Attached files
file | filename |
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S-1/A - FORM S-1/A - FUSION-IO, INC. | f58285a3sv1za.htm |
EX-3.2 - EX-3.2 - FUSION-IO, INC. | f58285a3exv3w2.htm |
EX-4.1 - EX-4.1 - FUSION-IO, INC. | f58285a3exv4w1.htm |
EX-1.1 - EX-1.1 - FUSION-IO, INC. | f58285a3exv1w1.htm |
EX-5.1 - EX-5.1 - FUSION-IO, INC. | f58285a3exv5w1.htm |
EX-3.1 - EX-3.1 - FUSION-IO, INC. | f58285a3exv3w1.htm |
EX-23.1 - EXHIBIT 23.1 - FUSION-IO, INC. | f58285a3exv23w1.htm |
EX-10.5 - EX-10.5 - FUSION-IO, INC. | f58285a3exv10w5.htm |
EX-10.19 - EX-10.19 - FUSION-IO, INC. | f58285a3exv10w19.htm |
EX-10.1A - EX-10.1A - FUSION-IO, INC. | f58285a3exv10w1a.htm |
EX-10.1B - EX-10.1B - FUSION-IO, INC. | f58285a3exv10w1b.htm |
Exhibit 10.6
FUSION-IO, INC.
2011 EMPLOYEE STOCK PURCHASE PLAN
1. Purpose. The purpose of the Plan is to provide employees of the Company and its
Designated Subsidiaries with an opportunity to purchase Common Stock through accumulated
Contributions. The Companys intention is to have Plan qualify as an employee stock purchase
plan under Section 423 of the Code. The provisions of the Plan, accordingly, will be construed so
as to extend and limit Plan participation in a uniform and nondiscriminatory basis consistent with
the requirements of Section 423 of the Code.
2. Definitions.
(a) Administrator means the Board or any Committee designated by the Board to
administer the Plan pursuant to Section 14.
(b) Applicable Laws means the requirements relating to the administration of
equity-based awards under U.S. state corporate laws, U.S. federal and state securities laws, the
Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the
applicable laws of any foreign country or jurisdiction where options are, or will be, granted under
the Plan.
(c) Board means the Board of Directors of the Company.
(d) Change in Control means the occurrence of any of the following events:
(i) A change in the ownership of the Company which occurs on the date that any one person, or
more than one person acting as a group (Person), acquires ownership of the stock of the
Company that, together with the stock held by such Person, constitutes more than fifty percent
(50%) of the total voting power of the stock of the Company; provided, however, that for purposes
of this subsection, the acquisition of additional stock by any one Person, who is considered to own
more than fifty percent (50%) of the total voting power of the stock of the Company will not be
considered a Change in Control; or
(ii) A change in the effective control of the Company which occurs on the date that a majority
of members of the Board is replaced during any twelve (12) month period by Directors whose
appointment or election is not endorsed by a majority of the members of the Board prior to the date
of the appointment or election. For purposes of this clause (ii), if any Person is considered to
be in effective control of the Company, the acquisition of additional control of the Company by the
same Person will not be considered a Change in Control; or
(iii) A change in the ownership of a substantial portion of the Companys assets which occurs
on the date that any Person acquires (or has acquired during the twelve (12) month period ending on
the date of the most recent acquisition by such person or persons) assets from the Company that
have a total gross fair market value equal to or more than 50% of the total gross fair market value
of all of the assets of the Company immediately prior to such acquisition or acquisitions;
provided, however, that for purposes of this subsection, the following will not
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constitute a change in the ownership of a substantial portion of the Companys assets: (A) a
transfer to an entity that is controlled by the Companys stockholders immediately after the
transfer, or (B) a transfer of assets by the Company to: (1) a stockholder of the Company
(immediately before the asset transfer) in exchange for or with respect to the Companys stock, (2)
an entity, fifty percent (50%) or more of the total value or voting power of which is owned,
directly or indirectly, by the Company, (3) a Person, that owns, directly or indirectly, fifty
percent (50%) or more of the total value or voting power of all the outstanding stock of the
Company, or (4) an entity, at least fifty percent (50%) of the total value or voting power of which
is owned, directly or indirectly, by a Person described in this subsection (iii)(B)(3). For
purposes of this subsection, gross fair market value means the value of the assets of the Company,
or the value of the assets being disposed of, determined without regard to any liabilities
associated with such assets.
For purposes of this definition, persons will be considered to be acting as a group if they
are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of
stock, or similar business transaction with the Company.
Notwithstanding the foregoing, a transaction will not be deemed a Change in Control unless the
transaction qualifies as a change in control event within the meaning of Code Section 409A, as it
has been and may be amended from time to time, and any proposed or final U.S. Treasury Regulations
and Internal Revenue Service guidance that has been promulgated or may be promulgated thereunder
from time to time.
Further and for the avoidance of doubt, a transaction will not constitute a Change in Control
if: (i) its sole purpose is to change the state of the Companys incorporation, or (ii) its sole
purpose is to create a holding company that will be owned in substantially the same proportions by
the persons who held the Companys securities immediately before such transaction.
(e) Code means the U.S. Internal Revenue Code of 1986, as amended. Reference to a
specific section of the Code or U.S. Treasury Regulation thereunder will include such section or
regulation, any valid regulation or other official applicable guidance promulgated under such
section, and any comparable provision of any future legislation or regulation amending,
supplementing or superseding such section or regulation.
(f) Committee means a committee of the Board appointed in accordance with Section 14
hereof.
