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As filed with the Securities and Exchange Commission on October 27, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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IXIA
(Exact name of registrant as specified in its charter)
CALIFORNIA 95-4635982
State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
26601 WEST AGOURA ROAD
CALABASAS, CALIFORNIA 91302
(Address of Principal Executive Offices) (Zip Code)
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1997 STOCK OPTION PLAN
DIRECTOR STOCK OPTION PLAN
EMPLOYEE STOCK PURCHASE PLAN
WARRANTS TO PURCHASE COMMON STOCK
(Full title of the plans)
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ERROL GINSBERG
PRESIDENT AND CHIEF EXECUTIVE OFFICER
IXIA
26601 WEST AGOURA ROAD
CALABASAS, CALIFORNIA 91302
(818) 871-1800
(Name, address and telephone number of agent for service)
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Copy to:
KATHERINE F. ASHTON, ESQ.
BRYAN CAVE LLP
120 BROADWAY, SUITE 300
SANTA MONICA, CALIFORNIA 90401
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<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Title of Amount Proposed Proposed Amount
Securities of Shares Maximum Maximum of
to be to be Offering Price Aggregate Registration
Registered Registered per Share Offering Price Fee
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<S> <C> <C> <C> <C>
1997 Stock Option Plan,
(1) 2) (2)
Common Stock, without par value 14,300,000 $21.46875 $307,003,125 $81,049
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Director Stock Option Plan,
(1) (2) (2)
Common Stock, without par value 200,000 $21.46875 $4,293,750 $1,134
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Employee Stock Purchase Plan,
(1) (1) (2)
Common Stock, without par value 300,000 $21.46875 $6,440,625 $1,701
---------------------------------------------- ---------------- ------------------ ------------------- ----------------
Warrants to Purchase Common Stock,
(1)
Common Stock, without par value 80,000 $7.00 $560,000 $148
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Total Registration Fee $84,032
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</TABLE>
(1) This Registration Statement also covers such additional shares of Common
Stock as may be issuable pursuant to anti-dilution provisions of these
plans. Pursuant to Rule 416(a) of the Securities Act of 1933, as amended,
this Registration Statement shall also cover any additional shares of the
Registrant's Common Stock that become issuable under the 1997 Stock
Option Plan, the Director Stock Option Plan, the Employee Stock Purchase
Plan and the Warrants by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
receipt of consideration that increases the number of the Registrant's
outstanding shares of Common Stock.
(2) Estimated pursuant to Rules 457(c) and 457(h) under the Securities Act of
1933, as amended, solely for the purpose of calculating the amount of the
registration fee on the basis of the average of the high and low reported
sale prices of a share of the Registrant's Common Stock on October 26,
2000, as reported by The Nasdaq Stock Market.
(3) Represents shares of the Registrant's Common Stock issuable upon the
exercise of Warrants to purchase 80,000 shares of the Registrant's Common
Stock at an exercise price of $7.00 per share.
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(i)
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PART I. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Items 1
and 2 of Part I of Form S-8 will be sent or given to plan participants as
specified in Rule 428(b)(1) and, in accordance with the instructions to Part I,
are not filed with the Commission as part of this Registration Statement.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information previously filed with
the Securities and Exchange Commission pursuant to the Securities Act of 1933,
as amended, are hereby incorporated by reference and shall be deemed to be a
part hereof:
Item 3(a)
The Registrant's Prospectus filed with the Commission
on October 18, 2000 pursuant to Rule 424(b), as such
Prospectus may be amended or supplemented. The
Prospectus was filed in connection with the
Registrant's Registration Statement on Form S-1, as
amended (Reg. No. 333-42678).
Item 3(b)
None.
Item 3(c)
Item 1 of the Registrant's Registration Statement on
Form 8-A (Registration No. 000-31523) as filed with
the Commission on September 13, 2000 pursuant to
Section 12 of the Securities Exchange Act of 1934.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of the Registrant's Common Stock
registered hereunder will be passed upon for the Registrant by Bryan Cave LLP,
Santa Monica, California. Ronald W. Buckly, who is of counsel to Bryan Cave LLP,
is the Registrant's Corporate Secretary and beneficially owns 898,000 shares of
the Registrant's outstanding shares of Common Stock, of which 84,375 shares are
subject to vesting requirements related to his continuing to serve as the
Registrant's Corporate Secretary.
