Amendment No.1 to Form 10-K

Large accelerated filer

Accelerated filer

Non-accelerated filer

x (Do not check if a smaller reporting company)

Smaller reporting company

0001193125-11-240566.txt : 20110906 0001193125-11-240566.hdr.sgml : 20110905 20110906061032 ACCESSION NUMBER: 0001193125-11-240566 CONFORMED SUBMISSION TYPE: 10-K/A PUBLIC DOCUMENT COUNT: 9 CONFORMED PERIOD OF REPORT: 20110630 FILED AS OF DATE: 20110906 DATE AS OF CHANGE: 20110906 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FUSION-IO, INC. CENTRAL INDEX KEY: 0001383729 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER STORAGE DEVICES [3572] IRS NUMBER: 204232255 STATE OF INCORPORATION: DE FILING VALUES: FORM TYPE: 10-K/A SEC ACT: 1934 Act SEC FILE NUMBER: 001-35188 FILM NUMBER: 111074650 BUSINESS ADDRESS: STREET 1: 6350 SOUTH 3000 EAST, 6TH FLOOR CITY: SALT LAKE CITY STATE: UT ZIP: 84121 BUSINESS PHONE: 801-424-5500 MAIL ADDRESS: STREET 1: 6350 SOUTH 3000 EAST, 6TH FLOOR CITY: SALT LAKE CITY STATE: UT ZIP: 84121 FORMER COMPANY: FORMER CONFORMED NAME: FUSION MULTISYSTEMS INC DATE OF NAME CHANGE: 20061214 10-K/A 1 d10ka.htm AMENDMENT NO.1 TO FORM 10-K Amendment No.1 to Form 10-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-K/A

Amendment No. 1

(Mark One)

x	ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended June 30, 2011

¨	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: 001-35188

FUSION-IO, INC.

(Exact name of registrant as specified in its charter)


Delaware		20-4232255
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification Number)

2855 E. Cottonwood Parkway, Suite 100 Salt Lake City, Utah		84121
(Address of principal executive offices)		(Zip Code)

Registrant’s telephone number, including area code: (801) 424-5500

Securities registered pursuant to Section 12(b) of the Act:


Title of each class:		Name of each exchange on which registered:
Common stock, $0.0002 par value		The New York Stock Exchange

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 ¨ 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 ¨ 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 ¨ No x

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 (§ 232.405 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 ¨ No ¨

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of 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. (Check one):

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ¨ No x

As of December 31, 2010, the last business day of the registrant’s most recently completed second fiscal quarter, the registrant’s common stock was not listed on any exchange or over-the-counter market. The registrant’s common stock began trading on the New York Stock Exchange on June 9, 2011. The aggregate market value of voting and non-voting common equity held by non-affiliates of the registrant as of June 14, 2011 was approximately $865.2 million (based on a closing sale price of $23.30 per share as reported for the New York Stock Exchange on June 14, 2011. For the purpose of this calculation, shares of common stock held by the registrant’s current officers and directors and shares of common stock held by persons who hold more than 10% of the outstanding common stock of the registrant have been excluded from this calculation because such persons may be deemed affiliates. This determination of executive officer or affiliate status is not necessarily a conclusive determination for other purposes.

The number of shares of the registrant’s common stock, $0.0002 par value per share, outstanding as of August 30, 2011 was 83,266,842.

DOCUMENTS INCORPORATED BY REFERENCE

Part III of this annual report on Form 10-K incorporates by reference portions of the registrant’s Proxy Statement for its 2011 Annual Meeting of Stockholders to be held on November 18, 2011.

EXPLANATORY NOTE

As a result of an error by its EDGAR filing service, Exhibits 31.2, 32.1 and 32.2 of the Annual Report on Form 10-K of Fusion-io, Inc., a Delaware corporation, were mis-numbered and Exhibit 31.1 was not filed. This Amendment on Form 10-K/A corrects the mis-numbering and includes Exhibit 31.1, and makes no other changes to the Form 10-K.

Fusion-io, Inc.

Index to Exhibits

Incorporated by Reference

Exhibit

No.