(g) Common Stock means the common stock of the Company.
(h) Company means Fusion-io Inc., a Delaware corporation, or any successor thereto.
(i) Compensation means an Eligible Employees base straight time gross earnings,
commissions (to the extent such commissions are an integral, recurring part of compensation),
payments for overtime and shift premium, but exclusive of payments for incentive compensation,
bonuses and other similar compensation. The Administrator, in its discretion, may,
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on a uniform and nondiscriminatory basis, establish a different definition of Compensation for
a subsequent Offering Period.
(j) Contributions means the payroll deductions and other additional payments that
the Company may permit to be made by a Participant to fund the exercise of options granted pursuant
to the Plan.
(k) Designated Subsidiary means any Subsidiary that has been designated by the
Administrator from time to time in its sole discretion as eligible to participate in the Plan.
(l) Director means a member of the Board.
(m) Eligible Employee means any individual who is a common law employee of an
Employer and is customarily employed for at least twenty (20) hours per week and more than five (5)
months in any calendar year by the Employer. For purposes of the Plan, the employment relationship
will be treated as continuing intact while the individual is on sick leave or other leave of
absence that the Employer approves or is legally protected under Applicable Laws. Where the period
of leave exceeds three (3) months and the individuals right to reemployment is not guaranteed
either by statute or by contract, the employment relationship will be deemed to have terminated
three (3) months and one (1) day following the commencement of such leave. The Administrator, in
its discretion, from time to time may, prior to an Enrollment Date for all options to be granted on
such Enrollment Date in an Offering, determine (on a uniform and nondiscriminatory basis or as
otherwise permitted by Treasury Regulation Section 1.423-2) that the definition of Eligible
Employee will or will not include an individual if he or she: (i) has not completed at least two
(2) years of service since his or her last hire date (or such lesser period of time as may be
determined by the Administrator in its discretion), (ii) customarily works not more than twenty
(20) hours per week (or such lesser period of time as may be determined by the Administrator in its
discretion), (iii) customarily works not more than five (5) months per calendar year (or such
lesser period of time as may be determined by the Administrator in its discretion), (iv) is a
highly compensated employee within the meaning of Section 414(q) of the Code, or (v) is a highly
compensated employee within the meaning of Section 414(q) of the Code with compensation above a
certain level or is an officer or subject to the disclosure requirements of Section 16(a) of the
Exchange Act, provided the exclusion is applied with respect to each Offering in an identical
manner to all highly compensated individuals of the Employer whose Employees are participating in
that Offering. Each exclusion shall be applied with respect to an Offering in a manner complying
with U.S. Treasury Regulation Section 1.423-2(e)(2)(ii).
(n) Employer means the employer of the applicable Eligible Employee(s).
(o) Enrollment Date means the first Trading Day of each Offering Period.
(p) Exchange Act means the Securities Exchange Act of 1934, as amended, including
the rules and regulations promulgated thereunder.
(q) Exercise Date means the last Trading Day of each Offering Period.
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(r) Fair Market Value means, as of any date and unless the Administrator determines
otherwise, the value of Common Stock determined as follows:
(i) If the Common Stock is listed on any established stock exchange or a national market
system, including without limitation the NASDAQ Global Select Market, the NASDAQ Global Market or
the NASDAQ Capital Market of The NASDAQ Stock Market, its Fair Market Value will be the closing
sales price for such stock as quoted on such exchange or system on the date of determination (or
the closing bid, if no sales were reported), as reported in The Wall Street Journal or such other
source as the Administrator deems reliable;
(ii) If the Common Stock is regularly quoted by a recognized securities dealer but selling
prices are not reported, its Fair Market Value will be the mean between the high bid and low asked
prices for the Common Stock on the date of determination (or if no bids and asks were reported on
that date, as applicable, on the last Trading Day such bids and asks were reported), as reported in
The Wall Street Journal or such other source as the Administrator deems reliable;
(iii) In the absence of an established market for the Common Stock, the Fair Market Value
thereof will be determined in good faith by the Administrator; or
(iv) For purposes of the Enrollment Date of the first Offering Period under the Plan, the Fair
Market Value will be the initial price to the public as set forth in the final prospectus included
within the registration statement on Form S-1 filed with the Securities and Exchange Commission for
the initial public offering of the Common Stock (the Registration Statement).
(s) Fiscal Year means the fiscal year of the Company.
(t) New Exercise Date means a new Exercise Date if the Administrator shortens any
Offering Period then in progress.
(u) Offering means an offer under the Plan of an option that may be exercised during
an Offering Period as further described in Section 4. For purposes of the Plan, the Administrator
may designate separate Offerings under the Plan (the terms of which need not be identical) in which
Employees of one or more Employers will participate, even if the dates of the applicable Offering
Periods of each such Offering are identical and the provisions of the Plan will separately apply to
each Offering. To the extent permitted by U.S. Treasury Regulation Section 1.423-2(a)(1), the
terms of each Offering need not be identical provided that the terms of the Plan and an Offering
together satisfy U.S. Treasury Regulation Section 1.423-2(a)(2) and (a)(3).
(v) Offering Periods means the periods of approximately six (6) months during which
an option granted pursuant to the Plan may be exercised, (i) commencing on the first Trading Day on
or after February 15 and August 15 of each year and terminating on the first Trading Day on or
after August 15 and February 15, approximately six months later; provided, however, that the first
Offering Period under the Plan will commence with the first Trading Day on or after the date on
which the Securities and Exchange Commission declares the Companys Registration Statement
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effective and will end on the first Trading Day on or after February 15, 2012, and provided,
further, that the second Offering Period under the Plan will commence on the first Trading Day on or
after February 15, 2012. The duration and timing of Offering Periods may be changed pursuant to
Sections 4 and 20.