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In addition, several members and employees of Bryan Cave LLP hold a total of
approximately 6,500 shares of the Registrant's outstanding shares of Common
Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 317 of the California Corporations Code provides that
a corporation may indemnify corporate "agents" (including directors, officers
and employees of the corporation) against expenses, judgments, fines,
settlements and other amounts actually and reasonably incurred in connection
with defending non-derivative actions if such person acted in good faith and in
a manner such person reasonably believed to be in the best interests of the
corporation and, in the case of a criminal proceeding, had no reasonable cause
to believe the conduct of such person was unlawful, and against expenses
actually and reasonably incurred in connection with defending derivative actions
if such person acted in good faith and in a manner such person believed to be in
the best interests of the corporation and its shareholders. Indemnification is
obligatory to the extent that an agent of a corporation has been successful on
the merits in defense of any such proceeding against such agent, but otherwise
may be made only upon a determination in each instance either by a majority vote
of a quorum of the Board of Directors (other than directors involved in such
proceeding), by independent legal counsel if such a quorum of directors is not
obtainable, by the shareholders (other than shareholders to be indemnified), or
by the court, that indemnification is proper because the agent has met the
applicable statutory standards of conduct. Corporations may also advance
expenses incurred in defending proceedings against corporate agents, upon
receipt of an undertaking that the agent will reimburse the corporation unless
it is ultimately determined that the agent is entitled to be indemnified against
expenses reasonably incurred.
The indemnification provided by Section 317 of the California
Corporations Code is not deemed to be exclusive of any other rights to which
agents of a corporation seeking indemnification may be entitled under any bylaw,
agreement, vote of shareholders or disinterested directors, or otherwise, both
as to action in an official capacity and as to action in another capacity while
holding such office, to the extent such additional rights are authorized in the
articles of the corporation. Article V of the Registrant's Amended and Restated
Articles of Incorporation, as amended, authorizes the Registrant to provide for
indemnification of its agents for breach of duty to the Registrant and its
shareholders, through bylaw provisions or through agreements with such agents,
or both, in excess of the indemnification otherwise permitted by Section 317,
subject to the limits on such excess indemnification set forth in Section 204 of
the California General Corporation Law.
Article VI of the Registrant's Bylaws provides for the
indemnification of all past and current directors and executive officers to the
maximum extent and in the manner permitted by Section 317. Additionally, the
Registrant has entered into indemnity agreements with its directors and
executive officers under which the Registrant has undertaken to indemnify each
such agent to the fullest extent permitted by its Amended and Restated Articles
of Incorporation, as amended, Bylaws and applicable law against all expenses,
liability and loss (which are not paid by insurance or otherwise by the
Registrant) reasonably incurred or suffered by such agent in connection with the
defense of any action or proceeding to which the agent was or is a party or is
threatened to be made a party by reason of conduct in his capacity as an officer
or director, or in which the agent is or may be involved by reason of the fact
that he is or was serving as an officer or director of the Registrant, not
including actions brought for violation of Section 16 of the Securities Exchange
Act of 1934 or for failure to qualify for an exemption under Section 4 of the
Securities Act of 1933.
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The Registrant also maintains on behalf of its directors and
officers liability insurance for certain losses arising from claims or charges
made against them while acting in their capacities as directors and executive
officers of the Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit
Number
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4.1 1997 Stock Option Plan, as amended, including forms of stock option
agreements,(1) and Amendment No. 4 thereto dated September 1, 2000(2)
4.2 Director Stock Option Plan(3)
4.3 Employee Stock Purchase Plan(4)
4.4 Warrants dated August 2, 2000 to purchase 80,000 shares of the
Registrant's Common Stock issued to Robert W. Bass(5)
5.1 Opinion of Bryan Cave LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Bryan Cave LLP (included in Exhibit 5.1)
24.1 Power of Attorney (see page 5 of this Registration Statement)
(1) Incorporated by reference to Exhibit 10.1 to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-42678) filed
with the Commission on July 31, 2000.
