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EXHIBIT 10.17
EXECUTION COPY
REGISTRATION RIGHTS AND
STOCK TRANSFER RESTRICTION AGREEMENT
This REGISTRATION RIGHTS AND STOCK TRANSFER RESTRICTION AGREEMENT (this
"Agreement"), dated as of September 15, 2000 (the "Effective Date"), is made and
entered into among Ixia, a California corporation (the "Company"), Technology
Capital Group S.A., an investment company organized under the laws of Luxembourg
(the "Shareholder"), and Xxxxxxxx Xxxxx, the principal beneficial owner of the
outstanding capital stock of the Shareholder ("Ratel" and together with the
Shareholder, the "TCG Holders").
WHEREAS, the Company is planning to effect an initial public offering of
its common stock, without par value ("Common Stock");
WHEREAS, the Shareholder owns 25,425,000 shares of Common Stock;
WHEREAS, Ratel beneficially owns more than 90% of the outstanding shares of
capital stock of the Shareholder; and
WHEREAS, the parties desire to set forth certain agreements between them
relating to the transfer of shares of Common Stock owned by the Shareholder (and
shares of capital stock of the Shareholder owned by Ratel) and registration
rights in connection therewith;
NOW, THEREFORE, in consideration of the premises and the representations,
warranties and agreements contained herein, the parties agree as follows:
1. DEFINITIONS
1.1. DEFINED TERMS. As used herein, unless the context otherwise requires,
the following terms have the following respective meanings:
"Agreement" shall mean this Registration Rights and Stock Transfer
Restriction Agreement.
"Company" shall mean Ixia, a California corporation.
"Common Stock" shall mean the common stock, without par value, of the
Company.
"Effective Date" shall have the meaning set forth in the introductory
paragraph of this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar successor federal statute, and the rules and regulations
promulgated thereunder as the same may be amended from time to time.
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"Initial Lock-Up Period" shall have the meaning set forth in Section
3.1(a) of this Agreement.
"NASD" shall mean the National Association of Securities Dealers, Inc.
or any successor association.
"Person" shall mean any individual, partnership, joint venture,
corporation, limited liability company, trust, joint stock company, business
trust, unincorporated association, U.S., state, local or foreign governmental
authority or any department or agency thereof or other entity of any nature
whatsoever.
"Purchase Agreement" shall mean the purchase agreement or underwriting
agreement relating to the Company's initial public offering pursuant to the
Registration Statement.
"Ratel" shall mean Xxxxxxxx Xxxxx.
"Registration Statement" shall mean the Company's Registration
Statement on Form S-1 (Reg. No. 333-42678), as amended.
"Rule 144" shall mean Rule 144 as promulgated by the SEC under the
Securities Act, as such Rule may be amended from time to time, or any similar
successor rule that may be promulgated by the SEC.
"SEC" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Second Lock-Up Period" shall have the meaning set forth in Section
3.1(b) of this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar successor federal statute, and all rules and regulations promulgated
thereunder as the same may be amended from time to time.
"Shareholder" shall mean Technology Capital Group S.A., an investment
company organized under the laws of Luxembourg.
"Subject Shares" shall mean the 25,425,000 shares of Common Stock
owned by the Shareholder together with any other shares of the Company capital
stock of which the Shareholder acquires beneficial ownership after the Effective
Date and until such time as the Shareholder's registration rights terminate in
accordance with Section 4.11 hereof, whether upon the exercise of options,
warrants or rights, the conversion or exchange of convertible or exchangeable
securities, or by means of purchase, dividend, distribution or otherwise. For
purposes of Section 4 of this Agreement, Subject Shares shall not include any
shares of Common Stock which previously have been registered under the
Securities Act, which have been sold to
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the public either pursuant to a registration statement under the Securities Act
or Rule 144, or, except to the extent of a permitted assignment of the
Shareholder's rights under Sections 4.1 and 4.2 pursuant to Section 5 of this
Agreement, which have been sold in a private transaction.
"TCG Holders" shall mean the Shareholder and Ratel.
"TCG Shares" shall mean the shares of capital stock of the Shareholder
owned by Ratel as of the Effective Date together with any other shares of the
capital stock of the Shareholder of which Ratel acquires beneficial ownership
after the Effective Date and until the expiration of the Second Lock-Up Period,
whether upon the exercise of options, warrants or rights, the conversion or
exchange of convertible or exchangeable securities, or by means of purchase,
dividend, distribution or otherwise.
"Transfers" shall have the meaning set forth in Section 3.1(a) of this
Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE TCG HOLDERS AND THE COMPANY
2.1. REPRESENTATIONS AND WARRANTIES OF THE TCG HOLDERS. The TCG Holders,
jointly and severally, hereby represent and warrant to the Company as follows:
(a) AUTHORITY; NO CONFLICTS. Each of the Shareholder and Ratel has the
legal capacity and all requisite power and authority to enter into this
Agreement and to perform its or his obligations hereunder. This Agreement has
been duly authorized, executed and delivered by the TCG Holders and constitutes
a valid and binding obligation of the TCG Holders enforceable in accordance with
its terms, except to the extent that its enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors' rights generally. No filing with, and no
permit, authorization, consent or approval of, any Person is necessary for the
execution of this Agreement by the TCG Holders and the performance by the TCG
Holders of their respective obligations contemplated hereby and none of the
execution and delivery of this Agreement by the TCG Holders, the performance of
their respective obligations contemplated hereby or compliance with the terms
hereof by the TCG Holders will conflict with, or result in any violation of, or
default (with or without notice or lapse of time or both) under, the
Shareholder's constituent documents or any provision of any agreement to which
the Shareholder or Ratel is a party, including any voting agreement,
shareholders agreement, voting trust, trust agreement, pledge agreement, loan or
credit agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise or license or violate any judgment,
order, notice, decree, statute, law, ordinance, rule or regulation applicable to
the Shareholder or Ratel or to their respective property or assets.
