is bound;
 
            (b) will not conflict with or violate any applicable law, rule,
regulation, judgment, order or decree of any government, governmental agency or
court having jurisdiction over such party; and
 
            (c) has not heretofore been assigned, transferred or granted to
another party, or purported to assign, transfer or grant to another party, any
rights, obligations, claims, entitlements, matters, demands or causes of actions
relating to the matters covered herein.
 
3.      CONFIDENTIALITY OBLIGATIONS DO NOT TERMINATE
 
        Former Employee acknowledges that any confidentiality, proprietary
rights or nondisclosure agreement(s) in favor of Ixia which he may have entered
into from time to time in connection with his employment (collectively, the
"Nondisclosure Agreement") with Ixia is understood to be intended to survive,
and does survive, any termination of such employment, and accordingly nothing in
this Agreement shall be construed as terminating, limiting or otherwise
affecting any such Nondisclosure Agreement or Former Employee's obligations
thereunder. Without limiting the generality of the foregoing, no time period set
forth in this Agreement shall be construed as shortening or limiting the term of
any such Nondisclosure Agreement, which term shall continue as set forth
therein.
 
4.      BENEFITS
 
        4.1 HEALTH CARE INSURANCE CONTINUATION. Ixia (at its expense) will
continue, for a period of 18 months following the Termination Date, health care
coverage for Former Employee and his family members who are "qualified
beneficiaries" (as such term is defined in the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA")) under Ixia's group health plan(s)
generally available during such period to employees participating in such
plan(s) and at levels and with coverage no greater than those provided to such
Former Employee as of the Termination Date. Thereafter, Former Employee (at his
expense) may elect coverage under a conversion health plan available under
Ixia's group health plan(s) from the Company's health insurance carrier if and
to the extent he is entitled to do so as a matter of right under federal or
state law.
 
        4.2 OTHER BENEFIT PLANS. Except as otherwise expressly provided in this
Section 4 or as required by applicable law, Former Employee shall have no right
to continue his participation in any Ixia benefit plan following such employee's
termination.
 
5.      STOCK OPTIONS
 
        EXHIBIT A hereto sets forth any and all outstanding stock options,
warrants and other rights to purchase capital stock or other securities of Ixia
(including but not limited to stock purchase agreements) which have been
previously issued to Former Employee and which are outstanding as of the date
hereof. Nothing in this Agreement shall alter or affect any of such outstanding
stock options, warrants or rights, Former Employee's rights or responsibilities
with respect thereto, including but not limited to Former Employee's rights to
exercise any of his options, warrants or rights following the Termination Date,
or Ixia's rights with respect thereto.
 
6.      PAYMENTS TO FORMER EMPLOYEE
 
        6.1 EMPLOYEE COMPENSATION. Ixia has paid, and Former Employee
acknowledges and agrees that Ixia has paid, to him any and all salary and
accrued but unpaid vacation and sick pay owed by Ixia to Former Employee up to
and including the Termination Date other than any compensation owed to him under
the Severance Plan.
 
        6.2 SEVERANCE ALLOWANCE. In consideration for the release by Former
Employee set forth herein (including the release of any and all claims Former
Employee has or may have under the Age Discrimination in Employment Act ("ADEA")
and Older Workers Benefit Protection Act ("OWBPA")) and Former Employee's
performance of his obligations under this Agreement (including but not limited
to Former Employee's obligations under Section 7 hereof), Former Employee is
entitled to receive, and Ixia shall pay to Former Employee, a Severance
Allowance in the aggregate gross amount of $______________ payable in 12 equal
monthly installments of $________ each, less all applicable withholding taxes,
beginning on the date that is ten days after the Effective Date, in accordance
with the terms and conditions of the Severance Plan.
 
7.      NON-COMPETITION AND NON-SOLICITATION
 
        7.1 Subject and in addition to Former Employee's existing fiduciary
duties as a former officer and employee of Ixia to the extent such continues
under applicable law after Former Employee's Termination Date, provided that
Ixia has not breached any of the terms of this Agreement or any other currently
existing written agreements between Ixia and Former Employee, Former Employee
agrees until the earlier of (i) the completion of the Severance Covered Period
or (ii) such date as Ixia may terminate this Agreement for default hereunder:
 
            (a) Not to engage, either directly or indirectly, in any Competing
Business Activity (as defined below) or be associated with a Competing Business
Entity (as defined below) as an officer, director, employee, principal,
consultant, lender, creditor, investor, agent or otherwise for any corporation,
partnership, company, agency, person, association or any other entity; provided,
however, that nothing contained herein shall prevent Former Employee from owning
not more than 5% of the common equity and not more than 5% of the voting power
of, or lending not more than $25,000 to, any Competing Business Entity or any
business engaged in a Competing Business Activity; provided, further, that for
purposes of this agreement, any equity ownership, voting control or lending
activity of Former Employee shall be deemed to include that of (i) any family
member or (ii) person or entity controlled by Former Employee;
 
            (b) Not to 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 is a customer or account of Ixia, currently
and/or during the Severance Covered Period, for the purpose of selling, renting,
leasing, licensing or supplying any product or service that is the same as,
similar to or competitive with the products or services then being sold or
developed by Ixia;
 
            (c) Not to enter into an employment or agency relationship with a
Competing Business Entity or involving a Competing Business Activity with any
person who, at the time of such entry, is an officer, director, employee,
principal or agent of or with respect to Ixia; and
 
            (d) Not to induce or attempt to induce any person described in
Section 7.1(c) to leave his employment, agency, directorship or office with
Ixia.
 
        7.2 For purposes of this Section 7, a "Competing Business Activity"
shall mean any business activity of a person or entity (other than Ixia)
involving the development, design, manufacture, distribution, marketing,
licensing, renting, leasing or selling within the Territory (as defined below)
of products and services which are the same as, similar to or competitive with
products or services of Ixia then in existence or under development. For
purposes hereof, the Territory shall include the United States of America,
Canada, Mexico, Central America, South America, Europe, Japan, Australia,
Singapore and such other countries in which Ixia then distributes, markets,
licenses, rents, leases or sells its products or services. An entity as a whole
shall be deemed to be a Competing Business Entity if it has one or more business
activities involving the development, design, manufacture, distribution,
marketing, licensing, renting, leasing or selling directly or indirectly within
the Territory of products or services which are the
same as, similar to or competitive with products or services of Ixia then being
sold or under development and if and only if the revenues derived directly or
indirectly from engaging in such business activities by such entity represent
either more than 3% of the entity's revenues or at least $5 million in aggregate
sales, or both, for the then-preceding 12-month period.
 
        7.3 The parties acknowledge that the provisions and obligations set
forth in this Section 7 are an integral part of this Agreement and that in the
event Former Employee breaches any of the provisions or obligations of this
Section 7 or any other term, provision or obligation of this Agreement, then
Ixia, in addition to any other rights or remedy it may have at law, in equity,
by statute or otherwise, shall be excused from its payment obligations to Former
Employee under the Severance Plan and this Agreement.
 
8.      CONFIDENTIAL INFORMATION AND TRADE SECRETS
 
        8.1 Former Employee hereby recognizes, acknowledges and agrees that Ixia
is the owner of proprietary rights in certain confidential sales and marketing
information, programs, tactics, systems, methods, processes, compilations of
technical and non-technical information, records and other business, financial,
sales, marketing and other information and things of value. To the extent that
any or all of the foregoing constitute valuable trade secrets and/or
confidential and/or privileged information of Ixia, Former Employee hereby
further agrees as follows:
 
            (a) That, except with prior written authorization from Ixia's CEO,
for purposes related to Ixia's best interests, he will not directly or
indirectly duplicate, remove, transfer, disclose or utilize, nor knowingly allow
any other person to duplicate, remove, transfer, disclose or utilize, any
property, assets, trade secrets or other things of value, including, but not
limited to, records, techniques, procedures, systems, methods, market research,
new product plans and ideas, distribution arrangements, advertising and
promotional materials, forms, patterns, lists of past, present or prospective
customers, and data prepared for, stored in, processed by or obtained from, an
automated information system belonging to or in the possession of Ixia which are
not intended for and have not been the subject of public disclosure. Former
Employee agrees to safeguard all Ixia trade secrets in his possession or known
to him at all times so that they are not exposed to, or taken by, unauthorized
persons and to exercise his reasonable efforts to assure their safekeeping. This
subsection shall not apply to information that as of the date hereof is, or as
of the date of such duplication, removal, transfer, disclosure or utilization
(or the knowing allowing thereof) by Former Employee has (i) become generally
known to the public or competitors of Ixia (other than as a result of a breach
of this Agreement); (ii) been lawfully obtained by Former Employee from any
third party who has lawfully obtained such information without breaching any
obligation of confidentiality; or (iii) been published or generally disclosed to
the public by Ixia. Former Employee shall bear the burden of showing that any of
the foregoing exclusions applies to any information or materials.
 
            (b) That all improvements, discoveries, systems, techniques, ideas,
processes, programs and other things of value made or conceived in whole or in
part by Former Employee with respect to any aspects of Ixia's current or
anticipated business while an employee of Ixia are
and remain the sole and exclusive property of Ixia, and Former Employee has
disclosed all such things of value to Ixia and will cooperate with Ixia to
insure that the ownership by Ixia of such property is protected. All of such
property of Ixia in Former Employee's possession or control, including, but not
limited to, all personal notes, documents and reproductions thereof, relating to
the business and the trade secrets or confidential or privileged information of
Ixia has already been, or shall be immediately, delivered to Ixia.
 
        8.2 Former Employee further acknowledges that as the result of his prior
service as an officer and employee of Ixia, he has had access to, and is in
possession of, information and documents protected by the attorney-client
privilege and by the attorney work product doctrine. Former Employee understands
that the privilege to hold such information and documents confidential is
Ixia's, not his personally, and that he will not disclose the information or
documents to any person or entity without the express prior written consent of
the CEO or Board of Ixia unless he is required to do so by law.
 
        8.3 Former Employee's obligations set forth in this Section 8 shall be
in addition to, and not instead of, Former Employee's obligations under any
written Nondisclosure Agreement.
 
9.      ENFORCEMENT OF SECTIONS 7 AND 8
 
        Former Employee hereby acknowledges and agrees that the services
rendered by him to Ixia in the course of his prior employment were of a special
and unique character, and that breach by him of any provision of the covenants
set forth in Sections 7 and 8 of this Agreement will cause Ixia irreparable
injury and damages. Former Employee expressly agrees that Ixia shall be
entitled, in addition to all other remedies available to it whether at law or in
equity, to injunctive or other equitable relief to secure their enforcement.
 
        The parties hereto expressly agree that the covenants contained in
Sections 7 and 8 hereof are reasonable in scope, duration and otherwise;
however, if any of the restraints provided in said covenants are adjudicated to
be excessively broad as to geographic area or time or otherwise, said restraint
shall be reduced to whatever extent is reasonable and the restraint shall be
fully enforced in such modified form. Any provisions of said covenants not so
reduced shall remain in full force and effect.
 
10.     PROHIBITION AGAINST DISPARAGEMENT
 
        10.1 Former Employee agrees that for a period of two years following the
Effective Date any communication, whether oral or written, occurring on or off
the premises of Ixia, made by him or on his behalf to any person or entity
(including, without limitation, any Ixia employee, customer, vendor, supplier,
any competitor, any media entity and any person associated with any media) which
in any way relates to Ixia (or any of its subsidiaries) or to Ixia's or any of
its subsidiaries' directors, officers, management or employees: (a) will be
truthful; and (b) will not, directly or indirectly, criticize, disparage, or in
any manner undermine the reputation or business practices of Ixia or its
directors, officers, management or employees.
 
        10.2 The only exceptions to Section 10.1 shall be: (a) truthful
statements privately made to (i) the CEO of Ixia, (ii) any member of Ixia's
Board, (iii) Ixia's auditors, (iv) inside or outside counsel of Ixia, (v) Former
Employee's counsel or (vi) Former Employee's spouse; (b) truthful statements
lawfully compelled and made under oath in connection with a court or government
administrative proceeding; and (c) truthful statements made to specified persons
upon and in compliance with prior written authorization from Ixia's CEO or Board
to Former Employee directing him to respond to inquiries from such specified
persons.
 
