Exhibit 10.17
July 2, 2007
Mr. Dan S.
Woodward
Re: Change in Control Letter
Agreement
Dear Dan:
BakBone Software, Inc. (the
“Company”) desires, for its continued success, to have
the benefit of experienced management personnel. The Board of
Directors of the Company therefore believes that it is in the best
interests of the organization that, in the event of any prospective
Change in Control (as hereinafter defined) of the Company, you be
reasonably secure in your employment and position with the Company.
In addition, in the event of a Change in Control, the Board of
Directors also wants to enable you to exercise independent judgment
as to the best interests of the Company and its stockholders
without the distraction of any personal uncertainties or risks
regarding your continued employment with the Company. In
consideration of the foregoing, we are offering you the additional
benefits outlined below:
Definition of “Change in
Control.”
For purposes of this Letter
Agreement, a Change in Control shall consist of any one or more of
the following events (whether in a single transaction or a series
of related transactions): (i) the consummation of a merger or
consolidation of the Company with or into another entity or any
other corporate reorganization, if more than fifty percent
(50%) of the combined voting power of the continuing or
surviving entity’s securities outstanding immediately after
such merger, consolidation or other reorganization is owned by
persons who were not stockholders of the Company immediately prior
to such merger, consolidation or other reorganization;
(ii) the sale, transfer or other disposition of all or
substantially all of the Company’s assets; (iii) any
transaction as a result of which any person or related group of
persons becomes the “beneficial owner” (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as
amended), directly or indirectly, of securities of the Company
representing at least fifty percent (50%) of the total voting
power represented by the Company’s then outstanding voting
securities (other than as a result of the new issuance of
securities by the Company in any transaction or series of related
transactions determined by the Board of Directors to be for the
primary purpose of raising capital); or (iv) a liquidation or
dissolution of the Company.
Notwithstanding the foregoing, a transaction
shall not constitute a Change in Control if: (i) its sole
purpose is to change the state of the Company’s
incorporation; (ii) its sole purpose is to create a holding
company that will be owned in substantially the same proportions by
the persons who held the Company’s securities immediately
before such transaction; or (iii) following the consummation
of the transaction or series of related transactions, members of
the Board of Directors of the Company prior to such transaction
constitute a majority of the members of the Board of Directors of
the continuing or surviving entity.
Change of Control
Benefits.
If, within twelve (12) months
following the consummation of the Change in Control, you are either
terminated by the Company (which term shall hereinafter also refer
to and include any successor entity) without Cause (as hereinafter
defined) or you voluntarily terminate your employment with the
Company for “Good Reason” (as hereinafter defined), and
provided you execute a general release in a form provided by the
Company at the time of termination, you will be entitled to receive
the following benefits:
Severance
Benefits.
You will be entitled
to receive a severance payment in an mount equal to nine
(9) months of your then-current base salary in effect as of
the date of such termination (less applicable withholding). At the
Company’s discretion, the severance payment may be paid to
you in a lump sum or on a periodic basis in accordance with the
Company’s regular payroll practices, provided, however, that
all amounts must be paid no later than the 15
th
day of the third
month following the end of the calendar year in which your
termination of employment occurred.
Continuation of
Benefits.
In addition, the Company will
provide for the continuation of your healthcare benefits in effect
at the time of the termination (including medical, dental and
vision) pursuant to COBRA for a nine (9) month period in the
event your severance payment is paid on a periodic basis. If the
severance payment is paid in a lump sum, you would be responsible
for the conversion and payment of premiums under COBRA. Your
receipt of these benefits is conditioned on your completing all
necessary documentation on a timely basis necessary to obtain or
maintain such coverage under COBRA. In addition, the Company shall
have the authority to delay the provision of any benefits until six
(6) months after the date of your termination to the extent
required by Section 409A (or regulations or rulings
thereunder) of the Internal Revenue Code of 1986, as amended (the
“Code”), as reasonably determined by the Company, and
you will be reimbursed for any premiums or other expenses which you
were required to pay during the six (6) month period following
the date of termination
