Attached files
file | filename |
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S-1/A - FORM S-1/A - FUSION-IO, INC. | f58285a2sv1za.htm |
EX-23.1 - EXHIBIT 23.1 - FUSION-IO, INC. | f58285a2exv23w1.htm |
EX-21.1 - EXHIBIT 21.1 - FUSION-IO, INC. | f58285a2exv21w1.htm |
EX-10.17 - EXHIBIT 10.17 - FUSION-IO, INC. | f58285a2exv10w17.htm |
EX-10.18 - EXHIBIT 10.18 - FUSION-IO, INC. | f58285a2exv10w18.htm |
Exhibit 10.16
November 4, 2009
Dennis Wolf
15303 Via Palomino
Monte Sereno, CA 95030
15303 Via Palomino
Monte Sereno, CA 95030
Re: Offer Of Employment
Dear Dennis:
We are pleased to offer you a position with Fusion, Inc., a Nevada corporation (the Company
or Fusion). This letter serves to confirm to you our offer of employment pursuant to the
following terms and conditions:
1. Position. If you decide to join us, you will start in a full-time position as Senior Vice
President, Chief Financial Officer of the Company on November 16, 2009. You shall report directly
to the Office of the CEO. By signing this letter, you are confirming to the Company that (a) you
are under no contractual or other legal obligations or restrictions that would prohibit you from
performing your duties and responsibilities reasonably related to and consistent with your position
at the Company and (b) you will use your best efforts to carry our such duties and responsibilities
and to devote your full business time and attention thereto.
2. Compensation and Benefits. You will be paid a starting salary at the rate of $220,000 per
year, which will be paid in accordance with the Companys standard payroll procedures. You will be
entitled to receive an annual performance-based bonus (Annual Bonus) of up to 50% of your base
salary, based on your achievement of Company and personal performance objectives that will be
established by the Board. To earn any Annual Bonus, you must be continuously and actively employed
through the end of the applicable fiscal year and the date on which the Company pays bonuses to its
executive officers. The determination of whether an Annual Bonus has been earned, and in what
amount, shall be determined by the Board of Directors at its discretion. To the extent you earn an
Annual Bonus in any applicable fiscal year, the Annual Bonus will be paid to you no later than the
[60th] day following the end of such fiscal year. By signing this letter, you acknowledge and
agree that the Company and its board of directors shall have the right to modify salaries and
benefits from time to time as it deems necessary in its discretion. As a Fusion employee, you will
also be eligible to participate in Company-sponsored benefits. Additionally, you will be entitled
to up to three weeks vacation per year with the timing and duration of specific vacations mutually
and reasonably agreed to by
you and the Office of the CEO and otherwise in accordance with the
Companys general vacation policy for employees in effect from time to time.
3. Stock Options. In addition, if you decide to join the Company, we will recommend to our
Board of Directors at its first regularly scheduled meeting following your start date, that the
Company grant to you an option to purchase 730,000 shares of the Companys common stock (the
Option, at a strike price which is to be determined by the Board of Directors; provided that
notwithstanding the foregoing, the Company shall recommend to the Board of Directors that it act by
written consent or at a special meeting of the Board to grant you the Option as soon as reasonably
practicable following your commencement of employment with the Company. This grant shall be, to
the extent possible under the $100,000 rule of Section 422(d) of the Internal Revenue Code of 1986,
as amended, an incentive stock option. The Option will be subject to the terms and conditions of
the Companys 2008 Stock Incentive Plan (the Plan) to a 4-year vesting schedule as follows: (1)
25% of the shares subject to the Option shall vest 12 months after the date your vesting begins
subject to your continuing employment with the Company, and no shares shall vest before such date,
and (2) the remaining shares shall vest monthly over the next 36 months in equal monthly amounts
subject to your continuing employment with the Company.
4. Change in Control Acceleration. Subject to the foregoing approval by the Board, the
vesting of shares underlying the Option shall be subject to acceleration under the following
condition: If your employment is terminated by the Company without Cause (as defined in the Plan)
(and not due to your death or any physical or mental disability within the meaning of applicable
law) or if you resign for Good Reason, in either case within 12 months after a Change in Control
Event (as defined in the Plan), subject to you signing and delivering (and not revoking) a general
release of claims in a form acceptable to the Company (the General Release) within 21 days after
the date of such termination (or such longer period as may be required by applicable law), you
shall immediately be deemed to have a vested interest in that number of unvested shares that you
would have vested in had you remained in service for an additional 12 months, notwithstanding the
one-year cliff.