(w) Parent means a parent corporation, whether now or hereafter existing, as
defined in Section 424(e) of the Code.
(x) Participant means an Eligible Employee that participates in the Plan.
(y) Plan means this Fusion-io, Inc. 2011 Employee Stock Purchase Plan.
(z) Purchase Period means the period during an Offering Period which shares of
Common Stock may be purchased on a Participants behalf in accordance with the terms of the Plan.
Unless the Administrator provides otherwise, the Purchase Period will have the same duration and
coincide with the length of the Offering Period.
(aa) Purchase Price means an amount equal to eighty-five percent (85%) of the Fair
Market Value of a share of Common Stock on the Enrollment Date or on the Exercise Date, whichever
is lower; provided however, that the Purchase Price may be determined for subsequent Offering
Periods by the Administrator subject to compliance with Section 423 of the Code (or any successor
rule or provision or any other applicable law, regulation or stock exchange rule) or pursuant to
Section 20.
(bb) Subsidiary means a subsidiary corporation, whether now or hereafter existing,
as defined in Section 424(f) of the Code.
(cc) Trading Day means a day on which the national stock exchange upon which the
Common Stock is listed is open for trading.
(dd) U.S. Treasury Regulations means the Treasury regulations of the Code.
Reference to a specific Treasury Regulation or Section of the Code shall include such Treasury
Regulation or Section, any valid regulation promulgated under such Section, and any comparable
provision of any future legislation or regulation amending, supplementing or superseding such
Section or regulation.
3. Eligibility.
(a) First Offering Period. Any individual who is an Eligible Employee immediately
prior to the first Offering Period will be automatically enrolled in the first Offering Period.
(b) Subsequent Offering Periods. Any Eligible Employee on a given Enrollment Date
subsequent to the first Offering Period will be eligible to participate in the Plan, subject to the
requirements of Section 5.
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(c) Non-U.S. Employees. Employees who are citizens or residents of a non-U.S.
jurisdiction (without regard to whether they also are citizens or residents of the United States or
resident aliens (within the meaning of Section 7701(b)(1)(A) of the Code)) may be excluded
from participation in the Plan or an Offering if the participation of such Employees is prohibited
under the laws of the applicable jurisdiction or if complying with the laws of the applicable
jurisdiction would cause the Plan or an Offering to violate Section 423 of the Code.
(d) Limitations. Any provisions of the Plan to the contrary notwithstanding, no
Eligible Employee will be granted an option under the Plan (i) to the extent that, immediately
after the grant, such Eligible Employee (or any other person whose stock would be attributed to
such Eligible Employee pursuant to Section 424(d) of the Code) would own capital stock of the
Company or any Parent or Subsidiary of the Company and/or hold outstanding options to purchase such
stock possessing five percent (5%) or more of the total combined voting power or value of all
classes of the capital stock of the Company or of any Parent or Subsidiary of the Company, or (ii)
to the extent that his or her rights to purchase stock under all employee stock purchase plans (as
defined in Section 423 of the Code) of the Company or any Parent or Subsidiary of the Company
accrues at a rate, which exceeds twenty-five thousand dollars ($25,000) worth of stock (determined
at the Fair Market Value of the stock at the time such option is granted) for each calendar year in
which such option is outstanding at any time, as determined in accordance with Section 423 of the
Code and the regulations thereunder.
4. Offering Periods. The Plan will be implemented by consecutive Offering Periods
with a new Offering Period commencing on the first Trading Day on or after February 15 and August
15 each year, or on such other date as the Administrator will determine; provided, however, that
the first Offering Period under the Plan will commence with the first Trading Day on or after the
date upon which the Companys Registration Statement is declared effective by the Securities and
Exchange Commission and end on the first Trading Day on or after February 15, 2012, and provided,
further, that the second Offering Period under the Plan will commence on the first Trading Day on
or after February 15, 2012. The Administrator will have the power to change the duration of
Offering Periods (including the commencement dates thereof) with respect to future Offerings
without stockholder approval if such change is announced prior to the scheduled beginning of the
first Offering Period to be affected thereafter.
5. Participation.
(a) First Offering Period. An Eligible Employee will be entitled to continue to
participate in the first Offering Period pursuant to Section 3(a) only if such individual submits a
subscription agreement authorizing payroll deductions in a form determined by the Administrator
(which may be similar to the form attached hereto as Exhibit A) to the Companys designated
plan administrator (i) no earlier than the effective date of the Form S-8 registration statement
with respect to the issuance of Common Stock under this Plan and (ii) no later than ten (10)
business days following the effective date of such S-8 registration statement or such other period
of time as the Administrator may determine (the Enrollment Window). An Eligible
Employees failure to submit the subscription agreement during the Enrollment Window will result in
the automatic termination of such individuals participation in the first Offering Period.
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(b) Subsequent Offering Periods. An Eligible Employee may participate in the Plan
pursuant to Section 3(b) by (i) submitting to the Companys stock administration office (or its
designee), on or before a date determined by the Administrator prior to an applicable
Enrollment Date, a properly completed subscription agreement authorizing Contributions in the form
provided by the Administrator for such purpose, or (ii) following an electronic or other enrollment
procedure determined by the Administrator.