Exhibit Description

Filed Herewith

Form

Exhibit

Filing Date

2.1

Agreement and Plan of Reorganization, dated as of August 4, 2011, by and between the Registrant, IO Turbine, Inc. and certain other parties named therein

8-K

2.1

08/05/2011

3.1

Amended and Restated Certificate of Incorporation of the Registrant

10-K

3.1

09/02/2011

3.2

Amended and Restated Bylaws of the Registrant

10-K

3.1

09/02/2011

4.1

Specimen common stock certificate of the Registrant

S-1/A

4.1

05/23/2011

4.2

Second Amended and Restated Investors’ Rights Agreement, dated as of April 7, 2010 between the Registrant and certain holders of the Registrant’s capital stock named therein

S-1

4.2

03/09/2011

4.3

Warrant to Purchase Stock issued by the Registrant to Silicon Valley Bank, dated September 10, 2008

S-1

4.3

03/09/2011

10.1A*

Form of Indemnification Agreement by and between the Registrant and certain of its directors and officers

S-1/A

10.1A

05/23/2011

10.1B*

Form of Indemnification Agreement by and between the Registrant and certain of its directors affiliated with investment funds and such investment funds

S-1/A

10.1B

05/23/2011

10.2*

2006 Stock Option Plan and Form of Stock Option Agreement under 2006 Stock Option Plan

S-1

10.2

03/09/2011

10.3*

2008 Stock Incentive Plan and Form of Stock Option Agreement under 2008 Stock Incentive Plan

S-1

10.3

03/09/2011

10.4*

2010 Executive Stock Incentive Plan and Related Forms

S-1

10.4

03/09/2011

10.5*

2011 Equity Incentive Plan and Related Forms

S-1/A

10.5

05/23/2011

10.6*

2011 Employee Stock Purchase Plan and Form of Purchase Agreement under 2011 Employee Stock Purchase Plan

S-1/A

10.6

05/23/2011

10.7*

Form of Non-Plan Stock Option Agreement between the Registrant and certain of its officers

S-1

10.7

03/09/2011

10.8*

Second Amended and Restated Employment Agreement between the Registrant, David Flynn and Sandusky Investments, Ltd., dated as of April 7, 2010

S-1

10.8

03/09/2011

10.9*

Amended and Restated Employment Agreement between the Registrant, Rick White and West Coast VC, LLC, dated as of December 31, 2008

S-1

10.9

03/09/2011

10.9A*

Amendment Number One to Amended and Restated Employment Agreement between the Registrant, Rick White and West Coast VC, LLC, dated as of March 7, 2011

S-1

10.9A

03/09/2011

Incorporated by Reference

Exhibit

No.

Exhibit Description

Filed Herewith

Form

Exhibit

Filing Date

10.10*

Form of Involuntary Termination Severance Agreement between the Registrant and certain of its officers

S-1

10.10

03/09/2011

10.10A*

Involuntary Termination Severance Agreement between the Registrant and Dennis P. Wolf, dated as of August 11, 2010

S-1/A

10.10A

04/18/2011

10.11*

Transition Agreement and Release between the Registrant and David R. Bradford, dated as of September 21, 2010

S-1

10.11

03/09/2011

10.12

Lease Agreement between the Registrant and NOP Cottonwood 2825, LLC, dated May 28, 2010 (Building 10)

S-1

10.12

03/09/2011

10.13

Lease Agreement between the Registrant and NOP Cottonwood 2855, LLC, dated May 28, 2010 (Building 11)

S-1

10.13

03/09/2011

10.14

Office Lease Agreement between the Registrant and Bixby Technology Center, LLC, dated May 29, 2009

S-1

10.14

03/09/2011

10.15A

Amended and Restated Loan and Security Agreement between the Registrant and Silicon Valley Bank, dated September 13, 2010

S-1

10.15

03/09/2011

10.15B

First Amendment to Amended and Restated Loan and Security Agreement between the Registrant and Silicon Valley Bank, dated as of August 4, 2011

8-K

10.1

08/05/2011

10.16*

Offer Letter between the Registrant and Dennis Wolf, dated November 4, 2009

S-1/A

10.16

05/06/2011

10.17*

Offer Letter between the Registrant and Jim Dawson, dated April 1, 2008

S-1/A

10.17

05/06/2011

10.18*

Offer Letter between the Registrant and Lance Smith, dated April 29, 2008 as supplemented by an Offer Letter dated December 26, 2008

S-1/A

10.18

05/06/2011

10.19*

Executive Incentive Compensation Plan, adopted by the Registrant on May 16, 2011

S-1/A

10.19

05/23/2011

10.20*

IO Turbine, Inc. 2009 Equity Incentive Plan

10-K

3.1

09/02/2011

21.1

Subsidiaries of the Registrant

10-K

3.1

09/02/2011

23.1

Consent of Independent Registered Public Accounting Firm

10-K

3.1

09/02/2011

31.1

Certification of the Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

31.2

Certification of the Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

31.3

Certification of the Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

31.4

Certification of the Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

32.1

Certification of the Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

32.2

Certification of the Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

32.3

Certification of the Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

32.4

Certification of the Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

*	Indicates a management contract or compensatory plan or arrangement.

