THIS EMPLOYMENT
AGREEMENT (the “Agreement”) is made and entered into as
of May 11, 2009, between Ixia, a California corporation
(“Employer”), and Richard A. Karp
(“Executive”).
A. Prior to the
execution of this Agreement, Executive has been an employee of
Catapult Communications Corporation
(“Chariot”).
B. Employer has
executed or plans to execute an Agreement and Plan of Merger (the
“Merger Agreement”) providing for the merger of a
newly-formed subsidiary with and into Chariot, resulting in Chariot
becoming a wholly-owned subsidiary of Employer (the
“Transaction”).
C. If the
Closing (as defined in the Merger Agreement) of the Transaction
occurs, Employer desires to obtain the benefit of Executive’s
service to Employer, and Executive is willing to perform such
services for Employer on the terms and conditions hereinafter set
forth.
D. Employer has
expended and will continue to expend a great deal of time, money
and effort to develop and maintain its proprietary, trade secret
and other confidential business information which, if misused or
disclosed, could be very harmful to its business, including the
Business (as defined in the Merger Agreement) to be conducted by
Employer after the Closing (the “Buyer
Business”).
E. Executive is
the owner of approximately 25% of the issued and outstanding shares
of capital stock of Chariot. Upon the Closing, Employer will
acquire all of Employee’s ownership interest in Chariot, and
Executive will receive from Employer in the Transaction substantial
consideration in exchanges for such shares.
F. Employer is
unwilling to consummate the Transaction unless Executive agrees
herein (i) to commence employment with Executive as of the
Effective Date pursuant to this Agreement, and (ii) not to compete
with Employer and the Buyer Business, as specified
herein.
G. Executive
acknowledges that (i) the services previously provided by him
for Chariot and the Business and the services to be performed by
him for Employer and the Buyer Business (as defined herein) are and
will be of a special and unique character, and (ii) in order
to assure Employer that the Buyer Business will retain its value as
a going concern and to preserve the goodwill associated with the
Buyer Business, it is necessary that Executive undertake not to
utilize his special knowledge of Chariot, the Business, Employer
and the Buyer Business, to compete with Employer and the Buyer
Business as set forth herein.
NOW, THEREFORE,
in consideration of the provisions and the mutual covenants of the
parties hereinafter set forth, it is hereby agreed as
follows:
1. Effective
Date. Executive’s employment under this Agreement will
commence on the date on which the Effective Time occurs, as
described in Section 3 of the Merger Agreement (the
“Effective Date”).
2.1
Full-Time Employment Period. During the six-month period commencing
on the Effective Date (the “Full-Time Employment
Period”), Executive will perform services for Employer in the
position of Chief Evangelist, Wireless, or in such other capacity
or capacities as may be approved from time to time by
Employer’s Board of Directors (the “Board”), and
shall report directly to Atul Bhatnagar or such other officer of
Employer as may be designated by the Board. In such capacity or
capacities, Executive shall have such responsibilities, duties and
authority as may from time to time be assigned to Executive by
Executive’s supervisor. Executive will perform his duties at
the offices of Employer to be located from time to time in or near
Santa Clara, California, provided that Executive may be required to
do reasonable traveling in connection with the performance of his
duties hereunder. Employer agrees to continue the employment of
Executive’s assistant at Chariot for a period of six months
following the Effective Date, on the same terms and conditions of
employment as are in effect as of May 10, 2009 and provided
that the assistant shall also provide support to other Chariot and
Employer personnel assigned to her.
2.2
Part-Time Employment Period.. During the eighteen-month period
commencing immediately upon expiration of the Full-Time Employment
Period (the “Part-Time Employment Period” and, together
with the Full-Time Employment Period, the “Employment
Period”), Employer shall continue to engage Executive on a
part-time basis. Executive shall be required to perform up to 40
hours of services (in eight-hour, one -day increments) for Employer
in each consecutive 90-day period during the Part-Time Employment
Period, during such weeks that are mutually agreeable to Executive
and Employer, and shall continue to have such responsibilities,
duties and authority as may from time to time be assigned to
Executive by Executive’s supervisor. Executive will continue
to perform his duties at the offices of Employer to be located from
time to time in or near Santa Clara, California, provided that
Executive may be required to do reasonable traveling in connection
with the performance of his duties hereunder.