6. Contributions.
(a) At the time a Participant enrolls in the Plan pursuant to Section 5, he or she will elect
to have payroll deductions made on each pay day or other Contributions (to the extent permitted by
the Administrator) made during the Offering Period in an amount not exceeding fifteen percent (15%)
of the Compensation, which he or she receives on each pay day during the Offering Period; provided,
however, that should a pay day occur on an Exercise Date, a Participant will have any payroll
deductions made on such day applied to his or her account under the subsequent Purchase Period or
Offering Period. The Administrator, in its sole discretion, may permit all Participants in a
specified Offering to contribute amounts to the Plan through payment by cash, check or other means
set forth in the subscription agreement prior to each Exercise Date of each Purchase Period. A
Participants subscription agreement will remain in effect for successive Offering Periods unless
terminated as provided in Section 10 hereof.
(b) Payroll deductions for a Participant will commence on the first pay day following the
Enrollment Date and will end on the last pay day prior to the Exercise Date of such Offering Period
to which such authorization is applicable, unless sooner terminated by the Participant as provided
in Section 10 hereof; provided, however, that for the first Offering Period, payroll deductions
will commence on the first pay day on or following the end of the Enrollment Window.
(c) All Contributions made for a Participant will be credited to his or her account under the
Plan and payroll deductions will be made in whole percentages only. A Participant may not make any
additional payments into such account.
(d) A Participant may discontinue his or her participation in the Plan as provided in Section
10. If permitted by the Administrator, as determined in its sole discretion, for an Offering
Period, a Participant may increase or decrease the rate of his or her Contributions during the
Offering Period by (i) properly completing and submitting to the Companys stock administration
office (or its designee), on or before a date determined by the Administrator prior to an
applicable Exercise Date, a new subscription agreement authorizing the change in Contribution rate
in the form provided by the Administrator for such purpose, or (ii) following an electronic or
other procedure prescribed by the Administrator. If a Participant has not followed such procedures
to change the rate of Contributions, the rate of his or her Contributions will continue at the
originally elected rate throughout the Offering Period and future Offering Periods (unless
terminated as provided in Section 10). The Administrator may, in its sole discretion, limit the
nature and/or number of Contribution rate changes that may be made by Participants during any
Offering Period, and may establish such other conditions or limitations as it deems appropriate for
Plan administration. Any change in payroll deduction rate made pursuant to this Section 6(d)
will be effective as of the first
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full payroll period following five (5) business days after the date on
which the change is made by the Participant
(unless the Administrator, in its sole discretion, elects to process a given change in payroll
deduction rate more quickly).
(e) Notwithstanding the foregoing, to the extent necessary to comply with Section 423(b)(8) of
the Code and Section 3(b), a Participants Contributions may be decreased to zero percent (0%) at
any time during a Purchase Period. Subject to Section 423(b)(8) of the Code and Section 3(b)
hereof, Contributions will recommence at the rate originally elected by the Participant effective
as of the beginning of the first Purchase Period scheduled to end in the following calendar year,
unless terminated by the Participant as provided in Section 10.
(f) At the time the option is exercised, in whole or in part, or at the time some or all of
the Common Stock issued under the Plan is disposed of (or any other time that a taxable event
related to the Plan occurs), the Participant must make adequate provision for the Companys or
Employers federal, state, local or any other tax liability payable to any authority including
taxes imposed by jurisdictions outside of the U.S., national insurance, social security or other
tax withholding obligations, if any, which arise upon the exercise of the option or the disposition
of the Common Stock (or any other time that a taxable event related to the Plan occurs). At any
time, the Company or the Employer may, but will not be obligated to, withhold from the
Participants compensation the amount necessary for the Company or the Employer to meet applicable
withholding obligations, including any withholding required to make available to the Company or the
Employer any tax deductions or benefits attributable to sale or early disposition of Common Stock
by the Eligible Employee. In addition, the Company or the Employer may, but will not be obligated
to, withhold from the proceeds of the sale of Common Stock or any other method of withholding the
Company or the Employer deems appropriate to the extent permitted by U.S. Treasury Regulation
Section 1.423-2(f).
7. Grant of Option. On the Enrollment Date of each Offering Period, each Eligible
Employee participating in such Offering Period will be granted an option to purchase on each
Exercise Date during such Offering Period (at the applicable Purchase Price) up to a number of
shares of Common Stock determined by dividing such Eligible Employees Contributions accumulated
prior to such Exercise Date and retained in the Eligible Employees account as of the Exercise Date
by the applicable Purchase Price; provided that in no event will an Eligible Employee be permitted
to purchase during each Purchase Period more than 1,500 shares of Common Stock (subject to any
adjustment pursuant to Section 19) and provided further that such purchase will be subject to the
limitations set forth in Sections 3(c) and 13. The Eligible Employee may accept the grant of such
option (i) with respect to the first Offering Period by submitting a properly completed
subscription agreement in accordance with the requirements of Section 5 on or before the last day
of the Enrollment Window, and (ii) with respect to any subsequent Offering Period under the Plan,
by electing to participate in the Plan in accordance with the requirements of Section 5. The
Administrator may, for future Offering Periods, increase or decrease, in its absolute discretion,
the maximum number of shares of Common Stock that an Eligible Employee may purchase during each
Purchase Period of an Offering Period. Exercise of the option will occur as provided in Section 8,
unless the Participant has withdrawn pursuant to Section 10. The option will expire on the last
day of the Offering Period.
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8. Exercise of Option.
