Form of Change of Control Agreement - non-executive directors



 Exhibit 10.11 
 FORTINET, INC. 
 CHANGE OF CONTROL AGREEMENT 
 This Change of Control Agreement (the “Agreement”) is made and entered into by and between
                     (“Outside Director”) and Fortinet, Inc. (the “Company”), effective as of
                    , 2009 (the “Effective Date”). 
 RECITALS 
 1.            It is expected that the Company from time to time will consider the possibility of an acquisition by another company or other change of control. The Board of
Directors of the Company (the “Board”) recognizes that such consideration can be a distraction to Outside Director and has determined that it is in the best interests of the Company and its stockholders to assure that the Company will have
the continued dedication and objectivity of Outside Director, notwithstanding the possibility, threat or occurrence of a Change of Control (as defined herein) of the Company. 
 2.            The Board believes that it is in the best interests of the Company and its stockholders to provide Outside Director with
an incentive to motivate Outside Director to maximize the value of the Company upon a Change of Control for the benefit of its stockholders. 
 3.            The Board believes that it is imperative to provide Outside Director with certain benefits upon a Change of Control. These benefits will
provide Outside Director with enhanced financial incentive and encouragement to remain with the Company. 
 AGREEMENT 
 NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as follows: 
 1.            Term of Agreement. This Agreement will terminate upon
earlier to occur of: (1) the date that Outside Director resigns from, was removed from, or fails to be reelected to, the Board, in each case, not in connection with a Change of Control (as defined below); and (2) the date that all of the
obligations of the parties hereto with respect to this Agreement have been satisfied. 
 2.            Benefits upon a Change of Control. 
 (a)             Equity Awards. If Outside Director holds unvested equity awards (“Awards”) then one hundred percent (100%) of the unvested shares subject to
such Awards will immediately vest and become exercisable, and, to the extent applicable, the Company’s right of repurchase or reacquisition with respect to such Awards will lapse, upon a Change of Control. 







 (b)            Change of
Control. For purposes of this Agreement, “Change of Control” of the Company is defined as: 
 (i)    the acquisition by any one person, or more than one person acting as a group (for these purposes, persons will be considered to be acting as a group if they are owners of a corporation that enters into a merger,
consolidation, purchase or acquisition of stock, or similar business transaction with the Company), (“Person”) that or is or becomes the owner, directly or indirectly, of securities of the Company representing fifty percent (50%) or
more of the total voting power represented by the Company’s then outstanding securities (the “Voting Securities”); provided, however, that for purposes of this subsection (i), the acquisition of additional securities by any one
Person, who is considered to own more than fifty percent (50%) of the total voting power of the securities of the Company shall not be considered a Change of Control; 
 (ii)    a change in the composition of the Board occurring within a twelve (12) month period, as a result of which fewer than a majority of the Outside Directors are
Incumbent Outside Directors. “Incumbent Outside Directors” will mean Outside Directors who either (A) are Outside Directors of the Company as of the date hereof, or (B) are elected, or nominated for election, to the Board with
the affirmative votes of at least a majority of the Incumbent Outside Directors at the time of such election or nomination (but will not include an individual whose election or nomination is in connection with an actual or threatened proxy contest
relating to the election of Outside Directors to the Company); 
 (iii)    the date of the consummation
of a merger or consolidation of the Company with any other corporation that has been approved by the stockholders of the Company, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) fifty percent (50%) or more of the total voting power represented by the voting securities of the
Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company; or 
 (iv)    a change in the ownership of a substantial portion of the Company’s assets which occurs on the date
that any Person acquires (or has acquired during the twelve (12) month period ending on the date of the most recent acquisition by such person or persons) assets from the Company that have a total gross fair market value equal to or more than fifty
percent (50%) of the total fair market value of all of the assets of the Company immediately prior to such acquisition or acquisitions; provided, however, that for purposes of this Section 2(b)(iv), the following shall not constitute a
change in the ownership of a substantial portion of the Company’s assets: (1) a transfer to an entity that is controlled by the Company’s shareholders immediately after the transfer; or (2) a transfer of assets by the Company to:
(A) a shareholder of the Company (immediately before the asset transfer) in exchange for or with respect to the Company’s securities; (B) an entity, fifty percent (50%) or more of the total value or voting power of which is
owned, directly or indirectly, by the Company; (C) a Person, that owns, directly or indirectly, fifty percent (50%) or more of the total value or voting power of all the outstanding stock of the Company; or (D) an entity, at least
fifty percent (50%) of the total value or voting power of which is owned, directly or indirectly, by a Person described in subsection (C). For purposes of this clause (2), gross fair 
  

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 market value means the value of the assets of the Company, or the value of the assets being disposed of,
determined without regard to any liabilities associated with such assets. 
 Notwithstanding the foregoing, a Company
transaction that does not constitute a change in control event under Treasury Regulation 1.409A-3(i)(5)(v) or (vii) shall not be considered a Change of Control. 
 (c)            Section 409A. The provisions of this Agreement are intended to comply with the requirements of
Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and any final regulations and official guidance promulgated thereunder (“Section 409A”) so that none of the benefits to be provided hereunder will be
subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. Outside Director and the Company agree to work together in good faith to consider amendments to this Agreement and to take
such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Outside Director under Section 409A. 
 3.            Limitation on Payments. In the event that the benefits
provided for in this Agreement (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section 3, would be subject to the excise tax imposed by Section 4999 of the
Code, then Outside Director’s benefits under Section 2(a) will be either: 
  

	 	 (a)
	 delivered in full, or 


  

