UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
Amendment No. 1
(Mark One) |
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| [X] | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2010
Or |
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| [ ] | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission file number: 001-34511
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FORTINET, INC.
(Exact name of registrant as specified in its charter)
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| Delaware | 77-0560389 |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
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1090 Kifer Road Sunnyvale, California | 94086 |
| (Address of principal executive offices) | (Zip Code) |
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
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| Common Stock, $0.001 Par Value | | The NASDAQ Stock Market LLC |
| | | NASDAQ Global Select Market |
| (Title of each class) | | (Name of exchange on which registered) |
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes o No x
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes o No x
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No o
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§229.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes o No o
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (section 229.405 of this chapter) is not contained herein, and will not be contained, to the best of the registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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| Large accelerated filer | o | | | Accelerated filer | x |
| Non-accelerated filer | o | (Do not check if smaller reporting company) | | Smaller reporting company | o |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes o No x
The aggregate market value of voting stock held by non-affiliates of the registrant, as of June 30, 2010, the last business day of the registrant’s most recently completed second quarter, was $590,897,232 (based on the closing price for shares of the registrant's common stock as reported by The NASDAQ Global Select Market for the last business day prior to that date). Shares of common stock held by each executive officers, director, and holder of 5% or more of the outstanding common stock have been excluded in that such persons may be deemed to be affiliates. This determination of affiliate status is not necessarily a conclusive determination for other purposes.
As of February 17, 2011, there were 75,231,493 shares of the registrant’s common stock outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant’s definitive Proxy Statement relating to its 2011 Annual Meeting of Stockholders are incorporated by reference into Part III of this Annual Report on Form 10-K where indicated. Such Proxy Statement will be filed with the U.S. Securities and Exchange Commission within 120 days after the end of the fiscal year to which this report relates.
EXPLANATORY NOTE
This Amendment No. 1 ("this Amendment") on Form 10-K/A amends our Annual Report on Form 10-K for the period ended December 31, 2011 ("Form 10-K") as filed with the Securities and Exchange Commission on February 25, 2011. No revisions are being made to the Company's financial statements and except as described below, this Amendment does not reflect events occurring after the filing of the Form 10-K and no other changes are being made to any other disclosure contained in the Form 10-K.
This Amendment is an exhibit-only filing to correct certain portions of Exhibits 31.1 and 31.2 originally filed with the Form 10-K. In addition, as required by Rule 12b-15 under the Securities Exchange Act of 1934, as amended, new certifications by our principal executive officer and principal financial officer are filed as exhibits to this Amendment.
FORTINET, INC.
ANNUAL REPORT ON FORM 10-K/A
For the Fiscal Year Ended December 31, 2010
Table of Contents
EXHIBIT INDEX
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Exhibit Number | | Description | | Incorporated by reference herein | | |
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| 3.1 | | Amended and Restated Certificate of Incorporation | | Registration Statement on Form S-l, as amended (File No. 333-161190) | | August 10, 2009 |
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| 3.2 | | Amended and Restated Bylaws | | Registration Statement on Form S-l, as amended (File No. 333-161190) | | August 10, 2009 |
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| 4.1 | | Specimen common stock certificate of the Company | | Registration Statement on Form S-l, as amended (File No. 333-161190) | | November 2, 2009 |
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| 4.2 | | Third Amended and Restated Investors Rights Agreement, dated as of February 24, 2004, between the Company and certain holders of the Company’s capital stock named therein | | Registration Statement on Form S-l, as amended (File No. 333-161190) | | August 10, 2009 |
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10.1† | | Forms of Indemnification Agreement between the Company and its directors and officers | | Registration Statement on Form S-l, as amended (File No. 333-161190) | | August 10, 2009 |
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10.2† | | 2000 Stock Plan and forms of agreement thereunder | | Registration Statement on Form S-l, as amended (File No. 333-161190) | | August 10, 2009 |
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10.3† | | 2008 Stock Plan and forms of agreement thereunder | | Registration Statement on Form S-l, as amended (File No. 333-161190) | | August 10, 2009 |
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10.4† | | 2009 Equity Incentive Plan and forms of restricted stock unit award and restricted stock agreement thereunder | | Registration Statement on Form S-l, as amended (File No. 333-161190) | | August 10, 2009 |
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10.5†* | | Forms of stock option agreement under 2009 Equity Incentive Plan | | | | |
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10.6† | | Separation and Change of Control Agreement, dated as of August 7, 2009, between the Company and Ken Xie | | Registration Statement on Form S-l, as amended (File No. 333-161190) | | August 10, 2009 |
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10.7† | | Separation and Change of Control Agreement, dated as of August 7, 2009, between the Company and Michael Xie | | Registration Statement on Form S-l, as amended (File No. 333-161190) | | August 10, 2009 |
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10.8† | | Separation and Change of Control Agreement, dated as of August 7, 2009, between the Company and Ken Goldman | | Registration Statement on Form S-l, as amended (File No. 333-161190) | | August 10, 2009 |
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10.9† | | Separation and Change of Control Agreement, dated as of August 7, 2009, between the Company and John Whittle | | Registration Statement on Form S-l, as amended (File No. 333-161190) | | August 10, 2009 |
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10.10† | | Offer Letter, dated as of August 31, 2007, by and between the Company and Ken Goldman | | Registration Statement on Form S-l, as amended (File No. 333-161190) | | August 10, 2009 |
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10.11† | | Offer Letter, dated as of August 31, 2007, by and between the Company and John Whittle | | Registration Statement on Form S-l, as amended (File No. 333-161190) | | August 10, 2009 |
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10.12† | | Form of Change of Control Agreement between the Company and its non-executive officers | | Registration Statement on Form S-l, as amended (File No. 333-161190) | | August 10, 2009 |
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| 10.13 | | Fortinet, Inc. Bonus Plan | | Current Report on Form 8-K | | January 26, 2010 |
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| 21.1 | | List of subsidiaries | | Registration Statement on Form S-l, as amended (File No. 001-34511) | | August 10, 2009 |
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| 23.1 | | Consent of Independent Registered Public Accounting Firm | | | | |
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| 24.1 | | Power of Attorney (incorporated by reference to the signature page of this Annual Report on Form 10-K) | | | | |
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| 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 |
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| 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 |
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| 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 |
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† Indicates management compensatory plan, contract or arrangement.
* Filed herewith.
SIGNATURES
Pursuant to the requirements of 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.
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| | FORTINET, INC. |
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| Date: July 29, 2011 | By: | /s/ Ken Goldman |
| | | Ken Goldman |
| | | Vice President and Chief Financial Officer |
