Fortinet, Inc PRE 14A, filed Apr 22, 2022
Fortinet, Inc. (FTNT)
PRE 14A
2022-04-22
For: 2022-06-17
View Original
Added on
October 19, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE
SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. )
SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. )
Filed by the Registrant
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Filed by a Party other than the Registrant
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Check the appropriate box:
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Preliminary Proxy Statement
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material Pursuant to §240.14a-12
FORTINET, INC.
(Name of Registrant as Specified in Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check all boxes that apply):
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No fee required.
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Fee paid previously with preliminary materials.
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Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11.
PRELIMINARY PROXY STATEMENT DATED APRIL 22, 2022
SUBJECT TO COMPLETION
SUBJECT TO COMPLETION
![[MISSING IMAGE: lg_fortinet-4c.jpg]](/stocks/ftnt/documents/be2302ff-e0ec-43ff-ba62-010cb2b619f8/asset/lg_fortinet-4c.jpg){kind=small}
NOTICE OF 2022 ANNUAL MEETING OF STOCKHOLDERS
Dear Fortinet Stockholder:
Notice is hereby given that the 2022 Annual Meeting of Stockholders (the “2022 Annual Meeting”) of Fortinet, Inc., a Delaware corporation (“Fortinet,” “we,” “us” or “our”), will be held on Friday, June 17, 2022, at 10:00 a.m. Pacific time, in a virtual-only format, for the following purposes:
1.
To elect the nine directors listed in the accompanying proxy statement to serve for a one-year term expiring at Fortinet’s 2023 Annual Meeting of Stockholders (the “2023 Annual Meeting”) and until their respective successors have been duly elected and qualified.
2.
To ratify the appointment of Deloitte & Touche LLP as Fortinet’s independent registered public accounting firm for the fiscal year ending December 31, 2022.
3.
An advisory vote to approve named executive officer compensation.
4.
To adopt an amended and restated certificate of incorporation for Fortinet (the “Restated Certificate”) in order to implement a five-for-one forward stock split (the “Stock Split Proposal”) and to make certain other changes as reflected in the Restated Certificate and described in the Proxy Statement.
5.
To vote on a stockholder proposal, if properly presented before the meeting.
6.
To transact such other business proposals, if properly presented before the meeting.
We believe that a virtual stockholder meeting provides greater access to those who may want to attend and provides a safer forum in light of the ongoing COVID-19 pandemic, and therefore we have chosen this over an in-person meeting. We believe that hosting a virtual meeting will allow for greater stockholder attendance and participation from any location around the world. This approach also lowers costs and aligns with our broader sustainability goals.
The preceding items of business are more fully described in the proxy statement accompanying this notice. Any action on the items of business described above may be considered at the 2022 Annual Meeting at the time and on the date specified above or at any time and date to which the 2022 Annual Meeting may be properly adjourned or postponed. Only stockholders of record at the close of business on April 18, 2022 are entitled to notice of, and to vote at, the 2022 Annual Meeting.
We have elected to provide access to our proxy materials over the internet. Accordingly, stockholders of record at the close of business on April 18, 2022 will receive a Notice of Internet Availability of Proxy Materials and may vote at the 2022 Annual Meeting and any meetings pursuant to postponements or adjournments of the 2022 Annual Meeting. We expect to mail the Notice of Internet Availability of Proxy Materials on or about May 4, 2022.
Your vote is very important. Whether or not you plan to attend the 2022 Annual Meeting, we encourage you to read the proxy statement and vote as instructed in the Notice of Internet Availability of Proxy Materials or vote on the internet or by telephone as soon as possible. Alternatively, you may follow the procedures outlined in the Notice of Internet Availability of Proxy Materials to request a paper copy of the proxy materials, which include a proxy card to submit your vote by mail. For specific instructions on how to vote your shares, please refer to the section entitled “Questions and Answers About the 2022 Annual Meeting and Procedural Matters” and the instructions on the Notice of Internet Availability of Proxy Materials.
Thank you for your ongoing support of Fortinet.
By Order of the Board of Directors,
![[MISSING IMAGE: sg_kenxie-bw.jpg]](/stocks/ftnt/documents/be2302ff-e0ec-43ff-ba62-010cb2b619f8/asset/sg_kenxie-bw.jpg){kind=small}
Ken Xie
Chief Executive Officer and Chairman of the Board of Directors
Chief Executive Officer and Chairman of the Board of Directors
Sunnyvale, California
[ ], 2022
[ ], 2022
PROXY STATEMENT
FOR 2022 ANNUAL MEETING OF STOCKHOLDERS
FOR 2022 ANNUAL MEETING OF STOCKHOLDERS
TABLE OF CONTENTS
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Forward-Looking Statements
This Proxy Statement includes forward-looking statements. These statements are not historical facts and are based on current expectations, estimates, and projections about our industry, management’s beliefs, and certain assumptions made by management, many of which, by their nature, are inherently uncertain and beyond our control. Accordingly, we caution you that any such forward-looking statements are not guarantees of future performance and are subject to risks, assumptions, estimates and uncertainties that are difficult to predict. For a discussion of some of the risks and important factors that could affect our future results and financial condition, see “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2021.
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PRELIMINARY PROXY STATEMENT DATED APRIL 22, 2022
SUBJECT TO COMPLETION
SUBJECT TO COMPLETION
PROXY SUMMARY
This summary highlights information contained elsewhere in this Proxy Statement for the Annual Meeting. This summary does not contain all of the information that you should consider, and you should read the entire Proxy Statement carefully before voting. References to our website in this Proxy Statement are not intended to function as hyperlinks and the information contained on our website is not intended to be incorporated into this Proxy Statement. In this Proxy Statement, we refer to Fortinet, Inc. as “Fortinet,” “we,” or “us.”
2021 FINANCIAL AND BUSINESS HIGHLIGHTS
The list below highlights our financial highlights for 2021.
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We were added to the Nasdaq-100, an index of 100 of the largest nonfinancial Nasdaq-listed companies.
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Total revenue was $3.34 billion for 2021, an increase of 29% compared to $2.59 billion in 2020.
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Product revenue was $1.26 billion for 2021, an increase of 37% compared to $916.4 million in 2020.
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Service revenue was $2.09 billion for 2021, an increase of 24% compared to $1.68 billion in 2020.
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Total billings were $4.18 billion for 2021, an increase of 35% compared to $3.09 billion in 2020.1
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Cash flow from operations was $1.50 billion during 2021, compared to $1.08 billion in 2020.
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Free cash flow was $1.20 billion during 2021, compared to $907.8 million in 2020.1
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We had an assigned rating of BBB+ from S&P Global Ratings and a Baa1 rating from Moody’s Corporation as of December 31, 2021.
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We accounted for approximately 36.8% of global UTM, Firewall and VPN shipments through 2021, according to International Data Corporation’s Worldwide Security Appliance Tracker.
2021 ENVIRONMENTAL, SOCIAL AND GOVERNANCE HIGHLIGHTS
We are committed to responsible environmental, social and governance (“ESG”) practices. The list below includes some of our ESG highlights for 2021, as discussed further in this Proxy Statement.
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We announced our commitment to become carbon neutral by 2030 in alignment with Science Based Targets Initiatives (“SBTi”).
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Our headquarters campus in Sunnyvale, California is on track for LEED Gold certification.
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We published our inaugural Diversity and Inclusion Report in 2021.
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Our Board of Directors is comprised of directors with diverse backgrounds and experiences. More than 50% of our directors self-report racial diversity and 33% self-report gender diversity.
GOVERNANCE AND BOARD HIGHLIGHTS
We are committed to good corporate governance, which strengthens the accountability of the Board of Directors and promotes the long-term interests of our stockholders. The list below highlights our independent board and leadership practices, as discussed further in this Proxy Statement.
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A majority of our directors are independent (seven out of nine current directors).
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Our Lead Independent Director is elected annually, to serve and function separately from the Chairman of the Board of Directors.
1
See Appendix A for a reconciliation of the GAAP to Non-GAAP measures. An explanation of these measures is also included in Appendix A.
1
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All committees of the Board of Directors are composed of independent directors, with the exception of the Social Responsibility Committee of the Board of Directors (the “Social Responsibility Committee”).
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The Board of Directors is focused on enhancing diversity, equity and inclusion. Management frequently presents to the Human Resources Committee of the Board of Directors (the “Human Resources Committee”) on progress around diversity, equity and inclusion initiatives.
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Our Board of Directors established the Social Responsibility Committee to oversee our Corporate Social Responsibility (“CSR”) strategy, initiatives and execution related to ESG practices.
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The Board of Directors focuses on broad risk oversight practices, including CSR, cybersecurity, data privacy, legal and regulatory matters, and other critical evolving areas.
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The Board of Directors regularly reviews our governance practices. Over the years, on its own initiative, our Board of Directors has made adjustments to our corporate governance practices as we have matured as a public company, such as changing from a Board of Directors with three-year staggered terms for each director, to one-year terms.
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Independent directors conduct regular executive sessions.
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Our directors maintain open communication and strong working relationships among themselves and have regular access to management.
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The Board of Directors conducts a robust annual Board of Directors and committee self-assessment process.
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The Board of Directors has related-party transaction standards for any direct or indirect involvement of a director in the company’s business activities.
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Our non-employee directors are required to hold shares of our common stock pursuant to our Stock Ownership Guidelines for our non-employee directors.
Meeting Agenda and Voting Recommendations
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PROPOSAL ONE
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![[MISSING IMAGE: tm2212528d1-icon_tick4c.jpg]](/stocks/ftnt/documents/be2302ff-e0ec-43ff-ba62-010cb2b619f8/asset/tm2212528d1-icon_tick4c.jpg){kind=icon}
BOARD’S
RECOMMENDATION: “FOR” each of the nominees |
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| | ELECTION OF DIRECTORS | | |||
| | We are asking our stockholders to elect all nine directors for a one-year term expiring at Fortinet’s 2023 Annual Meeting of Stockholders (the “2023 Annual Meeting”) and until such director’s successor is duly elected and qualified or until such director’s earlier death, resignation, disqualification or removal. The table below sets forth information with respect to our nine nominees standing for election. All of the nominees are currently serving as directors. Additional information about our director nominees and their respective qualifications can be found under the section titled “Proposal One — Election of Directors — Nominees to Our Board of Directors.” | |
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Name
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Age
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Director Since
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| Ken Xie | | |
59
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| | October 2000 | |
| Michael Xie | | |
53
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| | February 2001 | |
| Kelly Ducourty | | |
47
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| | April 2020 | |
| Kenneth A. Goldman | | |
73
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| | October 2020 | |
| Ming Hsieh | | |
66
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| | April 2013 | |
| Jean Hu | | |
58
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| | October 2019 | |
| William H. Neukom | | |
80
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| | January 2013 | |
| Judith Sim | | |
53
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| | June 2015 | |
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Admiral James Stavridis (Ret)
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67
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| | October 2021 | |
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PROPOSAL TWO
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BOARD’S
RECOMMENDATION: “FOR” Proposal Two |
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| | RATIFICATION OF APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM | | |||
| | We are asking our stockholders to ratify the audit committee’s appointment of Deloitte & Touche LLP as our independent registered public accounting firm for the year ending December 31, 2022. Information regarding fees paid to Deloitte & Touche LLP during 2021 and 2020 can be found under the section titled “Proposal Two — Ratification of Appointment of Independent Registered Public Accounting Firm.” | |
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PROPOSAL THREE
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BOARD’S
RECOMMENDATION: “FOR” Proposal Three |
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| | ADVISORY VOTE TO APPROVE NAMED EXECUTIVE OFFICER COMPENSATION | | |||
| | We are asking our stockholders to approve, on an advisory and non-binding basis, the compensation of our named executive officers as disclosed in accordance with the SEC’s rules in the “Executive Compensation” section of this proxy statement. Information regarding compensation of our named executive officers can be found under the section titled “Proposal Three — Vote to Approve Named Executive Officer Compensation” | |
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PROPOSAL FOUR
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BOARD’S
RECOMMENDATION: “FOR” Proposal Four |
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| | ADOPTION OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION TO IMPLEMENT FIVE-FOR-ONE FORWARD STOCK SPLIT | | |||
| | We are asking our stockholders to approve the adoption of the Restated Certificate in order to implement a five-for-one forward stock split and to make certain other administrative changes as reflected in the Restated Certificate and described in this Proxy Statement. Information regarding the Restated Certificate and the Stock Split Proposal can be found under the section titled “Proposal Four — Adoption of Amended and Restated Certificate of Incorporation to Implement Five-for-One Forward Stock Split.” | |
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PROPOSAL FIVE
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THE BOARD OF DIRECTORS
HAS NO VOTING RECOMMENDATION FOR THIS PROPOSAL |
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| | STOCKHOLDER PROPOSAL | | |||
| | The Board of Directors has considered the proposal relating to the removal of supermajority voting standards in our amended and restated certificate of incorporation and amended and restated bylaws and has determined to make no voting recommendation to our stockholders. The proposal is advisory in nature only. | |
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PRELIMINARY PROXY STATEMENT DATED APRIL 22, 2022
SUBJECT TO COMPLETION
SUBJECT TO COMPLETION
FORTINET, INC.
899 Kifer Road
Sunnyvale, California 94086
899 Kifer Road
Sunnyvale, California 94086
PROXY STATEMENT
FOR 2022 ANNUAL MEETING OF STOCKHOLDERS
FOR 2022 ANNUAL MEETING OF STOCKHOLDERS
QUESTIONS AND ANSWERS ABOUT THE 2022 ANNUAL MEETING AND PROCEDURAL MATTERS
Q:
Why am I receiving these materials?
A:
The Board of Directors (the “Board of Directors”) of Fortinet, Inc. (“Fortinet,” “we,” “us” or “our”) is providing these proxy materials to you in connection with the solicitation of proxies for use at Fortinet’s 2022 Annual Meeting of Stockholders (the “2022 Annual Meeting”), to be held on Friday, June 17, 2022 at 10:00 a.m. Pacific time, and at any adjournment or postponement thereof, for the purpose of considering and acting upon the matters set forth in this proxy statement.
We expect to mail the Notice of Internet Availability of Proxy Materials (the “Notice”) on or about May 4, 2022. Copies of our proxy materials and 2021 Annual Report are available at www.edocumentview.com/FTNT.
Due to the public health risk of the COVID-19 pandemic and to support the health and well-being of our stockholders and other meeting participants, the 2022 Annual Meeting will be held in a virtual-only format. We believe that hosting a virtual meeting will allow for greater stockholder attendance and participation from any location around the world. The virtual-only approach also lowers costs and aligns with our broader sustainability goals. You will not be able to attend the 2022 Annual Meeting in person.
Q:
Why did I receive a one-page notice in the mail regarding the internet availability of proxy materials instead of a full set of proxy materials?
A:
Pursuant to rules adopted by the Securities and Exchange Commission (the “SEC”), we have elected to provide access to our proxy materials over the internet. Accordingly, we are sending the Notice to our stockholders of record and beneficial owners. All stockholders will have the ability to access the proxy materials on the website referred to in the Notice or request a printed set of the proxy materials. Instructions on how to access the proxy materials over the internet or to request a printed copy may be found in the Notice. In addition, stockholders may request to receive proxy materials in printed form by mail or electronically by email on an ongoing basis.
Q:
How can I get electronic access to the proxy materials?
A:
The Notice will provide you with instructions regarding how to:
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View our proxy materials for the 2022 Annual Meeting on the internet; and
•
Have future proxy materials sent to you electronically by email.
Choosing to receive future proxy materials by email will save us the cost of printing and mailing documents to you and will reduce the impact of our annual meetings on the environment. If you choose to receive future proxy materials by email, you will receive an email next year with instructions containing a link to those materials and a link to the proxy voting site.
Q:
Can I attend the 2022 Annual Meeting?
A:
If you were a stockholder of record at the close of business on April 18, 2022 (the “Record Date”) (i.e., your shares were registered directly in your name with our transfer agent, Computershare Trust Company, N.A. (“Computershare”)) or if you are a proxy holder for such a stockholder, you may participate in the 2022 Annual Meeting by following the instructions below:
•
Beginning at 9:45 a.m. Pacific Time on June 17, 2022, please visit www.meetnow.global/MVG5Z49.
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•
Enter the 15-digit control number on the Proxy Card or Notice of Availability of Proxy Materials you receive.
If you held your shares through an intermediary on the Record Date (i.e., you hold your shares in “street name” through an intermediary, such as a bank or broker), you must register in advance to virtually attend the 2022 Annual Meeting by following the instructions below:
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You must obtain a legal proxy, executed in your favor, from the holder of record reflecting the number of shares of common stock you held as of the Record Date, along with your name and email address.
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Submit proof of your legal proxy by forwarding the email from your broker, or attaching an image of your legal proxy, to legalproxy@computershare.com. Requests for registration must be labeled as “Legal Proxy” and be received no later than 5:00 p.m. Eastern Time, on June 10, 2022. You will then receive a confirmation of your registration, with a control number, by email from Computershare.
•
At the time of the 2022 Annual Meeting, go to www.meetnow.global/MVG5Z49 and enter your control number.
If we experience technical difficulties during the meeting (e.g. a temporary or prolonged power outage), we will determine whether the meeting can be promptly reconvened (if the technical difficulty is temporary) or whether the meeting will need to be reconvened on a later day (if the technical difficulty is more prolonged). In any situation, we will promptly notify stockholders of the decision via www.meetnow.global/MVG5Z49. The virtual meeting platform is fully supported across most browsers (including Edge, Firefox, Chrome and Safari) and devices (including desktops, laptops, tablets and cell phones) running the most up-to-date version of applicable software and plugins. Internet Explorer is not a supported browser. Participants should ensure that they have a strong internet connection wherever they intend to participate in the meeting. We encourage you to access the meeting prior to the start time. For further assistance should you need it you may call (888) 724-2416.
Q:
How can I ask questions at the 2022 Annual Meeting?
A:
You will be able to attend the 2022 Annual Meeting online and submit your questions during the meeting by visiting www.meetnow.global/MVG5Z49. For technical support, please call Computershare toll free at (866) 276-4119.
Q:
Who is entitled to vote at the 2022 Annual Meeting?
A:
You may vote your shares of Fortinet common stock if our records show that you owned your shares at the close of business on the Record Date. At the close of business on the Record Date, there were 160,268,931 shares of Fortinet common stock outstanding and entitled to vote at the 2022 Annual Meeting. You may cast one vote for each share of common stock held by you as of the Record Date on all matters presented.
Q:
What is the difference between holding shares as a stockholder of record or as a beneficial owner?
A:
With respect to your shares that are registered directly in your name with Fortinet’s transfer agent, Computershare, you are considered the “stockholder of record” and the Notice has been sent directly to you by Fortinet. As the stockholder of record, you have the right to grant your voting proxy directly to Fortinet or to a third party, or to vote in person at the 2022 Annual Meeting.
With respect to your shares that are held by a brokerage account or by another nominee, you are considered the “beneficial owner” of shares held in “street name” and the Notice is being forwarded to you together with voting instructions on behalf of your broker, trustee or nominee. As the beneficial owner, you have the right to direct your broker, trustee or nominee how to vote, and you are also invited to attend the 2022 Annual Meeting. Your broker, trustee or nominee has enclosed or provided voting instructions for you to use in directing the broker, trustee or nominee how to vote your shares. Because a beneficial owner is not the stockholder of record, you may not vote these shares in person at the 2022 Annual Meeting unless you obtain a “legal proxy” from the broker, trustee or nominee that holds
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your shares, giving you the right to vote the shares at the 2022 Annual Meeting. If you hold your shares through a broker and do not provide your broker with specific voting instructions, under the rules that govern brokers in such circumstances, your broker will have the discretion to vote such shares on routine matters but not on non-routine matters. Even though we are listed on The Nasdaq Stock Market LLC (“Nasdaq”), the rules of the New York Stock Exchange (the “NYSE”) govern how a broker licensed by the NYSE can vote shares it holds on behalf of stockholders of Nasdaq-listed companies.
As a result:
•
Your broker will not have the authority to exercise discretion to vote your shares with respect to the election of directors, the advisory vote on named executive officer compensation or the stockholder proposal.
•
Your broker will have the authority to exercise discretion to vote your shares with respect to the appointment of Deloitte & Touche LLP as our independent registered public accounting firm for the year ending December 31, 2022 and the vote on the Stock Split Proposal, because those matters are treated as routine under NYSE rules.
Because the proposals to be acted upon at the 2022 Annual Meeting include both routine and non-routine matters, if you do not give voting instructions to your broker, trustee or nominee, your broker, trustee or nominee may either (i) vote your shares on routine matters or (ii) leave your shares unvoted.
A broker “non-vote” occurs when your broker, trustee or nominee does not vote on a particular proposal because the broker, trustee or nominee does not have discretionary voting power with respect to that item and has not received voting instructions from you as the beneficial owner.
Q:
How can I vote my shares without attending the 2022 Annual Meeting?
A:
You are encouraged to vote your shares in advance of the 2022 Annual Meeting. If voting in advance of the 2022 Annual Meeting, the steps required to cast your votes are the same as indicated in the materials received with the Proxy Statement. If you have not already voted your shares in advance, you will be able to vote your shares electronically during the 2022 Annual Meeting by clicking on the “Cast Your Vote” link on the Meeting Center site.
Whether you hold shares directly as the stockholder of record or beneficially in street name, you may direct how your shares are voted without attending the 2022 Annual Meeting. There are three ways to vote by proxy:
By mail — If you are a stockholder of record, you may vote by submitting a proxy card; please refer to the voting instructions in the Notice or below. If you hold shares beneficially in street name, you may vote by submitting voting instructions to your broker, trustee or nominee; please refer to the voting instructions provided to you by your broker, trustee or nominee.
By internet — Stockholders of record of Fortinet common stock with internet access may submit proxies by following the “Vote by Internet” instructions described in the Notice until 11:59 p.m. Eastern time on Thursday, June 16, 2022 or by following the instructions at www.meetnow.global/MVG5Z49. Most Fortinet stockholders who hold shares beneficially in street name may vote by accessing the website specified in the voting instructions provided by their brokers, trustees or nominees. Please check the voting instructions for internet voting availability.
By telephone — Depending on how your shares are held, you may be able to vote by telephone. If this option is available to you, you will have received information with the Notice or the voting instruction card provided by your broker, trustee or nominee explaining this procedure.
Q:
How many shares must be present or represented to conduct business at the 2022 Annual Meeting?
A:
The presence of the holders of a majority of the issued and outstanding shares of our capital stock entitled to vote at the 2022 Annual Meeting is necessary to constitute a quorum at the 2022 Annual Meeting. Such stockholders are counted as present at the meeting if they (i) are present in person at the 2022 Annual Meeting or (ii) represented by proxy.
6
Under Delaware law, abstentions and broker non-votes are counted as present and entitled to vote for purposes of determining whether a quorum is present at the 2022 Annual Meeting. However, as discussed above, under “What is the difference between holding shares as a stockholder of record or as a beneficial owner?” brokers have limited discretionary authority to vote shares that are beneficially owned and, therefore, are not entitled to vote on non-routine matters in the absence of voting instructions from the beneficial owner of such shares.
Q:
What proposals will be voted on at the 2022 Annual Meeting?
