Exhibit 10.24
BAKBONE SOFTWARE INCORPORATED
STAND-ALONE RESTRICTED STOCK UNIT AWARD
NOTICE OF RESTRICTED STOCK UNIT AWARD
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Grantee’s Name and Address:
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Doug Lindroth
14105 Caminito Vistana
San Diego, CA 92130
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In connection with the commencement
of your employment pursuant to an Employment Agreement dated
April 22, 2006 (the “Employment Agreement”), you
(the “Grantee”) were granted an award of Restricted
Stock Units (the “Award”). Grantee and the Company
intended to make the Awards subject to the terms and conditions of
this Notice of Restricted Stock Unit Award (the
“Notice”), and the Restricted Stock Unit Agreement (the
“Agreement”) attached hereto. The principal terms of
the Award were set forth in the Employment Agreement; however, for
purposes of clarity, Grantee and the Company desire to record their
mutual understanding of previously unspecified terms of the Award
that are consistent with, and not intended to amend or revise,
their understanding as of the Date of Award. This Notice is issued
as of May 18, 2007. Defined terms are contained in
Section 12 of the Agreement.
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Date of Award
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April 27,
2006
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Vesting Commencement Date
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April 27,
2006
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Total Number of Restricted
Stock
Units Awarded (the
“Units”)
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300,000
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Vesting Schedule:
Subject to the Grantee’s
Continuous Service and other limitations set forth in this Notice
and the Agreement, the Units will “vest” in accordance
with the following schedule:
Fifty percent (50%) of the
Units will vest on the second anniversary of the Vesting
Commencement Date, and twenty five percent (25%) of the Units
will vest on each of the third and fourth anniversaries of the
Vesting Commencement Date.
In the event of a Change in Control
of the Company, the vesting of the Units may accelerate in
accordance with Section 3(a) of the Agreement.
In the event of the Grantee’s
change in status from Employee, Director or Consultant to any other
status of Employee, Director or Consultant, the Award shall remain
in effect and the Units shall continue to vest in accordance with
the Vesting Schedule.
During any authorized leave of
absence, the vesting of the Units as provided in this schedule
shall be suspended (to the extent permitted under Section 409A
of the Code) after the leave of absence exceeds a period of three
(3) months. The Vesting Schedule of the Units shall
be extended by the length of the suspension.
Vesting of the Units shall resume upon the Grantee’s
termination of the leave of absence and return to service to the
Company or a Related Entity; provided, however, that if the leave
of absence exceeds six (6) months, and a return to service
upon expiration of such leave is not guaranteed by statute or
contract, then (a) the Grantee’s Continuous Service
shall be deemed to terminate on the first date following such
six-month period and (b) the Grantee will forfeit the Units
that are unvested on the date of the Grantee’s termination of
Continuous Service. An authorized leave of absence shall include
sick leave, military leave, or other bona fide leave of absence
(such as temporary employment by the government).
For purposes of this Notice and the
Agreement, the term “vest” shall mean, with respect to
any Units, that such Units are no longer subject to forfeiture to
the Company. If the Grantee would become vested in a fraction of a
Unit, such Unit shall not vest until the Grantee becomes vested in
the entire Unit.
Vesting shall cease upon the date
the Grantee terminates Continuous Service for any reason, including
death or Disability. In the event the Grantee terminates Continuous
Service for any reason, including death or Disability, any Units
held by the Grantee immediately following such termination of the
Grantee’s Continuous Service shall be deemed reconveyed to
the Company and the Company shall thereafter be the legal and
beneficial owner of the Units and shall have all rights and
interest in or related thereto without further action by the
Grantee.
IN WITNESS WHEREOF, the Company and
the Grantee have executed this Notice and agree that the Award is
to be governed by the terms and conditions of this Notice and the
Agreement.
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BAKBONE
SOFTWARE INCORPORATED,
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a Canadian
corporation
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By:
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/s/ JAMES
JOHNSON
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Title:
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PRES/CEO
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THE GRANTEE ACKNOWLEDGES AND AGREES
THAT THE UNITS SHALL VEST, IF AT ALL, ONLY DURING THE PERIOD OF THE
GRANTEE’S CONTINUOUS SERVICE (NOT THROUGH THE ACT OF BEING
HIRED, BEING GRANTED THIS AWARD OR ACQUIRING SHARES HEREUNDER). THE
GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS NOTICE
NOR THE AGREEMENT SHALL CONFER UPON THE GRANTEE ANY RIGHT WITH
RESPECT TO CONTINUATION OF THE GRANTEE’S CONTINUOUS SERVICE,
NOR SHALL IT INTERFERE IN ANY WAY WITH THE GRANTEE’S RIGHT OR
THE COMPANY’S RIGHT TO TERMINATE THE GRANTEE’S
CONTINUOUS SERVICE AT ANY TIME, WITH OR WITHOUT CAUSE, AND WITH OR
WITHOUT NOTICE. THE GRANTEE ACKNOWLEDGES THAT UNLESS THE GRANTEE
HAS A WRITTEN EMPLOYMENT
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AGREEMENT WITH THE COMPANY TO THE CONTRARY, THE
GRANTEE’S STATUS IS AT WILL.
