INDEMNIFICATION AGREEMENT
Exhibit 10.1A
THIS INDEMNIFICATION AGREEMENT (the “Agreement”) is made and entered into this ___ day of
_____, 20__ between Fusion-io, Inc., a Delaware corporation (the “Company”), and _____
(“Indemnitee”) and is to be effective as of the time the Indemnitee first provided services to the
Company or any subsidiary of the Company, whichever is earlier.
A. Indemnitee, as a member of the Company’s Board of Directors, an officer, employee,
controlling person, agent and/or fiduciary of the Company or of any other enterprise, including
subsidiaries of the Company, at the Company’s request, performs valuable services for the Company.
B. The Company and Indemnitee recognize the continued difficulty in obtaining liability
insurance for corporate directors, officers, employees, controlling persons, agents and
fiduciaries, the significant increases in the cost of such insurance and the general reductions in
the coverage of such insurance.
C. The Company and Indemnitee further recognize the substantial increase in corporate
litigation in general, subjecting directors, officers, employees, controlling persons, agents and
fiduciaries to expensive litigation risks at the same time as the availability and coverage of
liability insurance has been severely limited.
D. The Company’s Bylaws (the “Bylaws”) provide for the indemnification of certain persons to
the maximum extent permissible under the Delaware General Corporation Law, as amended (the “DGCL”).
E. Indemnitee does not regard the current protection available for the Company’s directors,
officers, employees, controlling persons, agents and fiduciaries as adequate under the present
circumstances, and Indemnitee and other directors, officers, employees, controlling persons, agents
and fiduciaries of the Company or its subsidiaries may not be willing to serve or continue to serve
in such capacities without additional protection.
F. The Bylaws and the DGCL, by their non-exclusive nature, permit contracts between the
Company and its directors, officers, employees, controlling persons, agents or fiduciaries with
respect to indemnification of such persons.
G. The Company (i) desires to attract and retain the involvement of highly qualified
individuals, such as Indemnitee, to serve the Company and, in part, in order to induce Indemnitee
to be involved with the Company or its subsidiaries, and (ii) wishes to provide for the
indemnification and advancing of expenses to Indemnitee to the maximum extent permitted by law.
H. In view of the considerations set forth above, the Company desires that Indemnitee be
indemnified by the Company as set forth herein.
NOW, THEREFORE, in consideration of Indemnitee’s service to the Company (or to any other
enterprise at the Company’s request), the parties hereto agree as follows:
1. Indemnity of Indemnitee. The Company hereby agrees to indemnify Indemnitee to the
fullest extent permitted by law, even if such indemnification is not specifically authorized by the
other provisions of this Agreement, the Company’s or any subsidiary’s certificate of incorporation
(the “Certificate”), the Company’s or any subsidiary’s Bylaws or by statute. Notwithstanding any
term set forth herein, it is expressly agreed that Indemnitee shall be entitled to indemnification
hereunder for any damages incurred as a result of any violation of law by the Company, any
subsidiary of the Company or of any other enterprise for which Indemnitee provides or provided
services at the Company’s request. In the event of any change after the date of this Agreement in
any applicable law, statute or rule which expands the right of a Delaware corporation to indemnify
a member of its Board of Directors or an officer, employee, controlling person, agent or fiduciary,
it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater
benefits afforded by such change. In the event of any change in any applicable law, statute or
rule which narrows the right of a Delaware corporation to indemnify a member of its Board of
Directors or an officer, employee, agent or fiduciary, such change, to the extent not otherwise
required by such law, statute or rule to be applied to this Agreement, shall have no effect on this
Agreement or the parties’ rights and obligations hereunder except as set forth in Section
9(a) hereof.
2. Additional Indemnity. The Company hereby agrees to hold harmless and indemnify the
Indemnitee:
(a) against any and all expenses incurred by Indemnitee, as set forth in Section 3(a)
below; and
(b) otherwise to the fullest extent not prohibited by the Certificate, the Bylaws or the DGCL.
3. Indemnification Rights.
(a) Indemnification of Expenses.
