Item 5. Other Information
ITEM 5. Other Information
Rule 10b5-1 Trading Plans
On May 22, 2024 , John Whittle , our Chief Operating Officer , entered into a pre-arranged written stock sale plan in accordance with Rule 10b5-1 under the Exchange Act for the sale of shares of our common stock (the “Whittle Plan”) during an open trading window in accordance with our insider trading policy. The Whittle Plan is intended to satisfy the affirmative defense of Rule 10b5-1(c) under the Exchange Act. The Whittle Plan provides for the potential sale by Mr. Whittle of up to 141,820 shares of our common stock, issued upon the exercise of vested options to purchase shares of our common stock, at the market price, between August 21, 2024 and February 20, 2026.
The Whittle Plan includes a representation from Mr. Whittle to the broker administering the plan that he was not in possession of any material nonpublic information regarding us or the securities subject to the Whittle Plan at the time that he entered into the Whittle Plan. He made a similar representation to us in connection with the adoption of the Whittle Plan under our insider trading policy. The representation was made as of May 22, 2024 and speaks only as of that date. In making the representation, Mr. Whittle did not provide assurance with respect to any material nonpublic information of which he was unaware, or with respect to any material nonpublic information acquired by him or us after the date of the representation.
Once executed, transactions under the Whittle Plan will be disclosed publicly through Form 4 and/or Form 144 filings with the SEC in accordance with applicable securities laws, rules and regulations. Except as may be required by law, we do not undertake any obligation to update or report any modification, termination or other activity under current or future Rule 10b5-1 plans that may be adopted by Mr. Whittle or our other officers or directors or their affiliated entities.
Amended and Restated Change of Control Severance Agreements
On August 7, 2024, we entered into an Amended and Restated Change of Control Severance Agreement (each, a “Change of Control Agreement”) with each of Ken Xie, our Chief Executive Officer, Michael Xie, our President and Chief Technology Officer, Keith Jensen, our Chief Financial Officer, and John Whittle, our Chief Operating Officer (each, an “Executive”). Each Change of Control Agreement is effective August 7, 2024 and will amend and restate our existing Amended and Restated Change of Control Severance Agreement with the applicable Executive (the “Existing Agreements”), each of which would have otherwise expired on August 7, 2024. The term of each Change of Control Agreement will expire on August 7, 2029 if not otherwise extended.
76
Table of Contents
CEO
Pursuant to the Change of Control Agreement with Ken Xie, if Mr. Xie is terminated without Cause (as defined in each Executive’s Change of Control Agreement) or if Mr. Xie terminates his employment with us for Good Reason (as defined in the Executive’s Change of Control Agreement) more than three months prior to, or absent, a Change of Control, or after 12 months following a Change of Control, Mr. Xie will be entitled to: (i) a severance payment in an amount equal to 12 months of Mr. Xie’s then-current base salary; (ii) 12 months of Mr. Xie’s COBRA Benefit (as defined in the Executive’s Change of Control Agreement); and (iii) acceleration of the unvested Time-Vesting Awards (as defined in the Executive’s Change of Control Agreement) then held by Mr. Xie that would have vested over the next 12 months; treatment of Mr. Xie’s Performance-Based Awards (as defined in the Executive’s Change of Control Agreement) shall remain subject to the award agreement governing such awards.
Also pursuant to the Change of Control Agreement with Mr. Xie, if Mr. Xie is terminated without Cause or if Mr. Xie terminates his employment with us for Good Reason within three months prior to through 12 months following a Change of Control, Mr. Xie will be entitled to: (i) a severance payment in an amount equal to 12 months of Mr. Xie’s then-current base salary; (ii) a severance payment equal to 100% of Mr. Xie’s annual target bonus for the year in which the termination occurs, subject to Mr. Xie’s effective execution of a Release (as defined in the Executive’s Change of Control Agreement); (iii) 12 months of Mr. Xie’s COBRA Benefit; and (iv) acceleration of 100% of the unvested Time-Vesting Awards and Performance-Based Awards then held by Mr. Xie.