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Grantee Acknowledges and
Agrees :
The Grantee acknowledges receipt of
a copy of the Agreement and represents that he or she is familiar
with the terms and provisions thereof, and hereby accepts the Award
subject to all of the terms and provisions hereof and thereof. The
Grantee has reviewed this Notice and the Agreement in their
entirety, has had an opportunity to obtain the advice of counsel
prior to executing this Notice and fully understands all provisions
of this Notice and the Agreement. The Grantee further agrees and
acknowledges that this Award is a non-elective arrangement pursuant
to Section 409A of the Code.
The Grantee hereby agrees that all
questions of interpretation and administration relating to this
Notice and the Agreement shall be resolved by the Administrator in
accordance with Section 8 of the Agreement. The Grantee
further agrees to the venue selection in accordance with
Section 9 of the Agreement. The Grantee further agrees to
notify the Company upon any change in his or her residence address
indicated in this Notice.
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Date: May 9,
2007
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/s/
DOUG LINDROTH
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Grantee’s
Signature
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4
BAKBONE
SOFTWARE INCORPORATED
STAND-ALONE RESTRICTED STOCK UNIT AGREEMENT
1.
Issuance of Units . Bakbone Software Incorporated, a
Canadian corporation (the “Company”), hereby issues to
the Grantee (the “Grantee”) named in the Notice of
Restricted Stock Unit Award (the “Notice”) an award
(the “Award”) of the Total Number of Restricted Stock
Units Awarded set forth in the Notice (the “Units”),
subject to the Notice and this Restricted Stock Unit Agreement (the
“Agreement”).
2.
Transfer Restrictions . The Units may not be transferred in
any manner other than by will or by the laws of descent and
distribution.
3.
Conversion of Units and Issuance of Shares or Cash
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(a) General .
(i) Subject
to Section 3(b), one share of Common Stock shall be issuable
for each Unit subject to the Award (the “Shares”) upon
the earlier of: (i) vesting; or (ii) immediately prior to
the specified effective date of a Change in Control which also
constitutes a “change in the ownership or effective control,
or in the ownership of a substantial portion of the assets”
(as defined in Section 409A of the Code) of the Company.
Immediately thereafter, or as soon as administratively feasible,
the Company will transfer such Shares to the Grantee upon
satisfaction of any required tax or other withholding obligations.
Any fractional Unit remaining after the Award is fully vested shall
be discarded and shall not be converted into a fractional
Share.
(ii) Notwithstanding the
foregoing, in the event that it is determined that any payment or
distribution of any type (including the issuance of the Shares
pursuant to this Agreement) to or for the Grantee’s benefit
made by the Company, by a Related Entity, by any person who
acquires ownership or effective control or ownership of a
substantial portion of the Company’s assets (within the
meaning of Section 280G of the Code) or by any affiliate of
such person would be subject to the excise tax imposed by
Section 4999 of the Code or any interest or penalties with
respect to such excise tax (such excise tax, together with any such
interest or penalties, being collectively referred to as the
“Excise Tax”), then such payments or distributions or
benefits shall be payable either in full or as to such lesser
amount that would result in no portion of such payments or
distributions or benefits being subject to the Excise Tax;
whichever amount shall, on an after-tax basis, be greater. In the
event the payment or distributions or benefits are payable in a
lesser amount, then to the extent necessary, such number of Units
held by the Grantee immediately upon the specified effective date
of such Change in Control shall be deemed reconveyed to the Company
and the Company shall thereafter be the legal and beneficial owner
of the Units and shall have all rights and interest in or related
thereto without further action by the Grantee.
(iii) Unless
the Grantee and the Company agree otherwise in writing, any
determination required under Section 3(a)(ii) above shall be
made in writing by the Company’s
independent accountant, or at the
Company’s election, another nationally recognized public
accounting firm acceptable to both the Company and the Grantee (the
“Accountant”), whose determination shall be conclusive
and binding. The Grantee and the Company shall furnish the
Accountant such documentation and documents as the Accountant may
reasonably request in order to make a determination and to the
extent consistent with applicable standards and practice generally
accepted among practitioners (including, without limitation, as
such standards may be applied to the Company’s own financial
reporting and as such standards and practice are determined by the
Accountant), the Accountant shall make such determination in the
manner most favorable to the Grantee. The Company shall bear all
costs that the Accountant may reasonably incur in connection with
performing any calculations contemplated by this
section.
(b) Delay
of Conversion . The conversion of the Units to Common Stock
under Section 3(a), above, shall be delayed in the event the
Company reasonably anticipates that the issuance of Common Stock
would constitute a violation of federal securities laws or other
Applicable Law. If the conversion of the Units to Common Stock is
delayed by the provisions of this Section 3(b), the conversion
of the Units to Common Stock shall occur at the earliest date at
which the Company reasonably anticipates issuing the Common Stock
will not cause a violation of federal securities laws or other
applicable law. For purposes of this Section 3(b), the
issuance of Common Stock that would cause inclusion in gross income
or the application of any penalty provision or other provision of
the Code is not considered a violation of Applicable
Law.
(c) Delay
of Issuance of Shares . The Company shall have the authority to
delay the issuance of any shares of Common Stock under this
Section 3 to the extent it deems necessary or appropriate to
comply with Section 409A(a)(2)(B)(i) of the Code (relating to
payments made to certain “key employees” of certain
publicly-traded companies); in such event, any shares of Common
Stock to which the Grantee would otherwise be entitled during the
six (6) month period following the date of the Grantee’s
termination of Continuous Service wil