(a) Unless a Participant withdraws from the Plan as provided in Section 10, his or her option
for the purchase of shares of Common Stock will be exercised automatically on the Exercise Date,
and the maximum number of full shares subject to the option will be purchased for such Participant
at the applicable Purchase Price with the accumulated Contributions from his or her account. No
fractional shares of Common Stock will be purchased; any Contributions accumulated in a
Participants account, which are not sufficient to purchase a full share will be retained in the
Participants account for the subsequent Purchase Period or Offering Period, subject to earlier
withdrawal by the Participant as provided in Section 10. Any other funds left over in a
Participants account after the Exercise Date will be returned to the Participant. During a
Participants lifetime, a Participants option to purchase shares hereunder is exercisable only by
him or her.
(b) If the Administrator determines that, on a given Exercise Date, the number of shares of
Common Stock with respect to which options are to be exercised may exceed (i) the number of shares
of Common Stock that were available for sale under the Plan on the Enrollment Date of the
applicable Offering Period, or (ii) the number of shares of Common Stock available for sale under
the Plan on such Exercise Date, the Administrator may in its sole discretion (x) provide that the
Company will make a pro rata allocation of the shares of Common Stock available for purchase on
such Enrollment Date or Exercise Date, as applicable, in as uniform a manner as will be practicable
and as it will determine in its sole discretion to be equitable among all Participants exercising
options to purchase Common Stock on such Exercise Date, and continue all Offering Periods then in
effect or (y) provide that the Company will make a pro rata allocation of the shares available for
purchase on such Enrollment Date or Exercise Date, as applicable, in as uniform a manner as will be
practicable and as it will determine in its sole discretion to be equitable among all participants
exercising options to purchase Common Stock on such Exercise Date, and terminate any or all
Offering Periods then in effect pursuant to Section 20. The Company may make a pro rata allocation
of the shares available on the Enrollment Date of any applicable Offering Period pursuant to the
preceding sentence, notwithstanding any authorization of additional shares for issuance under the
Plan by the Companys stockholders subsequent to such Enrollment Date.
9. Delivery. As soon as reasonably practicable after each Exercise Date on which a
purchase of shares of Common Stock occurs, the Company will arrange the delivery to each
Participant of the shares purchased upon exercise of his or her option in a form determined by the
Administrator (in its sole discretion) and pursuant to rules established by the Administrator. The
Company may permit or require that shares be deposited directly with a broker designated by the
Company or to a designated agent of the Company, and the Company may utilize electronic or
automated methods of share transfer. The Company may require that shares be retained with such
broker or agent for a designated period of time and/or may establish other procedures to permit
tracking of disqualifying dispositions of such shares. No Participant will have any voting,
dividend, or other stockholder rights with respect to shares of Common Stock subject to any option
granted under the Plan until such shares have been purchased and delivered to the Participant as
provided in this Section 9.
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10. Withdrawal.
(a) A Participant may withdraw all but not less than all the Contributions credited to his or
her account and not yet used to exercise his or her option under the Plan at any time by (i)
submitting to the Companys stock administration office (or its designee) a written notice of
withdrawal in the form determined by the Administrator for such purpose, or (ii) following an
electronic or other withdrawal procedure determined by the Administrator. All of the Participants
Contributions credited to his or her account will be paid to such Participant promptly after
receipt of notice of withdrawal and such Participants option for the Offering Period will be
automatically terminated, and no further Contributions for the purchase of shares will be made for
such Offering Period. If a Participant withdraws from an Offering Period, Contributions will not
resume at the beginning of the succeeding Offering Period, unless the Participant re-enrolls in the
Plan in accordance with the provisions of Section 5.
(b) A Participants withdrawal from an Offering Period will not have any effect upon his or
her eligibility to participate in any similar plan that may hereafter be adopted by the Company or
in succeeding Offering Periods that commence after the termination of the Offering Period from
which the Participant withdraws.
11. Termination of Employment. Upon a Participants ceasing to be an Eligible
Employee, for any reason, he or she will be deemed to have elected to withdraw from the Plan and
the Contributions credited to such Participants account during the Offering Period but not yet
used to purchase shares of Common Stock under the Plan will be returned to such Participant or, in
the case of his or her death, to the person or persons entitled thereto under Section 15, and such
Participants option will be automatically terminated.
12. Interest. No interest will accrue on the Contributions of a participant in the
Plan, except as may be required by Applicable Law, as determined by the Company, and if so required
by the laws of a particular jurisdiction, shall apply to all Participants in the relevant Offering
except to the extent otherwise permitted by U.S. Treasury Regulation Section 1.423-2(f).
13. Stock.
(a) Subject to adjustment upon changes in capitalization of the Company as provided in Section
19 hereof, the maximum number of shares of Common Stock that will be made available for sale under
the Plan will be 500,000 shares of Common Stock, plus an annual increase to be added on the first
day of each Fiscal Year beginning with the 2013 Fiscal Year equal to the least of (i) 2,000,000
shares of Common Stock, (ii) one percent (1%) of the outstanding shares of Common Stock on such
date, or (iii) an amount determined by the Administrator.
(b) Until the shares are issued (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company), a Participant will only have the
rights of an unsecured creditor with respect to such shares, and no right to vote or receive
dividends or any other rights as a stockholder will exist with respect to such shares.
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(c) Shares of Common Stock to be delivered to a Participant under the Plan will be registered
in the name of the Participant or in the name of the Participant and his or her spouse.