(i) Third Party Claims. The Company shall indemnify and hold harmless Indemnitee,
together with Indemnitee’s partners, affiliates, employees, agents and spouse and each person who
controls any of them or who may be liable within the meaning of Section 15 of the
Securities Act of 1933, as amended (the “Securities Act”), or Section 20 of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), to the fullest extent permitted by law if Indemnitee
was or is or becomes a party to or witness or other participant in, or is threatened to be made a
party to or witness or other participant in, any threatened, pending or completed action, suit,
proceeding or alternative dispute resolution mechanism, or any hearing, inquiry or investigation
that Indemnitee believes might lead to the institution of any such action, suit, proceeding or
alternative dispute resolution mechanism, whether civil, criminal, administrative, investigative or
other (hereinafter a “Claim”) against any and all expenses (including attorneys’ fees and all other
costs, expenses and obligations incurred in connection with investigating, defending, being a
witness in or participating in (including on appeal), or preparing to defend, be a witness in or
participate in, any such action,
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suit, proceeding, alternative dispute resolution mechanism, hearing, inquiry or
investigation), judgments, fines, penalties and amounts paid in settlement (if such settlement is
approved in advance by the Company, which approval shall not be unreasonably withheld) of such
Claim and any federal, state, local or foreign taxes imposed on Indemnitee as a result of the
actual or deemed receipt of any payments under this Agreement (collectively, hereinafter
“Expenses”), including all interest, assessments and other charges paid or payable in connection
with or in respect of such Expenses, incurred by Indemnitee by reason of (or arising in part out
of) any event or occurrence related to the fact that Indemnitee is or was or may be deemed a
director, officer, employee, controlling person, agent or fiduciary of the Company or any
subsidiary of the Company, or is or was or may be deemed to be serving at the request of the
Company as a director, officer, employee, controlling person, agent or fiduciary of another
corporation, partnership, limited liability company, joint venture, trust or other enterprise, or
by reason of any action or inaction on the part of Indemnitee while serving in such capacity
(hereinafter an “Agent”) including, without limitation, any and all losses, claims, damages,
expenses and liabilities, joint or several (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any action, suit, proceeding or
any claim asserted) under the Securities Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise, which relate directly or indirectly to the
registration, purchase, sale or ownership of any securities of the Company or to any fiduciary
obligation owed with respect thereto (hereinafter an “Indemnification Event”). Such payment of
Expenses shall be made by the Company as soon as practicable but in any event no later than 25 days
after written demand by Indemnitee therefor is presented to the Company.
(ii) Derivative Actions. If the Indemnitee is a person who was or is a party or is
threatened to be made a party to any Claim by or in the right of the Company to procure a judgment
in its favor by reason of the fact that he is or was an Agent of the Company, or by reason of
anything done or not done by him in any such capacity, the Company shall indemnify Indemnitee
against any amounts paid in settlement of any such Claim and all Expenses actually and reasonably
incurred by him in connection with the investigation, defense, settlement or appeal of such Claim
if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the Company; except that no indemnification under this subsection shall be made
in respect of any claim, issue or matter as to which such person shall have been finally adjudged
to be liable to the Company by a court of competent jurisdiction due to willful misconduct of a
culpable nature in the performance of his duty to the Company, unless and only to the extent that
the court in which such proceeding was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such amounts which such other court shall deem proper.