(b) THE TCG SHARES. Ratel is the record and beneficial owner of more than
90% of the outstanding shares of the capital stock of the Shareholder, which
shares are held by Ratel free and clear of any encumbrances, agreements, adverse
claims, liens or other arrangements with respect to the ownership of or the
right to vote or dispose of such shares. Other than such shares,
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Ratel does not beneficially or of record own any shares of capital stock of the
Shareholder or securities convertible or exchangeable for shares of capital
stock of the Shareholder. Ratel has the sole right and power to vote and dispose
of the TCG Shares owned by Ratel on the date hereof. None of such TCG Shares is
subject to any voting trust or other agreement, arrangement or restriction with
respect to the voting or transfer thereof, except as contemplated by this
Agreement.
(c) THE SUBJECT SHARES. The Shareholder is the record owner of 25,425,000
shares of Common Stock, free and clear of any encumbrances, agreements, adverse
claims, liens or other arrangements with respect to the ownership of or the
right to vote or dispose of such shares of Common Stock. Other than such
25,425,000 shares of Common Stock, the Shareholder does not beneficially or of
record own any shares of Company capital stock or securities convertible or
exchangeable for shares of Company capital stock. The Shareholder has the sole
right and power to vote and dispose of the Subject Shares. None of such
25,425,000 shares of Common Stock is subject to any voting trust or other
agreement, arrangement or restriction with respect to the voting or transfer
thereof, except as contemplated by this Agreement and the Purchase Agreement.
(d) INFORMATION INCLUDED IN REGISTRATION STATEMENT. All information
relating to the TCG Holders for use in the Registration Statement does not, and
on the effective date of this Agreement will not, contain any untrue statement
of a material fact or omit to state any material fact necessary to make such
information not misleading.
2.2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to the TCG Holders that the Company has the legal
capacity and all requisite power and authority to enter into this Agreement and
to perform its obligations hereunder. This Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and binding
obligation of the Company enforceable in accordance with its terms, except to
the extent that its enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the enforcement
of creditors' rights generally. No filing with, and no permit, authorization,
consent or approval of, any Person is necessary for the execution of this
Agreement by the Company and the performance by the Company of its obligations
hereunder, and none of the execution and delivery of this Agreement by the
Company, the performance of its obligations hereunder or compliance with the
terms hereof by the Company will conflict with, or result in any violation of,
or default (with or without notice or lapse of time or both) under, the
Company's constituent documents or any provision of any agreement to which the
Company is a party, including any voting agreement, shareholders agreement,
voting trust, trust agreement, pledge agreement, loan or credit agreement, note,
bond, mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise or license or violate any judgment, order, notice, decree,
statute, law, ordinance, rule or regulation applicable to the Company or to its
property or assets.
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3. TRANSFER RESTRICTIONS APPLICABLE TO THE TCG HOLDERS
3.1. AGREEMENT OF THE TCG HOLDERS. The TCG Holders, jointly and severally,
hereby covenant and agree with the Company as follows:
(a) INITIAL LOCK-UP PERIOD. From the Effective Date and until 180 days
after the effectiveness of the Purchase Agreement (the "Initial Lock-Up
Period"), each of the Shareholder and Ratel will not, without the prior written
consent of the Company, directly or indirectly, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant for the sale of, or
otherwise dispose of or transfer any of the Subject Shares or TCG Shares or any
securities convertible into or exchangeable or exercisable for the Subject
Shares or TCG Shares, whether now owned or hereafter acquired by the Shareholder
or Ratel or with respect to which the Shareholder or Ratel has or hereafter
acquires the power of disposition, or file any registration statement under the
Securities Act with respect to any of the foregoing or (ii) enter into any swap
or any other agreement or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of the Subject
Shares or TCG Shares, whether any such swap transaction is to be settled by
delivery of the Subject Shares, TCG Shares or other securities, in cash or
otherwise (all such transactions referred to in (i) and (ii) above are
hereinafter referred to as "Transfers").
(b) SECOND LOCK-UP PERIOD. For 180 days following expiration of the Initial
Lock-Up Period (the "Second Lock-Up Period"), the Shareholder will make
Transfers of the Subject Shares only in accordance with Rule 144. During the
Second Lock-Up Period, Ratel will not, without the prior written consent of the
Company, directly or indirectly, make any Transfers of the TCG Shares.