14. Administration. The Plan will be administered by the Board or a Committee
appointed by the Board, which Committee will be constituted to comply with Applicable Laws. The
Administrator will have full and exclusive discretionary authority to construe, interpret and
apply the terms of the Plan, to designate separate Offerings under the Plan, to determine
eligibility, to adjudicate all disputed claims filed under the Plan and to establish such
procedures that it deems necessary for the administration of the Plan (including, without
limitation, to adopt such procedures and sub-plans as are necessary or appropriate to permit the
participation in the Plan by employees who are foreign nationals or employed outside the U.S., the
terms of which sub-plans may take precedence over other provisions of this Plan, with the exception
of Section 13(a) hereof, but unless otherwise superseded by the terms of such sub-plan, the
provisions of this Plan shall govern the operation of such sub-plan). Unless otherwise determined
by the Administrator, the Employees eligible to participate in each sub-plan will participate in a
separate Offering. Without limiting the generality of the foregoing, the Administrator is
specifically authorized to adopt rules and procedures regarding eligibility to participate, the
definition of Compensation, handling of Contributions, making of Contributions to the Plan
(including, without limitation, in forms other than payroll deductions), establishment of bank or
trust accounts to hold Contributions, payment of interest, conversion of local currency,
obligations to pay payroll tax, determination of beneficiary designation requirements, withholding
procedures and handling of stock certificates that vary with applicable local requirements. The
Administrator also is authorized to determine that, to the extent permitted by U.S. Treasury
Regulation Section 1.423-2(f), the terms of an option granted under the Plan or an Offering to
citizens or residents of a non-U.S. jurisdiction will be less favorable than the terms of options
granted under the Plan or the same Offering to employees resident solely in the U.S. Every
finding, decision and determination made by the Administrator will, to the full extent permitted by
law, be final and binding upon all parties.
15. Designation of Beneficiary.
(a) If permitted by the Administrator, a Participant may file a designation of a beneficiary
who is to receive any shares of Common Stock and cash, if any, from the Participants account under
the Plan in the event of such Participants death subsequent to an Exercise Date on which the
option is exercised but prior to delivery to such Participant of such shares and cash. In
addition, if permitted by the Administrator, a Participant may file a designation of a beneficiary
who is to receive any cash from the Participants account under the Plan in the event of such
Participants death prior to exercise of the option. If a Participant is married and the
designated beneficiary is not the spouse, spousal consent will be required for such designation to
be effective.
(b) Such designation of beneficiary may be changed by the Participant at any time by notice in
a form determined by the Administrator. In the event of the death of a Participant and in the
absence of a beneficiary validly designated under the Plan who is living at the time of such
Participants death, the Company will deliver such shares and/or cash to the executor or
administrator of the estate of the Participant, or if no such executor or administrator has been
appointed (to the knowledge of the Company), the Company, in its discretion, may deliver such
shares and/or cash to the spouse or to any one or more dependents or relatives of the Participant,
or if
11
no spouse, dependent or relative is known to the Company, then to such other person as the
Company may designate.
(c) All beneficiary designations will be in such form and manner as the Administrator may
designate from time to time. Notwithstanding Sections 15(a) and (b) above, the
Company and/or the Administrator may decide not to permit such designations by Participants in
non-U.S. jurisdictions to the extent permitted by U.S. Treasury Regulation Section 1.423-2(f).
16. Transferability. Neither Contributions credited to a Participants account nor
any rights with regard to the exercise of an option or to receive shares of Common Stock under the
Plan may be assigned, transferred, pledged or otherwise disposed of in any way (other than by will,
the laws of descent and distribution or as provided in Section 15 hereof) by the Participant. Any
such attempt at assignment, transfer, pledge or other disposition will be without effect, except
that the Company may treat such act as an election to withdraw funds from an Offering Period in
accordance with Section 10 hereof.
17. Use of Funds. The Company may use all Contributions received or held by it under
the Plan for any corporate purpose, and the Company will not be obligated to segregate such
Contributions except under Offerings in which applicable local law requires that Contributions to
the Plan by Participants be segregated from the Companys general corporate funds and/or deposited
with an independent third party for Participants in non-U.S. jurisdictions. Until shares of Common
Stock are issued, Participants will only have the rights of an unsecured creditor with respect to
such shares.
18. Reports. Individual accounts will be maintained for each Participant in the Plan.
Statements of account will be given to participating Eligible Employees at least annually, which
statements will set forth the amounts of Contributions, the Purchase Price, the number of shares of
Common Stock purchased and the remaining cash balance, if any.
19. Adjustments, Dissolution, Liquidation, Merger or Change in Control.
(a) Adjustments. In the event that any dividend or other distribution (whether in the
form of cash, Common Stock, other securities, or other property), recapitalization, stock split,
reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, or exchange of Common Stock or other securities of the Company, or other change in the
corporate structure of the Company affecting the Common Stock occurs, the Administrator, in order
to prevent dilution or enlargement of the benefits or potential benefits intended to be made
available under the Plan, will, in such manner as it may deem equitable, adjust the number and
class of Common Stock that may be delivered under the Plan, the Purchase Price per share and the
number of shares of Common Stock covered by each option under the Plan that has not yet been
exercised, and the numerical limits of Sections 7 and 13.