11.     COOPERATION
 
        Former Employee agrees that for a period of five years commencing with
the Effective Date he will cooperate fully and reasonably with Ixia in
connection with any future or currently pending matter, proceeding, litigation
or threatened litigation: (1) directly or indirectly involving Ixia (which, for
purposes of this section, shall include Ixia and each of its current and future
subsidiaries, successors or permitted assigns); or (2) directly or indirectly
involving any director, officer or employee of Ixia (with regard to matters
relating to such person(s) acting in such capacities with regard to Ixia
business). Such cooperation shall include making himself available upon
reasonable notice at reasonable times and places for consultation and to testify
truthfully (at Ixia's expense for reasonable, pre-approved out-of-pocket travel
costs plus a daily fee equal to one-twentieth of his monthly severance
compensation under Section 6.2 hereof for each full or partial day during which
Former Employee makes himself so available) in any action as reasonably
requested by the CEO or the Board of Directors. Former Employee further agrees
to immediately notify Ixia's CEO in writing in the event that he receives any
legal process or other communication purporting to require or request him to
produce testimony, documents, information or things in any manner related to
Ixia, its directors, officers or employees, and that he will not produce
testimony, documents, information or other things with regard to any pending or
threatened lawsuit or proceeding regarding Ixia without giving Ixia prior
written notice of the same and reasonable time to protect its interests with
respect thereto. Former Employee further promises that when so directed by the
CEO or the Board of Directors, he will make himself available to attend any such
legal proceeding and will truthfully respond to any questions in any manner
concerning or relating to Ixia and will produce all documents and things in his
possession or under his control which in any manner concern or relate to Ixia.
Former Employee covenants and agrees that he will immediately notify Ixia's CEO
in writing in the event that he breaches any of the provisions of Sections 7, 8,
10 or 11 hereof.
 
12.     SOLE ENTITLEMENT
 
        Former Employee acknowledges and agrees that his sole entitlement to
compensation, payments of any kind, monetary and nonmonetary benefits and
perquisites with respect to his prior Ixia relationship (as an officer and
employee) is as set forth in the Severance Plan, this Agreement, the Company's
bonus plan for officers as in effect from time to time, stock option and warrant
agreements, COBRA, and such other written agreements and securities between Ixia
and Former Employee as may exist or as may be set forth on EXHIBIT B hereto.
 
13.     RELEASE OF CLAIMS
 
        13.1 GENERAL. Former Employee does hereby and forever release and
discharge Ixia and the predecessor corporation of Ixia as well as the
successors, current, prior or future shareholders of record, officers,
directors, heirs, predecessors, assigns, agents, employees, attorneys, insurers
and representatives of each of them, past, present or future, from any and all
cause or causes of action, actions, judgments, liens, indebtedness, damages,
losses, claims, liabilities and demands of any kind or character whatsoever,
whether known or unknown, suspected to exist or not suspected to exist,
anticipated or not anticipated, whether or not heretofore brought before any
state or federal agency, court or other governmental entity which are existing
on or arising prior to the date of this Agreement and which, directly or
indirectly, in whole or in part, relate or are attributable to, connected with,
or incidental to the previous employment of Former Employee by Ixia, the
separation of that employment, and any dealings between the parties concerning
Former Employee's employment existing prior to the date of execution of this
Agreement, excepting only those obligations expressly recited herein or to be
performed hereunder. Nothing contained in this Section 12 shall affect any
rights, claims or causes of action which Former Employee may have (1) with
respect to his outstanding stock options, warrants or other stock subscription
rights to purchase Ixia Common Stock or other securities under the terms and
conditions thereof; (2) as a shareholder of Ixia; (3) to indemnification by
Ixia, to the extent required under the provisions of Ixia's Articles of
Incorporation, Ixia's Bylaws, the California General Corporation Law, insurance
or contracts, with respect to matters relating to Former Employee's prior
service as a director, an officer, employee and agent of Ixia; (4) with respect
to his eligibility for severance payments under the Severance Plan or any other
written agreement listed on EXHIBIT B hereto; and (5) to make claims against or
seek indemnification or contribution from anyone not released by the first
sentence of this Section 12 with respect to any matter or anyone released by the
first sentence of this Section 12 with respect to any matter not released
thereby; or (6) with respect to Ixia's performance of this Agreement. Further,
Former Employee waives specifically any and all rights or claims Former Employee
has or may have under the ADEA and/or the OWBPA, and acknowledges that such
waiver is given voluntarily in exchange for certain consideration included in
the severance benefits being paid pursuant to this Agreement.
 
        13.2 WAIVER OF UNKNOWN CLAIMS. Former Employee acknowledges that he is
aware that he may hereafter discover claims or facts different from or in
addition to those he now knows or believes to be true with respect to the
matters herein released, and he agrees that this release shall be and remain in
effect in all respects a complete general release as to the matters released and
all claims relative thereto which may exist or may heretofore have existed,
notwithstanding any such different or additional facts. Former Employee
acknowledges that he has been informed of Section 1542 of the Civil Code of the
State of California, and does hereby expressly waive and relinquish all rights
and benefits which he has or may have under said Section, which reads as
follows:
 
        "A general release does not extend to claims which the creditor does not
        know or suspect to exist in his favor at the time of
        executing the release, which if known by him must have materially
        affected his settlement with the debtor."
 
        13.3 COVENANT NOT TO SUE ON MATTERS RELEASED. Former Employee covenants
that he will not make, assert or maintain against any person or entity that
Former Employee has released in this Agreement, any claim, demand, action, cause
of action, suit or proceeding arising out of or in connection with the matters
herein released, including but not limited to any claim or right under the ADEA,
the OWBPA, or any other federal or state statute or regulation. Former Employee
represents and warrants that he has not assigned or transferred, purported to
assign or transfer, and will not assign or transfer, any matter or claim herein
released. Former Employee represents and warrants that he knows of no other
person or entity which claims an interest in the matters or claims herein
released. Former Employee agrees to, and shall at all times, indemnify and hold
harmless each person and entity that Former Employee has released in this
Agreement against any claim, demand, damage, debt, liability, account, action or
cause of action, or cost or expense, including attorneys' fees, resulting or
arising from any breach of the representations, warranties and covenants made
herein.
 
14.     ASSIGNMENT
 
        Former Employee represents and warrants that he has not heretofore
assigned, transferred or granted or purported to assign, transfer or grant any
claims, entitlement, matters, demands or causes of action herein released,
disclaimed, discharged or terminated, and agrees to indemnify and hold harmless
Ixia from and against any and all costs, expense, loss or liability incurred by
Ixia as a consequence of any such assignment, transfer or grant.
 
15.     FORMER EMPLOYEE REPRESENTATIONS
 
        Notwithstanding that this Agreement is being entered into subsequent to
the Termination Date, except as listed by Former Employee on EXHIBIT C, from the
period beginning on the Termination Date to the Effective Date, Former Employee
represents and warrants that he has not acted or omitted to act in any respect
which directly or indirectly would have constituted a violation of Sections 7,
8, 10 or 11 herein had this Agreement then been in effect.
 
16.     MISCELLANEOUS
 
        16.1 NOTICES. All notices and demands referred to or required herein or
pursuant hereto shall be in writing, shall specifically reference this Agreement
and shall be deemed to be duly sent and given upon actual delivery to and
receipt by the relevant party (which notice, in the case of Ixia, must be from
an officer of Ixia) or five days after deposit in the U.S. mail by certified or
registered mail, return receipt requested, with postage prepaid, addressed as
follows (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):
 
               (a)    If to Ixia:                Ixia
                                                 26601 West Agoura Road
                                                 Calabasas, California 91302
                                                 Attn:  Chief Executive Officer
 
                      With a copy to:            Ronald W. Buckly, Esq.
                                                 Bryan Cave LLP
                                                 120 Broadway, Suite 300
                                                 Santa Monica, CA 90401
 
               (b)    If to Former Employee:
 
 
 
        16.2 LEGAL ADVICE AND CONSTRUCTION OF AGREEMENT. Both Ixia and Former
Employee have received (or have voluntarily and knowingly elected not to
receive) independent legal advice with respect to the advisability of entering
into this Agreement and with respect to all matters covered by this Agreement
and neither has been entitled to rely upon or has in fact relied upon the legal
or other advice of the other party or such other party's counsel (or employees)
in entering into this Agreement.
 
        16.3 PARTIES' UNDERSTANDING. Ixia and Former Employee state that each
has carefully read this Agreement, that it has been fully explained to it/him by
its/his attorney (or that it/he has voluntarily and knowingly elected not to
receive such explanation), that it/he fully understands its final and binding
effect, that the only promises made to it/him to sign the Agreement are those
stated herein, and that it/he is signing this Agreement voluntarily.
 
        16.4 RECITALS AND SECTION HEADINGS. Each term of this Agreement is
contractual and not merely a recital. All recitals are incorporated by reference
into this Agreement. Captions and section headings are used herein for
convenience only, are not part of this Agreement and shall not be used in
interpreting or construing it.
 
        16.5 ENTIRE AGREEMENT. This Agreement constitutes a single integrated
contract expressing the entire agreement of the parties with respect to the
subject matter hereof and supersedes all prior and contemporaneous oral and
written agreements and discussions with respect to the subject matter hereof.
Notwithstanding the foregoing, the parties understand and agree that any
Nondisclosure Agreement and all other written agreements between Former Employee
and Ixia are separate from this Agreement and, subject to the terms and
conditions of each such agreement, shall survive the execution of this
Agreement, and nothing contained in this Agreement shall be construed as
affecting the rights or obligations of either party set forth in such
agreements.
 
        16.6 SEVERABILITY. In the event any provision of this Agreement or the
application thereof to any circumstance shall be determined by arbitration
pursuant to Section 16.10 of this Agreement or held by a court of competent
jurisdiction to be invalid, illegal or unenforceable, or
to be excessively broad as to time, duration, geographical scope, activity,
subject or otherwise, it shall be construed to be limited or reduced so as to be
enforceable to the maximum extent allowed by applicable law as it shall then be
in force, and if such construction shall not be feasible, then such provision
shall be deemed to be deleted herefrom in any action before that court, and all
other provisions of this Agreement shall remain in full force and effect.
 
        16.7 AMENDMENT AND WAIVER. This Agreement and each provision hereof may
be amended, modified, supplemented or waived only by a written document
specifically identifying this Agreement and signed by each party hereto. Except
as expressly provided in this Agreement, no course of dealing between the
parties hereto and no delay in exercising any right, power or remedy conferred
hereby or now or hereafter existing at law, in equity, by statute or otherwise,
shall operate as a waiver of, or otherwise prejudice, any such rights, power or
remedy.
 
        16.8 CUMULATIVE REMEDIES. None of the rights, powers or remedies
conferred herein shall be mutually exclusive, and each such right, power or
remedy shall be cumulative and in addition to every other right, power or
remedy, whether conferred herein or now or hereafter available at law, in
equity, by statute or otherwise.
 
        16.9 SPECIFIC PERFORMANCE. Each party hereto may obtain specific
performance to enforce its/his rights hereunder and each party acknowledges that
failure to fulfill its/his obligations to the other party hereto would result in
irreparable harm.
 
        16.10 ARBITRATION. Except for the right of either party to apply to a
court of competent jurisdiction for a Temporary Restraining Order to preserve
the status quo or prevent irreparable harm, any dispute or controversy between
Ixia and Former Employee under this Agreement involving its interpretation or
the obligations of a party hereto shall be determined by binding arbitration in
accordance with the commercial arbitration rules of the American Arbitration
Association, in the County of Los Angeles, State of California.
 
        Arbitration may be conducted by one impartial arbitrator by mutual
agreement. In the event that the parties are unable to agree on a single
arbitrator within 30 days of first demand for arbitration, the arbitration shall
proceed before a panel of three arbitrators, one of whom shall be selected by
Ixia and one of whom shall be selected by Former Employee, and the third of whom
shall be selected by the two arbitrators selected. All arbitrators are to be
selected from a panel provided by the American Arbitration Association. The
arbitrators shall have the authority to permit discovery, to the extent deemed
appropriate by the arbitrators, upon request of a party. The arbitrators shall
have no power or authority to add to or, except as otherwise provided by Section
16.6 hereof, to detract from the agreements of the parties, and the prevailing
party shall recover costs and attorneys' fees incurred in arbitration. The
arbitrators shall have the authority to grant injunctive relief in a form
substantially similar to that which would otherwise be granted by a court of
law. The arbitrators shall have no authority to award punitive or consequential
damages. The resulting arbitration award may be enforced, or injunctive relief
may be sought, in any court of competent jurisdiction. Any action arising out of
or relating to this Agreement may
be filed only in the Superior Court of the County of Los Angeles, California or
the United States District Court for the Central District of California.
 