A:
The proposals scheduled to be voted on at the 2022 Annual Meeting are:
•
The election of the nine directors set forth in Proposal One to serve for a one-year term expiring at the 2023 Annual Meeting and until their respective successors are duly elected and qualified;
•
The ratification of the appointment of Deloitte & Touche LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2022;
•
An advisory vote to approve our named executive officer compensation;
•
The Stock Split Proposal; and
•
A stockholder proposal, if properly presented before the meeting.
Q:
What is the voting requirement to approve each of the proposals?
A:
We have a majority voting standard for uncontested elections of directors (Proposal One), which means that to be elected, a director nominee must receive a majority of the votes cast, i.e. the number of shares voted “FOR” a director nominee must exceed the votes cast “AGAINST” that nominee.
The affirmative vote of a majority of the shares of our common stock that are present in person or represented by proxy at the 2022 Annual Meeting and entitled to vote is required to ratify the appointment of Deloitte & Touche LLP as our independent registered public accounting firm (Proposal Two), to approve the advisory resolution on named executive compensation (Proposal Three) and to approve the stockholder proposal (Proposal Five).
For the Stock Split Proposal, the affirmative vote of at least 66 2∕3% of the voting power of all of the shares of our common stock outstanding as of the Record Date is required to adopt the Restated Certificate in order to implement the proposed stock split (Proposal Four).
Q:
How are votes counted?
A:
You may vote “FOR” or “AGAINST” each of the nominees for election as director in Proposal One and on each of Proposal Two, Proposal Three, Proposal Four and Proposal Five. You may also “ABSTAIN” from voting.
Abstentions are deemed to be shares present or represented by proxy and entitled to vote. Abstentions have no effect on Proposal One and the same effect as a vote against Proposals Two, Three, Four and Five.
Broker non-votes are not deemed to be shares entitled to vote on and will have no effect on Proposals One and Three. Brokers have discretionary authority to vote shares that are beneficially owned on Proposal Two and Proposal Four. If a broker chooses not to vote shares for or against Proposal Two or Proposal Four, it would have the same effect as an abstention.
All shares entitled to vote and represented by properly submitted proxies received prior to the 2022 Annual Meeting (and not revoked) will be voted at the 2022 Annual Meeting in accordance with the instructions indicated by such proxy. If no instructions are indicated on such proxy, the shares represented by that proxy will be voted as recommended by the Board of Directors.
Q:
How does the Board of Directors recommend that I vote?
A:
The Board of Directors recommends that you vote your shares:
•
“FOR” each of the nine nominees for election as directors (Proposal One);
7
•
“FOR” the ratification of the appointment of Deloitte & Touche LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2022 (Proposal Two);
•
“FOR” the advisory resolution to approve named executive officer compensation (Proposal Three); and
•
“FOR” the Stock Split Proposal (Proposal Four).
The Board of Directors has no voting recommendation for the stockholder proposal (Proposal Five).
Q:
What happens if additional matters are presented at the 2022 Annual Meeting?
A:
If any other matters are properly presented for consideration at the 2022 Annual Meeting, including, among other things, consideration of a motion to adjourn the 2022 Annual Meeting to another time or place (including, without limitation, for the purpose of soliciting additional proxies), the persons named as proxy holders, Ken Xie and John Whittle, or either of them, will have discretion to vote on those matters in accordance with their best judgment. Fortinet does not currently anticipate that any other matters will be raised at the 2022 Annual Meeting.
Q:
Can I change my vote?
A:
Subject to any rules your broker, trustee or nominee may have, you may change your proxy instructions at any time before your proxy is voted at the 2022 Annual Meeting.
If you are the stockholder of record, you may change your vote: (i) by granting a new proxy bearing a later date (which automatically revokes the earlier proxy) using any of the methods described above (and until the applicable deadline for each method); (ii) by providing a written notice of revocation to Fortinet’s Corporate Secretary at Fortinet, Inc., 899 Kifer Road, Sunnyvale, California 94086 prior to your shares being voted; or (iii) by attending the 2022 Annual Meeting and voting virtually. Attendance at the meeting will not cause your previously granted proxy to be revoked unless you specifically so request.
If you are a beneficial owner of shares held in street name, you may change your vote (a) by submitting new voting instructions to your broker, trustee or nominee or (b) if you have obtained a legal proxy from the broker, trustee or nominee that holds your shares giving you the right to vote your shares, by attending the 2022 Annual Meeting and voting virtually.
Q:
What should I do if I receive more than one set of voting materials?
A:
If you received more than one Notice, voting instruction card or set of proxy materials, your shares are registered in more than one name or brokerage account. Please follow the instructions on each Notice or voting instruction card that you receive to ensure that all of your shares are voted.
Q:
Is my vote confidential?
A:
Proxy instructions, ballots and voting tabulations that identify individual stockholders are handled in a manner that protects your voting privacy. Your vote will not be disclosed either within Fortinet or to third parties, except: (i) as necessary to meet applicable legal requirements; (ii) to allow for the tabulation of votes and certification of the vote; and (iii) to facilitate a successful proxy solicitation. Occasionally, stockholders provide written comments on their proxy cards, which may be forwarded to Fortinet management.
Q:
Who will serve as inspector of election?
A:
The inspector of election will be a representative of Computershare.
Q:
Where can I find the voting results of the 2022 Annual Meeting?
A:
We will announce preliminary voting results at the 2022 Annual Meeting. We will disclose final voting results in a Current Report on a Form 8-K filed with the SEC within four business days after the 2022 Annual Meeting.
8
Q:
Who will bear the cost of soliciting votes for the 2022 Annual Meeting?
A:
Fortinet will pay the entire cost of preparing, assembling, printing, mailing and distributing these proxy materials and soliciting votes. We may reimburse brokerage firms, custodians, nominees, fiduciaries and other persons representing beneficial owners for their reasonable expenses in forwarding solicitation material to such beneficial owners. Our directors, officers and employees may also solicit proxies in person or by other means of communication. Such directors, officers and employees will not be additionally compensated but may be reimbursed for reasonable out-of-pocket expenses in connection with such solicitation.
Q:
What is the deadline to propose actions for consideration at next year’s annual meeting of stockholders or to nominate individuals to serve as directors?
A:
You may submit proposals, including nominations of director candidates, for consideration at future stockholder meetings.
For inclusion in Fortinet’s proxy materials — Stockholders may present proper proposals for inclusion in Fortinet’s proxy statement and for consideration at the next annual meeting of stockholders by submitting their proposals in writing to Fortinet’s Corporate Secretary in a timely manner. In order to be included in the proxy statement for the 2022 Annual Meeting, stockholder proposals must be received by Fortinet’s Corporate Secretary no later than [ ], and must otherwise comply with the requirements of Rule 14a-8 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
To be brought before the annual meeting — In addition, Fortinet’s amended and restated bylaws establish an advance notice procedure for stockholders who wish to present certain matters before an annual meeting of stockholders. In general, nominations for the election of directors may be made (i) by or at the direction of the Board of Directors or (ii) by a stockholder who has delivered written notice to Fortinet’s Secretary within the Notice Period (as defined below) and who was a stockholder at the time of such notice and as of the record date. The notice must contain specified information about the nominees and about the stockholder proposing such nominations.
Fortinet’s amended and restated bylaws also provide that the only business that may be conducted at an annual meeting is business that is (a) properly brought before the meeting pursuant to Fortinet’s proxy materials with respect to such meeting, (b) properly brought before the meeting by or at the direction of the Board of Directors or (c) properly brought before the meeting by a stockholder who has delivered written notice to Fortinet’s Corporate Secretary at its principal executive offices within the Notice Period and who was a stockholder at the time of such notice and as of the record date. The notice must contain specified information about the matters to be brought before such meeting and about the stockholder proposing such matters.
The “Notice Period” is defined as that period not less than 45 days nor more than 75 days prior to the one-year anniversary of the date on which Fortinet mailed its proxy materials or the Notice (whichever is earlier) to stockholders in connection with the preceding year’s annual meeting of stockholders. As a result, assuming a Notice mailing date of May 4, 2022, the Notice Period for the 2023 Annual Meeting will start on February 18, 2023 and end on March 20, 2023.
If a stockholder who has notified Fortinet of such stockholder’s intention to present a proposal at an annual meeting does not appear to present such stockholder’s proposal at such meeting, Fortinet need not present the proposal for vote at such meeting.
A copy of the full text of the bylaw provisions discussed above may be obtained by writing to Fortinet’s Corporate Secretary at our principal executive offices or by accessing Fortinet’s filings on the SEC’s website at www.sec.gov. All notices of proposals by stockholders, whether or not included in Fortinet’s proxy materials, should be sent to Fortinet’s Corporate Secretary at our principal executive offices.
Q:
How may I obtain a separate set of proxy materials or the 2021 Annual Report?
A:
If you share an address with another stockholder, each stockholder may not receive a separate copy of our proxy materials and 2021 Annual Report. Stockholders who do not receive a separate copy of
9
our proxy materials and 2021 Annual Report and want to receive a separate copy may request to receive a separate copy of, or stockholders may request additional copies of, our proxy materials and 2021 Annual Report by calling (408) 235-7700 or by writing to Fortinet, Inc., 899 Kifer Road, Sunnyvale, California 94086, Attention: Investor Relations. Stockholders who share an address and receive multiple copies of our proxy materials and 2021 Annual Report can also request to receive a single copy by following the instructions above.
10
PROPOSAL ONE
ELECTION OF DIRECTORS
General
The Board of Directors currently consists of nine members, and our amended and restated certificate of incorporation provides that the entire Board of Directors will stand for election annually for one-year terms. Each director holds office until that director’s successor is duly elected and qualified. Our amended and restated bylaws permit the Board of Directors to establish by resolution the authorized number of directors, and nine directors are currently authorized.
Nominees
Nine candidates have been nominated for election as directors at the 2022 Annual Meeting for a one-year term expiring at the 2022 Annual Meeting. Upon recommendation of the Governance Committee of the Board of Directors (the “Governance Committee”), the Board of Directors has nominated Ken Xie, Michael Xie, Kelly Ducourty, Kenneth A. Goldman, Ming Hsieh, Jean Hu, William H. Neukom, Judith Sim and Admiral James Stavridis (Ret) for election as directors. Biographical information about each of the nominees is contained in the following section. A discussion of the qualifications, attributes and skills of each nominee that led the Board of Directors and the Governance Committee to the conclusion that such nominee should serve as a director has been added following each of the director and nominee biographies.
Each nominee has agreed to serve if elected, and management has no reason to believe that any nominee will be unavailable to serve. In the event any nominee is unable or declines to serve as a director at the time of the 2022 Annual Meeting, the proxies will be voted for any nominee who may be proposed by the Governance Committee and designated by the present Board of Directors to fill the vacancy.
If you sign your proxy card or voting instruction card or vote by telephone or over the internet but do not give instructions with respect to the voting of directors, your shares will be voted for the nine nominees recommended by the Board of Directors. If you wish to give specific instructions with respect to the voting of directors, you may do so by indicating your instructions on your proxy or voting instruction card or when you vote by telephone or over the internet. If you do not give voting instructions to your broker, your broker will leave your shares unvoted on this matter.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” THE ELECTION OF
KEN XIE, MICHAEL XIE, KELLY DUCOURTY,
KENNETH A. GOLDMAN, JEAN HU, MING HSIEH,
WILLIAM H. NEUKOM, JUDITH SIM AND ADMIRAL JAMES STAVRIDIS (RET).
KEN XIE, MICHAEL XIE, KELLY DUCOURTY,
KENNETH A. GOLDMAN, JEAN HU, MING HSIEH,
WILLIAM H. NEUKOM, JUDITH SIM AND ADMIRAL JAMES STAVRIDIS (RET).
11
Information Regarding the Board of Directors and Director Nominees
The names of the members of the Board of Directors and our proposed director nominees, their respective ages, their positions with Fortinet (as applicable) and other biographical information as of March 31, 2022, are set forth below.
Messrs. Ken Xie and Michael Xie are brothers. There are no other family relationships among any of our directors or executive officers.
|
Name
|
| |
Age
|
| |
Position
|
|
| Ken Xie | | |
59
|
| | Chief Executive Officer, Chairman of the Board of Directors and Director Nominee | |
| Michael Xie(4) **** | | |
53
|
| | President, Chief Technology Officer, Director and Director Nominee | |
| Kelly Ducourty(1)(4) | | |
47
|
| | Director and Director Nominee | |
| Kenneth A. Goldman(1)(2) | | |
73
|
| | Director and Director Nominee | |
| Ming Hsieh(2)(3) * | | |
66
|
| | Director and Director Nominee | |
| Jean Hu(2) ** | | |
58
|
| | Director and Director Nominee | |
| William H. Neukom(3) | | |
80
|
| | Lead Independent Director and Director Nominee | |
| Judith Sim(1)(3) *** | | |
53
|
| | Director and Director Nominee | |
|
Admiral James Stavridis (Ret)(4)
|
| |
67
|
| | Director and Director Nominee | |
(1)
Member of the Human Resources Committee.
(2)
Member of the Audit Committee.
(3)
Member of the Governance Committee.
(4)
Member of the Social Responsibility Committee.
*
Chairperson of the Governance Committee.
**
Chairperson of the Audit Committee.
***
Chairperson of the Human Resources Committee.
****
Chairperson of the Social Responsibility Committee.
Ken Xie has served as our Chief Executive Officer and a member of the Board of Directors since he co-founded Fortinet in October 2000. He previously served as our President until November 2013. Prior to co-founding Fortinet, Mr. Ken Xie was the Founder, President and Chief Executive Officer of NetScreen Technologies, Inc., a provider of network security products, which was acquired by Juniper Networks, Inc. in April 2004. Additionally, Mr. Ken Xie was Chief Executive Officer of SIS, Inc. and is a member of the National Academy of Engineering. In addition to the Board of Directors, Mr. Ken Xie has served on the board of directors of TeleNav, Inc. since July 2012. Mr. Ken Xie received a B.S. and an M.S. in electrical engineering from Tsinghua University in China and an M.S. in electrical engineering from Stanford University.
Mr. Ken Xie has more than 25 years of technical and management experience in the networking and security industries, which includes his roles as a founder of Fortinet, NetScreen and SIS and as President and Chief Executive Officer of each of the foregoing companies. The Board of Directors also believes Mr. Ken Xie provides valuable perspective and experience as a co-founder of Fortinet and one of its largest stockholders.
Michael Xie has served as our President and Chief Technology Officer since November 2013 and as a member of the Board of Directors since February 2001. He previously served as our Vice President of Engineering and Chief Technology Officer after co-founding Fortinet in October 2000. Prior to co-founding Fortinet, he held positions as Vice President of Engineering for ServGate Technologies, Inc., a network security provider that was acquired by Amarium Technologies, Inc. in April 2006, Software Director and Architect for NetScreen and Senior Software Engineer for Milkyway Networks Corporation, a network security solutions provider. Mr. Michael Xie has an M.S. in electrical engineering from the University of Manitoba in Canada, as well as a B.S. and an M.S. in automobile engineering from Tsinghua University in China.
12
Mr. Michael Xie has more than 20 years of technical and operational experience in the network security industry, which includes positions as the President and Chief Technology Officer of Fortinet, the Vice President of Engineering of ServGate and the Software Director and Architect of NetScreen. The Board of Directors believes that Mr. Michael Xie’s deep technical knowledge is invaluable in developing and improving Fortinet’s technology and network security products. The Board of Directors also believes Mr. Michael Xie provides valuable perspective and experience as a co-founder of Fortinet and one of its largest stockholders.
Kelly Ducourty has served as a member of the Board of Directors since April 2020. Since October 2020, Ms. Ducourty has served as Vice President, Strategy and Operations for Google Cloud, a subsidiary of Alphabet Inc. that provides cloud computing services, and previously served as Managing Director, Strategy and Operations from March 2020 to October 2020 and Managing Director, Global Enablement and Sales Activation at Google Cloud from October 2019 to March 2020. From July 1998 until October 2019, Ms. Ducourty served in various roles at Hewlett Packard Enterprise, an information technology company, including most recently in various Senior Vice President roles from November 2016 until October 2019 and as Vice President, Strategic Accounts, from September 2014 to November 2016. Ms. Ducourty received a B.A. in International Marketing Management from Bournemouth University.
Ms. Ducourty has extensive experience in the sales of technology products and business development from her positions at Google Cloud and Hewlett Packard Enterprise.
Kenneth A. Goldman has served as a member of the Board of Directors since October 2020. Mr. Goldman has served as the President of Hillspire LLC, a family office management company, since September 2017. From October 2012 to June 2017, Mr. Goldman served as the Chief Financial Officer of Yahoo! Inc., a provider of internet content and services. Prior to this, Mr. Goldman was our Senior Vice President and Chief Financial Officer from September 2007 to October 2012. From January 2015 to December 2017, Mr. Goldman served as a member of the PCAOB, Standing Advisory Group. Mr. Goldman currently serves on the boards of directors of GoPro, Inc., NXP Semiconductor N.V. (“NXP”), RingCentral, Inc. and Zuora, Inc. In April 2022, NXP announced in its proxy statement that Mr. Goldman is retiring from NXP’s Board of Directors at the expiration of his current term, which ends as of NXP’s 2022 annual general meeting of shareholders, to be held on May 4, 2022. Mr. Goldman is also on the board of directors of the Value Reporting Foundation (“VRF”), which is responsible for the financing, oversight, administration and appointment of the VRF Standard Board. Mr. Goldman holds a B.S. in Electrical Engineering from Cornell University and an M.B.A. from Harvard Business School.
Mr. Goldman has developed expertise in finance, including accounting and financial reporting, as a Chief Financial Officer of Yahoo! Inc. and in other finance roles, and has career experience managing human resources and legal functions. Mr. Goldman also has over ten years of outside board experience at the aforementioned companies and numerous other public and private companies.
Ming Hsieh has served as a member of the Board of Directors since April 2013. Mr. Hsieh has served as the Chairman and Chief Executive Officer of Fulgent Therapeutics Inc., a cancer drug research and development company, since September 2012. From October 2010 to June 2012, Mr. Hsieh served as the President of 3M Cogent, Inc., a provider of global biometric identification solutions, following the acquisition of Cogent, Inc. by 3M Company in 2010. Prior to the acquisition, Mr. Hsieh served as the Chief Executive Officer, President and Chairman of the board of directors of Cogent since founding Cogent in 1990. Prior to that, Mr. Hsieh was a research and development engineer at International Rectifier Corporation, a manufacturer of semiconductors, from 1985 to 1987. Mr. Hsieh received a B.S.E.E. from the University of Southern California in 1983 and an M.S.E.E. from University of Southern California in 1984.
Mr. Hsieh has leadership, operational and executive experience by serving as Chief Executive Officer, President and Chairman of the board of directors of Cogent.
Jean Hu has served as a member of the Board of Directors since October 2019. Since August 2016, Ms. Hu has served as Executive Vice President and Chief Financial Officer of Marvell Technology Group Ltd., a semiconductor company. Prior to Marvell, Ms. Hu served as Senior Vice President and Chief Financial Officer of QLogic Corporation, a network server and storage networking company, from April 2011 to August 2016, and as acting Chief Executive Officer of QLogic from May 2013 to February 2014 and from
13
August 2015 to August 2016. From 2004 to 2011, Ms. Hu served in various senior positions at Conexant Systems, Inc., a semiconductor company, including as Chief Financial Officer and Senior Vice President, Business Development from December 2008 to April 2011 and as Treasurer from June 2009 until April 2011. Ms. Hu holds a B.S. in Chemical Engineering from Beijing University of Chemical Engineering and a Ph.D. in Economics from Claremont Graduate University.
Ms. Hu has extensive experience in the management of technology companies from her positions at Marvell and QLogic, and expertise in corporate financing, accounting and financial reporting.
William H. Neukom has served as a member of the Board of Directors since January 2013 and has served as our Lead Independent Director since April 2018. Mr. Neukom is the Founder and Chief Executive Officer of the World Justice Project, an organization devoted to promoting the rule of law throughout the world. He is a retired partner in the Seattle office of the international law firm K&L Gates LLP and is a lecturer at Stanford Law School, where he teaches a seminar on the rule of law. He is a member of the Dean’s Council at Stanford Law School and was its chair from 2012 to 2015. Mr. Neukom was the Chief Executive Officer of the San Francisco Giants major league baseball team from 2008 to 2011, and served as its Chairman Emeritus during 2012. He is a trustee emeritus of Dartmouth College, having served as chair of the board from 2004 to 2007, and was president of the American Bar Association from 2007 to 2008, and was awarded the ABA Medal in 2020. Mr. Neukom was previously the lead lawyer for Microsoft Corporation for nearly 25 years, managing its legal, government affairs and philanthropic activities. He retired from Microsoft as its Executive Vice President of Law and Corporate Affairs in 2002, when he returned to Preston, Gates & Ellis LLP and served as the firm’s chairman from 2003 until its merger with Kirkpatrick & Lockhart Nicholson Graham LLP in 2007. Mr. Neukom also serves on the board of several not-for-profit organizations. Mr. Neukom earned an A.B. from Dartmouth College and an LL.B. from Stanford University.
Mr. Neukom has business leadership, operational, legal and executive experience as a result of his service as Managing General Partner and Chief Executive Officer of San Francisco Baseball Associates, as President of the American Bar Association, as a partner at an international law firm and as the Executive Vice President of Law and Corporate Affairs for Microsoft. The Board of Directors believes that Mr. Neukom, with his experience with the technology industry and his expertise in legal, governance and compliance matters, brings a unique and valuable perspective to the Board of Directors.
Judith Sim has served as a member of the Board of Directors since June 2015. Ms. Sim previously held various customer-related and marketing positions at Oracle Corporation from 1991 to April 2020, including as its Chief Marketing Officer from 2005 to April 2020. Ms. Sim received a B.S. in dietetics from the University of California at Davis.
Ms. Sim has leadership and executive experience from her position as head of marketing programs at Oracle, including experience in field marketing, corporate communications, global customer programs, advertising, campaigns, events and corporate branding.
Admiral James Stavridis, USN (Ret), PhD has served as a member of the Board of Directors since October 2021. Admiral Stavridis (Ret) spent 37 years in the U.S. Navy, rising to the rank of 4-star Admiral. Among Admiral Stavridis’ (Ret) many commands were four years as the 16th Supreme Allied Commander of NATO, leading the NATO Alliance in global operations and where his responsibilities included cybersecurity. He was the longest serving Combatant Commander in recent U.S. history. In the course of his Navy career, Admiral Stavridis (Ret) served as senior military assistant to the Secretary of the Navy and the Secretary of Defense. He led the Navy’s premier operational think tank for innovation, Deep Blue. Following his military career, Admiral Stavridis (Ret) served for five years as the 12th Dean of The Fletcher School of Law and Diplomacy at Tufts University. While Dean, he created a blended master’s degree in cyber and international relations at Tufts. He is a nationally recognized cybersecurity expert and routinely teaches on cyber challenges and offers insights via speaking appearances. He is currently Managing Director and Vice Chairman, Global Affairs of The Carlyle Group and is Chair of the Board of Trustees of the Rockefeller Foundation. Admiral Stavridis (Ret) attended the U.S. Naval Academy at Annapolis and earned a PhD in international relations from The Fletcher School at Tufts University.