For purposes of this offer letter, resigning with Good Reason means your resignation from
employment with the Company (or its successor) within 90 days after any of the following occurring
after a Change in Control Event without your consent provided you have given the Company at least
30 days prior written notice of your intention to resign and the event constituting Good Reason
hereunder and the Company has failed to cure such event within 30 days of receiving the notice: (i)
your removal from the position held by you immediately prior to the Change in Control Event or a
material reduction in your responsibilities, authority or status with respect the Companys
business and operations, provided that, in either case, continued employment following the Change
in Control Event with substantially the same responsibility with respect to the Companys business
and operations shall not constitute Good Reason (for
example, if your position with the Company
at the time of the Change of Control is Chief Financial Officer, you shall not have been removed
from your position if you are employed by the Company, the acquiring company or one of its
affiliates and you have substantially the same responsibilities with respect to the business of the
Company immediately prior to the Change in Control); or (ii) a reduction in Executives Salary by
more than 10% except in connection with a Company cost-reduction program applied to all executive
officers; or (iii) a relocation of your principal place or work by more than fifty (50) miles from
the current location in San Jose, California which is also farther from your primary residence in
the San Francisco Bay Area than the current location; or (iv) any material breach by the Company of
a material provision of this offer letter, which the Company fails to cure within thirty (30) days
of receiving written notice from you.
5. Withholding Taxes. All forms of compensation referred to in this letter are subject to
reduction to reflect applicable withholding and payroll taxes.
6. Confidentiality and Non-Compete Agreement and Employee Innovations Assignment Agreement.
As a condition to your employment with the Company, you will be required to sign the Companys
standard Employee Proprietary Information and Invention Assignment Agreement for employees resident
in California, a copy of each of which is enclosed with this letter.
7. Employment Relationship. Employment with the Company is for no specific period of time and
constitutes at will employment. As a result, you are free to resign at any time, for any reason
or no reason at all; we request, however, that in the event of resignation, you give the Company at
least two weeks prior notice. Similarly, the Company is free to conclude its employment
relationship with you at any time and for any reason, with or without cause and with or without
notice. As a Fusion employee, you will be expected to abide by all Company rules and regulations.
Any contrary representations that may have been made to you are superseded by this offer. This is
the full and complete agreement between you and the Company in this regard. Although your job
duties, title, compensation and benefits, as well as the Companys personnel policies and
procedures, may change from time to time, the at will nature of your employment may only be
changed in an express written agreement signed by you and by the Chairman of the Board of
Directors.
8. Termination. Upon termination of employment, you will be entitled to the following:
(a) Death. Your employment with the Company shall terminate upon your death and the
Company shall not be obligated to make any further payments to your estate, except amounts due as
Salary and accrued but unused vacation earned at the time of your termination of employment, and
reimbursement for any documented expenses incurred prior to
the termination of your employment in
accordance with the Companys expense reimbursement policies (collectively, the Accrued
Obligations).
(b) Disability. In the event that the Board reasonably determines in good faith that
you are unable to perform the essential functions of your employment with the Company due to any
illness, incapacity or injury, after taking into account any reasonable accommodation that does not
impose an undue hardship on the Company, for more than twelve (12) weeks in any rolling one-year
period (Disability), unless a longer period is required by federal or state law, in which case
that longer period would apply, the Board shall have the right to terminate your employment, and
the Company shall not be obligated to make any further payments to you hereunder, except for the
Accrued Obligations. You expressly agree that the Company shall have the right to permanently
replace you in the event you are terminated due to a Disability.
(c) Termination for Cause. The Chief Executive Officer or the Board may terminate
your employment at any time immediately upon notice to you for Cause. For purposes of this
Agreement Cause shall have the same meaning as in the Plan. In the event that the Company
terminates your employment for Cause, the Company shall not be obligated to make any further
payments to you, except for the Accrued Obligations.
(d) Termination Without Cause. Notwithstanding any other provision of this Agreement,
the Chief Executive Officer or the Board (in their sole discretion) shall have the right to
terminate your employment at any time, for any reason or no reason, immediately upon written notice
to you. If the Chief Executive Officer or the Board terminates your employment with the Company
without Cause, subject to you signing (and not revoking) a General Release within 21 days after the
General Release is provided to you by the Company (or such longer period as may be required under
applicable law), you shall receive a continuation of the payment of your Salary for six (6) months
in accordance with the Companys standard payroll schedule (the Severance Payments). Your right
to receive and retain any of the Severance Payments as well as your stock option grants is
contingent upon your compliance with your continuing obligations to the Company under the terms of
this Agreement and the Employee Proprietary Information and Inventions Agreement.
(e) Resignation for Good Reason. You may resign from your employment for Good Reason
(as defined above) upon written notice to the Company. If you resign without Good Reason, the
Company shall have no further obligation to provide you compensation following the termination of
your employment other than the payment of the Accrued Obligations. If you resign for Good Reason,
the Company shall provide you with the same severance benefits (and subject to the same conditions)
as specified above in Section 7(D) in connection with a termination without Cause by the Company.
