Exhibit 10.2
February 9, 2009
Mr. Robert G Wright
|
Re:
|
Change in
Control Letter Agreement
|
Dear Robert:
BakBone Software, Incorporated, a
Canadian corporation (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 Change in
Control Letter Agreement (“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 jurisdiction 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 within thirty (30) days following the date of
termination, you will be entitled to receive the following
benefits:
Severance
Benefits.
You will be entitled
to receive a severance payment in an amount 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 that 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
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”),
a