Admiral Stavridis (Ret) has extensive government and leadership experience as a result of his military service. The Board of Directors believes that Admiral Stavridis (Ret), with his experience with NATO and his expertise governance matters, brings a unique and valuable perspective to the Board of Directors
14
Director Expertise and Experience
The Board of Directors is comprised of a diverse mix of directors with complementary expertise and experience, as summarized in the table below. Our directors may also have limited expertise and experience in addition to what is reflected in the “Number of Directors” column below.
|
Expertise, Experience or Attribute
|
| |
Description
|
| |
Number of Directors
|
|
|
Cybersecurity
|
| |
Extensive knowledge of corporate and global issues related to cybersecurity challenges within private and public organizations.
|
| |
3 of 9
|
|
|
Technology and Product Development
|
| |
Significant background working in the technology industry and in management of technology companies; experience in product development, including engineering and design.
|
| |
8 of 9
|
|
|
Leadership
|
| |
Extensive executive, director or management experience from leadership and governance roles in corporations, government or public organizations.
|
| |
9 of 9
|
|
|
Public Service and Legal
|
| |
Dedication to public service through leadership of government, non-governmental organizations and not-for-profit institutions; extensive experience in legal and compliance matters.
|
| |
4 of 9
|
|
|
Finance
|
| | Leadership of a financial firm or management of the finance function of an enterprise, resulting in financial proficiency and expertise. | | |
2 of 9
|
|
|
Sales and Marketing
|
| | Experience in sales or marketing, and leadership of corporate sales or marketing functions. | | |
2 of 9
|
|
Board Diversity Matrix
We believe that representation of gender, ethnic, geographic, cultural or other perspectives expands the Board of Directors’ understanding of the needs and viewpoints of our customers, partners, employees and other stakeholders. The following matrix discloses the gender and demographic backgrounds of our directors, as self-identified by its members in accordance with Nasdaq Listing Rule 5606.
| | | |
Female
|
| |
Male
|
| |
Non-Binary
|
| |
Did Not
Disclose Gender |
| ||||||||||||
| Part I: Gender Identity | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Directors
|
| | | | 3 | | | | | | 6 | | | | | | — | | | | | | — | | |
| Part II: Demographic Background | | | | | | | | | | | | | | | | | | | | | | | | | |
|
African American or Black
|
| | | | — | | | | | | — | | | | | | | | | | | | | | |
|
Alaskan Native of Native American
|
| | | | — | | | | | | — | | | | | | | | | | | | | | |
|
Asian
|
| | | | 2 | | | | | | 3 | | | | | | | | | | | | | | |
|
Hispanic or Latinx
|
| | | | — | | | | | | — | | | | | | | | | | | | | | |
|
Native Hawaiian or Pacific Islander
|
| | | | — | | | | | | — | | | | | | | | | | | | | | |
|
White
|
| | | | 1 | | | | | | 3 | | | | | | | | | | | | | | |
|
Two or more Races or Ethnicities
|
| | | | — | | | | | | — | | | | | | | | | | | | | | |
|
LGBTQ+
|
| | | | — | | | | | | — | | | | | | | | | | | | | | |
|
Military Veteran
|
| | | | — | | | | | | 1 | | | | | | | | | | | | | | |
|
Did Not Disclose Demographic Background
|
| | | | — | | | | | | — | | | | | | | | | | | | | | |
15
Director Tenure and Age Distribution
We also believe that our current Board of Directors composition represents an effective balance with respect to director tenure and age. Recent director additions provide the Board of Directors with fresh perspectives and diverse experiences, while directors with longer tenure provide continuity and valuable insight into our business and strategy. The following tables provide information regarding the current tenure and age distribution of the Board of Directors (as of March 31, 2022).
| |
Tenure
|
| |
Number of Directors
|
| |
Age
|
| |
Number of Directors
|
|
| |
More than 10 years
|
| |
2
|
| |
70+ years
|
| |
2
|
|
| |
6 – 10 years
|
| |
2
|
| |
61 – 70 years
|
| |
2
|
|
| |
0 – 5 years
|
| |
5
|
| |
45 – 60 years
|
| |
5
|
|
Board Evaluations
The Board of Directors is committed to a robust self-evaluation process designed for continuous improvement. To achieve this, the Board of Directors conducts an annual self-evaluation for itself and its committees. As part of this process, each member of the Board of Directors completes a survey conducted by a third-party consulting firm to provide feedback on the processes, structure, composition and effectiveness of the Board of the Directors. The survey is a detailed written questionnaire designed to help the Board of Directors assess the performance of the Board of Directors and its committees, their own individual performance and the individual performances of fellow directors. The third-party consulting firm also collects feedback on the Board of Directors as a whole and each individual director from key members of management. The feedback received from the Board of Directors and management is shared first with the Governance Committee, and then made available to the individual directors and the full Board of Directors.
The Board of Directors evaluation process is used:
•
by the Board of Directors and the Governance Committee to assess the current composition of the Board of Directors and its committees and make recommendations for the qualifications, expertise and characteristics we should seek in identifying potential new directors;
•
by the Board of Directors and the Governance Committee to identify the strengths and areas of opportunity of each member of the Board of Directors, the Board of Directors as a whole and each committee;
•
by the Board of Directors to provide insight into how the Board as a whole, each committee and each member of the Board of Directors can be most valuable;
•
to improve agenda topics of the Board of Directors and its committees so that information they receive enables them to effectively address the issues they consider most critical; and
•
by the Governance Committee as part of its annual review of each director’s performance when considering whether to recommend the nomination of the director for re-election to the Board of Directors.
See “Corporate Governance” and “Executive Compensation — Compensation of Directors” for additional information regarding the Board of Directors.
16
PROPOSAL TWO
RATIFICATION OF APPOINTMENT OF
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
RATIFICATION OF APPOINTMENT OF
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
General
The Audit Committee of the Board of Directors (the “Audit Committee”) has selected Deloitte & Touche LLP as Fortinet’s independent registered public accounting firm to audit the financial statements of Fortinet for the fiscal year ending December 31, 2022, which will include an audit of the effectiveness of Fortinet’s internal control over financial reporting. A representative of Deloitte & Touche LLP is expected to be present at the 2022 Annual Meeting, will have the opportunity to make a statement if such representative desires to do so and is expected to be available to respond to appropriate questions.
If the appointment is not ratified, the Audit Committee will consider whether it should select other independent auditors. Even if the appointment is ratified, the Audit Committee, in its discretion, may direct the appointment of a different independent registered public accounting firm as Fortinet’s independent auditors at any time during the year if the Audit Committee determines that such a change would be in Fortinet’s and its stockholders’ best interests.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” THE RATIFICATION OF THE APPOINTMENT OF DELOITTE & TOUCHE LLP AS FORTINET’S INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR THE FISCAL YEAR ENDING DECEMBER 31, 2022.
Principal Accounting Fees and Services
The following table presents fees billed for professional audit services and other services rendered to Fortinet by Deloitte & Touche LLP for the years ended December 31, 2021 and December 31, 2020.
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2021
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2020
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Audit Fees(1)
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| | | $ | 3,109,169 | | | | | $ | 2,850,299 | | |
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Audit-Related Fees(2)
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| | | | 969,300 | | | | | | 650,000 | | |
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Tax Fees(3)
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| | | | 619,244 | | | | | | 640,361 | | |
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All Other Fees (4)
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| | | | — | | | | | | 1,895 | | |
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Total
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| | | $ | 4,697,713 | | | | | $ | 4,142,555 | | |
(1)
Audit Fees consist of fees for professional services provided in connection with the audit of our annual consolidated financial statements, audit of our internal control over financial reporting, the review of our quarterly consolidated financial statements and audit services that are normally provided by the independent registered public accounting firm in connection with statutory and regulatory filings for those fiscal years.
(2)
Audit-Related Fees consist of fees for assurance and related services that are reasonably related to the performance of the audit or review of our consolidated financial statements and which are not reported under Audit Fees above. In 2021, Audit-Related Fees related primarily to the debt offering, business combination and equity investment.
(3)
Tax Fees consist of fees for services related to federal and state income tax compliance, transfer pricing review, reports related to research and development credits, country-by-country reporting, the Foreign Derived Intangible Income and U.S. tax reform.
(4)
All Other Fees consist of products and services provided by Deloitte & Touche LLP that are not included in the service categories reported above.
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Approval of Audit and Non-Audit Services
Pursuant to its charter, the Audit Committee is required to (i) review and approve, in advance, the scope and plans for all audits and audit fees and (ii) approve, in advance, all non-audit services to be performed by our independent auditor that are not otherwise prohibited by law and any associated fees.
All Deloitte & Touche LLP services and fees in fiscal 2021 and fiscal 2020 were approved by the Audit Committee.
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PROPOSAL THREE
ADVISORY VOTE TO APPROVE NAMED EXECUTIVE OFFICER COMPENSATION
ADVISORY VOTE TO APPROVE NAMED EXECUTIVE OFFICER COMPENSATION
As required by Section 14A of the Exchange Act and the corresponding rules of the SEC, Fortinet is seeking stockholder approval, on an advisory and non-binding basis, of the compensation of our named executive officers as disclosed in accordance with the SEC’s rules in the “Executive Compensation” section of this proxy statement. This proposal, commonly known as a “say-on-pay” proposal, gives our stockholders the opportunity to express their views on our named executive officers’ compensation as a whole. This vote is not intended to address any specific item of compensation or any specific named executive officer but rather the overall compensation of all of our named executive officers and the compensation philosophy, policies and practices described in this proxy statement.
The say-on-pay vote is advisory, and therefore not binding on Fortinet, the Human Resources Committee or the Board of Directors. Following the 2022 Annual Meeting, the next such non-binding advisory vote to approve our named executive officers’ compensation as a whole is scheduled to occur at the 2023 Annual Meeting.
The Board of Directors and the Human Resources Committee value the opinions of our stockholders and the say-on-pay vote provides information to us regarding stockholder sentiment about our executive compensation philosophy, policies and practices, which the Human Resources Committee will be able to consider when determining executive compensation for the remainder of the current fiscal year and beyond. To the extent there is any significant vote against the compensation of our named executive officers as disclosed in this proxy statement, we will consider our stockholders’ concerns, and the Human Resources Committee will evaluate whether any actions are necessary to address those concerns. We believe that the information we have provided in the “Executive Compensation” section of this proxy statement, and in particular the information discussed in “Executive Compensation — Compensation Discussion and Analysis,” demonstrates that our executive compensation program was designed appropriately and is working to ensure our executive officers’ interests are aligned with our stockholders’ interests. Accordingly, we ask our stockholders to vote “FOR” the following resolution at the 2022 Annual Meeting:
“RESOLVED, that Fortinet’s stockholders approve, on an advisory basis, the compensation of the named executive officers, as disclosed in Fortinet’s proxy statement for the 2022 Annual Meeting pursuant to the Item 402 of Regulation S-K, including the Compensation Discussion and Analysis, the compensation tables and narrative discussion and the other related disclosure.”
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” THIS PROPOSAL.
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PROPOSAL FOUR
ADOPTION OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION TO IMPLEMENT FIVE-FOR-ONE FORWARD STOCK SPLIT
ADOPTION OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION TO IMPLEMENT FIVE-FOR-ONE FORWARD STOCK SPLIT
The Board of Directors has deemed it advisable and in the best interests of our stockholders to effect a five-for-one forward split of our common stock. The trading price of our common stock has experienced significant growth since our initial public offering in 2009. The Board of Directors regularly evaluates the effect of such growth on the liquidity and marketability of our common stock and believes the considerable appreciation in the trading price of our common stock makes our common stock less affordable on a per-share basis to certain of our investors and employees. The per share closing stock price of our common stock on March 31, 2022 was $341.74. The Board of Directors believes effecting a five-for-one stock split would make our shares more affordable, attract a broader group of potential investors and employees and increase liquidity in the trading of shares of our common stock.
At present, our amended and restated certificate of incorporation authorizes the issuance of up to 300,000,000 shares of common stock, par value $0.001 per share, and 10,000,000 shares of preferred stock, par value $0.001 per share. As of March 31, 2022, 160,266,932 shares of common stock were issued and outstanding. Of the unissued shares, approximately 17,131,647 shares of common stock were reserved for issuance under our Amended and Restated 2009 Equity Incentive Plan (the “2009 Plan”). No shares of preferred stock have been issued.
On April 14, 2022, subject to approval by our stockholders, the Board of Directors approved the Restated Certificate, which: (i) effects a five-for-one forward stock split of our common stock (the “Stock Split”); (ii) proportionally increases the number of authorized shares of our common stock from 300,000,000 to 1,500,000,000 (the “Share Increase”); and (iii) makes certain other changes to our existing amended and restated certificate of incorporation in order to remove certain no longer applicable provisions thereof relating to the transition from the classified Board of Directors that we had prior to 2018 to the declassified Board of Directors that is now in place. The additional shares of common stock would have rights identical to the currently outstanding common stock.
The Board of Directors recommends that our stockholders approve the Restated Certificate in order to effect the Stock Split and the Share Increase. A copy of the Restated Certificate is attached as Appendix B to this Proxy Statement, which Restated Certificate also sets forth the procedure for the Stock Split. Additions to our existing amended and restated certificate of incorporation are indicated by underlining, and deletions are indicated by strikethroughs.
If our stockholders approve the Restated Certificate, the Stock Split and Share Increase would become effective upon the filing and effectiveness of the Restated Certificate with the Secretary of State of the State of Delaware. It is expected that this filing will take place promptly following the stockholders’ approval of the Restated Certificate. The Board of Directors reserves the right, notwithstanding stockholder approval and without further action by our stockholders, to elect not to proceed with the Stock Split and Share Increase if, at any time prior to filing the Restated Certificate, the Board of Directors, in its sole discretion, determines that it is no longer in our best interests and the best interests of our stockholders to proceed with the Stock Split and Share Increase.
Upon filing and effectiveness of the Restated Certificate with the Secretary of State of the State of Delaware effecting the Stock Split and Share Increase, the Stock Split and Share Increase shall occur without any further action on the part of Fortinet or the holders of shares of our common stock. Book-entries dated as of a date prior to the effective time of the Stock Split representing outstanding shares of common stock shall, immediately after the effective time of the stock split, represent a number of shares equal to the same number of shares of common stock as is reflected on the book-entries, multiplied by five.
Following the Stock Split, if ultimately implemented, we currently estimate that we will have approximately 801,344,655 shares of common stock outstanding, based on the number of shares of common stock that were issued and outstanding as of the Record Date. We also will have reserved for issuance the maximum number of shares of common stock subject to options and other awards which have been granted or may be granted under the 2009 Plan, which provide that the number of shares of common stock reserved for issuance shall be appropriately adjusted in the event of a stock split.
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The Board of Directors believes it is in our best interests to increase proportionately the number of authorized shares of common stock so as to accommodate the Stock Split and so as to have additional authorized but unissued shares available for issuance by the Board of Directors in connection with any future stock dividends or splits, grants under the 2009 Plan, financings, mergers or acquisitions and for other general corporate purposes without the delay and expense associated with convening a special stockholders’ meeting or soliciting stockholders’ written consents. Aside from the shares currently reserved or to be reserved for issuance under the 2009 Plan, the Board of Directors has not authorized the issuance of any additional shares of common stock, and there are no current agreements or commitments for the issuance of additional shares.
Stockholders’ current ownership of common stock will not give them automatic rights to purchase any of the additional authorized shares of common stock. If the Restated Certificate is adopted, the additional authorized shares of common stock will be available for issuance from time to time at the discretion of the Board of Directors without further action by the stockholders, except where stockholder approval is required by Nasdaq or to obtain favorable tax treatment for certain employee benefit plans. Article IV of our amended and restated certificate of incorporation authorizes the Board of Directors, without further stockholder approval, to issue preferred stock having such designations, powers, preferences and rights as may be determined by the Board of Directors. Any future issuance of additional authorized shares of common stock may, among other things, dilute the earnings per share of the common stock and the equity and voting rights of those holding common stock at the time the additional shares are issued. Issuance of shares of preferred stock would dilute the earnings per share and book value per share of existing shares of common stock. Holders of preferred stock would have such voting rights as may be provided for by law and as determined by the Board of Directors.
Although an increase in the authorized shares of common stock could, under certain circumstances, be construed as having an anti-takeover effect (for example, by diluting the stock ownership of a person seeking to effect a change in the composition of the Board of Directors or contemplating a tender offer or other transaction for the combination of our company with another company), the Board of Directors is not proposing to adopt the Restated Certificate in response to any effort to accumulate our stock or obtain control of the company by means of a merger, tender offer or solicitation in opposition of management. Also, while we have no present intention to issue shares of preferred stock in a manner which would have an anti-takeover effect or otherwise, the issuance of preferred stock could have certain other anti-takeover effects under certain circumstances. Since the voting rights to be accorded to any series of preferred stock remain to be fixed by the Board of Directors, the holders of preferred stock may be authorized by the Board of Directors to vote separately as a class in connection with approval of certain extraordinary corporate transactions or be given a large number of votes per share. Such preferred stock could also be convertible into a large number of shares of common stock under certain circumstances or have other terms which might render the acquisition of a controlling interest in us more difficult or more costly. Shares of preferred stock could be privately placed with purchasers who might side with the management of Fortinet in opposing a hostile tender offer or other attempt to obtain control. The issuance of preferred stock as an anti-takeover device might preclude stockholders from taking advantage of a situation which might be favorable to their interests.
As set forth our amended and restated certificate of incorporation, the affirmative vote of the holders of at least 66 2∕3% of the voting power of all of the shares of our common stock outstanding as of the Record Date is required for approval of the Restated Certificate.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” THIS PROPOSAL.
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PROPOSAL FIVE
THE BOARD OF DIRECTORS HAS NO VOTING RECOMMENDATION FOR
THE FOLLOWING STOCKHOLDER PROPOSAL
THE BOARD OF DIRECTORS HAS NO VOTING RECOMMENDATION FOR
THE FOLLOWING STOCKHOLDER PROPOSAL
Management has been advised that John Chevedden, 2215 Nelson Avenue, No. 205, Redondo Beach, California 90278, intends to submit the following proposal at the meeting.
Stockholder Proposal
Proposal Five — Simple Majority Vote
RESOLVED, Shareholders request that our board take the necessary steps so that each voting requirement in our charter and bylaws (that is explicit or implicit due to default to state law) that calls for a greater than simple majority vote be replaced by a requirement for a majority of the votes cast for and against such proposals, or a simple majority in compliance with applicable laws. If necessary this means the closest standard to a majority of the votes cast for and against such proposals consistent with applicable laws. This includes any existing supermajority vote requirement that results from default to state law and can be subject to elimination.
Shareholders are willing to pay a premium for shares of companies that have excellent corporate governance. Supermajority voting requirements have been found to be one of 6 entrenching mechanisms that are negatively related to company performance according to “What Matters in Corporate Governance” by Lucien Bebchuk, Alma Cohen and Allen Ferrell of the Harvard Law School. Supermajority requirements are used to block proposals supported by most shareholders but opposed by a status quo management.
This proposal topic won from 74% to 88% support at Weyerhaeuser, Alcoa, Waste Management, Goldman Sachs, FirstEnergy, McGraw-Hill and Macy’s. The proponents of these proposals included Ray T. Chevedden and William Steiner. The votes would have been higher than 74% to 88% if more shareholders had access to independent proxy voting advice.
Church & Dwight shareholders gave 99% support to a 2020 proposal on this same topic. This proposal topic also won 99%-support at the 2021 Conoco Phillips annual meeting.
Currently Fortinet has a 67% vote requirement. This means that an 87% vote from the shares that vote at the Fortinet annual meeting are required to meet the 67% voting requirement — an almost impossible requirement.
This is not the only shortcoming in Fortinet corporate governance. Mr. Kenneth Goldman joined the Fortinet Board of Directors in October 2020 and received 40 times the negative votes as most of the other Fortinet directors in 2021.
Please vote yes:
Simple Majority Vote — Proposal Five
Voting Requirement to Approve Proposal
The affirmative vote of a majority of the shares of our common stock that are present in person or represented by proxy at the 2022 Annual Meeting and entitled to vote is required to approve Proposal Five.
Board of Directors’ Response
The Board of Directors has considered the proposal set forth above relating to the removal of supermajority voting standards in our amended and restated certificate of incorporation and amended and restated bylaws and has determined to make no voting recommendation to our stockholders. The proposal is advisory in nature only. Stockholders should note that approval of this proposal would not, by itself, implement a majority voting standard as described in the proposal, and the Board of Directors and our
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stockholders would need to take subsequent action to amend our amended and restated certificate of incorporation and/or our amended and restated bylaws.
The affirmative vote of a majority of the voting power of the shares present in person or represented by proxy at a meeting and entitled to vote on the subject matter is the voting standard for nearly all matters voted upon by our stockholders. Our use of supermajority voting standards is limited in our amended and restated certificate of incorporation and our amended and restated bylaws solely to certain amendments of each such governing document. This limited use of supermajority voting standards has been approved by our stockholders on multiple occasions, most recently at our 2018 Annual Meeting of Stockholders when stockholders approved our current amended and restated certificate of incorporation by 99% of shares present at the meeting (i.e. excluding broker non-votes). We believe higher voting requirements are appropriate in limited circumstances because certain fundamental matters should require broad support and consensus from our stockholders. In addition, under a majority voting standard as proposed, holders of a significant minority of our outstanding shares could approve certain fundamental corporate changes without broad stockholder support, as a mere majority of the votes cast at a meeting could in many cases represent significantly less than a majority of our shares outstanding.
However, we recognize that some stockholders prefer a universal majority voting standard. As such, we want to use this proposal as an opportunity for stockholders to express their views on this subject. We will consider the voting results on this proposal, together with additional stockholder input received in the course of our regular stockholder engagement program, in our future deliberations regarding the appropriate voting standards within our amended and restated certificate of incorporation and our amended and restated bylaws.
THE BOARD OF DIRECTORS TAKES NO POSITION AND MAKES NO RECOMMENDATION ON THIS PROPOSAL. PROXIES RETURNED WITHOUT VOTING INSTRUCTIONS WILL BE VOTED AGAINST THIS PROPOSAL.
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CORPORATE SOCIAL RESPONSIBILITY
We believe that our corporate vision — a digital world you can always trust — is essential to achieving just and sustainable societies, and that it is our responsibility to deliver on that vision by innovating sustainable security technologies, diversifying cybersecurity talent and promoting responsible business across our value chain. This responsibility drives our ESG practices.
Our commitment to CSR starts at the highest level with the Social Responsibility Committee, which the Board of Directors established on its own initiative in 2021 to ensure proper focus on, and provide proper oversight of, our CSR strategy, initiatives and execution. Our senior leadership sponsors and helps oversee the integration of our CSR priorities broadly throughout our business operations, and our Global Head of Sustainability & CSR manages a team and chairs an internal cross-functional employee CSR Committee to define our CSR strategy and lead execution.