        16.11 CALIFORNIA LAW AND LOCATION. This Agreement was negotiated,
executed and delivered within the State of California, and the rights and
obligations of the parties hereto shall be construed and enforced in accordance
with and governed by the internal (and not the conflict of laws) laws of the
State of California applicable to the construction and enforcement of contracts
between parties resident in California which are entered into and fully
performed in California. Any action or proceeding arising out of, relating to or
concerning this Agreement that is not subject to the arbitration provisions set
forth in Section 16.10 above shall be filed in the state courts of the County of
Los Angeles, State of California or in a United States District Court in the
Central District of California and in no other location. The parties hereby
waive the right to object to such location on the basis of venue.
 
        16.12 ATTORNEYS' FEES. In the event a lawsuit is instituted by either
party concerning a dispute under this Agreement, the prevailing party in such
lawsuit shall be entitled to recover from the losing party all reasonable
attorneys' fees, costs of suit and expenses (including the reasonable fees,
costs and expenses of appeals), in addition to whatever damages or other relief
the injured party is otherwise entitled to under law or equity in connection
with such dispute.
 
        16.13 FORCE MAJEURE. Neither Ixia nor Former Employee shall be deemed in
default if its/his performance of obligations hereunder is delayed or become
impossible or impracticable by reason of any act of God, war, fire, earthquake,
strike, civil commotion, epidemic, or any other cause beyond such party's
reasonable control.
 
        16.14 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but which together shall constitute one
and the same instrument.
 
        16.15 SUCCESSORS AND ASSIGNS. Neither party may assign this Agreement or
any of its rights or obligations hereunder (including, without limitation,
rights and duties of performance) to any third party or entity, and this
Agreement may not be involuntarily assigned or assigned by operation of law,
without the prior written consent of the non-assigning party, which consent may
be given or withheld by such non-assigning party in the sole exercise of its
discretion, except that Ixia may assign this Agreement to a corporation
acquiring: (1) 50% or more of Ixia's capital stock in a merger or acquisition;
or (2) all or substantially all of the assets of Ixia in a single transaction;
and except that Former Employee may transfer or assign his rights under this
Agreement voluntarily, involuntarily or by operation of law upon or as a result
of his death to his heirs, estate and/or personal representative(s). Any
prohibited assignment shall be null and void, and any attempted assignment of
this Agreement in violation of this section shall constitute a material breach
of this Agreement and cause for its termination by and at the election of the
other party hereto by notice. This Agreement shall be binding upon and inure to
the benefit of each of the parties hereto and each person or entity released
pursuant to Section 12 hereof and, except as otherwise provided herein, their
respective legal successors and permitted assigns.
 
        16.16 PAYMENT PROCEDURE. Except as otherwise explicitly provided herein
or in the Severance Plan, all payments by Ixia to Former Employee or by Former
Employee to Ixia due hereunder may be by, at the paying party's election, cash,
wire transfer or check. Except as explicitly provided herein or in the Severance
Plan, neither party may reduce any payment or obligation due hereunder by any
amount owed or believed owed to the other party under any other agreement,
whether oral or written, now in effect or hereafter entered into.
 
        16.17 SURVIVAL. The definitions, representations and warranties herein
as well as obligations set forth in Sections 7, 8 and 10-16 shall survive any
termination of this Agreement for any reason whatsoever.
 
        16.18 NO ADMISSION. Neither the entry into this Agreement nor the giving
of consideration hereunder shall constitute an admission of any wrongdoing by
Ixia or Former Employee.
 
        16.19 LIMITATION OF DAMAGES. Except as expressly set forth herein, in
any action or proceeding arising out of, relating to or concerning this
Agreement, including any claim of breach of contract, liability shall be limited
to compensatory damages proximately caused by the breach and neither party
shall, under any circumstances, be liable to the other party for consequential,
incidental, indirect or special damages, including but not limited to lost
profits or income, even if such party has been apprised of the likelihood of
such damages occurring.
 
        16.20 PRONOUNS. As used herein, the words "he", "him", "his" and
"himself" shall be deemed to refer to the feminine as the identity of the person
referred to and the context may require.
 
        16.21 EFFECTIVENESS. This Agreement shall become effective upon
execution by the later of the parties hereto to execute this Agreement.
 
17.     21 DAY REVIEW PERIOD; RIGHT TO REVOKE
 
        Former Employee acknowledges that he was advised in writing to consult
with an attorney prior to executing this Agreement and represents and warrants
to Ixia that he has done so, and further acknowledges that he has been given a
period of 21 days within which to consider the terms and provisions of this
Agreement with his attorney. If Former Employee has executed and delivered to
Ixia this Agreement prior to the expiration of such 21-day period, then in doing
so, Former Employee acknowledges that he has unconditionally and irrevocably
waived his right to that unexpired portion of such 21-day period. In addition,
Former Employee shall have the right to revoke this Agreement for a period of
seven days following the date on which this
Agreement is signed by sending written notification of such revocation directly
to each of Ixia and Ronald W. Buckly at the addresses specified in Section 16.1,
supra, via hand delivery.
 
IXIA                                       [INSERT FORMER EMPLOYEE'S NAME]
 
 
 
By:                                        Signature:
  -----------------------------------
Print Name:
          ---------------------------
Print Title:
           --------------------------
Date:                         , 20         Date:                         , 20
     -------------------------    ---           -------------------------    ---
 
 
 
                                    EXHIBIT A
 
                        OUTSTANDING STOCK PURCHASE RIGHTS
 
<TABLE>
<CAPTION>
                                            Maximum
                                           Number of
                                             Shares        Purchase
                                           Currently         Price        Termination
Type of Security          Date Issued     Purchasable      Per Share          Date
----------------          -----------     -----------      ---------      -----------
<S>                       <C>             <C>              <C>            <C>
 
[e.g., stock option,
warrant, etc.]
 
 
 
                                    EXHIBIT B
 
            LIST OF OTHER AGREEMENTS (PURSUANT TO SECTIONS 12 AND 13)
 
 
 
                                   EXHIBIT C
 
                      EXCEPTIONS (PURSUANT TO SECTION 15)
 



EX-10.2 3 v51008exv10w2.htm EX-10.2

Exhibit 10.2

AMENDMENT TO THE
IXIA OFFICER SEVERANCE PLAN

     WHEREAS, Ixia (“Ixia” or the “Company”) previously adopted the Officer Severance Plan (this “Plan”) effective September 1, 2000, in order to provide severance benefits to certain officers of the Company; and

     WHEREAS, the Company reserved the right to amend the Plan pursuant to Section 9(g) thereof; and

     WHEREAS, effective January 1, 2009, the Company will amend and restate the Plan, to the extent necessary to incorporate the provisions required by Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), and to make certain other changes (“Restated Plan”); and

     WHEREAS, effective December 31, 2008, the Company desires to amend the Officer Severance Plan as in effect prior to the effectiveness of the Restated Plan (“Pre-2009 Plan”) to incorporate the provisions required by Code Section 409A for the benefit of any Eligible Officers who either (i) elect to continue participation in the Pre-2009 Plan until January 8, 2010 and to participate in the Restated Plan thereafter or (ii) elect to continue participation in the Pre-2009 Plan through and after January 8, 2010.

     NOW, THEREFORE, effective December 31, 2008, the Pre-2009 Plan is amended as follows with respect to Eligible Employees who, by December 31, 2008, elect (i) not to participate in the Restated Plan until January 8, 2010, or (ii) not to participate in the Restated Plan at any time:

1.

A new section 2(l) is added as follows:

(l) “Code Section 409A” means Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and other guidance promulgated thereunder.”

2.

The portion of Section 3(b) that occurs immediately prior to Section 3(b)(i) is deleted in its entirety and replaced with the following:

     “(b) Ixia will pay severance benefits under this Plan on account of the termination of an Eligible Officer’s employment with Ixia only if the conditions set forth in Section 5 are fulfilled and such termination is non-temporary, constitutes a separation from service within the meaning of Code Section 409A, and such termination is non-temporary and:”

3.

Section 4(b) is deleted in its entirety and replaced with the following:

     “(b) Method of Payment. To the extent such benefit is not forfeited as a result of the failure to satisfy the requirements of Section 5 of this Plan, a terminated Eligible Officer’s Severance Allowance will normally be paid in 12 equal monthly installments, less all applicable withholding taxes and permissible offsets, commencing, except as required by Section 10, on the thirty-first day following the terminated officer’s Termination Date.”

 


 

4.

Section 4(g) is deleted in its entirety and replaced with the following:

     “(g) Section 280G. Notwithstanding anything herein to the contrary, to the extent that the severance benefits to be paid to an Eligible Officer hereunder exceed an amount equal to three times the Eligible Officer’s base compensation as determined pursuant to Code Section 280G, the amount of the severance benefits shall be reduced to the minimum extent necessary to ensure that the severance benefits do not exceed the amount determined pursuant to Code Section 280G. Any such reductions shall be made first from compensation which is not deferred compensation subject to regulation under Code Section 409A. This Section 4(h) shall apply only with respect to a severance benefit which is a “parachute payment” within the meaning of Code Section 280G.”

5.

A new Section 9(h) is added as follows:

     “(h) Taxes/Withholding. Notwithstanding any provision herein, the Company makes no representation as to the tax treatment of any payments under this Plan, and the Eligible Officer shall be liable for all tax liabilities, other than the Company’s share of applicable employment tax liabilities, associated with such payments. Each Eligible Officer should consult a competent and independent tax advisor regarding the tax consequences of his participation in this Plan. The Eligible Officer shall make appropriate arrangements with the Company for satisfaction of any federal, state or local income tax withholding requirements and Social Security or other employee tax requirements applicable to the payment of benefits under the Plan. If no such arrangements are made, the Company may provide, at its discretion, for such withholding and tax payments as it may reasonably deem appropriate.”

6.

A new Section 10 is added as follows:

10. Code Section 409A Compliance.

     (1) Six Month 409A Delay Period. Notwithstanding anything herein to the contrary, in the event that an Eligible Officer is determined to be a specified employee of the Company on his Termination Date, as such term is defined within the meaning of Code Section 409A, and a delay in severance pay and benefits provided under this Plan is necessary for compliance with Code Section 409A(a)(2)(B)(i), then the Severance Allowance and any continuation of benefits or reimbursement of benefit costs provided under this Plan and not otherwise exempt from Code Section 409A shall be delayed for a period of six months (the “409A Delay Period”).  In such event, the Severance Allowance and the cost of any such continuation of benefits provided under this Agreement that would otherwise be due and payable to an Eligible Officer during the 409A Delay Period shall be paid to Employee in a lump sum cash amount, with interest accruing at a reasonable rate from the Termination Date, on the first day of the seventh month immediately following the Termination Date.

     (2) Savings Clause. This Plan is intended to comply with the provisions of Code Section 409A. If any compensation or benefits provided by this Plan may result in adverse consequences under Code Section 409A to the Eligible Officer, the Company shall, in consultation with the affected Eligible Officer, make reasonable efforts to modify the Plan and/or the affected Eligible Officer’s Agreement in the least restrictive manner necessary in order to exclude such compensation from the definition of “deferred compensation” within the meaning of Code Section 409A or in order to comply with the provisions of Code Section 409A, other applicable provision(s) of the

2


 

Code and/or any rules, regulations or other regulatory guidance issued under such statutory provisions and without any diminution in the value of the payments to the Eligible Officer.”

* * *

3

EX-10.1 2 v51008exv10w1.htm EX-10.1

Exhibit 10.1

IXIA
OFFICER SEVERANCE PLAN

(As Amended and Restated effective January 1, 2009)

          WHEREAS, Ixia (“Ixia” or the “Company”) previously adopted the Officer Severance Plan effective September 1, 2000 (the “OSP”), in order to provide severance benefits to certain officers of the Company; and

          WHEREAS, the Company reserved the right to amend the OSP pursuant to Section 9(g) thereof; and

          WHEREAS, effective January 1, 2009, the Company desires to amend and restate the OSP, to the extent necessary to incorporate the provisions required by Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), and to make certain other changes; and

          WHEREAS, effective December 31, 2008, the Company desires to adopt a patch amendment to the OSP to incorporate the provisions required by Code Section 409A for the benefit of any Eligible Officer who elects prior to December 31, 2008, to continue participation in the OSP either (i) for the term of his employment as an Eligible Officer with the Company; or (ii) until January 8, 2010, at which time his participation under the OSP will expire and the severance rights of such Eligible Officer shall be determined under the terms of the Officer Severance Plan, as Amended and Restated effective January 1, 2009 (the “Plan”);

          NOW, THEREFORE, effective January 1, 2009, the OSP is amended and restated in its entirety as follows, the provisions hereof to apply (i) as of January 1, 2009 with respect to those Eligible Employees who consent to such changes pursuant to Section 10(g); (ii) as of January 8, 2010 with respect to those Eligible Employees who elect to participate in the OSP through January 8, 2010 and thereafter in the Plan; and (iii) to those executive officers of the Company who are first designated after December 31, 2008 as Eligible Officers under the Plan:

1 Purpose.

     The Plan is intended to provide severance benefits to salaried officers of Ixia who shall become eligible for benefits under this Plan. The purpose of this Plan is to provide certain benefits to Eligible Officers during the transition period following the loss of employment under circumstances outlined in this Plan. The provisions herein are being offered and provided at the sole discretion of the Company.