(b) Reviewing Party. Notwithstanding the foregoing, (i) the obligations of the
Company under Sections 1, 2 and 3(a) shall be subject to the condition that the Reviewing
Party (as described in Section 11(e) hereof) shall not have determined (in a written
opinion, in any case in which the Independent Legal Counsel as defined in Section 11(d)
hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law,
and (ii) Indemnitee acknowledges and agrees that the obligation of the Company to make an advance
payment of Expenses to Indemnitee pursuant to Section 4(a) (an “Expense Advance”) shall be
subject to the condition that, if, when and to the extent that the Reviewing Party determines that
Indemnitee would not be
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permitted to be so indemnified under applicable law, the Company shall be
entitled to be reimbursed
by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore
paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings
in a court of competent jurisdiction to secure a determination that Indemnitee should be
indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee
would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee
shall not be required to reimburse the Company for any Expense Advance until a final judicial
determination is made with respect thereto (as to which all rights of appeal therefrom have been
exhausted or lapsed). Indemnitee’s obligation to reimburse the Company for any Expense Advance
shall be unsecured and no interest shall be charged thereon. If there has not been a Change in
Control (as defined in Section 11(c) hereof), the Reviewing Party shall be selected by the
Board of Directors, and if there has been such a Change in Control (other than a Change in Control
which has been approved by a majority of the Company’s Board of Directors who were directors
immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal
Counsel referred to in Section 3(e) hereof. If there has been no determination by the
Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be
permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the
right to commence litigation seeking an initial determination by the court or challenging any such
determination by the Reviewing Party or any aspect thereof, including the legal or factual bases
therefor, and the Company hereby consents to service of process and to appear in any such
proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on
the Company and Indemnitee.
(c) Contribution. If the indemnification provided for in Section 3(a) above
for any reason is held by a court of competent jurisdiction to be unavailable to Indemnitee in
respect of any losses, claims, damages, expenses or liabilities referred to therein, then the
Company, in lieu of indemnifying Indemnitee thereunder, shall contribute to the amount paid or
payable by Indemnitee as a result of such losses, claims, damages, expenses or liabilities (i) in
such proportion as is appropriate to reflect the relative benefits received by the Company and
Indemnitee, or (ii) if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and Indemnitee in connection with the
action or inaction which resulted in such losses, claims, damages, expenses or liabilities, as well
as any other relevant equitable considerations. In connection with the registration of the
Company’s securities, the relative benefits received by the Company and Indemnitee shall be deemed
to be in the same respective proportions that the net proceeds from the offering (before deducting
expenses) received by the Company and the Indemnitee, in each case as set forth in the table on the
cover page of the applicable prospectus, bear to the aggregate public offering price of the
securities so offered. The relative fault of the Company and Indemnitee shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information supplied by the
Company or Indemnitee and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and Indemnitee agree that it would not be just and equitable if contribution
pursuant to this Section 3(c) were determined by pro rata or per capita allocation or by
any other
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method of allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. In connection with the registration of the Company’s
securities,
in no event shall Indemnitee be required to contribute any amount under this Section
3(c) in excess of the lesser of (i) that proportion of the total of such losses, claims,
damages or liabilities indemnified against equal to the proportion of the total securities sold
under such registration statement which is being sold by Indemnitee or (ii) the proceeds received
by Indemnitee from its sale of securities under such registration statement. No person found
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not found guilty of such fraudulent
misrepresentation.
(d) Survival Regardless of Investigation. The indemnification and contribution
provided for herein will remain in full force and effect regardless of any investigation made by or
on behalf of Indemnitee or any officer, director, employee, agent or controlling person of
Indemnitee.
(e) Change in Control. The Company agrees that if there is a Change in Control of the
Company (other than a Change in Control which has been approved by a majority of the Company’s
Board of Directors who were directors immediately prior to such Change in Control) after the date
hereof then, with respect to all matters thereafter arising concerning the rights of Indemnitee to
payments of Expenses under this Agreement or any other agreement or under the Company’s Certificate
or Bylaws as now or hereafter in effect, Independent Legal Counsel (as defined in Section
11(d) hereof) shall be selected by the Indemnitee and approved by the Company (which approval
shall not be unreasonably withheld). Such counsel, among other things, shall render its written
opinion to the Company and Indemnitee as to whether and to what extent Indemnitee would be
permitted to be indemnified under applicable law. The Company agrees to abide by such opinion and
to pay the reasonable fees of the Independent Legal Counsel referred to above and to fully
indemnify such counsel against any and all reasonable expenses (including attorneys’ fees), claims,
liabilities and damages arising out of or relating to this Agreement or its engagement pursuant
hereto.