(c) ADVANCE NOTICE. If at any time during the three-year period following
expiration of the Second Lock-Up Period, or until such earlier time as the
Shareholder's ownership of the Subject Shares is less than 25% of the
outstanding Common Stock, the Shareholder desires to make any Transfer (other
than pursuant to Rule 144 or a registration statement under the Securities Act)
of 1% or more of the outstanding Common Stock, prior to entering into any
binding agreement with respect to any such Transfer, the Shareholder shall give
not less than 30 days prior written notice of such Transfer to the Company,
specifying the number of Subject Shares subject to the Transfer and, if known,
the other material terms and conditions of the Transfer. The Shareholder
acknowledges and agrees that the Company shall have the first right to assist in
the private disposition of the shares specified in such notice to an "accredited
investor" or "qualified institutional buyer" (as such terms are defined in
Exchange Act). If the Company is unable to arrange such a private disposition on
terms reasonably satisfactory to the Shareholder within twenty (20) days after
receipt of notice of the Transfer, the Shareholder shall be free to consummate
the Transfer.
(d) RESTRICTIVE LEGEND. Upon the request of the Company, a restrictive
legend in the form set forth in Exhibit A hereto shall be placed on the
certificates representing the Subject
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Shares and a restrictive legend in the form set forth in Exhibit B hereto shall
be placed on the certificates representing the TCG Shares. In addition, a
notation shall be made in the appropriate records of the Company indicating that
the Subject Shares are subject to restrictions on transfer, and appropriate
stop-transfer instructions will be issued to the Company's transfer agent with
respect to the Subject Shares. A notation shall also be made in the appropriate
records of the Shareholder indicating that the TCG Shares are subject to
restrictions on transfer, and appropriate stop-transfer instructions, if
applicable, will be issued to the Shareholder's transfer agent with respect to
the TCG Shares.
4. REGISTRATION RIGHTS
4.1. DEMAND REGISTRATION. If at any time commencing 18 months after the
date of this Agreement, if the Company is then eligible to use a Form S-3
Registration Statement or any successor form to register the resale of the
Subject Shares, and if the Company shall receive from the Shareholder a written
request that the Company effect any registration of all or at least 10% of the
Subject Shares with an aggregate public offering price of at least $5,000,000,
the Company will file a registration statement on Form S-3 or any successor form
with the SEC as soon as practicable after the Shareholder's request and use its
reasonable best efforts to effect the registration for resale of such Subject
Shares as would permit the sale and distribution by the Shareholder of such
Subject Shares in accordance with the Shareholder's intended plan of
distribution; provided, however, that the Company shall not be obligated to take
any action to effect any such registration pursuant to this Section 4.1:
(a) If, at such time as a request for registration pursuant to this Section
4.1 is pending, the Company has already effected three such registrations
pursuant to this Section 4.1, and such registrations had been declared or
ordered effective; or
(b) Subject to the Shareholder's rights under Section 4.2 below, during the
period starting with the date 60 days prior to the Company's good faith estimate
of the date of filing of, and ending on a date six months following the
effective date of, a Company-initiated registration statement (other than with
respect to a registration statement relating to an offering solely to
employees).
If the Shareholder so elects, the offering of such Subject Shares pursuant
to this Section 4.1 shall be in the form of an underwritten offering. The
underwriter or underwriters shall be a firm or firms of nationally recognized
standing selected by the Company and shall be reasonably acceptable to the
Shareholder.
4.2. PIGGYBACK REGISTRATION. If at any time after the effectiveness of the
Purchase Agreement, all of the Subject Shares are not then registered for resale
under the Securities Act, and the Company proposes to register any shares of its
Common Stock under the Securities Act on Forms X-0, X-0 or S-3 or any successor
forms (except for registrations on such forms solely for registration of Common
Stock in connection with any warrant, option, employee benefit or dividend
reinvestment plan or in connection with any acquisition or exchange offer), for
sale for its own account or for the account of any other shareholder of the
Company, it will each such
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time as soon as practicable give written notice of its intention to do so to the
Shareholder, which notice shall be by telecopy and confirmed by mail. In such
event, upon the written request (which request shall specify the total number of
Subject Shares intended to be disposed of by the Shareholder) of the Shareholder
made within 15 days after the receipt of any such notice, the Company will use
all reasonable best efforts to effect the registration under the Securities Act
in the manner initially proposed by the Company or by a requesting shareholder
of the Company if such request relates to a firm commitment underwritten
offering (and otherwise in the manner requested by the Shareholder) of all
Subject Shares held by the Shareholder which the Company has been so requested
to register for sale. If the Company thereafter determines for any reason in its
sole discretion (including at the request of the requesting shareholder of the
Company) not to register or to delay registration of the Common Stock, the
Company may, at its election, give written notice of such determination to the
Shareholder and (i) in the case of a determination not to register, shall be
relieved of the obligation to register any Subject Shares in connection with
such registration and (ii) in the case of a determination to delay registering,
shall be permitted to delay registering any Subject Shares of the Shareholder
for the same period as the delay in registration of such other securities.