2. Definitions.

     As used herein, the terms identified below shall have the meanings indicated:

     (a) “Administrator” means the Compensation Committee of the Board of Directors of the Company (or such other committee as may be appointed by the Board to administer this

1


 

Plan); and, in the absence of any such committee, shall mean the Board of Directors of the Company.

     (b) “Annual Compensation” means (i) for purposes of determining the amount of an Eligible Officer’s Severance Allowance payable under Section 6 hereof, the regular rate of annual base salary paid by the Company to an Eligible Officer in his capacity as such with respect to a calendar year (or any portion thereof if such person was not or will not be an Eligible Officer for the entire calendar year) immediately prior to his Termination Date, plus 100% of his target bonus and/or commission compensation for such calendar year or, if such target(s) have not yet been approved for that year, for the prior calendar year; and (ii) for purposes of determining the amount of an Eligible Officer’s Severance Allowance payable under Section 4 hereof, the regular rate of annual base salary paid by the Company to an Eligible Officer in his capacity as such with respect to a calendar year (or any portion thereof if such person was not or will not be an Eligible Officer for the entire calendar year) immediately prior to his Termination Date, plus the average of the annual aggregate amounts of any bonus payments, commissions and incentive compensation earned by such officer for services rendered to the Company during the immediately preceding three calendar years (if the Eligible Officer has not been employed by the Company as an Eligible Officer for such entire three-year period, then the amount so calculated shall not take into account any bonus payments, commissions or incentive compensation earned by the Eligible Officer with respect to a calendar year during which he was not employed by the Company or was employed by the Company for only a portion thereof); provided, however, that for purposes of determining the Annual Compensation in (i) and (ii) of this Section 2(b), automobile allowances, pension payments, 401(k) matching contributions, gains realized in connection with the exercise of a stock option or participation in a stock option or purchase plan or other equity incentive plan, employer contributions for benefits, relocation payments, expense reimbursements, noncash compensation and similar payments shall be excluded and not taken into account.

     (c) “Board” means the Board of Directors of the Company.

     (d) “Cause.” Termination by Ixia of an Eligible Officer’s employment for “Cause” means termination as a result of:

 

(i)

 

willful refusal or failure to follow one or more important Company policies;

 

 

(ii)

 

any conduct amounting to gross incompetence;

 

 

(iii)

 

any absence (excluding vacations, illnesses or leaves of absence) from work for more than five consecutive work days or chronic absences from work (also excluding vacations, illnesses or leaves of absence), all of which are neither authorized, justified nor excused;

 

 

(iv)

 

refusal or failure, after written notice and reasonable time to comply, to perform material, appropriate duties;

 

 

(v)

 

refusal, after written notice and reasonable time to comply, to obey any lawful resolution of the Board;

2


 

 

(vi)

 

embezzlement, misappropriation of any property or other asset of the Company (other than de minimis properties or assets) or misappropriation of a corporate opportunity of the Company;

 

 

(vii)

 

offer, payment, solicitation or acceptance in violation of Company policy or law of any bribe, kickback or item of value with respect to the Company’s business;

 

 

(viii)

 

conviction of the Eligible Officer for or the entering of a plea of nolo contendere with respect to any felony whatsoever or for any misdemeanor involving moral turpitude;

 

 

(ix)

 

any act or failure to act by the Eligible Officer that is widely reported in the general or trade press or otherwise and which achieves a general notoriety and which act or failure to act involves conduct that is illegal or generally considered immoral or scandalous;

 

 

(x)

 

any willful material breach of the Eligible Officer’s obligations to the Company under any nondisclosure or proprietary agreement with or on behalf of the Company or any material unauthorized disclosure of any important confidential information of the Company; or

 

 

(xi)

 

unlawful use (including being under the influence) or possession of illegal drugs on Company premises.

     (e) “Change in Control.” A “Change in Control” of the Company shall be deemed to have occurred at such time as (i) any “person” (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934 (the “Exchange Act”)) becomes after the effective date of this Plan the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 50% or more of the combined voting power of the Company’s then outstanding securities; (ii) during any period of 12 consecutive months, individuals who at the beginning of such period constitute the Board cease for any reason to constitute at least a majority thereof unless the election, or the nomination for election by the Company’s shareholders, of each new director was approved by a vote of at least a majority of the directors then still in office who were directors at the beginning of the period; (iii) there occurs the closing of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation; or (iv) the shareholders of the Company approve a plan of liquidation of the Company or an agreement for the sale or disposition (other than in the ordinary course of business) by the Company of all or substantially all of the Company’s assets (or any transaction having essentially the same effect).

     (f) “CEO” means the Chief Executive Officer of the Company or, if no person is then serving as Chief Executive Officer, the President of the Company.

3


 

     (g) “Eligible Officers” mean only those duly elected or appointed officers of the Company that are expressly designated as “Eligible Officers” by the Board for the purposes of this Plan pursuant to resolutions duly adopted by the Board.

     (h) “Employment Period” means the aggregate period of time during which an individual has been employed as a duly elected or appointed Eligible Officer (other than solely as Chairman of the Board, Secretary and/or Assistant Secretary) by the Company prior to the Termination Date.

     (i) “Good Reason” means (i) a material diminution in the Eligible Officer’s compensation; (ii) a material diminution in the Eligible Officer’s authority, duties, or responsibilities; (iii) a material change in the geographic location at which Eligible Officer must perform the services; or (iv) any other action or inaction that constitutes a material breach by the Company of this Plan or any other plan or agreement under which the Eligible Officer provides services to the Company. Notwithstanding the preceding, “Good Reason” will not be deemed to exist unless the Eligible Officer notifies the Company in writing that he or she believes Good Reason exists. The Eligible Officer must set forth in reasonable detail why he or she believes Good Reason exists; provided, however, that the Eligible Officer must provide the Company with written notice of Good Reason within a period of 90 days of the initial existence of the condition alleged to give rise to Good Reason, upon the notice of which the Company shall have a period of 30 days during which it may remedy the condition and thereby eliminate the grounds for a “Good Reason” termination. A termination for Good Reason in accordance with this paragraph must be made no later than two years after the initial existence of the condition alleged to give rise to Good Reason and shall be treated as an involuntary separation from service for purposes of Code Section 409A.

     (j) “Severance Allowance” means the aggregate gross amount of severance payments determined in accordance with Section 4(a) of this Plan to be paid to an Eligible Officer who is entitled to receive severance benefits under this Plan.

     (k) “Termination Date” means the date on which an Eligible Officer ceases to be a duly elected or appointed officer of the Company (other than Chairman of the Board, Secretary and/or Assistant Secretary).

3. Eligibility.

     (a) Participants. Only Eligible Officers shall be eligible to receive benefits under this Plan.

     (b) Eligible Terminations. Ixia will pay severance benefits under this Plan on account of the termination of an Eligible Officer’s employment with the Company only if the conditions set forth in Section 5 are fulfilled, such termination constitutes a separation from service within the meaning of Code Section 409A, such termination is non-temporary, and such termination is described in (i) or (ii) below, as applicable:

 

(i)

 

With respect to benefits payable pursuant to Section 4, the termination is:

4


 

 

A.

 

the result of a reduction in force (an involuntary separation without Cause and due to elimination of position or a layoff of personnel);

 

 

B.

 

the result of Ixia’s belief that the Eligible Officer is unable to fulfill or is not fulfilling the requirements of or should not hold an officer position for a reason other than for Cause;

 

 

C.

 

the result of such Eligible Officer having submitted to the Company his written resignation or offer of resignation (even if such indicates that such resignation is “voluntary”) upon and in accordance with (A) the request by the Board in writing or pursuant to a duly adopted resolution of the Board or (B) with respect to all Eligible Officers other than the Chief Executive Officer of the Company, the written request of the Chief Executive Officer of the Company;

 

 

D.

 

a termination which was the result of or in connection with a divestment by Ixia of the operating unit in which such Eligible Officer works and which unit is sold, conveyed or transferred to another corporation or entity (whether in connection with a sale of assets, stock or other form of transaction);

 

 

E.

 

a separation following the Company requiring the Eligible Officer to be based a material distance away from the Company’s offices at which such Eligible Officer was principally employed and such Eligible Officer declines to relocate except for required and appropriate travel on the Company’s business consistent with the Eligible Officer’s prior business travel obligations;

 

 

F.

 

a separation within 30 days following a material diminution (but in no event less than or equal to a 10% diminution) of the Eligible Officer’s annual base salary as in effect from time to time; or

 

 

G.

 

for the convenience of Ixia or otherwise for any reason other than one or more of the reasons set forth in Section 3(c).

 

(ii)

 

With respect to benefits payable pursuant to Section 6, the requirements of Section 6 are satisfied.

     (c) Ineligible Terminations. Notwithstanding Section 3(b), Ixia will not be obligated to pay severance benefits under this Plan to an Eligible Officer if the termination is the result of:

 

(i)

 

voluntary separation (a separation, including, subject to Section 3(c)(ii), retirement, initiated by the Eligible Officer), other than a voluntary separation pursuant to Section 3(b)(i)B, 3(b)(i)C, 3(b)(i)D, 3(b)(i)E, 3(b)(i)F or 3(b)(i)G hereof;

5


 

 

(ii)

 

retirement (other than at the time of reduction in force and other than as a result of Section 3(b)(i)B or 3(b)(i)C), whether early retirement, retirement at normal retirement age or retirement following normal retirement age;

 

 

(iii)

 

the Company having terminated such Eligible Officer’s employment for Cause;

 

 

(iv)

 

the removal of an Eligible Officer from one or more officer positions but such Eligible Officer is offered and accepts (and continuing to work at the Company in such new officer position shall, among other methods, be a method of acceptance) one or more other officer positions (other than merely Secretary or Assistant Secretary) at the Company; or

 

 

(v)

 

death or long term disability. Notwithstanding that such termination would not obligate the Company to pay severance benefits to an Eligible Officer under this Plan, upon termination of employment by reason of death or disability, then all of such Eligible Officer’s then outstanding unvested stock options, stock appreciation rights (“SARs”), restricted stock units (“RSUs”), restricted stock awards and other rights to purchase or acquire securities or other property of the Company (other than the Eligible Officer’s rights under the Company’s Employee Stock Purchase Plan (as in effect from time to time) qualifying under Code Section 423 (“ESPP”)), shall automatically vest and, in the case of stock options and SARs, become immediately exercisable in full, and provided it gives rise to no tax liability under Code Section 409A, such options and SARs shall remain exercisable for (i) the period specified in the applicable equity incentive plan, equity award agreement or other plan or agreement or, if longer, (ii) a period of 180 days following the Termination Date of such Eligible Officer (notwithstanding any provisions to the contrary in any applicable equity incentive plan, equity award agreement or other plan or agreement); provided, however, that any such option, SAR or other right shall not be exercisable after the expiration of the term of such option, SAR or other right set forth in the equity award agreement or other agreement evidencing such right. For those purposes, an Eligible Officer shall be deemed to be disabled only when he is determined to be disabled by the Social Security Administration or by the Company’s long term disability provider.

4. Amount and Payment of Severance Benefits.

     (a) Severance Compensation. Unless otherwise provided in Section 6 herein, an Eligible Officer who is entitled to receive severance benefits under this Plan shall receive a Severance Allowance in an amount equal to the product of (i) such Eligible Officer’s then current Annual Compensation; and (ii) a percentage determined in accordance with the following table:

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Office Held At Termination

Length of

 

Officer other

 

 

Employment Period

 

than CEO

 

CEO

<One Year
>One Year

 

50 %
100 %

 

100 %
200 %

     (b) Method of Payment. To the extent such benefit is not forfeited as a result of the failure to satisfy the requirements of Section 5 of this Plan, a terminated Eligible Officer’s Severance Allowance will be paid in 12 equal monthly installments, less all applicable withholding taxes and permissible offsets, commencing, except as required by Section 9, on the thirty-first day following the terminated Eligible Officer’s Termination Date.