(2) Incorporated by reference to Exhibit 10.1.1 to Amendment No. 1 to the
Registrant's Registration Statement on Form S-1 (Registration No.
333-42678) filed with the Commission on September 5, 2000.
(3) Incorporated by reference to Exhibit 10.2 to Amendment No. 1 to the
Registrant's Registration Statement on Form S-1 (Registration No.
333-42678) filed with the Commission on September 5, 2000.
(4) Incorporated by reference to Exhibit 10.3 to Amendment No. 1 to the
Registrant's Registration Statement on Form S-1 (Registration No.
333-42678) filed with the Commission on September 5, 2000.
(5) Incorporated by reference to Exhibit 10.15 to Amendment No. 1 to the
Registrant's Registration Statement on Form S-1 (Registration No.
333-42678) filed with the Commission on September 5, 2000.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
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(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) That, for purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL
OF THE REQUIREMENTS FOR FILING ON FORM S-8 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF CALABASAS, STATE OF CALIFORNIA, ON OCTOBER 27, 2000.
IXIA
By: /s/ ERROL GINSBERG
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Errol Ginsberg,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Errol Ginsberg and Thomas B.
Miller, or either of them, his attorneys-in-fact and agents, each with full
power of substitution for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments to this Registration Statement, and to
file the same with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each of
said attorneys-in-fact and agents full power and authority to do so and perform
each and every act and thing requisite and necessary to be done in connection
with this Registration Statement, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that either of
said attorneys-in-fact and agents, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
Director, President and Chief Executive
Officer (Principal Executive
/s/ ERROL GINSBERG Officer) October 27, 2000
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Errol Ginsberg
Chief Financial Officer (Principal
Financial Officer
/s/ THOMAS B. MILLER and Principal Accounting Officer) October 27, 2000
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Thomas B. Miller
/s/ JEAN-CLAUDE ASSCHER Chairman of the Board of Directors October 27, 2000
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Jean-Claude Asscher
/s/ ROBERT W. BASS Director October 27, 2000
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Robert W. Bass
Director October , 2000
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Howard Oringer
/s/ JON F. RAGER Director October 27, 2000
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Jon F. Rager
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Exhibit Page
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<S> <C> <C>
4.1 1997 Stock Option Plan, as amended, including forms of stock option
agreements,(1) and Amendment No. 4 thereto dated September 1, 2000(2)
4.2 Director Stock Option Plan(3)
4.3 Employee Stock Purchase Plan(4)
4.4 Warrants dated August 2, 2000 to purchase 80,000 shares of the
Registrant's Common Stock issued to Robert W. Bass(5)
5.1 Opinion of Bryan Cave LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Bryan Cave LLP (included in Exhibit 5.1)
24.1 Power of Attorney (see page 5 of this Registration Statement)
</TABLE>
(1) Incorporated by reference to Exhibit 10.1 to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-42678) filed
with the Commission on July 31, 2000.
(2) Incorporated by reference to Exhibit 10.1.1 to Amendment No. 1 to the
Registrant's Registration Statement on Form S-1 (Registration No.
333-42678) filed with the Commission on September 5, 2000.
(3) Incorporated by reference to Exhibit 10.2 to Amendment No. 1 to the
Registrant's Registration Statement on Form S-1 (Registration No.
333-42678) filed with the Commission on September 5, 2000.
(4) Incorporated by reference to Exhibit 10.3 to Amendment No. 1 to the
Registrant's Registration Statement on Form S-1 (Registration No.
333-42678) filed with the Commission on September 5, 2000.
(5) Incorporated by reference to Exhibit 10.15 to Amendment No. 1 to the
Registrant's Registration Statement on Form S-1 (Registration No.
333-42678) filed with the Commission on September 5, 2000.