4.3. PRIORITY IN PIGGYBACK REGISTRATION. In a registration pursuant to
Section 4.2 hereof, if the managing underwriter of any such underwritten
offering to which Section 4.2 pertains shall inform the Company by letter of its
belief that the number of Subject Shares to be included in such registration
would adversely affect its ability to effect such offering, then the Company
will be required to include in such registration only that number of Subject
Shares which it is so advised can be included in such offering without so
adversely affecting it. With respect to a registration that is the subject of
Section 4.2 hereof, shares of Common Stock proposed by the Company to be
registered for issuance by the Company or for sale by third parties exercising
"demand" registration rights shall have the first priority and all other shares
of Common Stock to be registered, including any and all Subject Shares owned by
the Shareholder, shall be given second priority without preference among the
relevant holders. If less than all of the Subject Shares duly requested to be
included in such registration are to be registered therein, such Subject Shares
shall be included in the registration pro rata based on the total number of such
shares sought to be registered other than for issuance by the Company or sale by
third parties exercising "demand" registration rights in accordance with the
preceding sentence.
4.4. REGISTRATION PROCEDURES. In connection with the Company's obligations
to register the Subject Shares for resale pursuant to this Section 4, the
Company will use its reasonable best efforts to effect such registration in
accordance herewith and the Company will promptly:
(a) prepare and file with the SEC as soon as practicable after request for
registration hereunder the requisite registration statement to effect such
registration and use its reasonable best efforts to cause such registration
statement to become effective and, in the case of a registration pursuant to
Section 4.1, to remain continuously effective until the earlier to occur of (x)
one year following the date on which such registration statement is declared
effective or (y) the termination of the offering being made as set forth
thereunder;
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(b) prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective as set forth above and
to comply with the provisions of the Securities Act with respect to the
disposition of all Subject Shares covered by such registration statement until
such Subject Shares have been sold or such lesser period of time as the Company,
the Shareholder or any underwriter is required under the Securities Act to
deliver a prospectus in accordance with the intended methods of disposition by
the Shareholder set forth in such registration statement or supplement to such
prospectus;
(c) furnish to the Shareholder at least one executed original of the
registration statement and such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits) and such number of copies of the prospectus contained in
such registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 under the
Securities Act as may reasonably be requested by the Shareholder;
(d) use its reasonable best efforts (i) to register or qualify, to the
extent necessary, all Subject Shares covered by such registration statement
under the securities or "blue sky" laws of such jurisdictions in the United
States (and such foreign jurisdictions as the Company may agree) where an
exemption is not available as the Shareholder shall reasonably request, (ii) to
keep such registration or qualification in effect for so long as such
registration statement remains in effect and (iii) to take any other action
which may be reasonably necessary or advisable to enable the Shareholder to
consummate the disposition in such jurisdictions of such Subject Shares,
provided that the Company will not be required to qualify generally to do
business or as a dealer in any jurisdiction where it is not then so qualified,
subject itself to taxation in any such jurisdiction or take any action which
would subject it to general service of process in any such jurisdiction;
(e) notify the Shareholder promptly, and confirm such advice in writing,
(i) when a prospectus or any prospectus supplement or post-effective amendment
has been filed, and, with respect to a registration statement or any
post-effective amendment, when the same has become effective, (ii) of any
request by the SEC for amendments or supplements to a registration statement or
related prospectus or for additional information, (iii) of the issuance by the
SEC of any stop order suspending the effectiveness of a registration statement
or the initiation of any proceedings for that purpose, (iv) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of any of the registered securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose, (v) of the
happening of any event or information becoming known which requires the making
of any changes in a registration statement or related prospectus so that such
documents will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading and (vi) of the Company's reasonable
determination that a post-effective amendment to a registration statement would
be appropriate;
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(f) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a registration statement, or the lifting of any
suspension of the qualification of any of the registered securities for sale in
any jurisdiction, at the earliest possible moment;
(g) upon the occurrence of any event contemplated by clause (e) above,
prepare a supplement or post-effective amendment to the applicable registration
statement or related prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the securities being sold thereunder, such prospectus will
not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(h) use its reasonable best efforts to furnish to the Shareholder a signed
counterpart, addressed to the Shareholder and the underwriters, if any, of an
opinion of counsel for the Company as to the effectiveness of the registration
statement registering the resale of the Subject Shares under the Securities Act;
(i) otherwise use its reasonable best efforts to comply with all applicable
rules and regulations of the SEC in connection with a registration pursuant
hereto;
(j) cause all Subject Shares covered by the registration statement if not
previously listed to be listed on each securities exchange, if any, or Nasdaq,
on which securities of such class, series and form issued by the Company, if
any, are then listed or traded; and
(k) cooperate and assist in any filings required to be made with the NASD
and in the performance of any due diligence investigation by any underwriter
(including any qualified independent underwriter that is required to be retained
in accordance with the rules and regulations of the NASD).
The Shareholder agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 4.4(e)(ii), (iii),
(iv), (v) or (vi) hereof, it will forthwith discontinue disposition pursuant to
such registration statement of any Subject Shares covered by such registration
statement or prospectus until its receipt of the copies of the supplemented or
amended prospectus relating to such registration statement or prospectus or
until it is advised in writing by the Company that the use of the applicable
prospectus may be resumed (and the period of such discontinuance shall be
excluded from the calculation of the period specified in clause (x) of Section
4.4(a)) and, if so directed by the Company, will deliver to the Company all
copies, other than permanent file copies then in its possession, of the
prospectus covering such securities in effect at the time of receipt of such
notice.