     (c) Health Care Insurance Continuation. Ixia (at its expense) will continue, for a period of 18 months following the Termination Date, health care coverage for the terminated Eligible Officer and his family members who are “qualified beneficiaries” (as such term is defined in the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”)) under Ixia’s group health plan(s) generally available during such period to employees participating in such plan(s) and at levels and with coverage no greater than those provided to such terminated Eligible Officer as of the Termination Date. If such coverage cannot be provided pursuant to the terms of Ixia’s group health plan(s), Ixia may satisfy this obligation by providing comparable coverage through an individual policy or, if such comparable coverage is significantly more expensive than the coverage being provided to employees, by providing coverage through an individual policy with a cost comparable, to the cost of coverage provided through Ixia’s group health plan(s). Thereafter, such terminated Eligible Officer (at his expense) may elect coverage under a conversion health plan available under Ixia’s group health plan(s) from the Company’s health insurance carrier if and to the extent he is entitled to do so as a matter of right under federal or state law.

     (d) Other Benefit Plans. Except as otherwise expressly provided in this Section 4 or as required by applicable law, a terminated Eligible Officer shall have no right to continue his participation in any Company benefit plan following such Eligible Officer’s termination. Without limiting the generality of the foregoing, a terminated Eligible Officer shall not be entitled to participate in the Company’s 401(k) Plan or any similar plan following his Termination Date.

     (e) Pro Rata Bonus. The Company may, in its sole discretion, make a payment to a terminated Eligible Officer to account for any pro rata bonus payment earned but not yet paid with respect to the year in which such Eligible Officer’s Termination Date is contained.

     (f) Vacation Pay. A terminated Eligible Officer will be promptly paid for accrued and unused vacation entitlement on and through the Termination Date.

     (g) Offset. To the maximum extent permitted by law, the Company may offset any and all amounts due or otherwise owed to the Company by the terminated Eligible Officer against the severance payments due to the terminated Eligible Officer under this Plan.

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     (h) Section 280G. Notwithstanding anything herein to the contrary, to the extent that the severance benefits to be paid to an Eligible Officer hereunder exceed an amount equal to three times the Eligible Officer’s base compensation as determined pursuant to Code Section 280G, the amount of the severance benefits shall be reduced to the minimum extent necessary to ensure that the severance benefits do not exceed the amount determined pursuant to Code Section 280G. Any such reductions shall be made first from compensation which is not deferred compensation subject to regulation under Code Section 409A. This Section 4(h) shall apply only with respect to a severance benefit which is a “parachute payment” within the meaning of Code Section 280G.

     (i) Acceleration of Vesting. If an Eligible Officer becomes eligible for severance benefits pursuant to Section 3 of this Plan (and not on account of a Change in Control provision outlined in Section 6), then all of such Eligible Officer’s then unvested stock options, stock appreciation rights, restricted stock units, restricted stock awards and other rights to purchase or acquire securities or other property of the Company (other than rights under the ESPP), that would have vested within 12 months following the Eligible Officer’s Termination Date, shall automatically vest on the Termination Date and, in the case of stock options and SARs, become immediately exercisable in full, and provided it gives rise to no tax liability under Code Section 409A, such options and SARs, and right to purchase securities or other property of the Company shall remain exercisable for (i) the period specified in the applicable equity incentive plan, equity award agreement or other plan or agreement or, if longer, (ii) a period of 90 days following the Termination Date of such Eligible Officer’s termination of employment with the Company (notwithstanding any provisions to the contrary in any applicable equity incentive plan, equity award agreement or other plan or agreement); provided, however, that any such option, SAR or other right shall not be exercisable after the expiration of the term of such option, SAR or other right set forth in the equity award agreement or other agreement evidencing such right.

     (j) Installments. For purposes of Code Section 409A, the right to a series of installment payments hereunder shall be treated as a right to a series of separate payments.

5. Condition Precedent to Severance Benefits.

     (a) Separation Agreement. Notwithstanding anything herein to the contrary and in consideration for and as a condition precedent to the payment of severance or any other benefits under this Plan, an Eligible Officer otherwise entitled to receive payments or benefits under this Plan shall, following his Termination Date, execute and deliver to the Company a written separation agreement (the “Agreement”), in the form of agreement attached hereto as Attachment I. Except for terminations subject to Section 3(c)(v) and as provided in the last sentence of Section 5(b), an Eligible Officer shall not have any rights whatsoever to receive severance benefits under this Plan unless he timely executes and delivers to the Company the Agreement. The obligations set forth in the Agreement shall be in addition to any existing and continuing duties that such Eligible Officer may otherwise have under law to the Company as a result of his former capacity as an officer, employee, director, shareholder or otherwise.

     (b) Timing and Procedure. Not later than 20 days after an Eligible Officer’s Termination Date, the Company shall provide such Eligible Officer with the Agreement for his execution. Unless such Agreement is duly executed and returned by the Eligible Officer to the

8


 

Company within 21 days after he receives it or the Eligible Officer correctly disputes or otherwise correctly disagrees with the Company’s determination of the severance payments payable under this Plan and has made a timely claim in accordance with Section 8(a) hereof, such Eligible Officer shall be deemed to have waived and forfeited his rights to severance payments and benefits under this Plan and the Company shall have no further obligations whatsoever to such Eligible Officer under this Plan. If the Company shall not provide the Agreement to the Eligible Officer within 20 days after such Eligible Officer’s Termination Date, the Company shall be deemed to have waived the condition set forth in this Section 5 and the Eligible Officer shall not be required to execute the Agreement as a condition to receiving any severance payments or other benefits under this Plan.

6. Change in Control Provisions.

     (a) Limitation. The provisions of this Section 6 shall apply only in the event that a Change in Control of the Company shall occur.

     (b) Eligible Terminations. Notwithstanding any provision of this Plan to the contrary, in the event that a Change in Control of the Company shall occur, the Company will pay the severance benefits provided in this Plan (including the Severance Allowance, at an adjusted percentage outlined in Section 6(c) below), to an Eligible Officer who (i) is terminated by the Company (or the surviving and controlling company if other than the Company (the “Acquiror)) without Cause within two years following the Change in Control of the Company, or (ii) elects to terminate his employment for Good Reason within two years after such Change in Control. The provisions of this Section 6 shall automatically expire two years after a Change in Control occurs, and an Eligible Officer shall not be eligible to claim benefits under this Plan, including Section 6, thereafter.

     (c) Severance Allowance. Notwithstanding any provision in Section 4(a) to the contrary, in the event severance benefits are paid pursuant to the terms of this Section 6, an Eligible Officer who is entitled to receive severance benefits under this Plan shall receive a Severance Allowance payable pursuant to the terms of Section 4(b) in an amount equal to the product of (i) such Eligible Officer’s then current Annual Compensation, and (ii) a percentage determined in accordance with the following table:

 

 

 

Office Held At Termination

Eligible Officer

 

 

other than CEO

 

CEO

125%

 

200%

     (d) Pre-CIC Termination. In the event that an Eligible Officer’s employment with the Company is terminated for any reason prior to the Change in Control of the Company, and subsequently a Change in Control of the Company occurs, such Eligible Officer shall not be entitled to any benefits under this Section 6 unless such termination was in connection with or otherwise directly because of such anticipated Change in Control.

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     (e) Equity/Property Rights. If within two years following a Change in Control of the Company, an Eligible Officer’s employment with the Company (or the Acquiror) is terminated by the Company (or the Acquiror) without Cause, then all of such Eligible Officer’s then unvested stock options, SARs, RSUs, restricted stock awards and other rights to purchase or acquire securities or other property of the Company or the Acquiror (including but not limited to any options or rights assumed by the Acquiror in connection with the Change in Control), other than any such options or rights that were granted after the effective date of the Change in Control and other than rights granted under the ESPP, shall automatically vest and, in the case of stock options and SARs, become immediately exercisable in full, and, provided it gives rise to no tax liability under Code Section 409A, all of such Eligible Officer’s options, SARs, and rights to purchase securities or other property of the Company and/or the Acquiror (other than any such options and rights that were granted after the effective date of the Change in Control and other than rights granted under the ESPP, which options and rights shall be governed by the terms thereof) shall remain exercisable for (i) the period specified in the applicable equity incentive plan, equity award agreement or other plan or agreement or, if longer, (ii) a period of one year following the effective date of such Eligible Officer’s Termination Date or termination of employment with the Acquiror, as the case may be (notwithstanding any provisions to the contrary in any applicable equity incentive plan, equity award agreement or other plan or agreement); provided, however, that any such option, SAR or other right shall not be exercisable after the expiration of the term of such option, SAR or other right set forth in the equity award agreement or other agreement evidencing such right.

7. Administration of this Plan.

     This Plan shall be interpreted and administered for the Company by the Administrator who shall also be the named fiduciary of this Plan. The Administrator shall administer this Plan in accordance with its terms and shall have all powers necessary to carry out this Plan’s provisions on behalf of the Company. The Administrator shall have discretionary authority on behalf of the Company to determine reasonably and in good faith all questions arising in the administration, interpretation and application of this Plan and to construe the terms of this Plan, including any disputed or doubtful terms or the eligibility of an Eligible Officer for any benefit hereunder. Except as otherwise expressly provided in this Plan, the Administrator shall have no power or authority to add to, subtract from or modify any of the terms of this Plan, or to change or modify any of the benefits provided by this Plan, or to waive or fail to apply any requirements for eligibility for a benefit under this Plan.

8. Claims for Benefits.

     (a) Initial Claim. In the event an Eligible Officer disputes or otherwise disagrees with the Company’s determination of the severance benefits payable to him and desires to make a claim (a “claimant”) with respect to any of the benefits provided hereunder, the claimant shall so notify, in writing, the Administrator by actual receipt or registered mail (addressed to the “Officer Severance Plan Administrator,” Ixia, 26601 West Agoura Road, Calabasas, California 91302) and shall submit evidence of events constituting a termination of employment with the Company. Any claim with respect to any of the benefits provided under this Plan shall be made in writing within 90 days of the later of (i) the claimant’s becoming aware of the event which the claimant asserts entitles him to severance benefits; or (ii) the Company notifying him of its

10


 

determination of the severance benefits payable to him under this Plan as a result of the occurrence of that event. Failure by the claimant to submit his claim within such 90-day period shall bar the claimant from disputing the Company’s notification to him of its determination of the severance benefits payable to him under this Plan as a result of the occurrence of that event.

     (b) Appeal. In the event that a claim which is made by a claimant is wholly or partially denied, the claimant will receive from the Administrator within 60 days of the claimant’s above-referenced notice a written explanation of the reason for denial and the claimant or his duly authorized representative may appeal the denial of the claim to the Administrator at any time within 60 days after the receipt by the claimant of written notice from the Administrator of the denial of the claim. In connection therewith, the claimant or his duly authorized representative may request a review of the denied claim, may review pertinent documents, and may submit issues and comments in writing. Upon receipt of a request for review of a denied claim, the Administrator shall make a decision with respect thereto and, not later than 60 days after receipt of a request for review, shall furnish the claimant with a decision on the review in writing, including the specific reasons for the decision written in a manner reasonably calculated to be understandable by the claimant or the claimant’s attorney or accountant, as well as specific reference to the pertinent provisions of this Plan upon which the decision is based. In reaching its decision, the Administrator shall have the discretionary authority in good faith to determine on behalf of the Company all questions arising under this Plan.

9. Code Section 409A Compliance.

     (a) Six Month 409A Delay Period. Notwithstanding anything herein to the contrary, in the event that an Eligible Officer is determined to be a specified employee of the Company on his Termination Date, as such term is defined within the meaning of Code Section 409A, and a delay in severance pay and benefits provided under this Plan is necessary for compliance with Code Section 409A(a)(2)(B)(i), then:

          (1) The Severance Allowance and any continuation of benefits or reimbursement of benefit costs provided under this Plan and not otherwise exempt from Code Section 409A shall be delayed for a period of six months (the “409A Delay Period”). In such event, the Severance Allowance and the cost of any such continuation of benefits provided under this Agreement that would otherwise be due and payable to an Eligible Officer during the 409A Delay Period shall be paid to Employee in a lump sum cash amount, with interest accruing at a reasonable rate from the Termination Date, on the first day of the seventh month immediately following the Termination Date.

          (2) Notwithstanding the foregoing, to the extent that it will not cause adverse tax consequences under Code Section 409A, the amount of the Severance Allowance that does not exceed two times the lesser of (i) the sum of the Eligible Officer’s annualized compensation based upon his annual rate of pay for services provided to the Company for the prior taxable year, or (ii) the maximum amount that may be taken into account under a qualified plan pursuant to Code Section 401(a)(17) for the year in which the Eligible Officer’s Termination Date occurs (such amount is $245,000 in 2009), may be paid without regard to the 409A Delay Period.