(f) Mandatory Payment of Expenses. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been successful on the merits or otherwise, including,
without limitation, the dismissal of an action without prejudice, in the defense of any action,
suit, proceeding, inquiry or investigation referred to in Section 3(a) hereof or in the
defense of any claim, issue or matter therein, Indemnitee shall be indemnified against all Expenses
incurred by Indemnitee in connection herewith.
4. Expenses; Indemnification Procedure.
(a) Advancement of Expenses. The Company shall advance all Expenses incurred by
Indemnitee. The advances to be made hereunder shall be paid by the Company to Indemnitee as soon
as practicable but in any event no later than five business days after written demand by Indemnitee
therefor to the Company.
(b) Notice/Cooperation by Indemnitee; Response by the Company. Indemnitee shall give
the Company notice in writing in accordance with Section 15 of this Agreement as soon as
practicable of any Claim made against Indemnitee for which indemnification will or could be sought
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under this Agreement. If the Company shall not have responded to the Indemnitee request for
Indemnification pursuant to Section 15 hereof within thirty (30) days after receipt by the
Company of such request, the Indemnitee shall be deemed to be entitled to such Indemnification. The
failure of Indemnitee to so notify the Company shall not relieve the Company of any obligation
which it may have to Indemnitee under this Agreement or otherwise.
(c) No Presumptions; Burden of Proof. For purposes of this Agreement, the termination
of any Claim by judgment, order, settlement (whether with or without court approval) or conviction,
or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that
Indemnitee did not meet any particular standard of conduct or have any particular belief or that a
court has determined that indemnification is not permitted by applicable law. In addition, neither
the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met
any particular standard of conduct or had any particular belief, nor an actual determination by the
Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief,
prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination
that Indemnitee should be indemnified under applicable law, shall be a defense to Indemnitee’s
claim or create a presumption that Indemnitee has not met any particular standard of conduct or did
not have any particular belief. In connection with any determination by the Reviewing Party or
otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proof
shall be on the Company to establish that Indemnitee is not so entitled.
(d) Notice to Insurers. If, at the time of the receipt by the Company of a notice of
a Claim pursuant to Section 4(b) hereof, the Company has liability insurance in effect
which may cover such Claim, the Company shall give prompt notice of the commencement of such Claim
to the insurers in accordance with the procedures set forth in each of the Company’s policies. The
Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on
behalf of Indemnitee, all amounts payable as a result of such action, suit, proceeding, inquiry or
investigation in accordance with the terms of such policies.
(e) Selection of Counsel. In the event the Company shall be obligated hereunder to
pay the Expenses of any Claim, the Company shall be entitled to assume the defense of such Claim,
with counsel approved by the Indemnitee upon the delivery to Indemnitee of written notice of its
election to do so. After delivery of such notice, approval of such counsel by Indemnitee and the
retention of such counsel by the Company, the Company will not be liable to Indemnitee under this
Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same
Claim; provided that (i) Indemnitee shall have the right to employ Indemnitee’s counsel in any such
Claim at Indemnitee’s expense and (ii) if (A) the employment of counsel by Indemnitee has been
previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there is
a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or
(C) the Company shall not continue to retain such counsel to defend such Claim, then the fees and
expenses of Indemnitee’s counsel shall be at the expense of the Company.
(f) Application for Enforcement. In the event the Company fails to make timely
payments as set forth in this Agreement, Indemnitee shall have the right to apply to any court of
competent jurisdiction for the purpose of enforcing Indemnitee’s right to indemnification or
advancement of expenses pursuant to this Agreement. In such an enforcement hearing or
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proceeding,
the burden of proof shall be on the Company to prove that indemnification or advancement of
expenses to Indemnitee is not required under this Agreement or permitted by
applicable law. Any determination by the Reviewing Party that Indemnitee is not entitled to
indemnification hereunder shall not be a defense by the Company to the action nor create any
presumption that Indemnitee is not entitled to indemnification or advancement of expenses
hereunder.