4.5. DEMAND UNDERWRITTEN OFFERINGS. If requested by the underwriters for
any underwritten offering by the Shareholder pursuant to a registration
requested under Section 4.1, the Company will use its reasonable best efforts to
enter into an underwriting agreement with such underwriters for such offering,
such agreement to be reasonably satisfactory in form and substance to the
Shareholder, the Company and the underwriters and to contain such
representations and warranties by the Company and such other terms as are
generally prevailing
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in agreements of that type, including, without limitation, indemnities to the
effect and to the extent provided in Section 4.10. The Shareholder will
reasonably cooperate with the Company in the negotiation of the underwriting
agreement. The Shareholder shall be party to such underwriting agreement and
may, at its option, require that any or all of the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of
the Shareholder, and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be conditions
precedent to the obligations of the Shareholder.
4.6. PIGGYBACK UNDERWRITTEN OFFERINGS. If the Company at any time proposes
to register any shares of its Common Stock under the Securities Act as
contemplated by Section 4.2 and such shares are to be distributed by or through
one or more underwriters, the Company and, if the managing underwriter shall
elect in writing to include the Subject Shares sought to be included in such
registration, the Shareholder shall be party to the underwriting agreement
between the Company and such underwriters and the Shareholder may, at its
option, require that any or all of the representations and warranties by, and
the other agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of it and that any or all
of the conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to its obligations.
The Shareholder may not participate in any underwritten registration under
Section 4.5 or 4.6 unless the Shareholder (a) agrees to sell the Subject Shares
on the basis provided in and in compliance with any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and to
comply with Regulation M under the Exchange Act, and (b) completes and executes
all questionnaires, appropriate and limited powers-of-attorney, escrow
agreements, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements. The Shareholder
agrees to furnish the Company a signed counterpart, addressed to the Company and
the underwriters, if any, of an opinion of counsel covering substantially the
same matters with respect to such registration statement (and the prospectus
included therein) as are customarily covered in opinions of selling
stockholder's counsel delivered to the underwriters in underwritten public
offerings of securities (and dated the dates such opinions are customarily
dated) and such other legal matters as the Company or the underwriters may
reasonably request.
4.7. PREPARATION; REASONABLE INVESTIGATION. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement in which the Subject Shares are included, the Company
will give the Shareholder, the underwriters, if any, and their respective
counsel and accountants the opportunity (but such Persons shall not have the
obligation except as set forth herein) to participate (in the case of a
registration pursuant to Section 4.2 hereof such participation shall be at their
expense) in the preparation of such registration statement, each prospectus
included therein or filed with the SEC, and, to the extent practicable, each
amendment thereof or supplement thereto, and will give each of them such access
to its books and records (to the extent customarily given to the underwriters of
the Company's securities) and such opportunities to discuss the business of the
Company with its
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officers and the independent public accountants who have certified its financial
statements as shall be necessary, in the opinion of the Shareholder and the
underwriters' respective outside counsel, to conduct a reasonable investigation
within the meaning of the Securities Act.
4.8. LIMITATIONS, CONDITIONS AND QUALIFICATIONS TO OBLIGATIONS UNDER
REGISTRATION COVENANTS. The obligations of the Company to use its reasonable
best efforts to cause the Subject Shares to be registered under the Securities
Act are subject to each of the following limitations, conditions and
qualifications:
(a) The Company shall be entitled to postpone for a reasonable period of
time the filing or effectiveness of, or suspend the rights of the Shareholder to
make sales pursuant to, any registration statement otherwise required to be
prepared, filed and made and kept effective by it hereunder (but the duration of
such postponement or suspension may not exceed the earlier to occur of (w) 45
days after the cessation of the circumstances described in clauses (i) and (ii)
below or (x) 120 days after the date of the determination of the Board of
Directors referred to below, and the duration of such postponement or suspension
shall be excluded from the calculation of the period specified in clause (x) of
Section 4.4(a)), if the Board of Directors of the Company determines in good
faith that (i) there is a material undisclosed development in the business or
affairs of the Company (including any pending or proposed financing,
recapitalization, acquisition or disposition), the disclosure of which at such
time would be adverse to the Company's interests, (ii) the Company has otherwise
filed a registration statement with the SEC, such registration statement has not
yet been declared effective, the Company is using its reasonable best efforts to
have such registration statement declared effective, and such registration would
be adversely affected, or (iii) registration at the time would require the
inclusion of pro forma or other information, which requirement the Company is
reasonably unable to comply with without incurring material expense. If the
Company shall so delay the filing of a registration statement, it shall, as
promptly as practicable, notify the Shareholder of such determination, and the
Shareholder shall have the right (y) in the case of a postponement of the filing
or effectiveness of a registration statement to withdraw the request for
registration by giving written notice to the Company within 10 days after
receipt of the Company's notice or (z) in the case of a suspension of the right
to make sales, to receive an extension of the registration period, if
applicable, equal to the number of days of the suspension.