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     (b) Savings Clause. This Plan is intended to comply with the provisions of Code Section 409A. If any compensation or benefits provided by this Plan may result in adverse consequences under Code Section 409A to the Eligible Officer, the Company shall, in consultation with the affected Eligible Officer, make reasonable efforts to modify the Plan and/or the affected Eligible Officer’s Agreement in the least restrictive manner necessary in order to exclude such compensation from the definition of “deferred compensation” within the meaning of Code Section 409A or in order to comply with the provisions of Code Section 409A, other applicable provision(s) of the Code and/or any rules, regulations or other regulatory guidance issued under such statutory provisions and without any diminution in the value of the payments to the Eligible Officer.

10. Miscellaneous Provisions.

     (a) Offset. If an Eligible Officer shall become entitled to receive benefits or payments from the Company pursuant to the provisions of any statute, rule or regulation of the United States or any state, territory, commonwealth or political subdivision thereof as the result of a plant or facility shutdown or closing, or the change in the control or ownership of the Company (other than unemployment benefits), the amount of severance benefits payable hereunder shall be offset dollar for dollar and reduced by such benefits otherwise payable to the Eligible Officer under such statute, rule or regulation.

     (b) Enforcement. The failure of the Company to enforce at any time any of the provisions of this Plan, or to require at any time performance of any of the provisions of this Plan, shall in no way be construed to be a waiver of these provisions, nor in any way to affect the validity of this Plan or any part thereof, or the right of the Company thereafter to enforce every provision.

     (c) Benefits Nonalienable. Except as may be required by law, no benefit which shall be payable under this Plan to any Eligible Officer shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge, and any attempt to alienate, sell, transfer, assign, pledge, encumber or charge all or any part of the benefit shall be void; provided, however, in the event of the death of a terminated Eligible Officer prior to the end of the period over which such Eligible Officer is entitled to receive severance benefits under this Plan, the severance benefits payable hereunder shall be paid to the estate of such Eligible Officer or to the person who acquired the rights to such benefits by bequest or inheritance. Except as may be provided by law, no benefit shall in any manner be liable for, or subject to, the debts, contracts, liabilities, engagements or torts of any Eligible Officer, nor shall it be subject to attachment or legal process for, or against, the Eligible Officer and the same shall not be recognized under this Plan.

     (d) No Right to Employment. The definitions and criteria set forth herein are solely for the purpose of defining Plan eligibility. No legal rights to employment are created or implied by this Plan, nor are any conditions or restrictions hereby placed on termination of employment. Unless the employee has a written employment agreement binding on the Company which provides otherwise, employment with the Company is employment-at-will. This means termination of employment may be initiated by the Eligible Officer or by the Company at any time for any reason which is not unlawful, with or without cause.

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     (e) Applicable Law. This Plan shall be construed, administered and governed under and by the laws of the State of California and the laws of the United States to the extent they preempt state law or are otherwise applicable to this Plan.

     (f) Entire Agreement. This Plan constitutes the entire Officer Severance Plan for the Company and supersedes all previous representations, understandings and plans with respect to officer severance, and any such representations, understandings and plans with respect to officer severance are hereby canceled and terminated in all respects.

     (g) Amendment/Termination. Subject to the limitations herein provided, this Plan and each provision hereof may be amended, modified, supplemented, terminated or waived at any time by the Board. Each such amendment, modification, supplement, termination or waiver shall be in writing, shall be promptly sent in writing to each Eligible Officer and shall be effective on the date on or after such Board action as is specified by the Board; provided, however, that (i) no such action shall have the effect of retroactively changing or depriving any terminated Eligible Officers of their rights to benefits payable with respect to events occurring prior to the effective date of such amendment, modification, supplement, termination or waiver unless the explicit written consent or waiver of such officer thereto is obtained; (ii) no such action shall retroactively materially diminish the rights under this Plan of an officer who is an Eligible Officer at the date on which such amendment, modification, supplement, termination or waiver is approved by the Board unless (a) the explicit written consent thereto or waiver by such Eligible Officer is obtained or (b) the Board specifies that such action shall not become effective with respect to those officers who are Eligible Officers on the date such action is duly approved by the Board until at least 12 months have elapsed after such Eligible Officers have been notified in writing of the Board’s approval of such action; and (iii) no such action shall be taken within a period of two years following a Change in Control. Except as expressly provided herein, no course of dealing between the parties hereto and no delay in exercising any right, power or remedy conferred hereby or now or hereafter existing at law, in equity, by statute or otherwise, shall operate as a waiver of, or otherwise prejudice, any such right, power or remedy.

     (h) Taxes/Withholding. Notwithstanding any provision herein, the Company makes no representation as to the tax treatment of any payments under this Plan, and the Eligible Officer shall be liable for all tax liabilities, other than the Company’s share of applicable employment tax liabilities, associated with such payments. Each Eligible Officer should consult a competent and independent tax advisor regarding the tax consequences of his participation in this Plan. The Eligible Officer shall make appropriate arrangements with the Company for satisfaction of any federal, state or local income tax withholding requirements and Social Security or other employee tax requirements applicable to the payment of benefits under the Plan. If no such arrangements are made, the Company may provide, at its discretion, for such withholding and tax payments as it may reasonably deem appropriate.

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ATTACHMENT I

EMPLOYMENT SEPARATION AGREEMENT

     THIS EMPLOYMENT SEPARATION AGREEMENT (the “Agreement”), which includes Exhibits A, B and C hereto which are incorporated herein by this reference, is entered into by and between IXIA, a California corporation (“Ixia”), and                                          (“Former Employee”), and shall become effective when executed by both parties hereto (the “Effective Date”).

RECITALS

     a. Former Employee ceased to be an employee and officer of Ixia on                     , 20       (the “Termination Date”).

     b. Former Employee desires to receive severance benefits under Ixia’s Officer Severance Plan as Amended and Restated effective January 1, 2009 (the “Severance Plan”), which benefits are stated in the Severance Plan to be contingent upon, among other things, Former Employee’s entering into this Agreement and undertaking the obligations set forth herein.

     c. Ixia and Former Employee desire to set forth their respective rights and obligations with respect to Former Employee’s separation from Ixia and to finally and forever settle and resolve all matters concerning Former Employee’s past services to Ixia.

AGREEMENT

     NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants and conditions set forth herein, the receipt and sufficiency of which are hereby acknowledged, Ixia and Former Employee hereby agree as follows:

1. DEFINITIONS

     As used herein, the following terms shall have the meanings set forth below:

     1.1 “Includes;” “Including.” Except where followed directly by the word “only,” the terms “includes” or “including” shall mean “includes, but is not limited to,” and “including, but not limited to,” respectively.

     1.2 “Severance Covered Period.” The term “Severance Covered Period” shall mean a period of time commencing upon the effective date of this Agreement and ending on the date on which the last installment of the Severance Allowance is due and payable pursuant to Section 6.2 of this Agreement.

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     1.3 Other Capitalized Terms. Capitalized terms (other than those specifically defined herein) shall have the same meanings ascribed to them in the Severance Plan.

2. MUTUAL REPRESENTATIONS, WARRANTIES AND COVENANTS

     Each party hereto represents, warrants and covenants (with respect to itself/himself only) to the other party hereto that, to its/his respective best knowledge and belief as of the date of each party’s respective signature below:

     2.1 Full Power and Authority. It/he has full power and authority to execute, enter into and perform its/his obligations under this Agreement; this Agreement, after execution by both parties hereto, will be a legal, valid and binding obligation of such party enforceable against it/him in accordance with its terms; it/he will not act or omit to act in any way which would materially interfere with or prohibit the performance of any of its/his obligations hereunder, and no approval or consent other than as has been obtained of any other party is necessary in connection with the execution and performance of this Agreement.

     2.2 Effect of Agreement. The execution, delivery and performance of this Agreement and the consummation of the transactions hereby contemplated:

          i. will not interfere or conflict with, result in a breach of, constitute a default under or violation of any of the terms, provisions, covenants or conditions of any contract, agreement or understanding, whether written or oral, to which it/he is a party (including, in the case of Ixia, its bylaws and articles of incorporation each as amended to date) or to which it/he is bound;

          ii. will not conflict with or violate any applicable law, rule, regulation, judgment, order or decree of any government, governmental agency or court having jurisdiction over such party; and

          iii. has not heretofore been assigned, transferred or granted to another party, or purported to assign, transfer or grant to another party, any rights, obligations, claims, entitlements, matters, demands or causes of actions relating to the matters covered herein.

3. CONFIDENTIALITY OBLIGATIONS DO NOT TERMINATE

     Former Employee acknowledges that any confidentiality, proprietary rights or nondisclosure agreement(s) in favor of Ixia which he may have entered into from time to time in connection with his employment (collectively, the “Nondisclosure Agreement”) with Ixia is understood to be intended to survive, and does survive, any termination of such employment, and accordingly nothing in this Agreement shall be construed as terminating, limiting or otherwise affecting any such Nondisclosure Agreement or Former Employee’s obligations thereunder. Without limiting the generality of the foregoing, no time period set forth in this Agreement shall be construed as shortening or limiting the term of any such Nondisclosure Agreement, which term shall continue as set forth therein.

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4. BENEFITS

     4.1 Health Care Insurance Continuation. Ixia (at its expense) will continue, for a period of 18 months following the Termination Date, health care coverage for Former Employee and his family members who are “qualified beneficiaries” (as such term is defined in the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”)) under Ixia’s group health plan(s) generally available during such period to employees participating in such plan(s) and at levels and with coverage no greater than those provided to such Former Employee as of the Termination Date. Thereafter, Former Employee (at his expense) may elect coverage under a conversion health plan available under Ixia’s group health plan(s) from the Company’s health insurance carrier if and to the extent he is entitled to do so as a matter of right under federal or state law.

     4.2 Other Benefit Plans. Except as otherwise expressly provided in this Section 4 or as required by applicable law, Former Employee shall have no right to continue his participation in any Ixia benefit plan following such employee’s termination.

5. STOCK OPTIONS AND OTHER RIGHTS

     Exhibit A hereto sets forth any and all outstanding stock options, stock appreciation rights, restricted stock units, restricted stock awards, warrants and other rights to purchase capital stock or other securities of Ixia (including but not limited to stock purchase agreements, but excluding rights under the ESPP) which have been previously issued to Former Employee and which are outstanding as of the date hereof. Except as expressly provided in the Severance Plan, nothing in this Agreement shall alter or affect any of such outstanding stock options, stock appreciation rights, restricted stock units, restricted stock awards, warrants or rights, Former Employee’s rights or responsibilities with respect thereto, including but not limited to Former Employee’s rights to exercise any of his options, stock appreciation rights, warrants or rights following the Termination Date, or Ixia’s rights with respect thereto.

6. PAYMENTS TO FORMER EMPLOYEE

     6.1 Employee Compensation. Ixia has paid, and Former Employee acknowledges and agrees that Ixia has paid, to him any and all salary and accrued but unpaid vacation and sick pay owed by Ixia to Former Employee up to and including the Termination Date other than any compensation owed to him under the Severance Plan.

     6.2 Severance Allowance. In consideration for the release by Former Employee set forth herein (including the release of any and all claims Former Employee has or may have under the Age Discrimination in Employment Act (“ADEA”) and Older Workers Benefit Protection Act (“OWBPA”)) and Former Employee’s performance of his obligations under this Agreement (including but not limited to Former Employee’s obligations under Section 7 hereof), Former Employee is entitled to receive, and Ixia shall pay to Former Employee, a Severance Allowance in the aggregate gross amount of $                                         payable in 12 equal monthly installments of $                     each, less all applicable withholding taxes, beginning on the date that is thirty-one days following the Termination Date, in accordance with the terms and conditions of the Severance Plan.