3. Exclusive
Service; Compliance with Agreement, Law and Policies. During the
Full-Time Employment Period, Executive will loyally devote his
exclusive and full-time efforts to his employment with Employer
hereunder. During the Employment Period, Executive will comply with
the terms of this Agreement, with all applicable laws and with the
policies and procedures of Employer applicable to officers of
Employer. Executive may perform work for other entities (whether as
an employee or consultant) during the Part-Time Employment Period,
so long as he is not in violation of any other provision of this
Agreement.
4. Term of
Agreement. The term of this Agreement will commence on the
Effective Date and will continue until (i) the close of
business on the second-year anniversary of the Effective Date (or
the most recent business day prior thereto if such date is not a
business day); or (ii) the earlier termination of this
Agreement pursuant to Section 6 hereof. Notwithstanding
anything hereinto the contrary, Executive’s employment with
Employer during the Employment Period shall at all times be
“at-will,” meaning that Executive may resign at any
time and that Employer reserves
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the right at
any time to terminate Executive’s employment and this
Agreement, for any or no particular reason or cause, subject to the
provisions set forth in Sections 6 and 7. The
“at-will” nature of Executive’s employment cannot
be changed except by an express written agreement which must be
signed by an executive officer of Employer. Termination of this
Agreement shall result in the contemporaneous termination of the
Employment Period.
5. Compensation
and Benefits.
5.1
Base Salary. As compensation for services rendered under this
Agreement during the Full-Time Employment Period, provided
Executive is not in default of any obligation hereunder, Executive
shall be paid an aggregate base salary of $160,000, payable in
accordance with Employer’s standard payroll schedules in
effect from time to time and subject to usual and required employee
payroll deductions, withholding and reductions. During the
Part-Time Employment Period, provided Executive is not in default
of any obligation hereunder, Executive shall be paid $500 for each
day on which services are rendered under this Agreement. During the
Part-Time Employment, Executive shall also be entitled to
compensation in the form of the continued vesting of the Options
(as described in Section 5.4) and any COBRA (as defined
herein) benefits provided in Section 5.3(b).
5.2
Bonus Plans. Executive acknowledges that Employer has not adopted
an officer bonus plan applicable to the Employment Period and,
therefore, Executive shall not be entitled to participate in any
bonus plan during the Employment Period.
(a) During
the Full-Time Employment Period, Executive will be eligible to
participate in Employer’s employee benefit plans that are
applicable to executive officers, including, without limitation,
any plans covering medical, dental, vision, life and disability,
401(k) plans and educational assistance programs. Any such
participation in such employee benefit plans will be subject to the
terms, conditions and limitations contained in the applicable plan
documents and/or policies, as well as applicable law; provided,
however, that, to the extent permitted under such plans, for
purposes of his participation in, and vesting in the benefits
under, such plans, he shall be credited with his service to Chariot
prior to the Effective Date. In general, Executive will receive
such benefits during the Full-Time Employment Period as Employer
provides to its executive officers, it being understood that
Employer retains the right to establish, change or terminate any
such plans, programs and benefits from time to time at its sole
discretion. Additionally, Executive shall be entitled to paid
vacation from July 20, 2009 through August 6, 2009, and
one additional week of paid vacation in October 2009, during a
week that is mutually agreeable to Employer and
Executive.
(b) During
the Part-Time Employment Period, Employer shall pay
Executive’s premiums for coverage of Executive and his
eligible dependents under the Consolidated Omnibus Budget
Reconciliation Act “(“COBRA”).
5.4
Equity Incentive. Within 30 days following the Effective Date,
Employer shall grant to Executive nonstatutory stock options to
acquire up to 150,000 shares of Employer’s common stock (the
“Options”) under Employer’s 2008 Equity Incentive
Plan. Such Options will vest in eight equal quarterly installments
commencing on September 30, 2009 and continuing
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through the
term of this Agreement. The Options will in all respect be subject
to the terms and provisions of Employer’s 2008 Equity
Incentive Plan and the agreement evidencing the Options;
provided , however , that, notwithstanding anything
to the contrary that may be contained in the applicable equity
incentive plan and/or the agreement evidencing the Options,
Executive will have twenty-four (24) months following the date
the Employment Period is terminated in which to exercise any
outstanding Options. Furthermore, all outstanding Options will vest
in full as to 100% of the unvested portion of the Option upon
termination of the Employment Period if, and only if, such
termination is by Employer without Cause (as defined below) or by
Executive with Good Reason (as defined below).