(b) The Company's obligations shall be subject to the obligations of the
Shareholder, which the Shareholder hereby acknowledges, to furnish all
information and materials and to take any and all actions as may be required
under applicable federal and state securities laws and regulations to permit the
Company to comply with all applicable requirements of the SEC and state
securities regulations and to obtain any acceleration of the effective date of
such registration statement or maintain the effectiveness or currency thereof.
(c) The Company shall not be obligated to cause any special audit to be
undertaken in connection with any registration pursuant hereto unless such audit
is requested by the underwriters with respect to such registration.
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(d) If requested by an underwriter in an underwritten offering, the
Shareholder agrees not to effect any public sale or distribution, including any
sale pursuant to Rule 144, of any Common Stock (other than in accordance with
Sections 4.1 or 4.2) within 30 days before or 180 days after the effective date
of a registration statement filed pursuant to Sections 4.1 or 4.2.
4.9. EXPENSES. The Company will pay or cause to be paid all expenses
(including legal and accounting fees) incurred in connection with each demand
and piggyback registration of Subject Shares pursuant to Sections 4.1 or 4.2 of
this Agreement, including, without limitation, any and all filing fees payable
to the SEC, fees with respect to filings required to be made with stock
exchanges, Nasdaq and the NASD, fees and expenses of compliance with state
securities or blue sky laws, printing expenses, fees and disbursements of
counsel and accountants of the Company, including costs associated with comfort
letters, and fees and expenses of other Persons retained by the Company, but the
Shareholder shall pay its own underwriters' expenses (such as discounts,
commissions and fees of underwriters and expenses included therein of selling
brokers, dealer managers or similar securities industry professionals relating
to the distribution of the securities being registered) and the fees and
expenses of any legal counsel retained by the Shareholder.
4.10. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. In connection with any registration
pursuant hereto in which Subject Shares are to be disposed of, the Company and
Ratel shall indemnify and hold harmless, to the fullest extent permitted by law,
the Shareholder and, when applicable, the Shareholder's officers, directors,
agents and employees and each Person who controls (or is controlled by or under
common control with) the Shareholder (within the meaning of the Securities Act
and the Exchange Act) against all losses, claims, damages, liabilities and
expenses, including reasonable attorneys' fees, caused by any untrue or alleged
untrue statement of a material fact contained in any registration statement,
prospectus or preliminary prospectus or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, including, without limitation, any loss,
claim, damage, liability or expense, including reasonable attorneys' fees,
resulting from the failure to keep a prospectus current as required hereunder,
except insofar as the same (i) are caused by or contained in any information
furnished in writing to the Company by or on behalf of the Shareholder or Ratel
expressly for use therein or (ii) are caused by the Shareholder's or Ratel's
failure to deliver a copy of the current required prospectus after the Company
has furnished the Shareholder and Ratel with a sufficient number of copies of
such prospectus as requested hereunder or (iii) arise in respect of any offers
to sell or sales made during any period when the Shareholder and Ratel are
required to discontinue sales under Section 4.4(e) or otherwise under applicable
law. The Company shall also indemnify the underwriters (if any) participating in
the offering or sale of the Subject Shares, their officers and directors and
each Person who controls such underwriters (within the meaning of the Securities
Act and the Exchange Act) to the same extent (and subject to the same
exceptions) as provided above with respect to the indemnification of the
Shareholder and Ratel.
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(b) INDEMNIFICATION BY THE SHAREHOLDER. In connection with any registration
pursuant hereto in which Subject Shares are to be disposed of, the TCG Holders,
jointly and severally, shall indemnify and hold harmless, to the fullest extent
permitted by law, the Company, each other selling shareholder and their
respective directors, officers, agents and employees and each Person who
controls the Company and each other selling shareholder (within the meaning of
the Securities Act and the Exchange Act) and each underwriter, if any, and its
directors, officers, agents, and employees and each Person who controls such
underwriter (within the meaning of the Securities Act and the Exchange Act), in
each case against any losses, claims, damages, liabilities and expenses,
including reasonable attorneys' fees, resulting from any untrue statement of a
material fact or any omission of a material fact required to be stated in such
registration statement or prospectus or preliminary prospectus or necessary to
make the statements therein not misleading, to the extent, but only to the
extent, that such untrue statement or omission is contained in any information
furnished in writing by the Shareholder or Ratel to the Company expressly for
inclusion in such registration statement or prospectus. In no event shall the
liability of the TCG Holders hereunder be greater in amount than the dollar
amount of the proceeds received or to be received by the TCG Holders upon the
sale of the securities giving rise to such indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person entitled to
indemnification or contribution hereunder shall give prompt notice to the
indemnifying party of any claim with respect to which it shall seek
indemnification or contribution and shall permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party; provided, however, that any Person entitled to
indemnification hereunder shall have the right to employ separate counsel and to
participate in the defense of such claim, but the fees and expenses of such
counsel shall be at the expense of such Person unless (i) the indemnifying party
shall have agreed to pay such fees or expenses, (ii) the indemnifying party
shall have failed to assume the defense of such claim and to employ counsel
reasonably satisfactory to such Person or (iii) such assumption would constitute
an actual conflict of interest (in which case, if the Person notifies the
indemnifying party in writing that such Person elects to employ separate counsel
at the expense of the indemnifying party, the indemnifying party shall not have
the right to assume the defense of such claim on behalf of such Person). If such
defense is not assumed by the indemnifying party, the indemnifying party shall
not be subject to any liability for any settlement made without its consent (but
such consent shall not be unreasonably withheld). No indemnified party shall be
required to consent to entry of any judgment or enter into any settlement that
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a written release from all liability in
respect of such claim or litigation. An indemnifying party who is not entitled
to, or elects not to, assume the defense of a claim shall not be obligated to
pay the fees and expenses of more than one firm of counsel (and, if necessary,
local counsel) for all parties indemnified by such indemnifying party with
respect to such claim.