	 	 (b)
	 delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code,



 whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the
excise tax imposed by Section 4999, results in the receipt by Outside Director on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the
Code. Unless the Company and Outside Director otherwise agree in writing, any determination required under this Section 3 will be made in writing by an independent firm immediately prior to Change of Control (the “Firm”), whose
determination will be conclusive and binding upon Outside Director and the Company for all purposes. For purposes of making the calculations required by this Section 3, the Firm may make reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Outside Director will furnish to the Firm such information and documents as the Firm may
reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 3. 
 4.            Successors. 
 (a)            The Company’s Successors. Any successor to the
Company (whether direct or indirect and whether by purchase, merger, consolidation, liquidation or otherwise) to all or 
  

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 substantially all of the Company’s business and/or assets will assume the obligations under this
Agreement and agree expressly to perform the obligations under this Agreement in the same manner and to the same extent as the Company would be required to perform such obligations in the absence of a succession. For all purposes under this
Agreement, the term “Company” will include any successor to the Company’s business and/or assets which executes and delivers the assumption agreement described in this Section 4(a) or which becomes bound by the terms of this
Agreement by operation of law. 
 (b)            Outside
Director’s Successors. The terms of this Agreement and all rights of Outside Director hereunder will inure to the benefit of, and be enforceable by, Outside Director’s personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. 
 5.            Notice. 
 (a)            General. Notices and all other communications contemplated by this Agreement will be in writing and will be deemed to have been duly given when personally
delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid. In the case of Outside Director, mailed notices will be addressed to him or her at the home address which he or she most recently
communicated to the Company in writing. In the case of the Company, mailed notices will be addressed to its corporate headquarters, and all notices will be directed to the attention of its President. 
 6.            Arbitration. 
 (a)            Any dispute or controversy arising out of, relating to, or in
connection with this Agreement, or the interpretation, validity, construction, performance, breach, or termination thereof, shall be settled by binding arbitration to be held in Santa Clara County, California, in accordance with the National Rules
for the Resolution of Employment Disputes then in effect of the American Arbitration Association (the “Rules”). The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be
final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. 
 (b)            The arbitrator(s) shall apply California law to the merits of any dispute or claim, without reference to conflicts of
law rules. The arbitration proceedings shall be governed by federal arbitration law and by the Rules, without reference to state arbitration law. Outside Director hereby consents to the personal jurisdiction of the state and federal courts located
in California for any action or proceeding arising from or relating to this Agreement or relating to any arbitration in which the parties are participants. 
 (c)            OUTSIDE DIRECTOR HAS READ AND UNDERSTANDS THIS SECTION, WHICH DISCUSSES ARBITRATION. OUTSIDE DIRECTOR UNDERSTANDS THAT
SUBMITTING ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION THEREOF TO BINDING 
  

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 ARBITRATION, CONSTITUTES A WAIVER OF OUTSIDE DIRECTOR’S RIGHT TO A JURY TRIAL AND RELATES TO THE
RESOLUTION OF ALL DISPUTES RELATING HERETO, INCLUDING BUT NOT LIMITED TO, THE FOLLOWING CLAIMS: 
 (i)    ANY AND ALL CLAIMS FOR BREACH OF CONTRACT, BOTH EXPRESS AND IMPLIED; BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING, BOTH EXPRESS AND IMPLIED; NEGLIGENT OR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS;
NEGLIGENT OR INTENTIONAL MISREPRESENTATION; NEGLIGENT OR INTENTIONAL INTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC ADVANTAGE; AND DEFAMATION. 
 (ii)    ANY AND ALL CLAIMS FOR VIOLATION OF ANY FEDERAL STATE OR MUNICIPAL STATUTE, INCLUDING, BUT NOT LIMITED TO, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE CIVIL RIGHTS ACT OF 1991, et
seq. 
 7.            Miscellaneous Provisions.

 (a)            Waiver. No provision of this Agreement
will be modified, waived or discharged unless the modification, waiver or discharge is agreed to in writing and signed by Outside Director and by an authorized officer of the Company (other than Outside Director). No waiver by either party of any
breach of, or of compliance with, any condition or provision of this Agreement by the other party will be considered a waiver of any other condition or provision or of the same condition or provision at another time. 
 (b)            Headings. All captions and section headings used in
this Agreement are for convenient reference only and do not form a part of this Agreement. 
 (c)            Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto. Outside Director acknowledges and agrees that this Agreement
encompasses all the rights of Outside Director to any acceleration of Award vesting or the lapsing of restrictions thereto, and Outside Director hereby agrees that he or she has no such rights except as stated herein, and Outside Director agrees
that any such rights, whether in a service agreement, stock option agreement, restricted stock purchase agreement, stock plan or other agreement, are hereby waived. 
 (d)            Choice of Law. The validity, interpretation, construction and performance of this Agreement will be governed by
the laws of the State of California (with the exception of its conflict of laws provisions). 
 (e)            Severability. The invalidity or unenforceability of any provision or provisions of this Agreement will not affect the validity or enforceability of any other
provision hereof, which will remain in full force and effect. 
 (f)            Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the
same instrument. 
 [Remainder of Page Intentionally Left Blank] 
  


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 IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its
duly authorized officer, as of the day and year set forth below. 
  

					
	 COMPANY
	 	 FORTINET, INC.

			
		 	 By:
	 	  

			
		 	 Name:
	 	  

			
		 	 Title:
	 	  

			
	 OUTSIDE DIRECTOR
	 	 By:
	 	  

			
		 	 Name:
	 	  


  

 Signature Page to Change of Control Agreement