Our objective is to promote long-term value for our stakeholders, including customers, partners, suppliers, employees, stockholders and communities. In 2021, we conducted a formal materiality assessment with outside experts, which informed our sustainability strategy as follows:
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Innovating for a Safe Internet
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Growing an
Inclusive Cybersecurity Workforce |
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Promoting Responsible Business
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Respecting the Environment
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| | We believe that ensuring the digital security and privacy of individuals and organizations enables digital progress, and we strive to create value through security innovation, expertise, research and cooperation. | | | We are committed to building an inclusive, equitable and diverse workforce within our organization and across the industry to help empower individuals to reach their full potential. | | | We are committed to doing business ethically and in compliance with all laws. Our corporate governance practices aim to ensure accountability to meet our responsibilities across our entire value chain. | | | We are focused on addressing the climate change impacts and minimizing the environmental footprint of our solutions, operations and our broader value chain. | |
| | Priority issues: Cyber Risks to Society; Information Security & Privacy | | | Priority issues: Diversity, Equity & Inclusion; Cybersecurity Skills Gap | | | Priority issues: Business Ethics; Responsible Product Use | | | Priority issues: Product Environmental Impacts; Climate Change | |
In 2021, for each of our defined CSR priorities we developed initial roadmaps and engaged our relevant business units in the process. We improved transparency and disclosure by actively participating in third-party sustainability assessments with selected rating agencies and bolstering our public CSR disclosures, including on our public website. This year, we intend to publish our first sustainability report which will further outline our CSR strategy, governance, performance and future outlook.
We engage with key internal and external stakeholders to help refine our ESG practices. Below are specific areas that we know are of particular importance to many of our stockholders based on the feedback received.
Environment
Our business strategy has always promoted the reduction of the environmental footprint of our customers by innovating highly efficient, integrated appliances and cloud-based security solutions. From our inception, our strategy has been to leverage the power of our internally developed, high-performance, purpose-built security processors to integrate into one-product multiple networking and security functionalities that traditionally have been in multiple products and appliances that require more space, cooling and electricity. In 2021, we conducted a competitive analysis on power consumption, which demonstrated the superior energy efficiency of our appliances as a result of our continued innovation on product design, including the high performance of our purpose-built security processors. We have started to work with our contract manufacturers to eliminate plastics from selected product packaging and to use
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recyclable and biodegradable materials instead. We also continued to ensure that our products comply with global product environmental compliance directives and regulations, from the design phase to final disposition of waste.
In order to drive sustainable operations, we engaged with a consultant to measure our Scope 1 and Scope 2 emissions and developed reduction scenarios based on science-based targets. This work allowed us to publicly commit to achieving carbon neutrality by 2030 for emissions resulting from the facilities we own worldwide. We took concrete action on environmental sustainability with the completion of our new net-zero Sunnyvale headquarter campus, which is on track to be LEED-Gold certified. We implemented multiple energy efficiency measures in this all-electric, net-zero facility, including solar panels and radiant cooling, which uses 30% less energy than a standard building and conserves 76,800 gallons of water annually. We use renewable electricity across our owned facilities, invest in sustainable projects and incentivize employees to reduce their environmental footprint by providing bike racks, onsite solar-powered electric vehicle charging stations and preferred parking spaces for sustainable-energy vehicles.
In order to increase transparency of our sustainability commitments, we developed and published our Environmental Policy and assessed climate risks from a risk factor and disclosure perspective. We have been working to automate metrics and reporting on environmental management in order to help pursue our carbon footprint reduction. This year, we are conducting an assessment of our Scope 3 emissions to help reduce carbonization in our broader value chain, and we plan to set reduction targets in alignment with the SBTi methodology. Actions such as these will help us with our strategy on climate change with the aim of implementing a framework that aligns with the Task Force on Climate Related Financial Disclosures.
Social
Since the publication of our first Diversity & Inclusion Report in March 2021, we have further engaged with internal and external subject matter experts and certain stockholders to continue to refine and improve our approach to Diversity, Equity and Inclusion (“DEI”). To increase transparency and visibility, we published our EEO-1 report and created gender diversity reports for senior leadership in the research and development, sales and support organizations. In order to improve equity pay, we worked with external consultants to align our salary ranges per job function and grade with industry practice. We have continued to expand programs designed to ensure DEI in the workplace, including our unconscious bias training for managers across the company and Fortinet’s Conversations, a management program designed to drive broad and diverse employee engagement, development and performance. We initiated workshops on building an inclusive team and published internally an Inclusive Leadership Guide.
We also take steps to consider diversity and inclusion while contributing to close the global cybersecurity skills gap. Last year, we formalized our Education Outreach Program, which focuses on partnerships across the industry, academia, government and nonprofits to help provide cybersecurity training and job skills to all populations, with a particular focus on women, veterans and other under-represented groups. To support the creation of a cybersecurity-aware society and help bridge the global cybersecurity skills gap, in 2021, we published a children’s book designed to further increase cyber awareness among children and extended our free cybersecurity training courses, thereby allowing over 100,000 people from over 200 countries and territories to benefit from our cybersecurity fundamentals training courses. We also made the public pledge to train one million people in cybersecurity by 2026.
We have also contributed to help address the “digital divide” by providing fast and secure network access to public library systems and to help bridge the “homework gap” by delivering an affordable solution for reliable and secure broadband access for K-12 students.
Governance
We are focused on good governance and ethical practices throughout our business. Our Board of Directors frequently reviews our governance practices to ensure that they are appropriate and reflect the maturity of our company. For example, to promote good governance and accountability at the highest level, the Board of Directors, on its own initiative, changed the term of service structure for directors from staggered three-year terms to one-year terms for every director. To promote ethical business practices, we have adopted a detailed Code of Business Conduct and Ethics, and we have training, policies and controls
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designed to prevent corruption in our business. We also have adopted policies supporting the protection of human rights and were an early company to take a public stance regarding Russia’s invasion of Ukraine by publicly announcing our suspension of business in Russia. Our stance for responsible business practices was acknowledged by the Yale School of Management, which listed Fortinet as one of the early companies receiving an “A” grade for halting engagement in Russia, distinguishing us from others in our industry.
For more information regarding Fortinet’s CSR approach and ESG initiatives, please visit our website at https://www.fortinet.com/csr.
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CORPORATE GOVERNANCE
Human Capital Management
Our employees are the foundation of our innovation and cybersecurity leadership for the benefit of our customers. We understand there is a shortage of highly skilled employees for security companies like ours, and we believe that our success and competitive advantage depends largely on our ability to continue to attract and retain highly skilled employees with diverse backgrounds and experiences. We believe we offer fair, competitive compensation and benefits, and we encourage a culture of fairness and meritocracy. Our compensation programs for our employees include base pay, incentive compensation, opportunities for equity ownership where local statutes allow and employee benefits that promote well-being across different aspects of our employees’ lives, which may include health and welfare insurance, retirement benefits and paid time off.
As a global company, much of our success is rooted in the diversity of our teams and our commitment to diversity, equity and inclusion. Such commitment starts at the top, with a highly skilled and diverse board of directors. As of December 31, 2021, women represented one-third of the members of the Board of Directors, and approximately 56% of the members of the Board of Directors was from underrepresented communities as defined by California’s Assembly Bill 979. We value diversity at all levels and continue to focus on enhancing our diversity, equity and inclusion initiatives across our workforce.
We are also committed to community engagement and social responsibility with regards to our employees and beyond, and the Board of Directors has active oversight of such initiatives. Examples of our initiatives focused on our employees include our company matching program for employee charitable contributions and the free security training programs we offer to help with career development for our employees, in addition to the general public.
Our culture is defined by our commitment to ethics and integrity. We reinforce our ethical “tone at the top” through clear policies including our Code of Business Conduct and Ethics, regular compliance training for our employees, quarterly meetings of our cross-functional Ethics Committee, clear messaging from our executives, enforcement of company policies and oversight by the Board of Directors. In addition, our Chief Executive Officer regularly communicates the importance of Fortinet’s core values of openness, teamwork and innovation.
Early in the COVID-19 pandemic, our Chief Executive Officer committed to having no COVID-related layoffs, and, throughout the pandemic, not only have we kept that promise, we have continued hiring at a fast pace and have continued to help support our employees and their families through this challenging time. During the pandemic, we have taken a flexible approach to help our employees manage their work and personal responsibilities, with a focus on employee wellbeing, health and safety.
Corporate Governance Guidelines
We have adopted Corporate Governance Guidelines to establish the corporate governance policies which provide a structure within which the Board of Directors and management can effectively pursue Fortinet’s objectives for the benefit of our stockholders. The Corporate Governance Guidelines are available on Fortinet’s website at investor.fortinet.com/corporate-governance-0.
Code of Business Conduct and Ethics
The Board of Directors sets high standards for Fortinet’s employees, officers and directors. Fortinet is committed to establishing an operating framework that exercises appropriate oversight of responsibilities at all levels throughout Fortinet and managing its affairs consistently with high principles of business ethics. Accordingly, Fortinet has adopted a Code of Business Conduct and Ethics, which is applicable to our and our subsidiaries’ directors, officers and employees.
The Code of Business Conduct and Ethics is available on Fortinet’s website at investor.fortinet.com/corporate-governance-0. Fortinet will disclose on its website any amendments to, or waivers of, the Code of Business Conduct and Ethics that are required to be disclosed by the rules of the SEC or Nasdaq.
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Majority Voting Standard for Director Elections and Director Resignation Policy
Our amended and restated bylaws provide for a majority voting standard for uncontested elections of directors and require that stockholder director nominations include a written statement as to whether the nominee intends to tender an irrevocable resignation upon such nominee’s election or re-election. The majority voting standard provides that, in uncontested director elections, a director nominee will be elected only if the number of votes cast FOR the nominee exceeds the number of votes cast AGAINST the nominee. In addition, our Corporate Governance Guidelines address, among other provisions, the “holdover” director situation under the Delaware General Corporation Law (pursuant to which a director remains on the board of directors until such director’s successor is elected and qualified), by requiring each incumbent nominee to submit an irrevocable contingent resignation letter prior to the annual meeting of stockholders in which such election is to take place. Such resignation becomes effective only upon (i) such nominee’s failure to receive the requisite number of votes for re-election at any future meeting at which such person would face re-election and (ii) the Board of Directors’ acceptance of such resignation. If the nominee does not receive the requisite number of votes for re-election, the Governance Committee will make a recommendation to the Board of Directors as to whether to accept or reject the resignation, or whether other action should be taken. The Board of Directors will act on the Governance Committee’s recommendation and publicly disclose its decision and the rationale behind it within 90 days from the date of the certification of the election results.
Director Independence
The Board of Directors has determined that, with the exception of Messrs. Ken Xie and Michael Xie, who are employees of Fortinet, all of the current members of the Board of Directors and nominees for director are “independent directors” as that term is defined in Nasdaq’s listing standards.
Board Meetings and Committees
During fiscal 2021, the Board of Directors held six meetings. Each director attended at least 75% of the aggregate of all meetings of the Board of Directors and all meetings held by all committees of the Board of Directors on which such director served during the past fiscal year. The Board of Directors has four standing committees: the Audit Committee, the Human Resources Committee, the Governance Committee and the Social Responsibility Committee.
Audit Committee
The Audit Committee is currently comprised of Messrs. Goldman and Hsieh and Ms. Hu, each of whom is “independent” as such term is defined for audit committee members by the listing standards of Nasdaq and the rules of the SEC. Ms. Hu is the Chairperson of the Audit Committee. The Board of Directors has determined that each of Ms. Hu and Mr. Goldman is an “audit committee financial expert,” as defined in the rules of the SEC.
The Audit Committee is responsible for, among other things:
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selecting and hiring our independent auditors, and approving the audit and non-audit services to be performed by our independent auditors;
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evaluating the qualifications, performance and independence of our independent auditors;
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monitoring the integrity of our financial statements and our compliance with legal and regulatory requirements;
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reviewing the adequacy and effectiveness of our internal control policies and procedures;
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discussing the scope and results of the audit with the independent auditors and reviewing with management and the independent auditors our interim and year-end operating results;
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preparing the Audit Committee Report that the SEC requires in our annual proxy statement;
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reviewing and overseeing related-person transactions; and
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•
reviewing and managing cybersecurity and other information technology risks, controls and procedures.
The Audit Committee held nine meetings during fiscal 2021. The Audit Committee has adopted a written charter approved by the Board of Directors, which is available on Fortinet’s website at investor.fortinet.com/corporate-governance-0.
The Audit Committee Report is included in this proxy statement on page 56.
Human Resources Committee
The Human Resources Committee is currently comprised of Mses. Ducourty and Sim and Mr. Goldman, each of whom qualifies as an independent director under the listing standards of Nasdaq. Ms. Sim is currently the Chairperson of the Human Resources Committee.
The Human Resources Committee is responsible for, among other things:
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providing oversight of our organization and human resources activities, including culture and ethics matters and diversity, equity and inclusion initiatives;
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providing oversight of our employee and executive compensation policies, plans and benefits programs, and overall compensation philosophy;
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reviewing and approving for our executive officers: their annual base salary, annual incentive bonus, equity compensation and other benefits, compensation or arrangements;
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reviewing and recommending compensation goals and objectives, and bonus and stock compensation criteria for our executive officers;
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preparing the Human Resources Committee Report that the SEC requires to be included in our annual proxy statement; and
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administering our equity compensation plans.
See “Executive Compensation — Compensation Discussion and Analysis” and “Executive Compensation — Compensation of Directors” for a description of Fortinet’s processes and procedures for the consideration and determination of executive officer and director compensation.
The Human Resources Committee held four meetings during fiscal 2021. The Human Resources Committee has adopted a written charter approved by the Board of Directors, which is available on Fortinet’s website at investor.fortinet.com/corporate-governance-0.
The Human Resources Committee Report is included in this proxy statement on page 43.
Governance Committee
The Governance Committee is currently comprised of Messrs. Hsieh and Neukom and Ms. Sim, each of whom qualifies as an independent director under the listing standards of Nasdaq. Mr. Hsieh is the Chairperson of the Governance Committee.
The Governance Committee is responsible for, among other things:
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advising the Board of Directors and our officers on corporate governance matters;
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overseeing the evaluation of the Board of Directors;
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reviewing developments in corporate governance practices and developing and recommending corporate governance guidelines and other policies;
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assisting the Board of Directors in identifying prospective director nominees and recommending nominees for each annual meeting of stockholders to the Board of Directors; and
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recommending members for each committee of the Board of Directors.
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The Governance Committee will consider recommendations of candidates for the Board of Directors submitted by stockholders of Fortinet; see “Process for Recommending Candidates for Election to the Board of Directors” below.
The Governance Committee held four meetings during fiscal 2021. The Governance Committee has adopted a written charter approved by the Board of Directors, which is available on Fortinet’s website at investor.fortinet.com/corporate-governance-0.
Social Responsibility Committee
The Board of Directors considers Fortinet’s social responsibilities to be a high priority, and as such formed the Social Responsibility Committee in January 2021. The Social Responsibility Committee is currently comprised of Ms. Ducourty, Mr. Michael Xie and Admiral Stavridis (Ret). Mr. Michael Xie is the Chairperson of the Social Responsibility Committee.
The Social Responsibility Committee is responsible for, among other things:
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recommending to the Board of Directors and overseeing programs relating to social responsibility and sustainability, including ESG matters;
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reviewing and assessing with management performance, risks, controls and procedures relating to social responsibility and sustainability; and
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overseeing our charitable giving policies.
The Social Responsibility Committee held three meetings during fiscal 2021. The Social Responsibility Committee has adopted a written charter approved by the Board of Directors, which is available on Fortinet’s website at investor.fortinet.com/corporate-governance-0.
Human Resources Committee Interlocks and Insider Participation
Mses. Ducourty and Sim and Mr. Goldman served as members of the Human Resources Committee during fiscal 2021. None of the members of the Human Resources Committee during fiscal 2021 is or has in the past served as an officer or employee of our company. None of our executive officers currently serves, or in the past year has served, as a member of the board of directors or compensation committee of any entity that has one or more executive officers serving on the Board of Directors or the Human Resources Committee during fiscal 2021.
Anti-Hedging and Anti-Pledging Policy
Our insider trading policy prohibits our directors, officers, employees and agents (such as consultants and independent contractors) from engaging in any form of hedging or similar transactions with respect to our securities, including those involving options, puts, calls or other derivative securities. Our directors, officers, employees and agents are also prohibited from pledging our securities as collateral for loans and from holding our securities in margin accounts.
Board Leadership Structure
Our Corporate Governance Guidelines provide the Board of Directors with flexibility to select the appropriate leadership structure depending on what the Board of Directors determines is in Fortinet’s best interests at a given time. In making leadership structure determinations, the Board of Directors considers many factors, including the specific needs of the business and what is in the best interests of our stockholders. A copy of our Corporate Governance Guidelines is available on our website at investor.fortinet.com/corporate-governance-0.
Mr. Neukom currently serves as our Lead Independent Director and Mr. Ken Xie serves as our Chairman and Chief Executive Officer. In addition to the duties of all members of the Board of Directors, Mr. Neukom’s principal responsibilities as our Lead Independent Director are to: preside over executive sessions of the Board of Directors; review and comment on the agenda for meetings of the Board of Directors in consultation with the Chairman and Chief Executive Officer and other members of the Board
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of Directors; act as principal liaison between the independent directors and the Chairman and Chief Executive Officer on sensitive issues; raise issues with management on behalf of the independent directors when appropriate; and assess the quality, quantity and timeliness of the flow of information from management that is necessary for the independent directors to effectively and responsibly perform their duties.
The Board of Directors believes that the current leadership structure provides an appropriate balance between strong leadership from our Chairman and Chief Executive Officer and oversight by independent directors. In particular, this structure capitalizes on the expertise and experience of Messrs. Ken Xie and Neukom, as it permits Mr. Xie to serve as a bridge between the Board of Directors and management, helping both to act with a common purpose and providing critical leadership for carrying out our strategy and confronting challenges, while Mr. Neukom ensures independence of the Board of Directors from management and as Lead Independent Director can call and chair meetings of the independent directors separate and apart from the Chairman. The Board of Directors also believes that there may be other advantages to having a Lead Independent Director for matters such as communications and relations between the Board of Directors, the Chief Executive Officer and the other members of our senior management, and in assisting the Board of Directors in reaching consensus on particular strategies and policies. Messrs. Ken Xie and Michael Xie, as the only two management directors, do not participate in sessions of non-management directors, and non-management directors meet regularly in executive session without management.
Board of Directors’ Role in Risk Oversight
The Board of Directors oversees an enterprise-wide approach to risk management, designed to support the achievement of organizational objectives, including strategic objectives, to improve long-term organizational performance and to enhance stockholder value. A fundamental part of risk management is not only understanding the most significant risks that Fortinet faces and what steps management is taking to manage those risks but also understanding what level of risk is appropriate for Fortinet. The involvement of the full Board of Directors in reviewing Fortinet’s business is an integral aspect of its assessment of management’s tolerance for risk and also its determination of what constitutes an appropriate level of risk for Fortinet.
While the Board of Directors has the ultimate oversight responsibility for the risk management process, various committees of the Board of Directors also have responsibility for risk management. Our Audit Committee reviews financial and other risk exposures, our internal controls over financial reporting, our disclosure controls and procedures, and our legal and regulatory compliance. Our Audit Committee also is responsible for oversight of risks related to data privacy and cybersecurity. Our Human Resources Committee evaluates our major compensation-related risk exposures and the steps management has taken to monitor or mitigate such exposures. In setting compensation, the Human Resources Committee strives to create incentives that encourage a reasonable level of risk-taking consistent with Fortinet’s business strategy and to encourage a focus on building long-term value at Fortinet. Our Human Resources Committee also oversees other areas of risk related to human resources, such as culture and ethics matters and DEI initiatives. Our Governance Committee has oversight on risks related to corporate governance matters, and oversees the evaluation of the performance of the Board of Directors. Our Social Responsibility Committee oversees risks related to our sustainability and corporate social responsibility and ESG approach, including long-term trends and impacts that may affect our business and main stakeholders. The Board of Directors also directly oversees certain strategic risks to Fortinet and other risk areas not delegated to one of its committees.
The risk oversight responsibility of our Board of Directors and its committees is supported by our management reporting processes. At periodic meetings of the Board of Directors and its committees and in other meetings and discussions, management reports to and seeks guidance from the Board of Directors and its committees with respect to the most significant risks that could affect our business, such as legal risks and financial, tax and audit related risks. In addition, management provides the Audit Committee periodic reports on Fortinet’s compliance programs and efforts, investment policy and practices. Our management reporting processes, including an enterprise risk assessment, are designed to provide our Board of Directors with visibility into the identification, assessment, and management of critical risks and into certain of management’s risk mitigation strategies. These areas of focus include competitive, economic, operational, financial (accounting, credit, investment, liquidity, compensation-related risk, and tax), human capital, legal,
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regulatory, cybersecurity and data privacy and reputational risks. Our Board of Directors reviews strategic and operational risk in the context of discussions, question-and-answer sessions, and reports from the management team at each regular meeting of the Board of Directors, and evaluates the risks inherent in significant transactions. Each director is invited to attend committee meetings, and the committees periodically provide the full Board of Directors reports on significant committee activities.
Cybersecurity Risk Oversight
Securing the information of our customers, team members, vendors and other third parties is of critical important to us. We have adopted physical, technological and administrative controls on data security, and have a defined procedure for data incident detection, containment, response and remediation. While everyone at our company plays a part in managing these risks, oversight responsibility is shared by the Board of Directors, the Audit Committee and management.
Our internal security team provides regular cybersecurity updates in the form of written reports and presentations to the Audit Committee. The Audit Committee regularly reviews metrics about cyber threat response preparedness, program maturity milestones, risk mitigation status and the current and emerging threat landscape. Additionally, we leverage the National Institute of Standards and Technology security framework to drive strategic direction and maturity improvement and engage third-party security experts for risk assessments and program enhancements. We also maintain information security risk insurance coverage.
Management Succession Planning
The Board of Directors recognizes that one of its most important duties is its oversight of succession planning for our Chief Executive Officer. The Board of Directors has delegated primary oversight responsibility for succession planning for our Chief Executive Officer to the Governance Committee, the Chairman of the Board of Directors and our Lead Independent Director. Our Chief Executive Officer is responsible for identifying, evaluating and selecting potential successors for our Chief Executive Officer’s direct reports. The Board of Directors regularly evaluates succession planning to ensure that we are well-positioned to continue to execute on our corporate strategy.
Oversight of Corporate Strategy
The Board of Directors actively oversees management’s establishment and execution of corporate strategy, including major business and organizational initiatives, annual budget and long-term strategic plans, capital allocation priorities, potential corporate development opportunities and risk management. At its regularly scheduled meetings and throughout the year, the Board of Directors receives information and formal updates from our management and actively engages with the senior leadership team with respect to our corporate strategy. Our directors’ diverse skill set and experience enhances the Board of Directors’ ability to support management in the evaluation and execution of our corporate strategy. The independent members of the Board of Directors also hold regularly scheduled executive sessions, during which corporate strategy is discussed.
Process for Recommending Candidates for Election to the Board of Directors
The Governance Committee is responsible for, among other things, determining the criteria for membership to the Board of Directors and recommending candidates for election to the Board of Directors. It is the policy of the Governance Committee to consider recommendations for candidates to the Board of Directors from stockholders. Stockholder recommendations for candidates to the Board of Directors must be directed in writing to Fortinet, Inc., 899 Kifer Road, Sunnyvale, California 94086, Attention: Corporate Secretary, and must include the candidate’s name, home and business contact information, detailed biographical data and qualifications, information regarding any relationships between the candidate and Fortinet within the last three years and evidence of the nominating person’s ownership of Fortinet’s common stock. Such recommendations must also include a statement from the recommending stockholder in support of the candidate, particularly within the context of the criteria for membership on the Board of Directors, including issues of character, judgment, diversity, including whether the person is a current or former chief executive officer or chief financial officer of a public company or the head of a division of a large
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international organization, independence, expertise, corporate experience, length of service, other commitments and the like, personal references and an indication of the candidate’s willingness to serve. There are no differences in the manner by which the Governance Committee evaluates nominees for director based on whether the nominee is recommended by a stockholder or the Board of Directors.