(d) CONTRIBUTION. If for any reason the indemnification provided for herein
is unavailable to an indemnified party or is insufficient to hold it harmless as
contemplated hereby, then the indemnifying party, in lieu of indemnifying the
indemnified party, shall contribute to the
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amount paid or payable by the indemnified party as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect not only the
relative benefits received by the indemnified party and the indemnifying party,
but also the relative fault of the indemnified party and the indemnifying party,
as well as any other relevant equitable considerations, provided that in no
event shall the liability of the TCG Holders for such contribution exceed, in
the aggregate, the dollar amount of the proceeds received or to be received by
the TCG Holders upon the sale of securities giving rise to such contribution
obligation.
4.11. TERMINATION OF REGISTRATION RIGHTS. The right of the Shareholder to
request registration or inclusion in any registration pursuant to Section 4.1 or
4.2 shall terminate, if not sooner terminated under any other provision of this
Agreement, upon the earlier of eight years after the date of this Agreement and
such date as all Subject Shares held by the Shareholder may immediately be sold
under Rule 144 during any 90-day period.
4.12. RULE 144 REPORTING. The Company agrees that, to the extent reasonably
necessary to permit the Shareholder to sell the Subject Shares in accordance
with and in reliance on Rule 144, and for so long as such shares are owned by
the Shareholder and such shares are not registered for resale under the
Securities Act, the Company will use its reasonable best efforts to:
(i) make and keep public information available within the meaning of
Rule 144, at all times from and after the date of the effectiveness of the
Purchase Agreement;
(ii) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(iii) so long as the Shareholder owns any Subject Shares inform the
Shareholder upon request as to the Company's compliance with the reporting
requirements of Rule 144 and of the Securities Act and the Exchange Act.
Anything to the contrary contained in this Section 4.12
notwithstanding, the Company may deregister any of its securities under the
Exchange Act if it is then permitted to do so pursuant to the Exchange Act in
which case the provisions of this Section 4.12 insofar as they relate to
obligations to make filings under the Exchange Act that would no longer be
required as a result of such deregistering shall be of no further force or
effect. Nothing in this Section shall be deemed to limit in any manner the
restriction on sales of Subject Shares contained in this Agreement.
5. SUCCESSORS AND ASSIGNS.
Without the prior written consent of the Company, the Shareholder's rights
under Sections 4.1 and 4.2 may not be transferred or assigned by the
Shareholder, except that, without such consent, the Shareholder may transfer or
assign such rights in a private placement to a transferee or assignee of not
less than 2,000,000 shares of Common Stock (as presently constituted and subject
to subsequent adjustments for stock splits, stock dividends and the like)
provided that the Company is given written notice at the time or within a
reasonable time
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thereafter of such transfer or assignment stating the name and address of the
transferee or assignee and identifying the shares of Common Stock with respect
to which such registration rights are being transferred or assigned, and
provided further that such transferee or assignee assumes in writing the
obligations of the Shareholder under this Section 4. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties hereto and their respective successors and permitted
assigns.
6. GENERAL PROVISIONS.
(a) AMENDMENTS. This Agreement may not be amended except by an instrument
in writing signed by each of the parties hereto.
(b) NOTICES. All notices, requests, claims, demands and communications
hereunder shall be in writing and shall be given (and shall be deemed to have
been duly given upon receipt) by delivery in person, by telecopy or by
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties at the following addresses (or at such other address for a
party as shall be specified by like notice):
if to the Shareholder or Ratel, to:
Technology Capital Group S.A.
0, xxxxxxxxx xx xx Xxxxx
X-0000, Xxxxxxxxxx
Xxxxx-Xxxxx of Luxembourg
Attention: Xxxxxx Xxxxx
Facsimile: 011 352 45 123 201
with a copy to:
Coudert Brothers
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
if to the Company, to:
Ixia
00000 X. Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
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with a copy to:
Xxxxx Xxxx LLP
000 Xxxxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
(c) INTERPRETATION. When a reference is made in this Agreement to Sections,
such reference shall be to a Section of this Agreement unless otherwise
indicated. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Wherever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation".
(d) COUNTERPARTS. This Agreement may be executed in one more counterparts,
all of which shall be considered one and the same agreement, and shall become
effective when one or more of the counterparts have been signed by each of the
parties and delivered to the other party, it being understood that each party
need not sign the same counterpart.