5. Nonexclusivity.
(a) The indemnification provided by this Agreement shall be in addition to any rights to which
Indemnitee may be entitled under the Company’s Certificate, its Bylaws, any agreement, any vote of
stockholders or disinterested directors, the DGCL, or otherwise. The indemnification provided
under this Agreement shall continue as to Indemnitee for any action Indemnitee took or did not take
while serving in an indemnified capacity even though Indemnitee may have ceased to serve in such
capacity, and such indemnification shall inure to the benefit of Indemnitee from and after
Indemnitee’s first day of service to the Company.
6. No Duplication of Payments. The Company shall not be liable under this Agreement
to make any payment in connection with any Claim made against any Indemnitee to the extent
Indemnitee has otherwise actually received payment (under any insurance policy, the Certificate,
Bylaws or otherwise) of the amounts otherwise indemnifiable hereunder.
7. Partial Indemnification. If any Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for any portion of Expenses incurred in connection with
any Claim, but not, however, for all of the total amount thereof, the Company shall nevertheless
indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled.
8. Mutual Acknowledgment. The Company and Indemnitee acknowledge that in certain
instances, Federal law or applicable public policy may prohibit the Company from indemnifying its
directors, officers, employees, controlling persons, agents or fiduciaries under this Agreement or
otherwise. Indemnitee understands and acknowledges that the Company has undertaken or may be
required in the future to undertake with the Securities and Exchange Commission to submit the
question of indemnification to a court in certain circumstances for a determination of the
Company’s rights under public policy to indemnify Indemnitee.
9. Exceptions. Any other provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance expenses to any
Indemnitee with respect to Claims initiated or brought voluntarily by Indemnitee and not by way of
defense, except (i) with respect to actions or proceedings to establish or enforce a right to
indemnify under this Agreement or any other agreement or insurance policy or under the Certificate
or Bylaws now or hereafter in effect relating to Claims for Indemnifiable Events, (ii) in specific
cases if the Board of Directors has approved the initiation or bringing of such Claim, or (iii) as
otherwise required under Section 145 of the DGCL, regardless of whether Indemnitee ultimately is
determined
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to be entitled to such indemnification, advance expense payment or insurance recovery,
as the case may be; or
(b) Claims Under Section 16(b). To indemnify Indemnitee for expenses and the payment
of profits arising from the purchase and sale by Indemnitee of securities in violation of Section
16(b) of the Exchange Act or any similar successor statute; or
(c) Claims Excluded Under Section 145 of the DGCL. To indemnify Indemnitee if (i)
Indemnitee did not act in good faith, or in a manner reasonably believed by Indemnitee to be in or
not opposed to the best interests of the Company, or (ii) with respect to any criminal action or
proceeding, Indemnitee had reasonable cause to believe Indemnitee’s conduct was unlawful, or (iii)
Indemnitee shall have been adjudged to be liable to the Company unless and only to the extent the
court in which such action was brought shall permit indemnification as provided in Section 145 of
the DGCL.
10. Period of Limitations. No legal action shall be brought and no cause of action
shall be asserted by or in the right of the Company against any Indemnitee, any Indemnitee’s
estate, spouse, heirs, executors or personal or legal representatives after the expiration of five
years from the date of accrual of such cause of action, and any claim or cause of action of the
Company shall be extinguished and deemed released unless asserted by the timely filing of a legal
action within such five-year period; provided, however, that if any shorter period of limitations
is otherwise applicable to any such cause of action, such shorter period shall govern.
11. Construction of Certain Phrases.
(a) For purposes of this Agreement, references to the “Company” shall include, in addition to
the resulting corporation, any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers, employees, agents or fiduciaries, so
that if Indemnitee is or was or may be deemed a director, officer, employee, agent, control person,
or fiduciary of such constituent corporation, or is or was or may be deemed to be serving at the
request of such constituent corporation as a director, officer, employee, control person, agent or
fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other
enterprise, Indemnitee shall stand in the same position under the provisions of this Agreement with
respect to the resulting or surviving corporation as Indemnitee would have with respect to such
constituent corporation if its separate existence had continued.