(b) Dissolution or Liquidation. In the event of the proposed dissolution or
liquidation of the Company, any Offering Period then in progress will be shortened by setting a New
Exercise Date, and will terminate immediately prior to the consummation of such proposed
dissolution or liquidation, unless provided otherwise by the Administrator. The New Exercise Date
12
will be before the date of the Companys proposed dissolution or liquidation. The Administrator
will notify each Participant in writing or electronically, prior to the New Exercise Date, that the
Exercise Date for the Participants option has been changed to the New Exercise Date and that the
Participants option will be exercised automatically on the New Exercise Date, unless prior to such
date the Participant has withdrawn from the Offering Period as provided in Section 10 hereof.
(c) Merger or Change in Control. In the event of a merger or Change in Control, each
outstanding option will be assumed or an equivalent option substituted by the successor corporation
or a Parent or Subsidiary of the successor corporation. In the event that the successor
corporation refuses to assume or substitute for the option, the Offering Period with respect to
which such option relates will be shortened by setting a New Exercise Date on which such Offering
Period shall end. The New Exercise Date will occur before the date of the Companys proposed
merger or Change in Control. The Administrator will notify each Participant in writing or
electronically prior to the New Exercise Date, that the Exercise Date for the Participants option
has been changed to the New Exercise Date and that the Participants option will be exercised
automatically on the New Exercise Date, unless prior to such date the Participant has withdrawn
from the Offering Period as provided in Section 10 hereof.
20. Amendment or Termination.
(a) The Administrator, in its sole discretion, may amend, suspend, or terminate the Plan, or
any part thereof, at any time and for any reason. If the Plan is terminated, the Administrator, in
its discretion, may elect to terminate all outstanding Offering Periods either immediately or upon
completion of the purchase of shares of Common Stock on the next Exercise Date (which may be sooner
than originally scheduled, if determined by the Administrator in its discretion), or may elect to
permit Offering Periods to expire in accordance with their terms (and subject to any adjustment
pursuant to Section 19). If the Offering Periods are terminated prior to expiration, all amounts
then credited to Participants accounts that have not been used to purchase shares of Common Stock
will be returned to the Participants (without interest thereon, except as otherwise required under
local laws, as further set forth in Section 12 hereof) as soon as administratively practicable.
(b) Without stockholder consent and without limiting Section 20(a), the Administrator will be
entitled to change the Offering Periods or Purchase Periods, designate separate Offerings, limit
the frequency and/or number of changes in the amount withheld during an Offering Period, establish
the exchange ratio applicable to amounts withheld in a currency other than U.S. dollars, permit
payroll withholding in excess of the amount designated by a Participant in order to adjust for
delays or mistakes in the Companys processing of properly completed withholding elections,
establish reasonable waiting and adjustment periods and/or accounting and crediting procedures to
ensure that amounts applied toward the purchase of Common Stock for each Participant properly
correspond with Contribution amounts, and establish such other limitations or procedures as the
Administrator determines in its sole discretion advisable that are consistent with the Plan.
(c) In the event the Administrator determines that the ongoing operation of the Plan may
result in unfavorable financial accounting consequences, the Administrator may, in its
13
discretion
and, to the extent necessary or desirable, modify, amend or terminate the Plan to reduce or
eliminate such accounting consequence including, but not limited to:
(i) amending the Plan to conform with the safe harbor definition under the Financial
Accounting Standards Board Accounting Standards Codification Topic 718 (or any successor thereto),
including with respect to an Offering Period underway at the time;
(ii) altering the Purchase Price for any Offering Period or Purchase Period including an
Offering Period or Purchase Period underway at the time of the change in Purchase Price;
(iii) shortening any Offering Period or Purchase Period by setting a New Exercise Date,
including an Offering Period or Purchase Period underway at the time of the Administrator action;
(iv) reducing the maximum percentage of Compensation a Participant may elect to set aside as
Contributions; and
(v) reducing the maximum number of Shares a Participant may purchase during any Offering
Period or Purchase Period.
Such modifications or amendments will not require stockholder approval or the consent of any Plan
Participants.
21. Notices. All notices or other communications by a Participant to the Company
under or in connection with the Plan will be deemed to have been duly given when received in the
form and manner specified by the Company at the location, or by the person, designated by the
Company for the receipt thereof.
22. Conditions Upon Issuance of Shares. Shares of Common Stock will not be issued
with respect to an option unless the exercise of such option and the issuance and delivery of such
shares pursuant thereto will comply with all applicable provisions of law, domestic or foreign,
including, without limitation, the Securities Act of 1933, as amended, the Exchange Act, the rules
and regulations promulgated thereunder, and the requirements of any stock exchange upon which the
shares may then be listed, and will be further subject to the approval of counsel for the Company
with respect to such compliance.
As a condition to the exercise of an option, the Company may require the person exercising
such option to represent and warrant at the time of any such exercise that the shares are being
purchased only for investment and without any present intention to sell or distribute such shares
if, in the opinion of counsel for the Company, such a representation is required by any of the
aforementioned applicable provisions of law.
23. Code Section 409A. The Plan is exempt from the application of Code Section 409A
and any ambiguities herein will be interpreted to so be exempt from Code Section 409A. In
furtherance of the foregoing and notwithstanding any provision in the Plan to the contrary, if the
14
Administrator determines that an option granted under the Plan may be subject to Code Section 409A
or that any provision in the Plan would cause an option under the Plan to be subject to Code
Section 409A, the Administrator may amend the terms of the Plan and/or of an outstanding option
granted under the Plan, or take such other action the Administrator determines is necessary or
appropriate, in each case, without the Participants consent, to exempt any outstanding option or
future option that may be granted under the Plan from or to allow any such options to comply with
Code Section 409A, but only to the extent any such amendments or action by the Administrator
would not violate Code Section 409A. Notwithstanding the foregoing, the Company shall have no
liability to a Participant or any other party if the option to purchase Common Stock under the Plan
that is intended to be exempt from or compliant with Code Section 409A is not so exempt or
compliant or for any action taken by the Administrator with respect thereto. The Company makes no
representation that the option to purchase Common Stock under the Plan is compliant with Code
Section 409A.