Non-CEO Executives
Pursuant to each Change of Control Agreement with Michael Xie, Keith Jensen and John Whittle (each, a “Non-CEO Executive”), if such Non-CEO Executive is terminated without Cause or if such Non-CEO Executive terminates the Non-CEO Executive’s employment with us for Good Reason prior to, or absent, a Change of Control, or after 12 months following a Change of Control, the Non-CEO Executive will be entitled to: (i) a severance payment in an amount equal to 12 months of the Non-CEO Executive’s then-current base salary; (ii) 12 months of such Non-CEO Executive’s COBRA Benefit; and (iii) acceleration of the unvested Time-Vesting Awards then held by such Non-CEO Executive that would have vested over the next 12 months. Treatment of such Non-CEO Executive’s Performance-Based Awards shall remain subject to the award agreement governing such awards.
Also pursuant to each Change of Control Agreement with each Non-CEO Executive, if such Non-CEO Executive is terminated without Cause or if a Non-CEO Executive terminates the Non-CEO Executive’s employment with us for Good Reason within 12 months following a Change of Control, the Executive will be entitled to: (i) a severance payment in an amount equal to 12 months of the Non-CEO Executive’s then-current base salary; (ii) a severance payment equal to 100% of the Non-CEO Executive’s annual target bonus for the year in which the termination occurs, subject to the Non-CEO Executive’s effective execution of a Release; (iii) 12 months of such Non-CEO Executive’s COBRA Benefit; and (iv) acceleration of 100% of the unvested Time-Vesting Awards and Performance-Based Awards then held by the Non-CEO Executive.
Other Terms
In the event of acceleration of an Executive’s unvested equity awards, the awards will remain exercisable, to the extent applicable, following the termination for the period prescribed in the respective stock plan and agreement for each award. In the event any payment to an Executive is subject to the excise tax imposed by Section 4999 of the Internal Code of 1986, as amended (the “Code”) (as a result of a payment being classified as a “parachute payment” under Section 280G of the Code), the Executive will be entitled to receive such payment as would entitle the Executive to receive the greatest after-tax benefit of either the full payment or a lesser payment which would result in no portion of such severance benefits being subject to excise tax.
The foregoing descriptions are qualified in their entirety by reference to the full text of the Change of Control Agreements, which are filed as exhibits to this Quarterly Report on Form 10-Q and are incorporated herein by reference.
77
Table of Contents
ITEM 6. Exhibits
The exhibits listed in the accompanying Exhibit Index are filed or incorporated by reference as part of this Quarterly Report on Form 10-Q.
EXHIBIT INDEX
Incorporated by reference herein
Form Date Exhibit Number
10.1 *
Amended and Restated Change of Control Severance Agreement, effective as of August 7, 2024, between the Company and Ken Xie
10.2 *
Amended and Restated Change of Control Severance Agreement, effective as of August 7, 2024, between the Company and Michael Xie
10.3 *
Amended and Restated Change of Control Severance Agreement, effective as of August 7, 2024, between the Company and John Whittle
10.4 *
Amended and Restated Change of Control Severance Agreement, effective as of August 7, 2024, between the Company and Keith Jensen
31.1 *
Certification of Chief Executive Officer pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
31.2 *
Certification of Chief Financial Officer pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
32.1 #
Certifications of Chief Executive Officer and Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
101.INS*
Inline XBRL Instance Document - the instance document does not appear in the interactive data file because its XBRL tags are embedded within the inline XBRL document.
101.SCH* Inline XBRL Taxonomy Extension Schema Document
101.CAL* Inline XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF* Inline XBRL Taxonomy Extension Definition Linkbase Document
101.LAB* Inline XBRL Taxonomy Extension Label Linkbase Document
101.PRE* Inline XBRL Taxonomy Extension Presentation Linkbase Document
104* Cover Page Interactive Data File - the cover page from the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2024 is formatted in inline XBRL.
________________________________
* Filed herewith.
# Furnished herewith.
78
Table of Contents
SIGNATURES
Pursuant to the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Date: August 7, 2024
FORTINET, INC.
By: /s/ Ken Xie
Ken Xie, Chief Executive Officer and Chairman
(Duly Authorized Officer and Principal Executive Officer)
Date: August 7, 2024
FORTINET, INC.
By: /s/ Keith Jensen
Keith Jensen, Chief Financial Officer
(Duly Authorized Officer and Principal Financial Officer)
Date: August 7, 2024
FORTINET, INC.
By: /s/ Christiane Ohlgart
Christiane Ohlgart, Chief Accounting Officer
(Duly Authorized Officer and Principal Accounting Officer)
79