5.5
Expenses. Executive will be reimbursed for all reasonable and
necessary expenses incurred by Executive in performing his duties
hereunder, provided that such expenses are in accordance with the
Employer’s applicable policies and are properly documented
and accounted for in accordance with such policies. Notwithstanding
the foregoing, Executive shall be entitled to business class air
travel (or, if traveling on a flight with only two classes of
service, the class above economy/coach), and hotel accommodations
of Executive’s choice.
6.1
General. Further to Section 4 of this Agreement, this
Agreement and Executive’s employment with Employer hereunder
may be terminated at any time as follows:
(a) Mutual
Written Agreement. Employer and Executive may agree in writing to
terminate this Agreement and the Employment Period.
(b) Termination
by Employer. Employer may terminate this Agreement and the
Employment Period hereunder at any time at Employer’s sole
discretion, with or without “Cause” (as defined under
Section 6.2 below), effective immediately or as of such other
time as may be agreed by the parties, by giving written notice to
Executive (except that no notice is required to be given in the
event of Executive’s death, in which case this Agreement and
Executive’s employment hereunder will automatically
terminate). If Employer is effecting any such termination for
Cause, Employer shall state in the notice that the termination is
for Cause and the basis for such termination under
Section 6.2.
(c) Resignation
by Executive. Executive may terminate this Agreement and the
Employment Period at any time, with or without “Good
Reason” (as defined under Section 6.3 below),
effectively immediately or as of such other time as may be agreed
by the parties, by giving written notice to Employer. If Executive
is effecting any such resignation for Good Reason, Executive shall
state in the notice that the termination is for Good Reason and the
basis for such termination under Section 6.3; provided ,
however , that Executive’s resignation shall only be
deemed to have been for Good Reason if he provides the written
notice to Employer of his resignation and of the existence of Good
Reason within 90 days after the initial existence of the
condition and Employer then fails to remedy the condition within
30 days after receipt of such notice.
(d)
Death or Disability of Executive. This Agreement shall
automatically terminate upon the death of Executive or a
determination that Executive has a long-term disability. For
purposes of this Agreement, “long-term disability”
shall mean a condition which substantially
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impairs
Executive’s ability to perform his obligations hereunder for
at least 90 consecutive work days or for any 90 work days during
any 180-day period.
Executive
acknowledges and agrees that the transfer of Executive to another
Employer Entity (as defined below) or to different division of
Employer shall not be deemed to be a termination of the Employment
Period and shall not constitute Good Reason in the absence of any
other specific event set forth in the definition of Good Reason
under Section 6.2 below.
6.2
Cause Defined. For purposes of this Agreement, “Cause”
for Executive’s termination by Employer will exist at any
time after the happening of one or more of the following events
following the Effective Date:
(a) willful
refusal or failure to follow one or more important Employer
policies, including without limitation those set forth in the
Code;
(b) any
conduct amounting to gross incompetence;
(c) refusal
or failure to perform material, appropriate duties;
(d) embezzlement,
misappropriation of any property or other asset of Employer or
misappropriation of a corporate opportunity of Employer;
(e) conviction
of Executive for or the entering of a plea of nolo contendere with
respect to any felony whatsoever or for any misdemeanor involving
moral turpitude;
(f) unlawful
use (including being under the influence) or possession of illegal
drugs on Employer’s premises;
(g) any
material breach of Executive’s obligations under this
Agreement other than his obligations under Sections 8
(Executive Non-Compete and Non-Solicitation) and 9 (Confidentiality
and Assignment of Inventions) of this Agreement; or
(h) any
breach by Executive of his obligations under Sections 8
(Executive Non-Compete and Non-Solicitation) and 9 (Confidentiality
and Assignment of Inventions) of this Agreement or any other
nondisclosure or proprietary agreement with or on behalf of
Employer;
provided,
however, that for any acts described under sections (a), (b),
(c) and (g), Employer must provide written notice to Executive
of the actions constituting Cause, with such notice to state that
Employer believes such actions constitute Cause, and allow
Executive ten days to cure such events, which period can be
extended by up to five days in the event that Executive is outside
the United States on Company business during the ten-day period, in
which case the ten-day period shall be extended for such number of
days (up to five days) as Executive is outside the United
States.