24. Term of Plan. The Plan will become effective upon the earlier to occur of its
adoption by the Board or its approval by the stockholders of the Company. It will continue in
effect for a term of twenty (20) years, unless sooner terminated under Section 20.
25. Stockholder Approval. The Plan will be subject to approval by the stockholders of
the Company within twelve (12) months after the date the Plan is adopted by the Board. Such
stockholder approval will be obtained in the manner and to the degree required under Applicable
Laws.
26. Governing Law. The Plan shall be governed by, and construed in accordance with,
the laws of the State of Utah (except its choice-of-law provisions).
27. Severability. If any provision of the Plan is or becomes or is deemed to be invalid,
illegal, or unenforceable for any reason in any jurisdiction or as to any Participant, such
invalidity, illegality or unenforceability shall not affect the remaining parts of the Plan, and
the Plan shall be construed and enforced as to such jurisdiction or Participant as if the invalid,
illegal or unenforceable provision had not been included.
15
EXHIBIT A
FUSION-IO, INC.
2011 EMPLOYEE STOCK PURCHASE PLAN
SUBSCRIPTION AGREEMENT
_____ Original Application | Offering Date: | |
_____ Change in Payroll Deduction Rate |
1. ____________________ hereby elects to participate in the Fusion-io, Inc. 2011 Employee
Stock Purchase Plan (the Plan) and subscribes to purchase shares of the Companys Common
Stock in accordance with this Subscription Agreement and the Plan.
2. I hereby authorize payroll deductions from each paycheck in the amount of ____% of my
Compensation on each payday (from 0 to 15%) during the Offering Period in accordance with the Plan.
(Please note that no fractional percentages are permitted.)
3. I understand that said payroll deductions will be accumulated for the purchase of shares of
Common Stock at the applicable Purchase Price determined in accordance with the Plan. I understand
that if I do not withdraw from an Offering Period, any accumulated payroll deductions will be used
to automatically exercise my option and purchase Common Stock under the Plan.
4. I have received a copy of the complete Plan and its accompanying prospectus. I understand
that my participation in the Plan is in all respects subject to the terms of the Plan.
5. Shares of Common Stock purchased for me under the Plan should be issued in the name(s) of
_____________ (Eligible Employee or Eligible Employee and Spouse only).
6. I understand that if I dispose of any shares received by me pursuant to the Plan within two
(2) years after the Offering Date (the first day of the Offering Period during which I purchased
such shares) or one (1) year after the Exercise Date, I will be treated for federal income tax
purposes as having received ordinary income at the time of such disposition in an amount equal to
the excess of the fair market value of the shares at the time such shares were purchased by me over
the price that I paid for the shares. I hereby agree to notify the Company in writing within
thirty (30) days after the date of any disposition of my shares and I will make adequate provision
for Federal, state or other tax withholding obligations, if any, which arise upon the disposition
of the Common Stock. The Company may, but will not be obligated to, withhold from my
compensation the amount necessary to meet any applicable withholding obligation including any
withholding necessary to make available to the Company any tax deductions or benefits attributable
to sale or early disposition of Common Stock by me. If I dispose of such shares at any time after
the expiration of the two (2)-year and one (1)-year holding periods, I understand that I will be
treated for federal income tax purposes as having received income only at the time of such
disposition, and that such income will be taxed as ordinary income only to the extent of an amount
equal to the lesser of (a) the
A-1
excess of the fair market value of the shares at the time of such disposition over the
purchase price which I paid for the shares, or (b) 15% of the fair market value of the shares on
the first day of the Offering Period. The remainder of the gain, if any, recognized on such
disposition will be taxed as capital gain.
7. I hereby agree to be bound by the terms of the Plan. The effectiveness of this
Subscription Agreement is dependent upon my eligibility to participate in the Plan.
Employees Social Security Number: |
||||||
Employees Address: | ||||||
I UNDERSTAND THAT THIS SUBSCRIPTION AGREEMENT WILL REMAIN IN EFFECT THROUGHOUT SUCCESSIVE
OFFERING PERIODS UNLESS TERMINATED BY ME.
Dated: |
||||
Signature of Employee |
A-2
EXHIBIT B
FUSION-IO, INC.
2011 EMPLOYEE STOCK PURCHASE PLAN
NOTICE OF WITHDRAWAL
The undersigned participant in the Offering Period of the Fusion-io, Inc. 2011 Employee Stock
Purchase Plan that began on ____________, ______ (the Offering Date) hereby notifies the
Company that he or she hereby withdraws from the Offering Period. He or she hereby directs the
Company to pay to the undersigned as promptly as practicable all the payroll deductions credited to
his or her account with respect to such Offering Period. The undersigned understands and agrees
that his or her option for such Offering Period will be automatically terminated. The undersigned
understands further that no further payroll deductions will be made for the purchase of shares in
the current Offering Period and the undersigned will be eligible to participate in succeeding
Offering Periods only by delivering to the Company a new Subscription Agreement.
Name and Address of Participant: | ||||
Signature: | ||||
Date: | ||||
B-1