(b) For purposes of this Agreement, references to “other enterprises” shall include employee
benefit plans; references to “fines” shall include any excise taxes assessed on any Indemnitee with
respect to an employee benefit plan; and references to “serving at the request of the Company”
shall include any service as a director, officer, employee, agent or fiduciary of the Company which
imposes duties on, or involves services by, such director, officer, employee, agent or fiduciary
with respect to an employee benefit plan, its participants or its beneficiaries; and if any
Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the
interests of the participants and beneficiaries of an employee benefit plan, Indemnitee shall be
deemed to
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have acted in a manner “not opposed to the best interests of the Company” as referred to
in this Agreement.
(c) For purposes of this Agreement a “Change in Control” shall be deemed to have occurred if
(i) any “person” (as such term is used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act),
other than a trustee or other fiduciary holding securities under an employee benefit plan of the
Company or a corporation owned directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company, (A) who is or
becomes the beneficial owner, directly or indirectly, of securities of the Company representing 20%
or more of the combined voting power of the Company’s then outstanding Voting Securities, increases
his or her beneficial ownership of such securities by 5% or more over the percentage so owned by
such person, or (B) becomes the “beneficial owner” (as defined in Rule 13d-3 under said Exchange
Act), directly or indirectly, of securities of the Company representing more than 30% of the total
voting power represented by the Company’s then outstanding Voting Securities, (ii) during any
period of two consecutive years, individuals who at the beginning of such period constitute the
Board of Directors of the Company and any new director whose election by the Board of Directors or
nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds
of the directors then still in office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved, cease for any reason to
constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation other than a merger or consolidation which
would result in the Voting Securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted into Voting
Securities of the surviving entity) at least 80% of the total voting power represented by the
Voting Securities of the Company or such surviving entity outstanding immediately after such merger
or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of (in one transaction or a
series of transactions) all or substantially all of the Company’s assets.
(d) For purposes of this Agreement, “Independent Legal Counsel” shall mean an attorney or firm
of attorneys, selected in accordance with the provisions of Section 4(e) hereof, who shall
not have otherwise performed services for the Company or any Indemnitee within the last three years
(other than with respect to matters concerning the right of any Indemnitee under this Agreement, or
of other indemnitees under similar indemnity agreements).
(e) For purposes of this Agreement, a “Reviewing Party” shall mean any appropriate person or
body consisting of a member or members of the Company’s Board of Directors or any other person or
body appointed by the Board of Directors who is not a party to the particular Claim for which
Indemnitee is seeking indemnification, or Independent Legal Counsel.
(f) For purposes of this Agreement, “Voting Securities” shall mean any securities of the
Company that vote generally in the election of directors.
12. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall constitute an original.
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13. Binding Effect; Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their respective successors,
assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise
to
all or substantially all of the business and/or assets of the Company, spouses, heirs, and
personal and legal representatives. The Company shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially all, or a
substantial part, of the business and/or assets of the Company, by written agreement in form and
substance satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to perform if no such
succession had taken place. This Agreement shall continue in effect with respect to Claims
relating to Indemnifiable Events regardless of whether any Indemnitee continues to serve as a
director, officer, employee, agent, controlling person, or fiduciary of the Company or of any other
enterprise, including subsidiaries of the Company, at the Company’s request.
14. Attorneys’ Fees. In the event that any action is instituted by Indemnitee under
this Agreement or under any liability insurance policies maintained by the Company to enforce or
interpret any of the terms hereof or thereof, Indemnitee shall be entitled to be paid all Expenses
incurred by Indemnitee with respect to such action, regardless of whether Indemnitee is ultimately
successful in such action, and shall be entitled to the advancement of Expenses with respect to
such action, unless, as a part of such action, a court of competent jurisdiction over such action
determines that the material assertions made by Indemnitee as a basis for such action were not made
in good faith or were frivolous. In the event of an action instituted by or in the name of the
Company under this Agreement to enforce or interpret any of the terms of this Agreement, Indemnitee
shall be entitled to be paid all Expenses incurred by Indemnitee in defense of such action
(including costs and expenses incurred with respect to Indemnitee counterclaims and cross-claims
made in such action), and shall be entitled to the advancement of Expenses with respect to such
action, unless, as a part of such action, a court having jurisdiction over such action determines
that Indemnitee’s material defenses to such action were made in bad faith or were frivolous.