6.3
“Good Reason” Defined. For purposes of this Agreement,
“Good Reason” means, without the express written
consent of Executive, the occurrence of one or more of the
following events after the Effective Date:
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(a) a
reduction by Employer in Executive’s base salary;
(b) Employer’s
requiring Executive to be based for two consecutive months or more
at an office more than 30 miles from Santa Clara,
California;
(c) the
assignment to Executive of duties materially inconsistent with the
duties associated with Executive’s position upon commencement
of his employment with Employer on the Effective Date;
or
(d) the
material breach of Employer’s obligations to Executive under
this Agreement if such breach has not been cured within ten days
after written notice from Executive to Employer (and provided that
any such written notice from Executive shall be required to state
that Executive believes the breach constitutes a basis for Good
Cause termination under this Agreement).
7. Effect of
Termination or Resignation.
7.1
Termination by Employer for Cause, Death or Disability or
Resignation by Executive without Good Reason. In the event of any
termination of this Agreement and Employer’s employment of
Executive by Employer hereunder either as a result of termination
by Employer for Cause, as a result of Executive’s death or
long-term disability or resignation by Executive other than for
Good Reason:
(a) Employer
shall pay Executive (or Executive’s executor or personal
representative in the case of death) the compensation and benefits
accrued and payable to Executive under Section 5 through the
date of such termination; and
(b) Executive’s
(or Executive’s executor’s or personal
representative’s in the case of death) rights following any
such termination under Employer’s equity incentive plans and
under Employer’s benefit plans of applicable to executive
officers, including without limitation any medical, dental, vision,
life, disability and 401(k) plans then in effect, shall be
determined under the provisions of those plans for terminated
employees.
7.2
Termination by Employer without Cause or Resignation by Executive
with Good Reason. In the event of any termination of this Agreement
and the Employment Period hereunder either as a result of
termination by Employer without Cause or resignation by Executive
for Good Reason:
(a) Employer
shall pay to Executive the compensation and benefits payable to
Executive under Section 5 through the date of such
termination; provided , that, if such termination occurs
prior to the expiration of the Full-Time Employment Period,
Employer shall pay to Executive the base salary payable to
Executive under Section 5 through the end of the Full-Time
Employment Period;
(b) Employer
shall continue to pay Executive’s COBRA through the Part-Time
Employment Period to the extent required by Section 5.3(b);
and
(c) Executive’s
rights following any such termination under Employer’s equity
incentive plans and under Employer’s benefit plans applicable
to executive officers, including
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without
limitation any medical, dental, vision, life, disability and 401(k)
plans then in effect but excluding any general severance policies
of Employer, shall be determined under the provisions of those
plans for terminated employees.
7.3
Termination Covered by Chariot Change in Control Agreement.
Executive shall remain eligible for severance benefits under his
existing change in control severance benefits agreement with
Chariot, subject to the terms and conditions of that agreement,
upon the termination of his employment with Employer.
8. Non-Compete
and Non-Solicitation.
8.1
So long as Executive is an employee of or a consultant to Employer
or any affiliated entity (each, an “Employer Entity”)
and in any event until the five-year anniversary of the Effective
Date (the “Non-Compete Period”) and in addition to and
not in limitation of all other applicable obligations of Executive
hereunder, Executive shall not, directly or indirectly, either for
himself or for any other person or entity, directly or
indirectly:
(a) engage
in any business or venture that competes, directly or indirectly,
with the Buyer Business as conducted by any Employer Entity on or
after the Effective Date (a “Competing Business
Activity”) or enter into an employment, consulting or agency
relationship with any entity or person engaging in such a Competing
Business Activity (a “Competitive
Business”);
(b) call
upon or cause to be called upon, or solicit or assist in the
solicitation of, in connection with any Competing Business Entity
or Competing Business Activity, any entity, agency, person, firm,
association, partnership or corporation that was a customer of
Chariot prior to the Effective Date or that is a customer of any
Employer Entity during the Non-Compete Period for the purpose of
selling, licensing or supplying any products or services that are
the same as, similar to or competitive with the products or
services sold or developed by the Business as conducted by Chariot
prior to the Effective Date and/or the Buyer Business as conducted
by any Employer Entity on or after the Effective Date;
and/or
(c) solicit,
induce or attempt to solicit or induce any person to leave his or
her employment, agency, directorship or office with any Employer
Entity.
8.2
Employer and Executive specifically acknowledge and agree that the
covenants set forth in Section 8.1 are commercially reasonable
and reasonably necessary, including without limitation with respect
to time period, geographic area and scope of business, to protect
the interest in Chariot that Employer will acquire in the
Transaction.
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