The Governance Committee’s criteria and process for evaluating and identifying the candidates that it recommends to the full Board of Directors for selection as director nominees are as follows:
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The Governance Committee evaluates the current composition and organization of the Board of Directors.
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The Governance Committee reviews on at least an annual basis the desired qualifications and characteristics for membership on the Board of Directors.
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The Governance Committee evaluates the performance of individual members of the Board of Directors eligible for re-election and selects, or recommends for the selection of the Board of Directors, the director nominees for election to the Board of Directors by our stockholders at the annual meeting of stockholders.
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In its evaluation of director candidates, including the members of the Board of Directors eligible for re-election, the Governance Committee seeks to achieve a balance of knowledge, experience and capability on the Board of Directors and considers: (i) the current composition and organization of the Board of Directors and the needs of the Board of Directors and its committees; (ii) such factors as character, judgment, diversity, expertise, business experience, length of service, independence, other commitments and the like; and (iii) such other factors as the Governance Committee may consider appropriate. The Governance Committee considers diversity of skills, experience, gender and race, among other factors, in evaluating candidates for the Board of Directors.
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While the Governance Committee has not established specific minimum qualifications for director candidates, the Governance Committee believes that candidates and nominees must reflect a Board of Directors that is comprised of directors who: (a) are predominantly independent; (b) are of high integrity; (c) have broad, business-related knowledge and experience at the policy-making level in business or technology, including their understanding of the networking security industry and Fortinet’s business in particular; (d) have qualifications that will increase overall effectiveness of the Board of Directors; and (e) meet other requirements as may be required by applicable rules, such as financial literacy or financial expertise with respect to Audit Committee members.
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With regard to candidates who are properly recommended by stockholders or by other means, the Governance Committee will review the qualifications of any such candidate, which review may, in the Governance Committee’s discretion, include interviewing references for the candidate, direct interviews with the candidate, or other actions that the Governance Committee deems necessary or proper.
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In evaluating and identifying candidates, the Governance Committee has the authority to retain and terminate any third-party search firm that is used to identify director candidates and has the authority to approve the fees and retention terms of any search firm.
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The Governance Committee will apply these same principles when evaluating candidates for the Board of Directors who may be elected initially by the full Board of Directors to fill vacancies or add additional directors prior to the annual meeting of stockholders at which directors are elected.
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After completing its review and evaluation of director candidates, the Governance Committee recommends to the full Board of Directors the director nominees.
Proxy Access
Our amended and restated bylaws provide a method for stockholders to place their nominees for director on our proxy ballot. Under our amended and restated bylaws, a stockholder, or a group of up to 20 stockholders, owning at least 3% of our outstanding common stock continuously throughout the three-year period (i) through the date of the nomination notice or (ii) following date we implemented proxy access in our amended and restated bylaws, whichever is later, is entitled to nominate and include in our proxy
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materials director nominees constituting up to the lesser of two individuals or 20% of the number of members of the Board of Directors, subject to reduction in certain circumstances, and subject to the stockholders and the nominees satisfying the requirements specified in our amended and restated bylaws. Our obligation to include director nominees in its annual meeting proxy materials is also subject to certain exceptions as set forth in our amended and restated bylaws. Written notice of the nomination(s) must be submitted to our Corporate Secretary at our principal executive office no earlier than the 75th day, and no later than the 45th day, prior to the one-year anniversary of the date that we first sent our proxy materials or a notice of availability of proxy materials (whichever is earlier) for our immediately preceding annual meeting of stockholders, subject to certain exceptions as set forth in our amended and restated bylaws.
Attendance at Annual Meetings of Stockholders by the Board of Directors
Although Fortinet does not have a formal policy regarding attendance by members of the Board of Directors at Fortinet’s annual meeting of stockholders, Fortinet welcomes, but does not require, directors to attend. Ken Xie was the only director who attended Fortinet’s 2021 Annual Meeting of Stockholders.
Contacting the Board of Directors
Stockholders who wish to communicate with the members of the Board of Directors may do so by sending a letter to Fortinet’s Corporate Secretary, c/o Fortinet, Inc., 899 Kifer Road, Sunnyvale, California 94086, or by fax to (408) 235-7737. The Corporate Secretary reviews all incoming stockholder communications (except for mass mailings, product complaints or inquiries, job inquiries, business solicitations and patently offensive or otherwise inappropriate material) and, if appropriate, routes such communications to the appropriate member(s) of the Board of Directors, or if none is specified, to the Lead Independent Director.
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EXECUTIVE OFFICERS
The names of our executive officers, their ages, their positions with Fortinet and other biographical information, as set forth below, are as of March 31, 2022. Messrs. Ken Xie and Michael Xie are brothers. There are no other family relationships among any of our directors or executive officers.
|
Name
|
| |
Age
|
| |
Position
|
|
| Ken Xie | | |
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|
| | Chief Executive Officer and Chairman of the Board of Directors | |
| Michael Xie | | |
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|
| | President, Chief Technology Officer and Director | |
| Keith Jensen | | |
63
|
| | Chief Financial Officer | |
| John Whittle | | |
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|
| | Executive Vice President of Corporate Development, Chief Legal Officer and Corporate Secretary | |
| Patrice Perche | | |
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|
| | Chief Revenue Officer and Executive Vice President of Support | |
Ken Xie. For a brief biography of Mr. Ken Xie, please see “Proposal One — Election of Directors — Information Regarding the Board of Directors and Director Nominees.”
Michael Xie. For a brief biography of Mr. Michael Xie, please see “Proposal One — Election of Directors — Information Regarding the Board of Directors and Director Nominees.”
Keith Jensen has served as our Chief Financial Officer since May 2018 and has served as our Chief Accounting Officer since July 2015. From February 2018 to May 2018, Mr. Jensen served as our Interim Chief Financial Officer. Mr. Jensen served as our Vice President of Finance and Corporate Controller from May 2014 to July 2015. From November 2012 to May 2014, Mr. Jensen served in various positions at DataDirect Networks, Inc., a data storage provider, including as its Chief Accounting Officer and Chief Administrative Officer. From February 2006 to November 2012, Mr. Jensen served in various positions at Sybase, Inc. (which was acquired by SAP America, Inc. in July 2010), an enterprise software and services company, including as Sybase’s Chief Financial Officer and Chief Accounting Officer. Prior to Sybase, from October 1999 to January 2006, Mr. Jensen served as Chief Financial Officer of Dorado Network Systems Corporation, a provider of software solutions to financial service companies. Mr. Jensen also previously held several positions with Coopers & Lybrand, including audit manager. Mr. Jensen holds a B.S. in Business from California State University, Sacramento.
John Whittle has served as our Chief Legal Officer since April 2022, Corporate Secretary since January 2007 and Executive Vice President of Corporate Development since January 2019. Mr. Whittle served as our General Counsel from October 2006 to April 2022 and as Vice President of Corporate Development from October 2010 until January 2019. From March 2006 to October 2006, Mr. Whittle was Vice President and General Counsel for Ingres Corporation, an open source database company formed by a divestiture from Computer Associates. Prior to working at Ingres, from January 2000 to March 2005, Mr. Whittle was Vice President and General Counsel for Corio, Inc., an enterprise application services provider. Mr. Whittle worked from March 2005 to March 2006 with International Business Machines Corporation following its acquisition of Corio. Prior to joining Corio, Mr. Whittle was an attorney at the law firm of Wilson Sonsini Goodrich & Rosati, P.C. from 1996 to 2000, representing technology companies in general corporate matters, mergers and acquisitions and initial and follow-on public offerings. Mr. Whittle holds a B.A. in history from the University of Virginia and a J.D. from Cornell University Law School.
Patrice Perche has served as our Chief Revenue Officer and Executive Vice President of Support since January 2021. From January 2016 to January 2021, Mr. Perche served as our Senior Executive Vice President, Worldwide Sales and Support. Mr. Perche served as our Vice President International Sales and Support from October 2009 to January 2016. Mr. Perche served as our Vice President EMEA and Southern Asia from July 2008 to October 2009. Mr. Perche served as our Vice President SEMEA and India from January 2005 to July 2008. Mr. Perche has more than 20 years of experience in the IT security industry. Mr. Perche is responsible for managing our international sales and support operations worldwide. Prior to joining us, Mr. Perche was co-founder and CEO of Risc Group, a French-based company focusing on IT Security with pan-European operations. Mr. Perche graduated from Insa Lyon and holds a master’s degree in computer engineering.
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EXECUTIVE COMPENSATION
Compensation Discussion and Analysis
This compensation discussion and analysis provides information about the 2021 compensation arrangements for each individual who served as one of our executive officers during 2021, who were as follows:
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Ken Xie, our Chief Executive Officer;
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Michael Xie, our President and Chief Technology Officer;
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Keith Jensen, our Chief Financial Officer; and
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John Whittle, our Executive Vice President of Corporate Development, Chief Legal Officer and Corporate Secretary.
We refer to these individuals as “named executive officers” in this proxy statement. Because we had no other executive officers during 2021, each one of our executive officers was a named executive officer in 2021.
This compensation discussion and analysis should be read together with the compensation tables and related disclosures that follow it. This discussion contains forward looking statements that are based on our current plans, considerations, expectations and determinations regarding future compensation programs. Actual compensation programs that we adopt may differ materially from currently planned programs as summarized in this discussion.
Overview
We compete with many other technology companies in seeking to attract and retain highly skilled top talent. We also seek to keep our employees highly motivated. To meet these challenges, we designed our executive compensation program to attract, retain and motivate our named executive officers to enhance stockholder value by:
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offering base pay and total compensation opportunities that are competitive compared with market and peer company data for the technology industry;
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linking compensation to our operating, financial and stock price performance by making elements of each named executive officer’s compensation dependent on our overall company performance and the creation of stockholder value;
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emphasizing equity pay and long-term incentives in order to incentivize contributions towards our growth and the creation of long-term value for our stockholders; and
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ensuring fairness among our executive team by recognizing the contributions each named executive officer makes to our success.
Because our compensation program is designed to align our named executive officers’ compensation with our operating, financial and stock price performance, you should consider our executive compensation decisions in the context of these areas of our performance during 2021. Specifically:
•
Total revenue for 2021 was $3.34 billion, an increase of approximately 29% compared to $2.59 billion for 2020;
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Total gross profit was $2.56 billion in 2021, an increase of 26% compared to $2.02 billion in 2020; and
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Our stock price as of December 31, 2021 was $359.40 per share, an increase of approximately 142% compared to $148.53 as of December 31, 2020.
Role of the Human Resources Committee in Executive Compensation Decisions
The Human Resources Committee of the Board of Directors has overall responsibility for approving the compensation of our named executive officers. The Human Resources Committee also oversees our
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diversity, equity and inclusion initiatives and reviews with management the compensation disclosures required by the SEC. Members of the Human Resources Committee are appointed by the Board of Directors. See “Corporate Governance — Board Meetings and Committees — Human Resources Committee” for more detail about the responsibilities and procedures of the Human Resources Committee.
Role of Compensation Consultant
The Human Resources Committee relies on its independent compensation consultant to provide advice on matters relating to the compensation of our named executive officers and non-employee directors. For 2021 the Human Resources Committee engaged Compensia, Inc. (“Compensia”) in this capacity. A representative of Compensia generally attends meetings of the Human Resources Committee. In addition, Compensia provided competitive market assessments our executive and non-employee director compensation programs, reviewed the Compensation Discussion and Analysis section of our proxy statement and provided support on other matters as requested by the Human Resources Committee.
For 2021, the Human Resources Committee also engaged Compensia to provide and to report on the results of a competitive assessment of the compensation of our named executive officers, which is based on analysis of market and peer company compensation data. This assessment is one factor considered by the Human Resources Committee as discussed in more detail below under “— Determining the Amount of Elements of Executives’ Compensation in 2021.” Compensia reports directly to the Human Resources Committee and provided no services to us other than the consulting services to the Human Resources Committee. Based on consideration of the various factors set forth in the rules of the SEC and Nasdaq listing standards, the Human Resources Committee does not believe that its relationship with Compensia and the work of Compensia on behalf of the Human Resources Committee has raised any conflict of interest.
Role of Executives in Executive Compensation Decisions
The Human Resources Committee generally seeks input from our Chief Executive Officer, Mr. Ken Xie, when discussing the performance of and compensation levels for our named executive officers other than for himself and Mr. Michael Xie. Neither Mr. Ken Xie nor any of our other named executive officers participates in deliberations relating to their own compensation, and Messrs. Ken Xie and Michael Xie do not participate in deliberations related to each other’s compensation.
Stockholder Advisory Vote on Named Executive Officer Compensation
Our stockholders will have the opportunity again at this year’s 2022 Annual Meeting to vote on our named executive officer compensation through the stockholder advisory vote (commonly known as a “say-on-pay” vote) included as Proposal Three in this proxy statement. At each of our past two annual meetings of stockholders starting with our first say-on-pay stockholder vote in 2011, over 91% of the stockholder votes cast have been cast in favor of our named executive officer compensation. The Human Resources Committee considers input from our stockholders and the outcome of our annual say-on-pay votes when making future executive compensation decisions and, to the extent there is any significant vote against the named executive officer compensation as disclosed in this proxy statement, the Human Resources Committee will seek to understand and consider our stockholders’ concerns and will evaluate whether any actions are appropriate to address those concerns. Since the 2021 stockholder vote on executive compensation occurred after the Human Resources Committee had established all of the compensation elements for 2021, the Human Resources Committee could only take into consideration the 2021 stockholder vote in establishing executive compensation for 2022. We encourage you to review this “Executive Compensation” section, together with the compensation tables that follow, prior to casting your advisory vote on the “say-on-pay” proposal.
Elements of Our Compensation Program
The four key elements of our compensation program for our named executive officers are base pay, variable pay, equity-based awards and our benefits programs. As a total package, we design our compensation program to enable us to attract and retain talent who we believe will enhance Fortinet’s long-term value. The individual elements of Fortinet’s compensation program are designed to satisfy this larger goal in specific
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ways as described below. For a detailed discussion of the amounts awarded to our named executive officers during 2021, see “— Determining the Amount of Elements of Executives’ Compensation in 2021” below.
Base Pay. We establish base pay that is both reasonable and competitive in relation to the competitive market of similar companies in the technology industry. The Human Resources Committee monitors competitive base pay levels at least annually and makes adjustments to base pay as appropriate. In general, a named executive officer’s base pay level should reflect that individual’s overall sustained performance and contribution over time. The Human Resources Committee sets base pay to provide the ongoing reward for each named executive officer’s work and contribution and to be competitive in attracting or retaining the executive. Any increases in base pay are provided generally on an annual basis.
Variable Pay. Rewarding performance through cash variable pay is an important element of named executive officer compensation. We design our variable pay program to be both reasonable and competitive in relation to the market. Our senior management incentive bonus program is designed to motivate our named executive officers to achieve business goals and to align payouts with actual results. The variable pay incentives are based on a formulaic assessment of our financial performance and an assessment of each individual’s performance. A factor in this evaluation is our executive “peer review” process, in which our broader executive team reviews the performance of the other members of the team, including certain of the named executive officers, on a quarterly basis, and their confidential feedback is reviewed by the Human Resources Committee when considering individual variable pay incentives. We believe the executive peer review motivates executive officers to work together in a productive fashion. The Human Resources Committee has the discretion to increase or decrease a payout under our variable pay program at any time in the event that it determines that circumstances warrant adjustment.
Equity-Based Awards. The Human Resources Committee designs our equity-based awards to be both reasonable and competitive in relation to the market.
As described in more detail below, we design our equity-based awards to help retain talent over a period of time and to provide our named executive officers with a long-term reward that aligns their interests with those of our stockholders. The Human Resources Committee considers a number of factors when determining the size of equity awards, including competitive market data, named executive officer performance, the proposed award’s retention value, the value of unvested equity awards already held by the named executive officer and a review of the named executive officer’s overall compensation package, which takes into account our approach to base pay and variable pay. Initial equity awards granted upon hire are generally designed to attract experienced executives with established records of success and help retain them over the long term. Subsequent equity awards are designed to help retain and incentivize our named executive officers.
The Human Resources Committee approved awards of stock options and restricted stock units (“RSUs”) to our named executive officers in January 2021, which were effective in February 2021. In fiscal 2021, the Human Resources Committee granted stock options and RSUs, which represent a right to receive shares of our common stock upon vesting over time. The Human Resources Committee determined to grant stock options and RSUs based on an evaluation of the objectives of our compensation program and taking into consideration market practice among companies in our compensation peer group. The Human Resources Committee grants stock options and RSUs in order to: create a stronger and more visible link between executive pay and Fortinet’s stock price performance; further align our executives’ interests with those of our stockholders; to better incentivize and retain our senior executives; and maintain a long-term incentive program that is competitive with practices at peer companies. The Human Resources Committee considers stock options a strong pay-for-performance vehicle as the value of a stock option is limited to the excess of then-current stock price over the exercise price of the option. Stock options also support a long-term perspective as the grants to our named executive officers in fiscal 2021 vest over four years and can be exercised for up to seven years after grant.
Information on the vesting schedules for the awards of stock options and RSUs made to our named executive officers in 2021 can be found below in “— Determining the Amount of Elements of Executives’ Compensation in 2021 — Equity-Based Awards.” See “— Outstanding Equity Awards at 2021 Fiscal Year-End Table” for additional information regarding the outstanding and unvested equity awards held by each named executive officer as of the end of fiscal 2021.
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Benefits Programs. We provide our named executive officers the following benefits: health and welfare benefits, including participation in our 401(k) retirement plan; group health insurance plans; and life, disability and accidental death insurance plans. Our named executive officers generally receive the same benefits as those provided to our other U.S. employees and do not receive any additional perquisites. We design our employee benefits programs to be both cost-effective and competitive in relation to the market as well as compliant with applicable laws and practices. We adjust our benefits programs as needed based upon regular monitoring of applicable laws and practices and the overall market.
Determining the Amount of Elements of Executives’ Compensation in 2021
Peer Group. In July 2020, with assistance from Compensia, the Human Resources Committee developed and approved a compensation peer group as a source of competitive market data for evaluating the compensation of our executive officers and to support pay decisions for 2021.
The peer group was comprised of security competitors, network infrastructure technology companies and other software companies focusing on data management, internet infrastructure and enterprise application software. In selecting peers, the Human Resources Committee also generally sought to include companies with annual revenue ranging from approximately $1.1 billion to $4.5 billion and a market capitalization generally ranging from $11 billion to $45 billion. The peer group approved in July 2020 included the 16 technology companies listed below:
| | Akamai Technologies | | | Okta | |
| | ANSYS | | | Palo Alto Networks | |
| | Arista Networks | | | Splunk | |
| | Cadence Design Systems | | | Synopsys | |
| | Check Point Software Technologies | | | Twilio | |
| | Citrix Systems | | | VeriSign | |
| | CrowdStrike Holdings | | | Workday | |
| | NetApp | | | Zscaler | |
For 2021, the Human Resources Committee removed Dropbox, F5 Networks, GoDaddy, Juniper Networks, PTC and SS&C Holdings from the peer group and added Okta, Twilio, Workday and Zscaler to the peer group.
Base Pay. As part of our annual performance review process and review of named executive officers’ compensation, early each year the Human Resources Committee assesses the performance of the named executive officers, considering factors such as company performance, department performance and individual performance, including the named executive officer’s expertise, position, past contributions to Fortinet and potential future contributions to Fortinet. Largely as a result of this assessment and taking into account reasonable annual base pay increase practices and Compensia’s data and analysis, the Human Resources Committee considered whether and how much to adjust the base pay of the named executive officers.
Taking into consideration performance and reasonable merit increases to position salary for our named executive officers generally between the 50th and 65th percentile of the competitive market, in January 2021, the Human Resources Committee kept the annual base pay of Mr. Ken Xie at $797,000, of Mr. Michael Xie at $445,000 and of Mr. Jensen at $490,000, and raised the annual base salary of Mr. Whittle by 3% to $442,000. After these increases, salary for our named executive officers was generally between the 50th and 65th percentile of the competitive market.
Equity-Based Awards. In granting stock options and RSUs to our named executive officers in 2021, the Human Resources Committee exercised its judgment and considered, among other things, the role and contribution of the named executive officer, the value of unvested stock options and RSUs already held by the executive and Compensia’s data and analysis.
In January 2021, the Human Resources Committee approved awards of stock options exercisable for up to 108,801 shares for Mr. Ken Xie, 43,713 shares for Mr. Michael Xie, 38,343 shares for Mr. Jensen and 24,411 shares for Mr. Whittle. Each of these stock options was granted in accordance with Fortinet’s Equity
39
Award Grant Policy discussed in “— Timing of Equity Awards” below, and vests over four years, with 25% vesting one year from February 22, 2019 and the remainder vesting monthly thereafter.
Also in January 2021, the Human Resources Committee approved awards of 36,267 RSUs for Mr. Ken Xie, 14,571 RSUs for Mr. Michael Xie, 12,781RSUs for Mr. Jensen and 8,137 RSUs for Mr. Whittle. Each of these RSUs was granted in accordance with Fortinet’s Equity Award Grant Policy discussed in “— Timing of Equity Awards” below, and vests over four years, with 25% vesting one year from February 22, 2019 and the remainder vesting quarterly thereafter.
Variable Pay. We determine the executive’s actual level of variable compensation in accordance with the terms of the Senior Management Bonus Program (the “Bonus Program”) approved by the Human Resources Committee for the year. In developing the framework, we seek to set total cash compensation (i.e. base salary plus variable pay) to meet our goal of ensuring that our cash compensation levels are competitive and to enable us to retain and motivate our named executive officers.
In 2021, the Human Resources Committee based the Bonus Program funding on achievement of revenue and operating income targets, as set forth in more detail below, with 70% of the bonus pool funding based on revenue achievement and 30% based on operating income achievement. The Human Resources Committee weighted the Bonus Program funding more heavily toward achieving revenue over operating income because it believed that, at this stage, a continued focus on growing revenue would help drive our long-term success and result in greater opportunity for profit in the future and enhanced stockholder value. However, because we believe it is important for our executives to monitor expenses closely as well, the Human Resources Committee also based a portion of the bonus pool funding on our operating income performance. Operating income for purposes of the Bonus Program is not calculated in accordance with U.S. generally accepted accounting principles (“GAAP”) but rather is defined as net income plus income taxes, stock-based compensation, interest income and foreign exchange currency gains or losses and other adjustments to GAAP income as defined in our non-GAAP definition for external reporting purposes.
For purposes of the Bonus Program, a minimum performance level (based on a percentage of the revenue and operating income target levels) had to be met before funding could occur. For 2021, threshold (i.e. the minimum) performance level was 90% of both the revenue target and the operating income target. Once the threshold performance level was attained, the funding of the bonus payments for our named executive officers was to increase on a graduated basis for each of the revenue portion and the operating income portion as follows:
|
Revenue Performance
|
| |
Funding Amount
|
|
| 90% – 100% | | | 40% funding for performance at 90% and 6% funding for every additional 1% of performance between 90% and 100% | |
| 100% – 140% | | | 1% funding for every additional 1% of performance between 100% and 140% | |
|
Operating Income Performance
|
| |
Funding Amount
|
|
|
90% – 100%
|
| | 40% funding for performance at 90% and 6% funding for every additional 1% of performance between 90% and 100% | |
|
100% – 140%
|
| | 1% funding for every additional 1% of performance between 100% and 140% | |
For example, for the revenue portion for our named executive officers:
•
At 90% achievement of the revenue target, the revenue portion of the Bonus Program would be funded at 40%;
•
At 95% achievement of the revenue target, the revenue portion of the Bonus Program would be funded at 70%;
•
At 100% achievement of the revenue target, the revenue portion of the Bonus Program would be funded at 100%; and
40
•
At 140% achievement of the revenue target, the revenue portion of the Bonus Program would be funded at 140%.