9. Outside Activities. During the term of your employment, you agree that you will not engage
in any other employment, consulting or other business activity without the prior written consent of
the Company. While you render services to the Company, you also will not assist any person or
entity in competing with the Company, in preparing to compete with the Company or in hiring any
employees or consultants of the Company.
10. COBRA Benefits: Upon the Termination Date, you will have the option to convert and
continue coverage for you and your eligible dependents under the Companys group health and dental
insurance plans, as may be required or authorized by law under the Consolidated Omnibus Budget
Reconciliation Act of 1985 or Cal-COBRA as applicable (COBRA). You must make a timely election
to continue such coverage for COBRA benefits. If your employment with the Company is terminated by
the Company pursuant to Section 8(D) or by you pursuant to Section 8(D), following your separation
from service, the Company will pay the premiums to continue you and any of your eligible
dependents health insurance coverage under COBRA (provided that you are eligible and timely elect
COBRA coverage) until the earlier of twelve (3) months after your separation from service and the
first date that you and your eligible dependents are covered under another employers program,
provided that the Company is providing you with health insurance coverage at the time of your
termination and provided further that you execute (and do not revoke) the General Release within 21
days of the Company providing the General Release to you (or such longer period as may be required
by applicable law).
11. Federal Immigration Law. As required by federal immigration law, you will be required to
provide to the Company documentary evidence of your identity and eligibility for employment in the
United States. Such documentation must be provided to us within three (3) business days of your
date of hire, or our employment relationship with you may be terminated.
12. Governing Law and Arbitration. This offer letter will be governed in all respects by the
laws of the State of Utah without reference to any choice of law provisions. IN THE EVENT OF ANY
DISPUTE OR CLAIM RELATING TO OR ARISING OUT OF OUR EMPLOYMENT RELATIONSHIP, INCLUDING ANY CLAIMS
ARISING UNDER ANY FEDERAL, STATE OR LOCAL STATUTE, YOU AND THE COMPANY AGREE THAT ALL SUCH DISPUTES
SHALL BE FULLY AND FINALLY RESOLVED BY BINDING ARBITRATION CONDUCTED BY THE AMERICAN ARBITRATION
ASSOCIATION (AAA) IN SALT LAKE CITY, UTAH. THE ARBITRATION SHALL BE CONDUCTED PURSUANT TO THE
EMPLOYMENT RULES AS THEN IN EFFECT OF AAA, AND ENFORCED PURSUANT TO THE PROVISIONS OF THE FEDERAL
ARBITRATION ACT (9 U.S.C. §§ 1 ET SEQ.). BY EXECUTING THIS OFFER LETTER, BOTH THE COMPANY AND YOU
ARE WAIVING OUR RESPECTIVE RIGHTS TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY TRIAL. HOWEVER,
THIS ARBITRATION PROVISION SHALL NOT PREVENT EITHER PARTY FROM FILING AN ACTION IN A COURT OF
COMPETENT JURISDICTION IN UTAH TO ENSURE THAT THE RELIEF SOUGHT IN ARBITRATION IS NOT RENDERED
INEFFECTUAL BY INTERIM HARM THAT COULD OCCUR PENDING AN ARBITRATION PROCEEDING, INCLUDING BUT NOT
LIMITED TO DISPUTES OR CLAIMS RELATING TO OR ARISING OUT OF THE MISUSE OR MISAPPROPRIATION OF THE
COMPANYS TRADE SECRETS OR PROPRIETARY INFORMATION.
13. Entire Agreement. This offer letter, the Confidentiality and Non-Compete Agreement and
the Employee Innovations Assignment Agreement set forth the terms of your employment with the
Company and supersede and replace any prior understandings or agreements, whether oral or written.
This offer letter may not be modified or amended except by express written agreement that is signed
by you and by the Chief Executive Officer or President of the Company.
We are very excited about your decision to join our team, and hope that you find the foregoing
terms acceptable. To indicate your agreement with these terms and acceptance of our offer, please
sign and date this letter and the attached Employee Proprietary Information and Invention
Assignment Agreement in the spaces provided and return them to me. A duplicate original of this
offer letter is enclosed for your records.
Sincerely,
/s/ David Bradford
David Bradford, Chief Executive Officer
David Flynn, President and CTO
The Office of the CEO
David Bradford, Chief Executive Officer
David Flynn, President and CTO
The Office of the CEO
I HAVE READ AND ACCEPT
THIS OFFER OF EMPLOYMENT:
Signature: /s/ Dennis P. Wolf
Name: Dennis P. Wolf
Dated: 11-03-09