AMENDMENT NUMBER ONE TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.9A
AMENDMENT
NUMBER ONE TO
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amendment Number One (this “Amendment”) to
Amended and Restated Employment Agreement, by and among
Fusion-io, Inc. a Delaware corporation (the
“Company”), Xxxx Xxxxx, an individual
(“Executive”) and West Coast VC, LLC, a
Delaware limited liability company (“WCV”)
(collectively, the “Parties”), is dated as of
March 7, 2011 and amends the Amended and Restated
Employment Agreement by and among the Company, Executive and WCV
dated December 31, 2008 (the “Prior
Agreement”).
RECITALS
WHEREAS, the Prior Agreement contained several scrivener’s
errors and the Parties desire to correct such errors as set
forth herein; and
WHEREAS, the Prior Agreement provides that it can be altered or
amended with the prior written consent of the Parties.
NOW, THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties, intending legally to
be bound, hereby agree as follows:
AGREEMENT
1. Amendment to Preamble. The preamble of
the Prior Agreement is hereby amended and restated to read in
its entirety as follows:
“THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (as amended
from time to time, this “Agreement”) is made an
entered into as of December 31, 2008 (the
“Effective Date”), by and among Fusion
Multisystems, Inc., a Nevada corporation (the
“Company”), Xxxx Xxxxx, an individual
(“Executive”) and West Coast VC, LLC, a
Delaware limited liability company
(“WCV”).”
2. Amendment to Section 4(a). The
first sentence of Section 4(a) of the Prior Agreement is
hereby amended and restated to read in its entirety as follows:
“(a) Vesting. Executive has previously
transferred 5,000,000 shares (after taking into account the
5-for-1 forward stock split of the Company's outstanding capital stock,
which occurred in July 2008) of the Company’s
common stock (the “Shares”) to WCV.”
3. Amendment to
Section 4(a)(iii)(A). Section 4(a)(iii)(A)
of the Prior Agreement is hereby amended and restated to read in
its entirety as follows:
“(A) WCV shall acquire a vested interest in and the
Repurchase Right shall lapse with respect to
(1) 2,500,000 Shares (after taking into account the
5-for-1 forward stock split of the Company's outstanding capital stock,
which occurred in July 2008) as of March 21, 2008;
and (2) the balance of the
Shares in a series of thirty-six (36) successive equal
monthly installments for each monthly period of continuous
Service measured from March 21, 2008.”
4. Effect of Amendment. Except as set
forth in this Amendment, the provisions of the Prior Agreement
shall remain unchanged and shall continue in full force and
effect.
5. Governing Law. This Amendment shall be
governed by and construed under the laws of the State of Utah,
excluding its conflicts and choice of law provisions.
6. Counterparts. This Amendment may be
executed in several counterparts, each of which so executed
shall be deemed to be an original, and such counterparts
together shall constitute but one and the same instrument. Any
signature page delivered by a fax machine or telecopy machine
shall be binding to the same extent as an original signature
page.
Signature Page Follows
IN WITNESS WHEREOF, the Parties have executed this Amendment as
of the date first written above.
By:
/s/ Xxxxx
Xxxxx
Name: Xxxxx Xxxxx
Title: Chief Executive Officer
EXECUTIVE
By:
/s/ Xxxx
Xxxxx
Name: Xxxx Xxxxx
WEST COAST VC, LLC
By:
/s/ Xxxx
Xxxxx
Name: Xxxx Xxxxx
Title: Manager
Signature Page to Amendment Number One to Amended and
Restated Employment Agreement