Bonuses payments were calculated and awarded quarterly. Bonus payments were based on unaudited, preliminary revenue and operating income results. Adjustments based on actual revenue and operating income results may be made in subsequent quarters at the Human Resources Committee’s discretion. No bonuses are paid to our named executive officers under the Bonus Program if our financial results are below our guidance such that we pre-announce our financial results.
Individual target bonuses under the Bonus Program are expressed as a percentage of the named executive officer’s base salary for 100% goal achievement. During 2021, our Chief Executive Officer made recommendations for target bonuses to the Human Resources Committee for Messrs. Jensen and Whittle, taking into consideration company achievement versus the financial targets discussed below and peer group data. The Human Resources Committee in turn gave final approval after discussing the recommendations. The Human Resources Committee approved target bonuses for Messrs. Ken Xie and Michael Xie based upon the same criteria under the Bonus Program.
For 2021, the Human Resources Committee approved target bonuses of 120% of base salary for Mr. Ken Xie, 75% of base salary for Mr. Michael Xie, 80% of base salary for Mr. Jensen and 70% of base salary for Mr. Whittle. See “— 2021 Summary Compensation Table” below.
As noted above, the Bonus Program was based on revenue and operating income performance targets set at the beginning of the year. The targets were set at levels determined to be challenging and requiring substantial effort on the part of senior management. For 2021, we achieved between 103% and 108% of our quarterly and annual revenue targets and we achieved between 111% and 114% of our quarterly and annual operating income targets. The Human Resources Committee approved bonus payments for our senior management for 2021 based on achievement of these corporate goals and the individual performance of certain of our named executive officers as evaluated pursuant to the “peer review” process described above. The following charts set forth both the target levels for our revenue and operating income performance, the revenue and operating income levels actually achieved, and the percentages of target revenue actually achieved.
![[MISSING IMAGE: tm2212528d1-bc_20reven4c.jpg]](/stocks/ftnt/documents/be2302ff-e0ec-43ff-ba62-010cb2b619f8/asset/tm2212528d1-bc_20reven4c.jpg)
Benefits Programs. In 2021, our named executive officers received the same employee benefits as our other U.S.-based employees and did not receive any additional perquisites. Additional details regarding our benefits programs can be found above in “— Elements of Our Compensation Program — Benefits Programs.”
Amended and Restated Change of Control Severance Agreements
Effective August 2019, we entered into an Amended and Restated Change of Control Severance Agreement with each of our named executive officers. In addition to extending the term of each named executive officer’s existing Change of Control Severance Agreement to August 7, 2024, the Amended and Restated Change of Control Severance Agreements also aligned the change of control terms for each of our named executive officers.
41
These Amended and Restated Change of Control Severance Agreements provide for payments and benefits upon termination of their employment in specified circumstances. These arrangements (including potential payments and terms) are discussed in more detail in the “— Potential Payments Upon Termination or Change of Control” section below. We believe that these agreements help us from a retention standpoint, and they are particularly necessary in an industry such as ours, where there has been market consolidation. We believe that entering into these agreements helps the named executive officers maintain continued focus and dedication to their assigned duties to maximize stockholder value. The terms of these agreements were determined after review by the Human Resources Committee of our retention goals for each named executive officer, as well as analysis of market data, similar agreements established by our peer group and applicable law.
Timing of Equity Awards
The Human Resources Committee approved grants of both stock options and RSUs to our named executive officers in January 2021. The Board of Directors and Human Resources Committee reserve the right, however, to grant stock options, RSUs, performance stock units (“PSUs”) or other equity awards at other times during the year. With respect to newly hired employees, our practice is typically to grant equity awards at the first quarterly meeting of the Human Resources Committee following such employee’s hire date.
Pursuant to our Equity Award Grant Policy, equity awards are granted effective as of the date that is the tenth trading day on Nasdaq following the date of our next quarterly earnings announcement following the meetings of the Human Resources Committee or the Board of Directors when such equity awards were approved.
Performance-Based Compensation Recovery Policy
The Human Resources Committee has adopted a compensation recovery policy that allows us to recover or “clawback” performance-based cash compensation from certain employees who participate in the Bonus Program in the event of a material restatement of our financial results. Under the policy, if the material restatement would result in any performance-based cash compensation paid under the Bonus Program during the three years preceding the restatement to have been lower had it been calculated based on such restated results, we may recover the amounts in excess of what would have been paid under the restatement from any participant who received such performance-based cash compensation and who is determined to have engaged in intentional or unlawful misconduct that materially contributed to the need for such restatement. The Board of Directors (or a committee designated by the Board of Directors) has the sole authority to enforce this policy, and it is limited by applicable law.
Effect of Accounting and Tax Treatment on Compensation Decisions
In the review and establishment of our compensation program, we consider the anticipated accounting and tax implications to us and our executives. In this regard, we have historically used stock options, RSUs and PSUs, and we reserve the right to use other forms of equity, as additional forms of equity incentives in response to changes in the accounting treatment of equity awards and taking into consideration potential impact on dilution and competitive practices. While the Human Resources Committee considers the applicable accounting and tax treatment, these factors alone are not determinative, and the Human Resources Committee also considers the cash and non-cash impact of the programs and whether a program is consistent with our overall compensation philosophy and objectives.
Section 162(m) of the Internal Revenue Code of 1986, as amended (the “Code”), generally disallows the deductibility by any publicly held corporation of individual compensation expenses in excess of $1 million paid to certain executive officers within a taxable year. The Tax Cuts and Jobs Act, which was signed into law in December 2017, limited or eliminated the “performance-based compensation” exception to the Section 162(m) deductibility limit, effective for tax years beginning after December 31, 2017. As a result, any compensation paid to such executive officers in excess of $1 million will be non-deductible unless such compensation was previously exempt and is payable pursuant to a written binding contract that was in effect on November 2, 2017. We believe it is likely that compensation income recognized upon the exercise of stock options granted prior to November 2, 2017 will continue to be tax deductible in future years. However,
42
because the tax reform changes are complex and their effect is unsettled, we can offer no such assurance of deductibility. All other compensation paid after December 31, 2017 to such executive officers in excess of $1 million, including cash compensation, stock options, RSUs and PSUs awarded or modified after November 2, 2017, will be non-deductible. We expect that the Human Resources Committee will continue to seek to balance the cost and benefit of tax deductibility with our executive compensation goals designed to promote stockholder interests, retaining discretion to approve compensation that is non-deductible when it believes that such payments are appropriate to attract and retain executive talent. As a result, we expect that a significant portion of future cash and equity payments to our executive officers will not be tax deductible under Section 162(m).
Human Resources Committee Report
The Human Resources Committee oversees our compensation policies, plans and benefit programs. The Human Resources Committee has reviewed and discussed the Compensation Discussion and Analysis required by Item 402(b) of Regulation S-K with management. Based on such review and discussions, the Human Resources Committee has recommended to the Board of Directors that the Compensation Discussion and Analysis be included in this proxy statement.
Respectfully submitted by the members of the Human Resources Committee of the Board of Directors
Judith Sim (Chairperson)
Kelly Ducourty
Kenneth A. Goldman
Kelly Ducourty
Kenneth A. Goldman
2021 Summary Compensation Table
The following table presents information concerning the compensation of the named executive officers for the years ended December 31, 2021, 2020 and 2019.
|
Name and Principal Positions
|
| |
Year
|
| |
Salary ($)
|
| |
Bonus ($)
|
| |
Option
Awards ($)(1) |
| |
Stock
Awards ($)(1) |
| |
Non-Equity
Incentive Plan Compensation ($)(2) |
| |
All Other
Compensation ($)(3) |
| |
Total ($)
|
| ||||||||||||||||||||||||
|
Ken Xie
Chief Executive Officer |
| | | | 2021 | | | | | | 797,000 | | | | | | — | | | | | | 6,145,875 | | | | | | 6,235,385 | | | | | | 1,024,951 | | | | | | — | | | | | | 14,203,211 | | |
| | | | 2020 | | | | | | 797,000 | | | | | | — | | | | | | 4,169,569 | | | | | | 4,704,899 | | | | | | 983,163 | | | | | | — | | | | | | 10,654,631 | | | ||
| | | | 2019 | | | | | | 750,000 | | | | | | — | | | | | | 3,985,666 | | | | | | 4,139,334 | | | | | | 754,923 | | | | | | — | | | | | | 9,629,923 | | | ||
|
Michael Xie
President and Chief Technology Officer |
| | | | 2021 | | | | | | 445,000 | | | | | | — | | | | | | 2,469,229 | | | | | | 2,505,192 | | | | | | 357,673 | | | | | | — | | | | | | 5,777,094 | | |
| | | | 2020 | | | | | | 445,000 | | | | | | — | | | | | | 1,653,096 | | | | | | 1,865,337 | | | | | | 343,090 | | | | | | — | | | | | | 4,305,023 | | | ||
| | | | 2019 | | | | | | 427,000 | | | | | | — | | | | | | 1,758,779 | | | | | | 1,826,589 | | | | | | 279,372 | | | | | | — | | | | | | 4,291,740 | | | ||
|
Keith Jensen
Chief Financial Officer |
| | | | 2021 | | | | | | 490,000 | | | | | | — | | | | | | 2,165,893 | | | | | | 2,197,437 | | | | | | 431,000 | | | | | | 5,343 | | | | | | 5,289,673 | | |
| | | | 2020 | | | | | | 490,000 | | | | | | — | | | | | | 1,377,749 | | | | | | 1,554,638 | | | | | | 401,000 | | | | | | 5,334 | | | | | | 3,824,721 | | | ||
| | | | 2019 | | | | | | 442,000 | | | | | | — | | | | | | 1,278,225 | | | | | | 1,327,507 | | | | | | 340,797 | | | | | | 5,188 | | | | | | 3,393,717 | | | ||
|
John Whittle
Executive Vice President of Corporate Development, Chief Legal Officer and Corporate Secretary |
| | | | 2021 | | | | | | 440,375 | | | | | | — | | | | | | 1,378,911 | | | | | | 1,398,994 | | | | | | 312,000 | | | | | | 5,800 | | | | | | 3,536,080 | | |
| | | | 2020 | | | | | | 429,000 | | | | | | — | | | | | | 804,736 | | | | | | 908,055 | | | | | | 230,242 | | | | | | 5,700 | | | | | | 2,377,733 | | | ||
| | | | 2019 | | | | | | 403,000 | | | | | | — | | | | | | 910,995 | | | | | | 946,119 | | | | | | 246,000 | | | | | | 5,500 | | | | | | 2,511,614 | | | ||
(1)
The amounts shown represent the aggregate grant date fair value of equity awards granted in the years shown, computed in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 718 (“FASB ASC Topic 718”). The assumptions used in the valuation of these awards are set forth in note 14 to our consolidated financial statements, which are included in our Annual Report on Form 10-K for the year ended December 31, 2021, filed with the SEC on February 25, 2022.
43
The grant date fair value of these awards is determined for financial statement reporting purposes and does not correspond to the actual value that the named executive officers will receive from the awards.
(2)
See “— Grants of Plan-Based Awards in 2021 Table” under the column “Estimated Future Payouts Under Non-Equity Incentive Plan Awards” for the amounts named executive officers were eligible to earn in fiscal 2021. See also “— Determining the Amount of Elements of Executives’ Compensation in 2021 — Variable Pay” above for a discussion regarding our Bonus Program.
(3)
Represents company matching contributions to Fortinet’s 401(k) plan, a tax-qualified defined contribution plan.
Grants of Plan-Based Awards in 2021 Table
The following table presents information concerning each grant of an award made to the named executive officers in 2021 under any plan.
|
Name
|
| |
Type of Award
|
| |
Grant
Date |
| |
Approval
Date |
| |
Estimated Future Payouts Under
Non-Equity Incentive Plan Awards(1) |
| |
All Other Stock
Awards: Number of Shares of Stock or Units (#) |
| |
All Other Option
Awards: Number of Shares Underlying Options (#) |
| |
Exercise or
Base Price of Option Awards ($/Share) |
| |
Grant Date
Fair Value of Stock and Option Awards ($)(2) |
| |||||||||||||||||||||||||||
| |
Threshold
($) |
| |
Target
($) |
| |
Maximum
($) |
| ||||||||||||||||||||||||||||||||||||||||||||
|
Ken Xie
|
| |
Cash
|
| |
—
|
| |
—
|
| | | | 22,954 | | | | | | 956,400 | | | | | | 1,338,960 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
| | | |
RSU
|
| |
2/19/2021
|
| |
1/22/2021
|
| | | | — | | | | | | — | | | | | | — | | | | | | 36,267 | | | | | | — | | | | | | — | | | | | | 6,235,385 | | |
| | | |
Stock Option
|
| |
2/19/2021
|
| |
1/22/2021
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 108,801 | | | | | | 171.93 | | | | | | 6,145,875 | | |
|
Michael Xie
|
| |
Cash
|
| |
—
|
| |
—
|
| | | | 8,010 | | | | | | 333,750 | | | | | | 467,250 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
| | | |
RSU
|
| |
2/19/2021
|
| |
1/22/2021
|
| | | | — | | | | | | — | | | | | | — | | | | | | 14,571 | | | | | | — | | | | | | — | | | | | | 2,505,192 | | |
| | | |
Stock Option
|
| |
2/19/2021
|
| |
1/22/2021
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 43,713 | | | | | | 171.93 | | | | | | 2,469,229 | | |
|
Keith Jensen
|
| |
Cash
|
| |
—
|
| |
—
|
| | | | 9,408 | | | | | | 392,000 | | | | | | 548,800 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
| | | |
RSU
|
| |
2/19/2021
|
| |
1/22/2021
|
| | | | — | | | | | | — | | | | | | — | | | | | | 12,781 | | | | | | — | | | | | | — | | | | | | 2,197,437 | | |
| | | |
Stock Option
|
| |
2/19/2021
|
| |
1/22/2021
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 38,343 | | | | | | 171.93 | | | | | | 2,165,893 | | |
|
John Whittle
|
| |
Cash
|
| |
—
|
| |
—
|
| | | | 7,426 | | | | | | 309,400 | | | | | | 433,160 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
| | | |
RSU
|
| |
2/19/2021
|
| |
1/22/2021
|
| | | | — | | | | | | — | | | | | | — | | | | | | 8,137 | | | | | | — | | | | | | — | | | | | | 1,398,994 | | |
| | | |
Stock Option
|
| |
2/19/2021
|
| |
1/22/2021
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 24,411 | | | | | | 171.93 | | | | | | 1,378,911 | | |
(1)
Reflects threshold, target and maximum target bonus amounts for fiscal 2021 performance under the Bonus Program, as described in “Executive Compensation — Determining the Amount of Elements of Executives’ Compensation in 2021 — Variable Pay.” These amounts do not necessarily correspond to the actual value that may be received by the named executive officer.
(2)
The amounts shown represent the grant date fair value of RSUs and stock options granted during fiscal 2021, computed in accordance with FASB ASC Topic 718. The assumptions used in the valuation of these awards are set forth in note 14 to our consolidated financial statements, which are included in our Annual Report on Form 10-K for the year ended December 31, 2021, filed with the SEC on February 25, 2022. Grant date fair value is determined for financial statement reporting purposes and does not correspond to the actual value that the named executive officers will realize from the award.
Outstanding Equity Awards at 2021 Fiscal Year-End Table
The following table presents information concerning unexercised options and unvested RSUs for each named executive officer outstanding as of December 31, 2021.
44
| | | | | | |
Option Awards
|
| |
Stock Awards
|
| ||||||||||||||||||||||||||||||
| | | | | | |
Number of Securities Underlying
Unexercised Options (#) |
| |
Option Exercise
Price ($) |
| |
Option
Expiration Date |
| |
Number of Shares
or Units of Stock That Have Not Vested (#) |
| |
Market Value of
Shares or Units of Stock That Have Not Vested ($)(2) |
| |||||||||||||||||||||
|
Name
|
| |
Grant Date(1)
|
| |
Exercisable
|
| |
Unexercisable
|
| ||||||||||||||||||||||||||||||
|
Ken Xie
|
| |
2/11/2016
|
| | | | 60,000 | | | | | | — | | | | | | 23.83 | | | | | | 2/11/2023 | | | | | | — | | | | | | — | | |
| | | |
2/16/2017
|
| | | | 100,000 | | | | | | — | | | | | | 37.24 | | | | | | 2/16/2024 | | | | | | — | | | | | | — | | |
| | | |
2/20/2018
|
| | | | 191,666 | | | | | | 8,334 | | | | | | 49.06 | | | | | | 2/20/2025 | | | | | | — | | | | | | — | | |
| | | |
2/20/2018
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 3,125 | | | | | | 1,123,125 | | |
| | | |
2/21/2019
|
| | | | 104,107 | | | | | | 42,869 | | | | | | 84.49 | | | | | | 2/21/2026 | | | | | | — | | | | | | — | | |
| | | |
2/21/2019
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 15,310 | | | | | | 5,502,414 | | |
| | | |
2/21/2020
|
| | | | 56,509 | | | | | | 66,785 | | | | | | 114.48 | | | | | | 2/21/2027 | | | | | | — | | | | | | — | | |
| | | |
2/21/2020
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 23,118 | | | | | | 8,308,609 | | |
| | | |
2/19/2021
|
| | | | — | | | | | | 108,801 | | | | | | 171.93 | | | | | | 2/19/2028 | | | | | | — | | | | | | — | | |
| | | |
2/19/2021
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 36,267 | | | | | | 13,034,360 | | |
|
Michael Xie
|
| |
2/11/2016
|
| | | | 45,000 | | | | | | — | | | | | | 23.83 | | | | | | 2/11/2023 | | | | | | — | | | | | | — | | |
| | | |
2/16/2017
|
| | | | 60,000 | | | | | | — | | | | | | 37.24 | | | | | | 2/16/2024 | | | | | | — | | | | | | — | | |
| | | |
2/20/2018
|
| | | | 90,667 | | | | | | 3,943 | | | | | | 49.06 | | | | | | 2/20/2025 | | | | | | — | | | | | | — | | |
| | | |
2/20/2018
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 1,775 | | | | | | 637,935 | | |
| | | |
2/21/2019
|
| | | | 45,940 | | | | | | 18,917 | | | | | | 84.49 | | | | | | 2/21/2026 | | | | | | — | | | | | | — | | |
| | | |
2/21/2019
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 6,756 | | | | | | 2,428,106 | | |
| | | |
2/21/2020
|
| | | | 22,404 | | | | | | 26,478 | | | | | | 114.48 | | | | | | 2/21/2027 | | | | | | — | | | | | | — | | |
| | | |
2/21/2020
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 9,166 | | | | | | 3,294,260 | | |
| | | |
2/19/2021
|
| | | | — | | | | | | 43,713 | | | | | | 171.93 | | | | | | 2/19/2028 | | | | | | — | | | | | | — | | |
| | | |
2/19/2021
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 14,571 | | | | | | 5,236,817 | | |
|
Keith Jensen
|
| |
2/20/2018
|
| | | | 834 | | | | | | 1,667 | | | | | | 49.06 | | | | | | 2/20/2025 | | | | | | — | | | | | | — | | |
| | | |
2/20/2018
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 1,250 | | | | | | 449,250 | | |
| | | |
2/21/2019
|
| | | | 982 | | | | | | 13,749 | | | | | | 84.49 | | | | | | 2/21/2026 | | | | | | — | | | | | | — | | |
| | | |
2/21/2019
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 4,910 | | | | | | 1,764,654 | | |
| | | |
2/21/2020
|
| | | | 849 | | | | | | 22,068 | | | | | | 114.48 | | | | | | 2/21/2027 | | | | | | — | | | | | | — | | |
| | | |
2/21/2020
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 7,639 | | | | | | 2,745,456 | | |
| | | |
2/19/2021
|
| | | | — | | | | | | 38,343 | | | | | | 171.93 | | | | | | 2/19/2028 | | | | | | — | | | | | | — | | |
| | | |
2/19/2021
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 12,781 | | | | | | 4,593,491 | | |
|
John Whittle
|
| |
2/11/2016
|
| | | | 625 | | | | | | — | | | | | | 23.83 | | | | | | 2/11/2023 | | | | | | — | | | | | | — | | |
| | | |
2/16/2017
|
| | | | 8,749 | | | | | | — | | | | | | 37.24 | | | | | | — | | | | | | — | | | | | | — | | |
| | | |
2/20/2018
|
| | | | 20,665 | | | | | | 2,432 | | | | | | 49.06 | | | | | | 2/20/2025 | | | | | | — | | | | | | — | | |
| | | |
2/20/2018
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 1,095 | | | | | | 393,543 | | |
| | | |
2/21/2019
|
| | | | — | | | | | | 9,799 | | | | | | 84.49 | | | | | | 2/21/2026 | | | | | | — | | | | | | — | | |
| | | |
2/21/2019
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 3,500 | | | | | | 1,257,900 | | |
| | | |
2/21/2020
|
| | | | — | | | | | | 12,890 | | | | | | 114.48 | | | | | | 2/21/2027 | | | | | | — | | | | | | — | | |
| | | |
2/21/2020
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 4,462 | | | | | | 1,603,643 | | |
| | | |
2/19/2021
|
| | | | — | | | | | | 24,411 | | | | | | 171.93 | | | | | | 2/19/2028 | | | | | | — | | | | | | — | | |
| | | |
2/19/2021
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 8,137 | | | | | | 2,924,437 | | |
(1)
Reflects stock options and RSUs granted under the 2009 Plan. Unless otherwise indicated below, (i) all options granted to named executive officers vest over four years starting on February 1 of the year of grant, with 25% vesting after one year and the remainder vesting monthly thereafter, and (ii) all RSUs
45
granted to named executive officers vest over four years starting on February 1 of the year of grant, with 25% vesting after one year and the remainder vesting quarterly thereafter.
(2)
Represents the fair market value of the shares underlying the RSUs as of December 31, 2021, based on the closing price on Nasdaq of Fortinet’s common stock on December 31, 2021, which was $359.40 per share.
2021 Option Exercises and Stock Vested Table
The following table presents information concerning amounts realized from stock option exercises and RSUs vested during fiscal 2021 for each of the named executive officers.
| | | |
Option Awards
|
| |
Stock Awards
|
| ||||||||||||||||||
|
Name
|
| |
Number of Shares
Acquired on Exercise (#) |
| |
Value Realized on
Exercise ($)(1) |
| |
Number of Shares
Acquired on Vesting (#) |
| |
Value Realized on
Vesting ($)(2) |
| ||||||||||||
|
Ken Xie
|
| | | | — | | | | | | — | | | | | | 45,853 | | | | | | 9,915,973 | | |
|
Michael Xie
|
| | | | — | | | | | | — | | | | | | 22,133 | | | | | | 4,757,434 | | |
|
Keith Jensen
|
| | | | 40,858 | | | | | | 6,025,602 | | | | | | 16,119 | | | | | | 3,486,861 | | |
|
John Whittle
|
| | | | 35,142 | | | | | | 6,012,579 | | | | | | 12,521 | | | | | | 2,671,892 | | |
(1)
The value realized on exercise reflects the difference between the fair market value of Fortinet common stock at the time of exercise on the exercise date and the exercise price of the stock option. Amounts shown are presented on an aggregate basis for all exercises that occurred during 2021.