(e) GOVERNING LAW; JURISDICTION; WAIVER. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of California
regardless of the laws that might otherwise govern under applicable principles
of conflicts or law. Each of the Company and the TCG Holders irrevocably agrees
that any legal action or proceeding with respect to this Agreement or for
recognition and enforcement of any judgment in respect hereof brought by the
other party hereto or its successors or permitted assigns may be brought and
determined in the federal courts located in the State of California and state
courts of the State of California located in Los Angeles County, and each of the
Company and the TCG Holders hereby irrevocably submits with regard to any such
action or proceeding for itself and himself and in respect to its or his
property, generally and unconditionally, to the exclusive jurisdiction of the
aforesaid courts for such purpose. Each of the Company and the TCG Holders
hereby irrevocably waives, and agrees not to assert, by way of motion, as a
defense, counterclaim or otherwise, in any action or proceeding with respect to
this Agreement, (i) any right to trial by jury with respect to any action, suit
or proceeding arising out of or relating to this Agreement, (ii) any claim that
it or he is not personally subject to the jurisdiction of the above named courts
for any reason other than the failure to lawfully serve process, (iii) that it
or he and its or his property is exempt or immune from jurisdiction of any such
court or from any legal process commenced in such courts (whether through
service of notice, attachment prior to judgment, attachment in aid of execution
of judgment, execution of judgment or otherwise), and (iv) to the fullest extent
permitted by applicable law, that (a) the suit, action or proceeding in any such
court is brought in an inconvenient forum, (b) the venue of such suit, action or
proceeding is improper and (c) this Agreement, or the subject matter hereof, may
not be enforced in or by such courts.
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(f) SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the rights and obligations contemplated hereby are not affected in any manner
materially adverse to any party. Upon any determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the rights and obligations contemplated hereby are fulfilled to the
extent possible.
(g) ATTORNEYS' FEES. Should any action or proceeding be brought to construe
or enforce the terms and conditions of this Agreement or the rights of the
parties hereunder, the losing party shall pay to the prevailing party all court
costs and reasonable attorneys' fees and costs incurred in such action or
proceeding.
(h) ENFORCEMENT. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that, in addition to any other remedy to which it may be
entitled, at law or in equity, the parties shall be entitled to the remedy of
specific performance of the covenants and agreements contained herein and
injunctive and other equitable relief.
(i) ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement among the parties with regard to the subject matter
hereof.
(j) INFORMATION CONFIDENTIAL. The parties acknowledge that this Agreement
will be filed with the SEC as an exhibit to the Registration Statement and will
be publicly available by virtue of being so filed. Notwithstanding such filing
of this Agreement, the TCG Holders acknowledge that information received from
the Company pursuant hereto may be confidential and for its or his use only, and
it or he will not use such confidential information in violation of the
Securities Act or Exchange Act or reproduce, disclose or disseminate such
information to any other Person (other than its or his employees or agents
having a need to know the contents of such information, and its or his
attorneys, subject to the terms of this confidentiality provision), unless the
Company has made such information available to the public generally or the
Shareholder or Ratel is required to disclose such information by a governmental
body.
(k) PARTIES IN INTEREST. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto or their respective successors or
permitted assigns. Except as provided in Section 4.10 and Section 5 hereof,
nothing in this Agreement, express or implied, is intended to or shall confer
upon any other Person any rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement.
(l) TERMINATION OF AGREEMENT. In the event that the closing of the initial
public offering of the Company's Common Stock pursuant to the Registration
Statement does not occur on or before December 31, 2000, this Agreement shall be
void and of no further effect.
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IN WITNESS WHEREOF, the Shareholder, Ratel and the Company have caused this
Agreement to be signed by its signatory thereunto duly authorized, as of the
date first written above.
SHAREHOLDER
TECHNOLOGY CAPITAL GROUP S.A.
By:
---------------------------------
Its:
--------------------------------
By:
---------------------------------
Its:
--------------------------------
RATEL
------------------------------------
Xxxxxxxx Xxxxx
IXIA
By:
---------------------------------
Xxxxx Xxxxxxxx, President
and Chief Executive Officer
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EXHIBIT A
The restrictive legend to be placed on the Subject Shares shall read as
follows:
"THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER AND CERTAIN RIGHTS SPECIFIED IN THE
REGISTRATION RIGHTS AND STOCK TRANSFER RESTRICTION AGREEMENT DATED AS
OF SEPTEMBER 15, 2000, AS AMENDED FROM TIME TO TIME, AMONG THE ISSUER
OF THE SHARES (THE "COMPANY"), THE ORIGINAL HOLDER OF THE SHARES AND
XXXXXXXX XXXXX, A COPY OF WHICH WILL BE MAILED TO THE HOLDER HEREOF BY
THE COMPANY UPON WRITTEN REQUEST THEREFOR."
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EXHIBIT B
The restrictive legend to be placed on the TCG Shares shall read as
follows:
"THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER SPECIFIED IN THE REGISTRATION RIGHTS AND
STOCK TRANSFER RESTRICTION AGREEMENT DATED AS OF SEPTEMBER 15, 2000,
AS AMENDED FROM TIME TO TIME, AMONG THE ISSUER OF THE SHARES (THE
"COMPANY"), XXXXXXXX XXXXX AND IXIA, A CALIFORNIA CORPORATION, A COPY
OF WHICH WILL BE MAILED TO THE HOLDER HEREOF BY THE COMPANY UPON
WRITTEN REQUEST THEREFOR."