15. Notice. All notices and other communications required or permitted hereunder
shall be in writing, shall be effective when given, and shall in any event be deemed to be given
(a) five calendar days after deposit with the U.S. Postal Service or other applicable postal
service, if delivered by first class mail, postage prepaid, (b) upon delivery, if delivered by
hand, (c) one business day after the business day of deposit with Federal Express or similar
overnight courier, freight prepaid, or (d) one day after the business day of delivery by facsimile
transmission, if deliverable by facsimile transmission, with copy by first class mail, postage
prepaid, and shall be addressed if to Indemnitee, at Indemnitee’s address as set forth beneath
Indemnitee’s signature to this Agreement and if to the Company at: Fusion-io, Inc., Attn: Chief
Executive Officer, 6350 South 0000 Xxxx, 0xx Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000 (with a
copy to O’Melveny & Xxxxx LLP, Attn: Xxxxxxx X. Xxxxx, 2765 Sand Hill Road,-Menlo Park; CA 94025)
or at such other address as such party may designate by ten calendar days’ advance written notice
to the other party hereto.
16. Consent to Jurisdiction. The Company and Indemnitee each hereby irrevocably
consent to the jurisdiction of the courts of the State of Delaware for all purposes in connection
with any action or proceeding which arises out of or relates to this Agreement and agree that any
action
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instituted under this Agreement shall be commenced, prosecuted and continued only in the
Court of Chancery of the State of Delaware in and for New Castle County, which shall be the
exclusive and only proper forum for adjudicating such a claim.
17. Severability. The provisions of this Agreement shall be severable in the event
that any of the provisions hereof (including any provision within a single section, paragraph or
sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable, and the remaining provisions shall remain enforceable to the fullest extent
permitted by law. Furthermore, to the fullest extent possible, the provisions of this Agreement
(including, without limitations, each portion of this Agreement containing any provision held to be
invalid, void or otherwise unenforceable, that is not itself invalid, void or unenforceable) shall
be construed so as to give effect to the intent manifested by the provision held invalid, illegal
or unenforceable.
18. Choice of Law. This Agreement shall be governed by and its provisions construed
and enforced in accordance with the laws of the State of Delaware, as applied to contracts between
Delaware residents, entered into and to be performed entirely within the State of Delaware, without
regard to the conflict of laws principles thereof.
19. Subrogation. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of Indemnitee who shall
execute all documents required and shall do all acts that may be necessary to secure such rights
and to enable the Company effectively to bring suit to enforce such rights.
20. Amendment and Termination. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless it is in writing signed by all parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver.
21. Insurance. To the extent the Company maintains liability insurance applicable to
directors, officers, employees, control persons, agents or fiduciaries, Indemnitee shall be covered
by such policies in such a manner as to provide Indemnitee the same rights and benefits as are
accorded to the most favorably insured of the Company’s directors, if Indemnitee is a director, or
of the Company’s officers, if Indemnitee is not a director of the Company but is an officer.
22. No Construction as Employment Agreement. Nothing contained in this Agreement
shall be construed as giving Indemnitee any right to be retained in the employ of the Company or
any of its subsidiaries.
23. Entire Agreement. The Agreement constitutes the full and entire understanding and
agreement among the parties regarding the matters set forth herein.
24. Board and Stockholder Approval. The Board of Directors and stockholders of the
Company have approved the terms of this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| COMPANY: FUSION-IO, INC., a Delaware corporation |
||||
| By: | ||||
| Its: | ||||
| Address: | 6350 South 0000 Xxxx, 0xx Xxxxx Xxxx Xxxx Xxxx, XX 00000 |
|||
| INDEMNITEE: | ||||
| Address: | ||||
[Signature Page to Indemnification Agreement]