(2)
The value realized on vesting reflects the aggregate fair market value of all Fortinet common stock issued pursuant to vested RSUs during 2021.
Potential Payments Upon Termination or Change of Control
Termination or Change of Control Arrangements
On August 7, 2019, we entered into an Amended and Restated Change of Control Severance Agreement with each of our named executive officers, under which each named executive officer may receive certain payments and benefits upon certain terminations of employment, provided that the named executive officer has provided us with an executed release of claims and subject to non-solicitation and non-competition for a period of 12 months. The term of each named executive officer’s Amended and Restated Change of Control Severance Agreement expires on August 7, 2024.
Pursuant to each Amended and Restated Change of Control Agreement, if a named executive officer is terminated without Cause (as defined below) or if a named executive officer terminates the named executive officer’s employment with us for Good Reason (as defined below) prior to, or absent, a Change of Control (as defined below), or after 12 months following a Change of Control, the named executive officer will be entitled to: (i) a severance payment in an amount equal to 12 months of the named executive officer’s then-current base salary; (ii) acceleration of the unvested equity awards then held by the named executive officer that would have vested over the next 12 months; and (iii) 12 months of medical, dental and/or vision benefits for the named executive officer and/or the named executive officer’s eligible dependents.
Also pursuant to each Amended and Restated Change of Control Agreement, if a named executive officer is terminated without Cause or if a named executive officer terminates the named executive officer’s employment with us for Good Reason within 12 months following a Change of Control, the named executive officer will be entitled to: (i) a severance payment in an amount equal to 12 months of the named executive officer’s then-current base salary; (ii) acceleration of 100% of the unvested equity awards then held by the named executive officer; and (iii) 12 months of medical, dental and/or vision benefits for the named executive officer and/or the named executive officer’s eligible dependents.
In the event of acceleration of a named executive officer’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 a named executive officer
46
is subject to the excise tax imposed by Section 4999 of the Code (as a result of a payment being classified as a “parachute payment” under Section 280G of the Code), the named executive officer will be entitled to receive such payment as would entitle the named executive officer 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.
For the purpose of our Amended and Restated Change of Control Severance Agreements:
(i)
“Change of Control” generally means:
(a)
the acquisition by one person or group of persons of Fortinet securities representing 50% or more of total voting power at the time of acquisition;
(b)
a change in the composition of the Board of Directors occurring within a 12-month period, which results in fewer than a majority of the directors on the Board of Directors being incumbent directors;
(c)
the date of the consummation of a merger or consolidation between Fortinet and any other corporation that has been approved by our stockholders, other than a merger or consolidation that would result in our voting securities representing 50% or more of the total voting power immediately after such merger or consolidation, or if our stockholders approve a plan of Fortinet’s complete liquidation; or
(d)
a change in the ownership of a substantial portion of Fortinet’s assets, having a total gross fair market value equal to or more than 50% of the total fair market value of all of Fortinet’s assets immediately prior to such acquisition.
Notwithstanding the foregoing, a transaction that does not constitute a change of control event under Treasury Regulation 1.409A-3(i)(5)(v) or (vii) shall not be considered a Change of Control.
(ii)
“Cause” generally means:
(a)
an act of dishonesty by the named executive officer in connection with the named executive officer’s responsibilities as an employee that materially and adversely affects Fortinet;
(b)
the named executive officer’s conviction of, or plea of nolo contendere to, a felony or any crime involving fraud, embezzlement or any other act of moral turpitude;
(c)
the named executive officer’s gross misconduct that materially and adversely affects Fortinet’s reputation or business; or
(d)
the named executive officer’s continued intentional refusal to perform employment duties in a material fashion that materially and adversely affects Fortinet’s reputation or business, after the named executive officer has received a written demand of performance from Fortinet that specifically sets forth the factual basis for Fortinet’s belief that the named executive officer has not substantially performed the named executive officer’s duties and the named executive officer continues to refuse to cure such non-performance within thirty days after receiving such notice.
(iii)
“Good Reason” generally means the occurrence of one of more of the following events without the named executive officer’s express written consent:
(a)
a material diminution in the named executive officer’s position or responsibilities with Fortinet;
(b)
a material reduction in the base salary of the named executive officer;
(c)
a material change in the geographic location of the named executive officer of 25 miles or more;
(d)
any material breach by Fortinet of any material provision of the Change of Control Severance Agreement; or
47
(e)
Fortinet’s failure to obtain the assumption of the Change of Control Severance Agreement by any successor to substantially all of Fortinet’s business and/or assets.
The named executive officer may not resign for Good Reason without first providing us with written notice of the acts or omissions constituting the grounds for “Good Reason” within 90 days of the initial existence of the grounds for Good Reason and a reasonable cure period of not less than 30 days following the date of such notice, and the named executive officer’s resignation of employment must occur no later than 30 days following the end of such 30-day cure period.
Estimated Payments upon Termination or Change in Control
The following table provides information concerning the estimated payments and benefits that would be provided in the circumstances described above for each of the named executive officers. Except where otherwise noted, payments and benefits are estimated assuming that the triggering event took place on the last business day of 2021, which was December 31, 2021, and the price per share of Fortinet’s common stock was the closing price on Nasdaq as of that date, which was $359.40 per share. There can be no assurance that a triggering event would produce the same or similar results as those estimated below if such event occurs on any other date or at any other price, of if any other assumption used to estimate potential payments and benefits is not correct. Due to the number of factors that affect the nature and amount of any potential payments or benefits, any actual payments and benefits may be different.
| | | |
Qualifying Termination Not Within One Year after a
Change of Control(1) |
| |
Qualifying Termination Within One Year after a
Change of Control(1) |
| ||||||||||||||||||||||||||||||
|
Name
|
| |
Salary ($)(2)
|
| |
Acceleration of
Equity Vesting ($)(3) |
| |
COBRA
Benefit ($)(4) |
| |
Salary ($)(2)
|
| |
Acceleration of
Equity Vesting ($)(5) |
| |
COBRA
Benefit ($)(4) |
| ||||||||||||||||||
|
Ken Xie
|
| | | | 797,000 | | | | | | 44,504,987 | | | | | | 32,815 | | | | | | 797,000 | | | | | | 79,093,904 | | | | | | 32,815 | | |
|
Michael Xie
|
| | | | 445,000 | | | | | | 18,764,902 | | | | | | 32,815 | | | | | | 445,000 | | | | | | 32,701,130 | | | | | | 32,815 | | |
|
Keith Jensen
|
| | | | 490,000 | | | | | | 14,636,338 | | | | | | 22,754 | | | | | | 490,000 | | | | | | 26,442,983 | | | | | | 22,754 | | |
|
John Whittle
|
| | | | 442,000 | | | | | | 10,009,817 | | | | | | 32,815 | | | | | | 440,000 | | | | | | 17,361,463 | | | | | | 32,815 | | |
(1)
A “Qualifying Termination” under the Change of Control Severance Agreement is an involuntary termination of employment without “Cause” or a voluntary resignation for “Good Reason,” in each case as defined above.
(2)
The severance amount related to base salary was determined based on base salaries in effect on December 31, 2021, the last business day of 2021.
(3)
The value is calculated by multiplying (i) the number of the named executive officer’s unvested shares that would have vested over the 12 months after December 31, 2021 by (ii) (a) the difference between $359.40 (the per share closing stock price on December 31, 2021) and the exercise price for stock options or (b) $359.40 for RSUs.
(4)
The value represents the total value for reimbursement for insurance premium expenses incurred for group health insurance continuation coverage under Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, for a period of up to 12 months.
(5)
The value is calculated by multiplying (i) the number of the named executive officer’s total unvested shares by (ii) (a) the difference between $359.40 (the per share closing stock price on December 31, 2021) and the exercise price for stock options or (b) $359.40 for RSUs.
CEO Pay Ratio Disclosure
As required by Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, and Item 402(u) of Regulation S-K, we are providing the following information about the relationship of the annual total compensation our Chief Executive Officer, Mr. Ken Xie (our “CEO”), and the annual total compensation of the median employee of our company, excluding our CEO. For 2021:
•
the annual total compensation of our median employee was $202,875;
48
•
the annual total compensation of our CEO as disclosed in the 2021 Summary Compensation Table was $14,203,211; and
•
the ratio of the annual total compensation of our CEO to the median of the annual total compensation of our employees was 70 to 1. This ratio is a reasonable estimate calculated in a manner consistent with SEC rules.
For purposes of calculating the pay ratio for 2021, we elected to use as our median employee the same individual that we originally identified as our median employee for 2020 and 2019 because there was no significant change to our employee population or compensation arrangements that we reasonably believed would significantly impact our pay ratio disclosure.
For a description of our methodology for identifying the median employee, see “CEO Pay Ratio Disclosure” on page 51 of our definitive proxy statement filed with the SEC on April 30, 2019.
We then calculated the annual total compensation for this individual using the same methodology we use to calculate the amount reported for our CEO in the “Total” column of the 2021 Summary Compensation Table as set forth in this proxy statement.
Because SEC rules for identifying the median of the annual total compensation of all employees allow companies to adopt a variety of methodologies, apply certain exclusions, and make reasonable estimates and assumptions that reflect their employee population and compensation practices, the pay ratio reported by other companies may not be comparable to our pay ratio, as other companies have different employee populations and compensation practices and may have used different methodologies, exclusions, estimates and assumptions in calculating their pay ratios. As explained by the SEC when it adopted these rules, the rule was not designed to facilitate comparisons of pay ratios among different companies, even companies within the same industry, but rather to allow stockholders to better understand and assess each particular company’s compensation practices and pay ratio disclosures.
Compensation of Directors
Director Compensation Table for 2021
The following table provides information concerning the compensation earned by each of our non-employee directors for service on the Board of Directors in fiscal 2021. Messrs. Ken Xie and Michael Xie, who are employees of Fortinet, do not receive additional compensation for their services as directors.
|
Name
|
| |
Fees Earned or
Paid in Cash ($)(1) |
| |
Stock Awards ($)(2)
|
| |
Total ($)
|
| |||||||||
|
Kelly Ducourty(3)
|
| | | | 71,625 | | | | | | 298,019 | | | | | | 369,644 | | |
|
Kenneth A. Goldman(4)
|
| | | | 81,775 | | | | | | 298,019 | | | | | | 379,794 | | |
|
Ming Hsieh(5)
|
| | | | 83,800 | | | | | | 298,019 | | | | | | 381,819 | | |
|
Jean Hu(6)
|
| | | | 78,773 | | | | | | 298,019 | | | | | | 376,792 | | |
|
William H. Neukom(7)
|
| | | | 97,500 | | | | | | 298,019 | | | | | | 395,519 | | |
|
Judith Sim(8)
|
| | | | 91,625 | | | | | | 298,019 | | | | | | 389,644 | | |
|
Admiral James Stavridis (Ret)(9)
|
| | | | 10,644 | | | | | | 181,030 | | | | | | 191,674 | | |
(1)
Reflects fees earned or paid in cash for services rendered in the last fiscal year.
(2)
The amounts shown represent the aggregate grant date fair value of the RSU award made to each director during the year, computed in accordance with FASB ASC Topic 718. The assumptions used in the valuation of these awards are set forth in note 14 to our consolidated financial statements, which are included in our Annual Report on Form 10-K for the year ended December 31, 2021, filed with the SEC on February 25, 2022. The grant date fair value of these awards is determined for financial statement reporting purposes and does not correspond to the actual value that the directors will receive from the awards.
49
(3)
As of December 31, 2021, Ms. Ducourty held 488 RSUs, 244 of which vested on March 31, 2022 and the remainder of which will vest in full on June 16, 2022, so long as Ms. Ducourty is a member of the Board of Directors on such date.
(4)
As of December 31, 2021, Mr. Goldman held 488 RSUs, 244 of which vested on March 31, 2022 and the remainder of which will vest in full on June 16, 2022, so long as Mr. Goldman is a member of the Board of Directors on such date.
(5)
As of December 31, 2021, Mr. Hsieh held 488 RSUs, 244 of which vested on March 31, 2022 and the remainder of which will vest in full on June 16, 2022, so long as Mr. Hsieh is a member of the Board of Directors on such date.
(6)
As of December 31, 2021, Ms. Hu held 488 RSUs, 244 of which vested on March 31, 2022 and the remainder of which will vest in full on June 16, 2022, so long as Ms. Hu is a member of the Board of Directors on such date.
(7)
As of December 31, 2021, Mr. Neukom held 488 RSUs, 244 of which vested on March 31, 2022 and the remainder of which will vest in full on June 16, 2022, so long as Mr. Neukom is a member of the Board of Directors on such date.
(8)
As of December 31, 2021, Ms. Sim held 488 RSUs, 244 of which vested on March 31, 2022 and the remainder of which will vest in full on June 16, 2022, so long as Ms. Sim is a member of the Board of Directors on such date.
(9)
Admiral Stavridis (Ret) joined the Board of Directors on October 22, 2021. As of December 31, 2021, Admiral Stavridis (Ret) held 527 RSUs, all of which will vest in full on June 16, 2022, so long as Admiral Stavridis (Ret) is a member of the Board of Directors on such date.
Standard Director Compensation Arrangements
Following a review by Compensia of our annual cash retainer policy and equity award grant policy for non-employee directors, in July 2021, the Human Resources Committee recommended, and the Board of Directors approved, various changes to our cash retainer policy and equity award grant policy for non-employee directors. In accordance with our annual cash retainer policy and equity award grant policy applicable to non-employee directors, each non-employee director is entitled to receive the following compensation for service on the Board of Directors:
•
an annual cash retainer for serving on the Board of Directors of $55,000, paid quarterly, in addition to the annual cash retainer for service on the committees of the Board of Directors as discussed below;
•
an annual cash retainer for serving as lead independent director of the Board of Directors of $35,000, paid quarterly;
•
an annual cash retainer for serving in a non-chairperson position on the (i) Audit Committee of $13,800, (ii) Human Resources Committee of $10,000, (iii) Governance Committee of $7,500 and (iv) Social Responsibility Committee of $7,500;
•
an annual cash retainer of (i) $32,500 for serving as the chairperson of the Audit Committee, (ii) $22,500 for serving as the chairperson of the Human Resources Committee, (iii) $15,000 for serving as the chairperson of the Governance Committee and (iv) $15,000 for serving as the chairperson of the Social Responsibility Committee;
•
after completion of each full year of service, an annual grant of a number of RSUs based on a total grant value equal to the peer 50th percentile per Compensia’s director compensation analysis (which for 2021 was $245,000), vesting quarterly on the last day of each quarter and with the final installment vesting on the earlier of the last day of the second quarter and the day prior to the next annual meeting of stockholders; and
•
for newly appointed non-employee directors, an initial grant of a number of RSUs based on a total grant value equal to the then-applicable grant amount, pro-rated based on the projected days from the directors appointment date through the next annual meeting of stockholders, vesting in full on the day prior to the next annual meeting of stockholders.
50
Prior to July 2021, the annual grant was a number of RSUs based on a total grant value of $250,000 and no cash retainer was paid for service on the Social Responsibility Committee, which was formed in January 2021. Otherwise, the compensation described above remained unchanged from the date of the 2021 Annual Meeting.
Non-Employee Director Stock Ownership Guidelines
We have adopted Stock Ownership Guidelines for our non-employee directors (the “Stock Ownership Guidelines”). The Stock Ownership Guidelines are designed to further align the interests of our non-employee directors with those of our stockholders by requiring each non-employee director to maintain a certain financial stake in our company.
Under the Stock Ownership Guidelines, each non-employee director is required to hold a number of shares of our common stock having a market value equal to at least five times such non-employee director’s annual base retainer (excluding fees paid for serving as the Lead Independent Director, Chairperson of the Board of Director or Chairperson or a member of a committee of the Board of Directors). Each non-employee director is required to acquire, and thereafter maintain, this minimum level of ownership by the end of the calendar year following such non-employee director’s fourth anniversary (or, if later, four years following the effective date of the Stock Ownership Guidelines).
Shares of our common stock that are beneficially owned by a non-employee director in the following forms are including in determining compliance with the Stock Ownership Guidelines: (i) shares owned by a non-employee director or their immediate family members residing in the same household; (ii) shares held in trust for the benefit of a non-employee director or their immediate family members residing in the same household; (iii) shares owned by a partnership, limited liability company or other entity to the extent of a non-employee director’s interest therein (or the interest therein of their immediate family members residing in the same household) and to the extent the non-employee director has or shares power to vote or dispose of the shares; (iv) vested and unexercised stock options; (v) vested RSUs and PSUs; (vi) other shares acquired through the 2009 Plan or other equity-based compensation plans; and (vii) shares owned in a 401(k) accounts.
Exceptions to the Stock Ownership Guidelines may be made for a particular non-employee director if the Human Resources Committee determines that the non-employee director would incur a hardship by complying with the Stock Ownership Guidelines. Failure to meet, or in unique circumstances, to show sustained progress toward meeting the Stock Ownership Guidelines may be a factor considered by the Human Resources Committee in determining future long-term incentive equity grants and/or appropriate levels of compensation.
Termination or Change of Control Arrangements
We have entered into change of control agreements with each of our non-employee directors. These agreements provide that, upon a Change of Control, 100% of the outstanding and unvested equity awards held by such directors will immediately vest in full.
“Change of Control” in our change of control agreements with our non-employee directors has the same meaning as used in our Change of Control Severance Agreements with the named executive officers. See “— Potential Payments Upon Termination or Change of Control — Termination or Change of Control Arrangements.”
Other Arrangements
While our non-employee directors are not typically paid or reimbursed for travel, lodging and related expenses associated with attending meetings of the Board of Directors or committees of the Board of Directors and for participating in activities related to service on the Board of Directors, we have from time-to-time paid or reimbursed our non-employee directors for reasonable expenses associated with attendance at meetings of the Board of Directors or committees of the Board of Directors.
51
Equity Compensation Plan Information
We currently maintain the 2009 Plan, which provides for the issuance of shares of our common stock to our officers and other employees, directors and consultants and which has been approved by our stockholders.
The following table summarizes the number of outstanding options and rights and number of securities remaining available for future issuance under our equity compensation plans as of December 31, 2021.
| | | |
(a)
|
| |
(b)
|
| |
(c)
|
| |||||||||
|
Plan category
|
| |
Number of securities to be
issued upon exercise of outstanding options, warrants and rights (#) |
| |
Weighted-average exercise
price per share of outstanding options, warrants and rights ($) |
| |
Number of securities remaining
available for future issuance under equity compensation plans (excluding securities reflected in column (a)) (#) |
| |||||||||
|
Equity compensation plans approved
by security holders |
| | | | 5,885,743 | | | | | $ | 43.21(1) | | | | | | 11,779,625(2) | | |
|
Equity compensation plans not approved by security holders
|
| | | | — | | | | | | N/A | | | | | | — | | |
|
Total
|
| | | | 5,885,743 | | | | | $ | 43.21 | | | | | | 11,779,625 | | |
(1)
The weighted-average exercise price does not reflect the shares that will be issued in connection with the settlement of RSUs, which have no exercise price.
(2)
Includes 11,779,625 shares of common stock available for issuance under the 2009 Plan, which was the only equity compensation plan that we maintained as of December 31, 2021.
52
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Related-Person Transactions
Indemnification of Officers and Directors
Our amended and restated certificate of incorporation and amended and restated bylaws provide that we will indemnify each of our directors and officers to the fullest extent permitted by Delaware law. In addition, we have entered into indemnification agreements with each of our directors and executive officers.
Review of Related-Person Transactions
In accordance with its charter, the Audit Committee is responsible for approving and overseeing any related-person transaction. We intend to ensure that all future transactions between us and our officers, directors and principal stockholders and their affiliates are approved by the Audit Committee on terms no less favorable to us than those that we could obtain from unaffiliated third parties.
For purposes of these procedures, the terms “related person” and “transaction” have the meanings contained in Item 404 of Regulation S-K.
The individuals and entities that are considered “related persons” include:
•
Directors, nominees for director and executive officers of Fortinet;
•
Any person known to be the beneficial owner of more than five percent of Fortinet’s common stock (a “5% Stockholder”); and
•
Any immediate family member, as defined in Item 404(a) of Regulation S-K, of a director, nominee for director, executive officer and 5% Stockholder.
53
OWNERSHIP OF SECURITIES
The following table sets forth certain information regarding the beneficial ownership of Fortinet’s common stock, as of March 31, 2022, for the following:
•
each person (or group of affiliated persons) who is known by us to beneficially own more than 5% of the outstanding shares of our common stock;
•
each of our non-employee directors and nominees;
•
each of our executive officers named in the Summary Compensation Table of this proxy statement; and
•
all directors and current executive officers of Fortinet as a group.
|
5% Stockholders, Directors, Director Nominees and Officers(1)
|
| |
Shares Beneficially
Owned (#)(2) |
| |
Percentage Beneficially
Owned (%)(2) |
| ||||||
| 5% Stockholders: | | | | | | | | | | | | | |
|
The Vanguard Group(3)
|
| | | | 15,414,022 | | | | | | 9.6 | | |
|
BlackRock, Inc.(4)
|
| | | | 11,668,040 | | | | | | 7.3 | | |
|
T. Rowe Price Associates, Inc.(5)
|
| | | | 10,707,518 | | | | | | 6.7 | | |
| Non-Employee Directors and Nominees: | | | | | | | | | | | | | |
|
Kelly Ducourty
|
| | | | 2,075 | | | | | | * | | |
|
Kenneth A. Goldman(6)
|
| | | | 6,489 | | | | | | * | | |
|
Ming Hsieh
|
| | | | 9,382 | | | | | | * | | |
|
Jean Hu
|
| | | | 4,655 | | | | | | * | | |
|
William H. Neukom
|
| | | | 56,152 | | | | | | * | | |
|
Judith Sim
|
| | | | 26,881 | | | | | | * | | |
|
Admiral James Stavridis (Ret)
|
| | | | — | | | | | | * | | |
| Named Executive Officers: | | | | | | | | | | | | | |
|
Ken Xie(7)
|
| | | | 15,816,512 | | | | | | 9.8 | | |
|
Michael Xie(8)
|
| | | | 14,295,152 | | | | | | 8.9 | | |
|
Keith Jensen(9)
|
| | | | 11,400 | | | | | | * | | |
|
John Whittle(10)
|
| | | | 35,151 | | | | | | * | | |
|
All directors and current executive officers as a group (12 persons)(11)
|
| | | | 30,358,924 | | | | | | 18.8 | | |
*
Represents less than 1% of the total.
(1)
Unless otherwise indicated in the table, the address for each listed person is c/o Fortinet, Inc., 899 Kifer Road, Sunnyvale, California 94086.