-2-

Signatures

Pursuant to the requirements of the Section 13 or 15(d) Securities Exchange Act of 1934, the Registrant has duly caused this Amendment No.1 to the Annual Report on Form 10-K/A to be signed on its behalf by the undersigned hereunto duly authorized.


Fusion-io, Inc.

By:		/s/ DAVID A. FLYNN
		David A. Flynn
		Chief Executive Officer and President

September 2, 2011

EX-31.1 2 dex311.htm SECTION 302 CEO CERTIFICATION Section 302 CEO Certification

Exhibit 31.1

Certification

I, David A. Flynn, Chief Executive Officer of Fusion-io, Inc., certify that:

1. I have reviewed this annual report on Form 10-K of Fusion-io, Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and we have:

a. designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b. evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

c. disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a. all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b. any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.


Date: September 2, 2011		/s/ DAVID A. FLYNN
		David A. Flynn
		Chief Executive Officer

EX-31.2 3 dex312.htm SECTION 302 CFO CERTIFICATION Section 302 CFO Certification

Exhibit 31.2

Certification

I, Dennis P. Wolf, Chief Financial Officer of Fusion-io, Inc., certify that:

1. I have reviewed this annual report on Form 10-K of Fusion-io, Inc.;

b. any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

EX-31.3 4 dex313.htm SECTION 302 CEO CERTIFICATION Section 302 CEO Certification

Exhibit 31.3

Certification

I, David A. Flynn, Chief Executive Officer of Fusion-io, Inc., certify that:

1. I have reviewed this Amendment No. 1 to the annual report on Form 10-K/A of Fusion-io, Inc.;

b. any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

EX-31.4 5 dex314.htm SECTION 302 CFO CERTIFICATION Section 302 CFO Certification

Exhibit 31.4

Certification

I, Dennis P. Wolf, Chief Financial Officer of Fusion-io, Inc., certify that:

1. I have reviewed this Amendment No. 1 to the annual report on Form 10-K/A of Fusion-io, Inc.;

b. any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

EX-32.1 6 dex321.htm SECTION 906 CEO CERTIFICATION Section 906 CEO Certification

Exhibit 32.1

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

I, David A. Flynn, Chief Executive Officer of Fusion-io, Inc. (the “Company”), certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that, to my knowledge:

1) the annual report on Form 10-K of the Company for the year ended June 30, 2011 (the “Report”) which this statement accompanies fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)); and

2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

EX-32.2 7 dex322.htm SECTION 906 CFO CERTIFICATION Section 906 CFO Certification

Exhibit 32.2

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

I, Dennis P. Wolf, Chief Financial Officer of Fusion-io, Inc. (the “Company”), certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that, to my knowledge:

2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

EX-32.3 8 dex323.htm SECTION 906 CEO CERTIFICATION Section 906 CEO Certification

Exhibit 32.3

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

I, David A. Flynn, Chief Executive Officer of Fusion-io, Inc. (the “Company”), certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that, to my knowledge:

1) the Amendment No. 1 to the annual report on Form 10-K/A of the Company for the year ended June 30, 2011 (the “Report”) which this statement accompanies fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)); and

2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.


Date: September 2, 2011		/s/ DAVID A. FLYNN
		David A. Flynn
		Chief Executive Officer

EX-32.4 9 dex324.htm SECTION 906 CFO CERTIFICATION Section 906 CFO Certification

Exhibit 32.4

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

I, Dennis P. Wolf, Chief Financial Officer of Fusion-io, Inc. (the “Company”), certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that, to my knowledge:

2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.


Date: September 2, 2011		/s/ DENNIS P. WOLF
		Dennis P. Wolf
		Chief Financial Officer