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7. NON-COMPETITION AND NON-SOLICITATION

     7.1 Subject and in addition to Former Employee’s existing fiduciary duties as a former officer and employee of Ixia to the extent such continues under applicable law after Former Employee’s Termination Date, provided that Ixia has not breached any of the terms of this Agreement or any other currently existing written agreements between Ixia and Former Employee, Former Employee agrees until the earlier of (i) the completion of the Severance Covered Period or (ii) such date as Ixia may terminate this Agreement for default hereunder:

          i. Not to engage, either directly or indirectly, in any Competing Business Activity (as defined below) or be associated with a Competing Business Entity (as defined below) as an officer, director, employee, principal, consultant, lender, creditor, investor, agent or otherwise for any corporation, partnership, company, agency, person, association or any other entity; provided, however, that nothing contained herein shall prevent Former Employee from owning not more than 5% of the common equity and not more than 5% of the voting power of, or lending not more than $25,000 to, any Competing Business Entity or any business engaged in a Competing Business Activity; provided, further, that for purposes of this agreement, any equity ownership, voting control or lending activity of Former Employee shall be deemed to include that of (i) any family member or (ii) person or entity controlled by Former Employee;

          ii. Not to 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 is a customer or account of Ixia, currently and/or during the Severance Covered Period, for the purpose of selling, renting, leasing, licensing or supplying any product or service that is the same as, similar to or competitive with the products or services then being sold or developed by Ixia;

          iii. Not to enter into an employment or agency relationship with a Competing Business Entity or involving a Competing Business Activity with any person who, at the time of such entry, is an officer, director, employee, principal or agent of or with respect to Ixia; and

          iv. Not to induce or attempt to induce any person described in Section 7.1(c) to leave his employment, agency, directorship or office with Ixia.

     7.2 For purposes of this Section 7, a “Competing Business Activity” shall mean any business activity of a person or entity (other than Ixia) involving the development, design, manufacture, distribution, marketing, licensing, renting, leasing or selling within the Territory (as defined below) of products and services which are the same as, similar to or competitive with products or services of Ixia then in existence or under development. For purposes hereof, the Territory shall include the United States of America, Canada, Mexico, Central America, South America, Europe, the Middle East, Japan, Australia, Singapore, China, India and such other countries in which Ixia then distributes, markets, licenses, rents, leases or sells its products or services. An entity as a whole shall be deemed to be a Competing Business Entity if it has one or more business activities involving the development, design, manufacture, distribution, marketing, licensing, renting, leasing or selling directly or indirectly within the Territory of products or services which are the same as, similar to or competitive with products or services of Ixia then being sold or under development and if and only if the revenues derived directly or

17


 

indirectly from engaging in such business activities by such entity represent either more than 3% of the entity’s revenues or at least $5 million in aggregate sales, or both, for the then-preceding 12-month period.

     7.3 The parties acknowledge that the provisions and obligations set forth in this Section 7 are an integral part of this Agreement and that in the event Former Employee breaches any of the provisions or obligations of this Section 7 or any other term, provision or obligation of this Agreement, then Ixia, in addition to any other rights or remedy it may have at law, in equity, by statute or otherwise, shall be excused from its payment obligations to Former Employee under the Severance Plan and this Agreement.

8. CONFIDENTIAL INFORMATION AND TRADE SECRETS

     8.1 Former Employee hereby recognizes, acknowledges and agrees that Ixia is the owner of proprietary rights in certain confidential sales and marketing information, programs, tactics, systems, methods, processes, compilations of technical and non-technical information, records and other business, financial, sales, marketing and other information and things of value. To the extent that any or all of the foregoing constitute valuable trade secrets and/or confidential and/or privileged information of Ixia, Former Employee hereby further agrees as follows:

          i. That, except with prior written authorization from Ixia’s CEO, for purposes related to Ixia’s best interests, he will not directly or indirectly duplicate, remove, transfer, disclose or utilize, nor knowingly allow any other person to duplicate, remove, transfer, disclose or utilize, any property, assets, trade secrets or other things of value, including, but not limited to, records, techniques, procedures, systems, methods, market research, new product plans and ideas, distribution arrangements, advertising and promotional materials, forms, patterns, lists of past, present or prospective customers, and data prepared for, stored in, processed by or obtained from, an automated information system belonging to or in the possession of Ixia which are not intended for and have not been the subject of public disclosure. Former Employee agrees to safeguard all Ixia trade secrets in his possession or known to him at all times so that they are not exposed to, or taken by, unauthorized persons and to exercise his reasonable efforts to assure their safekeeping. This subsection shall not apply to information that as of the date hereof is, or as of the date of such duplication, removal, transfer, disclosure or utilization (or the knowing allowing thereof) by Former Employee has (i) become generally known to the public or competitors of Ixia (other than as a result of a breach of this Agreement); (ii) been lawfully obtained by Former Employee from any third party who has lawfully obtained such information without breaching any obligation of confidentiality; or (iii) been published or generally disclosed to the public by Ixia. Former Employee shall bear the burden of showing that any of the foregoing exclusions applies to any information or materials.

          ii. That all improvements, discoveries, systems, techniques, ideas, processes, programs and other things of value made or conceived in whole or in part by Former Employee with respect to any aspects of Ixia’s current or anticipated business while an employee of Ixia are and remain the sole and exclusive property of Ixia, and Former Employee has disclosed all such things of value to Ixia and will cooperate with Ixia to insure that the ownership by Ixia of such property is protected. All of such property of Ixia in Former Employee’s possession or control, including, but not limited to, all personal notes, documents and reproductions thereof, relating to

18


 

the business and the trade secrets or confidential or privileged information of Ixia has already been, or shall be immediately, delivered to Ixia.

     8.2 Former Employee further acknowledges that as the result of his prior service as an officer and employee of Ixia, he has had access to, and is in possession of, information and documents protected by the attorney-client privilege and by the attorney work product doctrine. Former Employee understands that the privilege to hold such information and documents confidential is Ixia’s, not his personally, and that he will not disclose the information or documents to any person or entity without the express prior written consent of the CEO or Board of Ixia unless he is required to do so by law.

     8.3 Former Employee’s obligations set forth in this Section 8 shall be in addition to, and not instead of, Former Employee’s obligations under any written Nondisclosure Agreement.

9. ENFORCEMENT OF SECTIONS 7 AND 8

     Former Employee hereby acknowledges and agrees that the services rendered by him to Ixia in the course of his prior employment were of a special and unique character, and that breach by him of any provision of the covenants set forth in Sections 7 and 8 of this Agreement will cause Ixia irreparable injury and damages. Former Employee expressly agrees that Ixia shall be entitled, in addition to all other remedies available to it whether at law or in equity, to injunctive or other equitable relief to secure their enforcement.

     The parties hereto expressly agree that the covenants contained in Sections 7 and 8 hereof are reasonable in scope, duration and otherwise; however, if any of the restraints provided in said covenants are adjudicated to be excessively broad as to geographic area or time or otherwise, said restraint shall be reduced to whatever extent is reasonable and the restraint shall be fully enforced in such modified form. Any provisions of said covenants not so reduced shall remain in full force and effect.

10. PROHIBITION AGAINST DISPARAGEMENT

     10.1 Former Employee agrees that for a period of two years following the Effective Date any communication, whether oral or written, occurring on or off the premises of Ixia, made by him or on his behalf to any person or entity (including, without limitation, any Ixia employee, customer, vendor, supplier, any competitor, any media entity and any person associated with any media) which in any way relates to Ixia (or any of its subsidiaries) or to Ixia’s or any of its subsidiaries’ directors, officers, management or employees: (a) will be truthful; and (b) will not, directly or indirectly, criticize, disparage, or in any manner undermine the reputation or business practices of Ixia or its directors, officers, management or employees.

     10.2 The only exceptions to Section 10.1 shall be: (a) truthful statements privately made to (i) the CEO of Ixia, (ii) any member of Ixia’s Board, (iii) Ixia’s auditors, (iv) inside or outside counsel of Ixia, (v) Former Employee’s counsel or (vi) Former Employee’s spouse; (b) truthful statements lawfully compelled and made under oath in connection with a court or government administrative proceeding; and (c) truthful statements made to specified persons upon and in compliance with prior written authorization from Ixia’s CEO or Board to Former Employee directing him to respond to inquiries from such specified persons.

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11. COOPERATION

     Former Employee agrees that for a period of five years commencing with the Effective Date he will cooperate fully and reasonably with Ixia in connection with any future or currently pending matter, proceeding, litigation or threatened litigation: (1) directly or indirectly involving Ixia (which, for purposes of this section, shall include Ixia and each of its current and future subsidiaries, successors or permitted assigns); or (2) directly or indirectly involving any director, officer or employee of Ixia (with regard to matters relating to such person(s) acting in such capacities with regard to Ixia business). Such cooperation shall include making himself available upon reasonable notice at reasonable times and places for consultation and to testify truthfully (at Ixia’s expense for reasonable, pre-approved out-of-pocket travel costs plus a daily fee equal to one-twentieth of his monthly severance compensation under Section 6.2 hereof for each full or partial day during which Former Employee makes himself so available) in any action as reasonably requested by the CEO or the Board of Directors. Former Employee further agrees to immediately notify Ixia’s CEO in writing in the event that he receives any legal process or other communication purporting to require or request him to produce testimony, documents, information or things in any manner related to Ixia, its directors, officers or employees, and that he will not produce testimony, documents, information or other things with regard to any pending or threatened lawsuit or proceeding regarding Ixia without giving Ixia prior written notice of the same and reasonable time to protect its interests with respect thereto. Former Employee further promises that when so directed by the CEO or the Board of Directors, he will make himself available to attend any such legal proceeding and will truthfully respond to any questions in any manner concerning or relating to Ixia and will produce all documents and things in his possession or under his control which in any manner concern or relate to Ixia. Former Employee covenants and agrees that he will immediately notify Ixia’s CEO in writing in the event that he breaches any of the provisions of Sections 7, 8, 10 or 11 hereof.

12. SOLE ENTITLEMENT

     Former Employee acknowledges and agrees that his sole entitlement to compensation, payments of any kind, monetary and non-monetary benefits and perquisites with respect to his prior Ixia relationship (as an officer and employee) is as set forth in the Severance Plan, this Agreement, the Company’s bonus plan for officers as in effect from time to time, stock option and warrant agreements, COBRA, and such other written agreements and securities between Ixia and Former Employee as may exist or as may be set forth on Exhibit B hereto.

13. RELEASE OF CLAIMS

     13.1 General. Former Employee does hereby and forever release and discharge Ixia and the predecessor corporation of Ixia as well as the successors, current, prior or future shareholders of record, officers, directors, heirs, predecessors, assigns, agents, employees, attorneys, insurers and representatives of each of them, past, present or future, from any and all cause or causes of action, actions, judgments, liens, indebtedness, damages, losses, claims, liabilities and demands of any kind or character whatsoever, whether known or unknown, suspected to exist or not suspected to exist, anticipated or not anticipated, whether or not heretofore brought before any state or federal agency, court or other governmental entity which are existing on or arising prior to the date of this Agreement and which, directly or indirectly, in

20


 

whole or in part, relate or are attributable to, connected with, or incidental to the previous employment of Former Employee by Ixia, the separation of that employment, and any dealings between the parties concerning Former Employee’s employment existing prior to the date of execution of this Agreement, excepting only those obligations expressly recited herein or to be performed hereunder. Nothing contained in this Section 12 shall affect any rights, claims or causes of action which Former Employee may have (1) with respect to his outstanding stock options, warrants or other stock subscription rights to purchase Ixia Common Stock or other securities under the terms and conditions thereof; (2) as a shareholder of Ixia; (3) to indemnification by Ixia, to the extent required under the provisions of Ixia’s Articles of Incorporation, Ixia’s Bylaws, the California General Corporation Law, insurance or contracts, with respect to matters relating to Former Employee’s prior service as a director, an officer, employee and agent of Ixia; (4) with respect to his eligibility for severance payments under the Severance Plan or any other written agreement listed on Exhibit B hereto; and (5) to make claims against or seek indemnification or contribution from anyone not released by the first sentence of this Section 12 with respect to any matter or anyone released by the first sentence of this Section 12 with respect to any matter not released thereby; or (6) with respect to Ixia’s performance of this Agreement. Further, Former Employee waives specifically any and all rights or claims Former Employee has or may have under the ADEA and/or the OWBPA, and acknowledges that such waiver is given voluntarily in exchange for certain consideration included in the severance benefits being paid pursuant to this Agreement.

     13.2 Waiver of Unknown Claims. Former Employee acknowledges that he is aware that he may hereafter discover claims or facts different from or in addition to those he now knows or believes to be true with respect to the matters herein released, and he agrees that this release shall be and remain in effect in all respects a complete general release as to the matters released and all claims relative thereto which may exist or may heretofore have existed, notwithstanding any such different or additional facts. Former Employee acknowledges that he has been informed of Section 1542 of the Civil Code of the State of California, and does hereby expressly waive and relinquish all rights and benefits which he has or may have under said Section, which reads as follows:

A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

     13.3 Covenant Not to Sue on Matters Released. Former Employee covenants that he will not make, assert or maintain against any person or entity that Former Employee has released in this Agreement, any claim, demand, action, cause of action, suit or proceeding arising out of or in connection with the matters herein released, including but not limited to any claim or right under the ADEA, the OWBPA, or any other federal or state statute or regulation. Former Employee represents and warrants that he has not assigned or transferred, purported to assign or transfer, and will not assign or transfer, any matter or claim herein released. Former Employee represents and warrants that he knows of no other person or entity which claims an interest in the matters or claims herein released. Former Employee agrees to, and shall at all times, indemnify and hold harmless each person and entity that Former Employee has released in this Agreement against any claim, demand, damage, debt, liability, account, action or cause of action, or cost or

21


 

expense, including attorneys’ fees, resulting or arising from any breach of the representations, warranties and covenants made herein.