(2)
The number and percentage of shares beneficially owned is determined under rules of the SEC, and the information is not necessarily indicative of beneficial ownership for any other purpose. Under such rules, beneficial ownership includes any shares as to which the individual has sole or shared voting power or investment power and also any shares which the individual has the right to acquire within 60 days of March 31, 2022, through the exercise of any stock option or other right. Unless otherwise indicated in the footnotes, each person has sole voting and investment power (or shares such powers with such person’s spouse) with respect to the shares shown as beneficially owned. Percentage beneficially owned is based on 160,266,932 shares of common stock outstanding on March 31, 2022.
(3)
Based solely on information reported by The Vanguard Group (“Vanguard”) on Schedule 13G/A filed with the SEC on February 10, 2022. Vanguard reported beneficial ownership of 15,414,022 shares, including 14,852,174 shares over which it has sole dispositive power. The address of Vanguard is 100 Vanguard Boulevard, Malvern, Pennsylvania 19355.
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(4)
Based solely on information reported by BlackRock, Inc. (“BlackRock”) on Schedule 13G/A filed with the SEC on February 3, 2022. BlackRock reported beneficial ownership of 11,668,040 shares, including 10,349,159 shares over which it has sole voting power and 11,668,040 shares over which it has sole dispositive power. The address of BlackRock is 55 East 52nd Street, New York, New York 10055.
(5)
Based solely on information reported by T. Rowe Price Associates, Inc. (“T. Rowe Price”) on Schedule 13G filed with the SEC on February 14, 2022. T. Rowe Price reported beneficial ownership of 10,707,518 shares, including 4,431,132 shares over which it has sole voting power and 10,707,518 shares over which it has sole dispositive power. The address of T. Rowe Price is 100 E. Pratt Street, Baltimore, MD 21202.
(6)
Includes: (i) 2,139 shares held by Mr. Goldman; (ii) 4,150 shares held by the Goldman-Valeriote Family Trust, for which Mr. Goldman serves as a trustee; and (iii) 200 shares held by the GV Partners, L.P., for which Mr. Goldman serves as managing member. Mr. Goldman disclaims beneficial ownership of the shares held by the Goldman-Valeriote Family Trust except to the extent of his pecuniary interest therein.
(7)
Includes: (i) 12,581,760 shares held of record by Mr. Ken Xie; and (ii) 2,644,086 shares held by the Xie Foundation, a non-profit entity for which Mr. Ken Xie serves as co-president and a director. Mr. Ken Xie has no pecuniary interest in and disclaims beneficial ownership of the shares held by the Xie Foundation. Also includes: (i) 582,769 shares issuable upon the exercise of stock options held by Mr. Ken Xie that are exercisable within 60 days of March 31, 2022; and (ii) 7,897 shares issuable upon the settlement of RSUs that will vest within 60 days of March 31, 2022.
(8)
Includes: (i) 5,954,424 shares held of record by Mr. Michael Xie; (ii) 1,991,686 shares held by the 2010 K.A. Family Trust dated May 3, 2010, for which Mr. Michael Xie serves as a trustee; (iii) 3,408,214 shares held by the K.A. Children’s Trust dated February 9, 2011, for which Mr. Michael Xie serves as a trustee; and (iv) 2,644,086 shares held by the Xie Foundation, a non-profit entity for which Mr. Michael Xie serves as co-president and a director. Mr. Michael Xie has no pecuniary interest in and disclaims beneficial ownership of the shares held by the Xie Foundation. Also includes (i) 293,462 shares issuable upon the exercise of stock options held by Mr. Michael Xie that are exercisable within 60 days of March 31, 2022; and (ii) 3,280 shares issuable upon the settlement of RSUs that will vest within 60 days of March 31, 2022.
(9)
Includes: (i) 883 shares held of record by Mr. Jensen; (ii) 7,888 shares issuable upon the exercise of stock options held by Mr. Jensen that are exercisable within 60 days of March 31, 2022; and (iii) 2,629 shares issuable upon the settlement of RSUs held by Mr. Jensen that will vest within 60 days of March 31, 2022.
(10)
Includes: (i) 33,448 shares issuable upon the exercise of stock options held by Mr. Whittle that are exercisable within 60 days of March 31, 2022; and (ii) 1,703 shares issuable upon the settlement of RSUs that will vest within 60 days of March 31, 2022.
(11)
Includes: (i) 29,354,196 shares held by the current directors and executive officers; (ii) 987,013 shares issuable upon the exercise of stock options held by the current directors and executive officers that are exercisable within 60 days of March 31, 2022; and (iii) 17,715 shares issuable upon the settlement of RSUs held by the current directors and executive officers that will vest within 60 days of March 31, 2022.
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AUDIT COMMITTEE REPORT
The Audit Committee assists the Board of Directors in fulfilling its responsibilities for oversight of the integrity of Fortinet’s financial statements, our internal accounting and financial controls, our compliance with legal and regulatory requirements and the qualifications, independence and performance of our independent registered public accounting firm.
The management of Fortinet is responsible for establishing and maintaining internal controls and for preparing Fortinet’s consolidated financial statements. The independent registered public accounting firm is responsible for auditing the financial statements. It is the responsibility of the Audit Committee to oversee these activities.
The Audit Committee has:
•
Reviewed and discussed the audited financial statements with Fortinet management and with Deloitte & Touche LLP, Fortinet’s independent registered public accounting firm;
•
Discussed with Deloitte & Touche LLP the matters required to be discussed by the Auditing Standard No. 1301 adopted by the Public Company Accounting Oversight Board regarding “Communication with Audit Committees”; and
•
Received the written disclosures and the letter from Deloitte & Touche LLP required by applicable requirements of the Public Company Accounting Oversight Board regarding Deloitte & Touche LLP’s communications with the Audit Committee concerning independence and has discussed with Deloitte & Touche LLP its independence.
Based upon these discussions and review, the Audit Committee recommended to the Board of Directors that the audited financial statements be included in Fortinet’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021 for filing with the United States Securities and Exchange Commission.
Respectfully submitted by the members of the Audit Committee of the Board of Directors
Jean Hu (Chairperson)
Kenneth A. Goldman
Ming Hsieh
Kenneth A. Goldman
Ming Hsieh
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OTHER MATTERS
Fortinet knows of no other matters to be submitted at the 2022 Annual Meeting. If any other matters properly come before the 2022 Annual Meeting, it is the intention of the persons named in the proxy to vote the shares they represent as the Board of Directors may recommend. Discretionary authority with respect to such other matters is granted by a properly submitted proxy.
It is important that your shares be represented at the 2022 Annual Meeting, regardless of the number of shares that you hold. You are, therefore, urged to vote as instructed in the Notice, via the internet or by telephone as promptly as possible to ensure your vote is recorded.
THE BOARD OF DIRECTORS
Sunnyvale, California
[ ], 2022
[ ], 2022
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APPENDIX A
RECONCILIATION BETWEEN GAAP AND NON-GAAP FINANCIAL MEASURES
* * * * *
We have provided in this Proxy Statement information that has not been prepared in accordance with U.S. Generally Accepted Accounting Principles (“GAAP”). These non-GAAP financial and liquidity measures are not based on any standardized methodology prescribed by GAAP and are not necessarily comparable to similar measures presented by other companies. We use these non-GAAP financial measures internally in analyzing our financial results and believe they are useful to investors, as a supplement to GAAP measures, in evaluating our ongoing operational performance. We believe that the use of these non-GAAP financial measures provides an additional tool for investors to use in evaluating ongoing operating results and trends and in comparing our financial results with peer companies, many of which present similar non-GAAP financial measures to investors.
Non-GAAP financial measures should not be considered in isolation from, or as a substitute for, financial information prepared in accordance with GAAP. Investors are encouraged to review the reconciliation of these non-GAAP financial measures to their most directly comparable GAAP financial measures provided below.
Billings (non-GAAP). We define billings as revenue recognized in accordance with GAAP plus the change in deferred revenue from the beginning to the end of the period, less any deferred revenue balances acquired from business combination(s) and adjustment due to adoption of new accounting standard during the period. We consider billings to be a useful metric for management and investors because billings drive current and future revenue, which is an important indicator of the health and viability of our business. There are a number of limitations related to the use of billings instead of GAAP revenue. First, billings include amounts that have not yet been recognized as revenue and are impacted by the term of security and support agreements. Second, we may calculate billings in a manner that is different from peer companies that report similar financial measures. Management accounts for these limitations by providing specific information regarding GAAP revenue and evaluating billings together with GAAP revenue.
Free cash flow (non-GAAP). We define free cash flow as net cash provided by operating activities minus purchases of property and equipment and excluding any significant non-recurring items, such as proceeds from intellectual property matter. We believe free cash flow to be a liquidity measure that provides useful information to management and investors about the amount of cash generated by the business that, after capital expenditures and net of proceeds from intellectual property matter, can be used for strategic opportunities, including repurchasing outstanding common stock, investing in our business, making strategic acquisitions and strengthening the balance sheet. A limitation of using free cash flow rather than the GAAP measures of cash provided by or used in operating activities, investing activities, and financing activities is that free cash flow does not represent the total increase or decrease in the cash and cash equivalents balance for the period because it excludes cash flows from significant non-recurring items, such as proceeds from intellectual property matter, investing activities other than capital expenditures and cash flows from financing activities. Management accounts for this limitation by providing information about our capital expenditures and other investing and financing activities on the face of the cash flow statement and under the caption “Management’s Discussion and Analysis of Financial Condition and Results of Operations — Liquidity and Capital Resources” in our most recent Quarterly Report on Form 10-Q and Annual Report on Form 10-K and by presenting cash flows from investing and financing activities in our reconciliation of free cash flow. In addition, it is important to note that other companies, including companies in our industry, may not use free cash flow, may calculate free cash flow in a different manner than we do or may use other financial measures to evaluate their performance, all of which could reduce the usefulness of free cash flow as a comparative measure.
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Reconciliation of Total Revenue to Total Billings
| | | |
Year Ended
|
| |||||||||
| | | |
December 31, 2021
|
| |
December 31, 2020
|
| ||||||
|
Total revenue
|
| | | $ | 3,342.2 | | | | | $ | 2,594.4 | | |
|
Add: Change in deferred revenue
|
| | | | 847.6 | | | | | | 496.2 | | |
|
Less: Deferred revenue balance acquired in business acquisitions
|
| | | | (4.1) | | | | | | (0.6) | | |
|
Less: Adjustment due to adoption of ASU 2021-08(1)
|
| | | | (4.3) | | | | | | — | | |
|
Total billings
|
| | | $ | 4,181.4 | | | | | $ | 3,090.0 | | |
(1)
We early adopted ASU-08 on a retrospective basis and effective for us beginning on January 1, 2021. The adoption of ASU 2021-08 resulted in an $4.3 million adjustment attributable to the acquisition of Alaxala Networks Corporation in 2021, as a result of the revised measurement of deferred revenue for acquisition.
Reconciliation of Net Cash Provided by Operating Activities to Free Cash Flow
| | | |
Year Ended
|
| |||||||||
| | | |
December 31, 2021
|
| |
December 31, 2020
|
| ||||||
|
Net cash provided by operating activities
|
| | | $ | 1,499.7 | | | | | $ | 1,083.7 | | |
|
Less: Purchases of property and equipment
|
| | | | (295.9) | | | | | | (125.9) | | |
|
Less: Proceeds from intellectual property matter
|
| | | | — | | | | | | (50.0) | | |
|
Free cash flow
|
| | | $ | 1,203.8 | | | | | $ | 907.8 | | |
|
Net cash used in investing activities
|
| | | $ | (1,325.1) | | | | | $ | (72.8) | | |
|
Net cash provided by (used in) financing activities
|
| | | $ | 82.8 | | | | | $ | (1,171.6) | | |
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APPENDIX B
PROPOSED RESTATED CERTIFICATE
* * * * *
FORTINET, INC.
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
Fortinet, Inc., a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:
A. That the name of the corporation is Fortinet, Inc. and that this corporation was originally incorporated pursuant to the General Corporation Law on November 28, 2000, under the name “Appligation, Inc.” changed its name to “ApSecure, Inc.” pursuant to a Certificate of Amendment of Certificate of Incorporation filed on December 12, 2000, changed its name to “FortiNet, Inc.” pursuant to a Certificate of Amendment of Certificate of Incorporation filed on December 6, 2001, and subsequently changed its name to “Fortinet, Inc.” pursuant to an Amended and Restated Certificate of Incorporation filed on May 30, 2002.
B. The corporation filed an Amended and Restated Certificate of Incorporation with the Secretary of State of the State of Delaware on May 29, 2001, May 30, 2002 and August 15, 2003, filed a Certificate of Amendment of Certificate of Incorporation on March 12, 2008 and, filed an Amended and Restated Certificate of Incorporation on November 23, 2009 and filed an Amended and Restated Certificate of Incorporation on June 22, 2018.
C. This Amended and Restated Certificate of Incorporation was duly adopted by the corporation’s Board of Directors and stockholders in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware (the “DGCL”).
D. The Certificate of Incorporation of the corporation is hereby amended and restated in its entirety to read as follows:
ARTICLE I
The name of the corporation is Fortinet, Inc.
ARTICLE II
The address of the corporation’s registered office in the State of Delaware is 251 Little Falls Drive, in the City of Wilmington 19808, County of New Castle. The name of its registered agent at such address is Corporation Service Company.
ARTICLE III
The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL.
ARTICLE IV
The corporation shall have authority to issue shares as follows:
300,000,0001,500,000,000 shares of Common Stock, par value $0.001 per share. Each share of Common Stock shall entitle the holder thereof to one (1) vote on each matter submitted to a vote at a meeting of stockholders.
10,000,000 shares of Preferred Stock, par value $0.001 per share, which may be issued from time to time in one or more series pursuant to a resolution or resolutions providing for such issue duly adopted by the Board of Directors (authority to do so being hereby expressly vested in the Board of Directors). The
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Board of Directors is further authorized, subject to limitations prescribed by law, to fix by resolution or resolutions the designations, powers, preferences and rights, and the qualifications, limitations or restrictions thereof, of any wholly unissued series of Preferred Stock, including without limitation authority to fix by resolution or resolutions the dividend rights, dividend rate, conversion rights, voting rights, rights and terms of redemption (including sinking fund provisions), redemption price or prices, and liquidation preferences of any such series, and the number of shares constituting any such series and the designation thereof, or any of the foregoing.
Contingent and effective upon the filing of this Restated Certificate of Incorporation, every one (1) share of Common Stock outstanding or held in treasury will, automatically and without any further action by the corporation or the stockholders thereof, become five (5) shares of Common Stock outstanding or held in treasury, as applicable (the “Forward Stock Split”). The par value of the Common Stock shall remain $0.001 per share.
The Board of Directors is further authorized to increase (but not above the total number of authorized shares of the class) or decrease (but not below the number of shares of any such series then outstanding) the number of shares of any series, the number of which was fixed by it, subsequent to the issuance of shares of such series then outstanding, subject to the powers, preferences and rights, and the qualifications, limitations and restrictions thereof stated in this Certificate of Incorporation or the resolution of the Board of Directors originally fixing the number of shares of such series. If the number of shares of any series is so decreased, then the shares constituting such decrease shall resume the status which they had prior to the adoption of the resolution originally fixing the number of shares of such series.
ARTICLE V
The number of directors that constitutes the entire Board of Directors of the corporation shall be fixed by, or in the manner provided in, the Bylaws of the corporation.
Subject to the provisions of this Certificate of Incorporation relating to directors elected by the holders of one or more series of Preferred Stock, voting as a separate series or with one or more other series of Preferred Stock, at each annual meeting of stockholders commencing with the 2018 annual meeting of stockholders, directors of the corporation other than those in the 2019 Class and 2020 Class (each as defined below) shall be elected for a term of one year, expiring at the next succeeding annual meeting of stockholders. Each director of the corporation who was elected at the 2016 annual meeting of stockholders for a three-year term expiring in 2019 (the “2019 Class”), and each director of the corporation who was elected at the 2017 annual meeting of stockholders for a three-year term expiring in 2020 (the “2020 Class”), including any person appointed to fill any vacancy occurring with respect to any director in the 2019 Class or the 2020 Class (each of whom shall be deemed to be a member of the class of directors in which the vacancy occurred), shall continue to hold office until the end of the term for which such director was elected or appointed, as applicable. Subject to the provisions of this Certificate of Incorporation relating to directors elected by the holders of one or more series of Preferred Stock, voting as a separate series or with one or more other series of Preferred Stock, (a) commencing with the 2019 annual meeting of stockholders, all directors of the corporation other than those in the 2020 Class will be elected for a term of one year, and (b) commencing with the 2020 annual meeting of stockholders, all directors of the corporation will be elected for a term of one-year. In all other cases, eachEach director shall serve until such director’s successor has been duly elected and qualified or until such director’s earlier death, resignation, or removal. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.
Vacancies occurring on the Board of Directors for any reason and newly created directorships resulting from an increase in the authorized number of directors may be filled only by vote of a majority of the remaining members of the Board of Directors, although less than a quorum, or by a sole remaining director, at any meeting of the Board of Directors.
Subject to the provisions of this Certificate of Incorporation relating to directors elected by the holders of one or more series of Preferred Stock, voting as a separate series or with one or more other series of Preferred Stock, except as otherwise provided by law, each director serving in a class of directors for a term expiring at the third annual meeting of stockholders following the election of such class may be removed only for cause by the affirmative vote of the holders of a majority of the voting power of all then outstanding shares of
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capital stock of the corporation entitled to vote generally in the election of directors, and all other directors may be removed with or without cause by the affirmative vote of the holders of a majority of the voting power of all then outstanding shares of capital stock of the corporation entitled to vote generally in the election of directors.
ARTICLE VI
In furtherance and not in limitation of the powers conferred by statute, the Board of Directors of the corporation is expressly authorized to adopt, amend or repeal the Bylaws of the corporation.
ARTICLE VII
Elections of directors need not be by written ballot unless the Bylaws of the corporation shall so provide.
ARTICLE VIII
No action shall be taken by the stockholders of the corporation except at an annual or special meeting of the stockholders called in accordance with the Bylaws, and no action shall be taken by the stockholders by written consent.
ARTICLE IX
To the fullest extent permitted by the DGCL, as it presently exists or may hereafter be amended from time to time, a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
The corporation shall indemnify, to the fullest extent permitted by applicable law, any director or officer of the corporation who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”) by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any such Proceeding. The corporation shall be required to indemnify a person in connection with a Proceeding initiated by such person only if the Proceeding was authorized by the Board.
The corporation shall have the power to indemnify, to the extent permitted by the DGCL, as it presently exists or may hereafter be amended from time to time, any employee or agent of the corporation who was or is a party or is threatened to be made a party to any Proceeding by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any such Proceeding.
Neither any amendment nor repeal of this Article IX, nor the adoption of any provision of this Certificate of Incorporation inconsistent with this Article IX, shall eliminate or reduce the effect of this Article IX in respect of any matter occurring, or any cause of action, suit or proceeding accruing or arising or that, but for this Article IX, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.
ARTICLE X
The corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation (including any rights, preferences or other designations of Preferred Stock), in
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the manner now or hereafter prescribed by this Certificate of Incorporation and the DGCL; and, except as set forth in Article IX, all rights, preferences and privileges herein conferred upon stockholders, directors or any other persons by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the right reserved in this Article X, provided, however, that, notwithstanding any other provision of this Certificate of Incorporation, and in addition to any other vote that may be required by law or any Preferred Stock, the affirmative vote of the holders of at least 662∕3% of the voting power of all then outstanding shares of capital stock of the corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend, alter or repeal, or adopt any provision as part of this Certificate of Incorporation inconsistent with the purpose and intent of, Article V, Article VI, Article VIII or this Article X (including, without limitation, any such Article as renumbered as a result of any amendment, alteration, change, repeal or adoption of any other Article).
IN WITNESS WHEREOF, Fortinet, Inc. has caused this Amended and Restated Certificate of Incorporation to be signed by the Chief Executive Officer of the corporation on this 22nd day of June 2018 .
By:
Ken Xie
Chief Executive Officer
Chief Executive Officer
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Fortinet, Inc. Using a black ink pen, mark your votes with an X as shown in this example. Please do not write outside the designated areas. Your vote matters – here’s how to vote! You may vote online or by phone instead of mailing this card. Online Go to www.envisionreports.com/FTNT or scan the QR code — login details are located in the shaded bar below. Phone Call toll free 1-800-652-VOTE (8683) within the USA, US territories and Canada Save paper, time and money! Sign up for electronic delivery at www.envisionreports.com/FTNT q IF VOTING BY MAIL, SIGN, DETACH AND RETURN THE BOTTOM PORTION IN THE ENCLOSED ENVELOPE. q To elect nine directors to serve for a term of one year until the next annual meeting of stockholders or until their respective successors have been duly elected and qualified. Nominees: For Against For Against For Against 01 - Ken Xie 04 - Kenneth A. Goldman 07 - William Neukom 02 - Michael Xie 05 - Ming Hsieh 08 - Judith Sim 03 - Kelly Ducourty 06 - Jean Hu 09 - Admiral James Stavridis (Ret) Ratify the appointment of Deloitte & Touche LLP as Fortinet’s independent registered accounting firm for the fiscal year ending December 31, 2022. 4. Approve the adoption of an Amended and Restated Certificate of Incorporation in order to implement a five-for-one forward stock split and to make certain other changes as reflected in the Amended and Restated Certificate and described in the Proxy Statement. For Against Abstain For Against Abstain 3. Advisory vote to approve named executive officer compensation, as disclosed in the Proxy Statement. 5. Stockholder proposal to remove supermajority voting requirements. NOTE: Please sign as name appears hereon. Joint owners should each sign. When signing as attorney, executor, administrator, trustee or guardian, please give full title as such. Date (mm/dd/yyyy) — Please print date below. Signature 1 — Please keep signature within the box. Signature 2 — Please keep signature within the box. 03MGKB 1 U P X +
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The 2022 Annual Meeting of Stockholders of Fortinet, Inc. will be held on Friday, June 17, 2022 at 10:00 a.m. Pacific Time, virtually via the internet at www.meetnow.global/MVG5Z49. To access the virtual meeting, you must have the information that is printed in the shaded bar located on the reverse side of this form. Important notice regarding the Internet availability of proxy materials for the 2022 Annual Meeting of Stockholders. The Proxy Statement and the 2021 Annual Report are available at: http://www.envisionreports.com/FTNT q IF VOTING BY MAIL, SIGN, DETACH AND RETURN THE BOTTOM PORTION IN THE ENCLOSED ENVELOPE. q + THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS OF FORTINET, INC. The undersigned hereby appoints Ken Xie and John Whittle, and each of them, with power to act without the other and with power of substitution, as proxies and attorneys-in-fact and hereby authorizes them to represent and vote, as provided on the other side, all the shares of Fortinet, Inc. common stock which the undersigned is entitled to vote, and, in their discretion, to vote upon such other business as may properly come before the Annual Meeting of Stockholders of Fortinet, Inc. to be held June 17, 2022 or at any adjournment or postponement thereof, with all powers which the undersigned would possess if present at the Annual Meeting. THIS PROXY WILL BE VOTED AS DIRECTED, OR IF NO DIRECTION IS INDICATED, WILL BE VOTED “FOR” EACH OF THE NOMINEES LISTED IN PROPOSAL 1 AND “FOR” PROPOSALS 2, 3 AND 4 AND AS AN “ABSTENTION” FOR PROPOSAL 5. (Continued and to be marked, dated and signed, on the other side) Change of Address — Please print new address below.Comments — Please print your comments below.Meeting Attendance Mark box to the right if you plan to attend the Annual Meeting. +