14. ASSIGNMENT

     Former Employee represents and warrants that he has not heretofore assigned, transferred or granted or purported to assign, transfer or grant any claims, entitlement, matters, demands or causes of action herein released, disclaimed, discharged or terminated, and agrees to indemnify and hold harmless Ixia from and against any and all costs, expense, loss or liability incurred by Ixia as a consequence of any such assignment, transfer or grant.

15. FORMER EMPLOYEE REPRESENTATIONS

     Notwithstanding that this Agreement is being entered into subsequent to the Termination Date, except as listed by Former Employee on Exhibit C, from the period beginning on the Termination Date to the Effective Date, Former Employee represents and warrants that he has not acted or omitted to act in any respect which directly or indirectly would have constituted a violation of Sections 7, 8, 10 or 11 herein had this Agreement then been in effect.

16. MISCELLANEOUS

     16.1 Notices. All notices and demands referred to or required herein or pursuant hereto shall be in writing, shall specifically reference this Agreement and shall be deemed to be duly sent and given upon actual delivery to and receipt by the relevant party (which notice, in the case of Ixia, must be from an officer of Ixia) or five days after deposit in the U.S. mail by certified or registered mail, return receipt requested, with postage prepaid, addressed as follows (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):

 

 

 

 

 

 

 

(a)

 

If to Ixia:

 

Ixia

 

 

 

 

 

 

26601 West Agoura Road

 

 

 

 

 

 

Calabasas, California 91302

 

 

 

 

 

 

Attn: Chief Executive Officer

 

 

 

 

 

 

 

 

 

 

 

With a copy to:

 

Bryan Cave LLP

 

 

 

 

 

 

120 Broadway, Suite 300

 

 

 

 

 

 

Santa Monica, CA 90401

 

 

 

 

 

 

Attention: Katherine F. Ashton, Esq.

 

 

 

 

 

 

 

 

 

(b)

 

If to Former Employee:  

 

 

 

 

 

 

 

 

    

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     16.2 Legal Advice and Construction of Agreement. Both Ixia and Former Employee have received (or have voluntarily and knowingly elected not to receive) independent legal advice with respect to the advisability of entering into this Agreement and with respect to all matters covered by this Agreement and neither has been entitled to rely upon or has in fact relied upon the legal or other advice of the other party or such other party’s counsel (or employees) in entering into this Agreement.

     16.3 Parties’ Understanding. Ixia and Former Employee state that each has carefully read this Agreement, that it has been fully explained to it/him by its/his attorney (or that it/he has voluntarily and knowingly elected not to receive such explanation), that it/he fully understands its final and binding effect, that the only promises made to it/him to sign the Agreement are those stated herein, and that it/he is signing this Agreement voluntarily.

     16.4 Recitals and Section Headings. Each term of this Agreement is contractual and not merely a recital. All recitals are incorporated by reference into this Agreement. Captions and section headings are used herein for convenience only, are not part of this Agreement and shall not be used in interpreting or construing it.

     16.5 Entire Agreement. This Agreement constitutes a single integrated contract expressing the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and discussions with respect to the subject matter hereof. Notwithstanding the foregoing, the parties understand and agree that any Nondisclosure Agreement and all other written agreements between Former Employee and Ixia are separate from this Agreement and, subject to the terms and conditions of each such agreement, shall survive the execution of this Agreement, and nothing contained in this Agreement shall be construed as affecting the rights or obligations of either party set forth in such agreements.

     16.6 Severability. In the event any provision of this Agreement or the application thereof to any circumstance shall be determined by arbitration pursuant to Section 16.10 of this Agreement or held by a court of competent jurisdiction to be invalid, illegal or unenforceable, or to be excessively broad as to time, duration, geographical scope, activity, subject or otherwise, it shall be construed to be limited or reduced so as to be enforceable to the maximum extent allowed by applicable law as it shall then be in force, and if such construction shall not be feasible, then such provision shall be deemed to be deleted herefrom in any action before that court, and all other provisions of this Agreement shall remain in full force and effect.

     16.7 Amendment and Waiver. This Agreement and each provision hereof may be amended, modified, supplemented or waived only by a written document specifically identifying this Agreement and signed by each party hereto. Except as expressly provided in this Agreement, no course of dealing between the parties hereto and no delay in exercising any right, power or remedy conferred hereby or now or hereafter existing at law, in equity, by statute or otherwise, shall operate as a waiver of, or otherwise prejudice, any such rights, power or remedy.

     16.8 Cumulative Remedies. None of the rights, powers or remedies conferred herein shall be mutually exclusive, and each such right, power or remedy shall be cumulative and in

23


 

addition to every other right, power or remedy, whether conferred herein or now or hereafter available at law, in equity, by statute or otherwise.

     16.9 Specific Performance. Each party hereto may obtain specific performance to enforce its/his rights hereunder and each party acknowledges that failure to fulfill its/his obligations to the other party hereto would result in irreparable harm.

     16.10 Arbitration. Except for the right of either party to apply to a court of competent jurisdiction for a Temporary Restraining Order to preserve the status quo or prevent irreparable harm, any dispute or controversy between Ixia and Former Employee under this Agreement involving its interpretation or the obligations of a party hereto shall be determined by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, in the County of Los Angeles, State of California.

     Arbitration may be conducted by one impartial arbitrator by mutual agreement. In the event that the parties are unable to agree on a single arbitrator within 30 days of first demand for arbitration, the arbitration shall proceed before a panel of three arbitrators, one of whom shall be selected by Ixia and one of whom shall be selected by Former Employee, and the third of whom shall be selected by the two arbitrators selected. All arbitrators are to be selected from a panel provided by the American Arbitration Association. The arbitrators shall have the authority to permit discovery, to the extent deemed appropriate by the arbitrators, upon request of a party. The arbitrators shall have no power or authority to add to or, except as otherwise provided by Section 16.6 hereof, to detract from the agreements of the parties, and the prevailing party shall recover costs and attorneys’ fees incurred in arbitration. The arbitrators shall have the authority to grant injunctive relief in a form substantially similar to that which would otherwise be granted by a court of law. The arbitrators shall have no authority to award punitive or consequential damages. The resulting arbitration award may be enforced, or injunctive relief may be sought, in any court of competent jurisdiction. Any action arising out of or relating to this Agreement may be filed only in the Superior Court of the County of Los Angeles, California or the United States District Court for the Central District of California.

     16.11 California Law and Location. This Agreement was negotiated, executed and delivered within the State of California, and the rights and obligations of the parties hereto shall be construed and enforced in accordance with and governed by the internal (and not the conflict of laws) laws of the State of California applicable to the construction and enforcement of contracts between parties resident in California which are entered into and fully performed in California. Any action or proceeding arising out of, relating to or concerning this Agreement that is not subject to the arbitration provisions set forth in Section 16.10 above shall be filed in the state courts of the County of Los Angeles, State of California or in a United States District Court in the Central District of California and in no other location. The parties hereby waive the right to object to such location on the basis of venue.

     16.12 Attorneys’ Fees. In the event a lawsuit is instituted by either party concerning a dispute under this Agreement, the prevailing party in such lawsuit shall be entitled to recover from the losing party all reasonable attorneys’ fees, costs of suit and expenses (including the reasonable fees, costs and expenses of appeals), in addition to whatever damages or other relief the injured party is otherwise entitled to under law or equity in connection with such dispute.

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     16.13 Force Majeure. Neither Ixia nor Former Employee shall be deemed in default if its/his performance of obligations hereunder is delayed or become impossible or impracticable by reason of any act of God, war, fire, earthquake, strike, civil commotion, epidemic, or any other cause beyond such party’s reasonable control.

     16.14 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument.

     16.15 Successors and Assigns. Neither party may assign this Agreement or any of its rights or obligations hereunder (including, without limitation, rights and duties of performance) to any third party or entity, and this Agreement may not be involuntarily assigned or assigned by operation of law, without the prior written consent of the non-assigning party, which consent may be given or withheld by such non-assigning party in the sole exercise of its discretion, except that Ixia may assign this Agreement to a corporation acquiring: (1) 50% or more of Ixia’s capital stock in a merger or acquisition; or (2) all or substantially all of the assets of Ixia in a single transaction; and except that Former Employee may transfer or assign his rights under this Agreement voluntarily, involuntarily or by operation of law upon or as a result of his death to his heirs, estate and/or personal representative(s). Any prohibited assignment shall be null and void, and any attempted assignment of this Agreement in violation of this section shall constitute a material breach of this Agreement and cause for its termination by and at the election of the other party hereto by notice. This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and each person or entity released pursuant to Section 12 hereof and, except as otherwise provided herein, their respective legal successors and permitted assigns.

     16.16 Payment Procedure. Except as otherwise explicitly provided herein or in the Severance Plan, all payments by Ixia to Former Employee or by Former Employee to Ixia due hereunder may be by, at the paying party’s election, cash, wire transfer or check. Except as explicitly provided herein or in the Severance Plan, neither party may reduce any payment or obligation due hereunder by any amount owed or believed owed to the other party under any other agreement, whether oral or written, now in effect or hereafter entered into.

     16.17 Survival. The definitions, representations and warranties herein as well as obligations set forth in Sections 7, 8 and 10-16 shall survive any termination of this Agreement for any reason whatsoever.

     16.18 No Admission. Neither the entry into this Agreement nor the giving of consideration hereunder shall constitute an admission of any wrongdoing by Ixia or Former Employee.

     16.19 Limitation of Damages. Except as expressly set forth herein, in any action or proceeding arising out of, relating to or concerning this Agreement, including any claim of breach of contract, liability shall be limited to compensatory damages proximately caused by the breach and neither party shall, under any circumstances, be liable to the other party for consequential, incidental, indirect or special damages, including but not limited to lost profits or income, even if such party has been apprised of the likelihood of such damages occurring.

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     16.20 Pronouns. As used herein, the words “he”, “him”, “his” and “himself” shall be deemed to refer to the feminine as the identity of the person referred to and the context may require.

     16.21 Effectiveness. This Agreement shall become effective upon execution by the later of the parties hereto to execute this Agreement.

17. DAY REVIEW PERIOD; RIGHT TO REVOKE

     Former Employee acknowledges that he was advised in writing to consult with an attorney prior to executing this Agreement and represents and warrants to Ixia that he has done so, and further acknowledges that he has been given a period of 21 days within which to consider the terms and provisions of this Agreement with his attorney. If Former Employee has executed and delivered to Ixia this Agreement prior to the expiration of such 21-day period, then in doing so, Former Employee acknowledges that he has unconditionally and irrevocably waived his right to that unexpired portion of such 21-day period. In addition, Former Employee shall have the right to revoke this Agreement for a period of seven days following the date on which this Agreement is signed by sending written notification of such revocation directly to each of Ixia and Ronald W. Buckly at the addresses specified in Section 16.1, supra, via hand delivery.

 

 

 

 

 

 

 

 

 

IXIA

 

 

 

 

 

[Insert Former Employee’s Name]

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

Signature:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Print Name:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Print Title:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Date:                      , 20     

 

 

 

Date:                     , 20     

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EXHIBIT A

OUTSTANDING STOCK PURCHASE OR OTHER ACQUISITION RIGHTS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Maximum

 

 

 

 

 

 

 

 

 

 

 

 

 

Number of

 

 

 

 

 

 

 

 

 

 

 

 

 

Shares

 

 

 

 

 

 

 

 

 

 

 

 

 

Currently

 

 

 

 

 

 

 

 

 

 

 

 

 

Purchasable,

 

 

 

 

 

 

 

 

 

 

 

 

 

Issuable or,

 

 

Exercise

 

 

Termination

 

 

 

 

 

 

 

Subject

 

 

Price

 

 

Date

 

Type of Security1/

 

Date Issued

 

 

to Vesting

 

 

(if applicable)

 

 

(if applicable)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1/

 

[e.g., Stock option, restricted stock unit, stock appreciation right, restricted stock award, warrant, etc.]

 


 

EXHIBIT B

LIST OF OTHER AGREEMENTS (Pursuant to §§12 and 13)

 


 

EXHIBIT C

EXCEPTIONS (Pursuant to §15)