Exhibit 10.1
INDEMNIFICATION
AGREEMENT
This INDEMNIFICATION AGREEMENT (this
“ Agreement ”) is made and entered into this
day of
(the “Effective Date”) by and between BakBone Software
Incorporated, a Canadian corporation (the “ Company
”), and
(the “ Indemnitee ”).
WHEREAS, the Company believes it is
essential to retain and attract qualified directors and
officers;
WHEREAS, the Indemnitee is a
director and/or officer of the Company;
WHEREAS, both the Company and the
Indemnitee recognize the increased risk of litigation and other
claims being asserted against directors and officers of public
companies;
WHEREAS, the Company’s Bylaws
(the “ Bylaws ”) require the Company to
indemnify and advance expenses to its directors and officers to the
extent permitted by the CBCA (as hereinafter defined);
WHEREAS, the Indemnitee has been
serving and intends to continue serving as a director and/or
officer of the Company in part in reliance on the
Bylaws;
WHEREAS, in recognition of the
Indemnitee’s need for (i) substantial protection against
personal liability based on the Indemnitee’s reliance on the
Bylaws, (ii) specific contractual assurance that the
protection promised by the Bylaws will be available to the
Indemnitee, regardless of, among other things, any amendment to or
revocation of the Bylaws or any change in the composition of the
Company’s Board of Directors (the “ Board
”) or acquisition transaction relating to the Company, and
(iii) an inducement to continue to provide effective services
to the Company as a director and/or officer thereof, the Company
wishes to provide for the indemnification of the Indemnitee and to
advance expenses to the Indemnitee to the fullest extent permitted
by law and as set forth in this Agreement, and, to the extent
insurance is maintained by the Company, to provide for the
continued coverage of the Indemnitee under the Company’s
directors’ and officers’ liability insurance policies;
and
WHEREAS, the Indemnitee is relying
upon the rights afforded under this agreement in accepting
Indemnitee’s position as a director, officer, or employee of
the Company;
NOW, THEREFORE, in consideration of
the premises contained herein and of the Indemnitee continuing to
serve the Company directly or, at its request, with another
enterprise, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Certain Definitions
.
(a) A “ Change in
Control ” shall be deemed to have occurred if:
(i) any “person,” as
such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (the “ Exchange Act ”),
other than (a) a trustee or other fiduciary holding securities
under an employee benefit plan of the Company; (b) a
corporation owned, directly or indirectly, by the
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stockholders of the Company in
substantially the same proportions as their ownership of stock of
the Company; or (c) any current beneficial stockholder or
group, as defined by Rule 13d-5 of the Exchange Act, including the
heirs, assigns and successors thereof, of beneficial ownership,
within the meaning of Rule 13d-3 of the Exchange Act, of securities
possessing more than 50% of the total combined voting power of the
Company’s outstanding securities; hereafter becomes the
“beneficial owner,” as defined in Rule 13d-3 of
the Exchange Act, directly or indirectly, of securities of the
Company representing 20% or more of the total combined voting power
represented by the Company’s then outstanding Voting
Securities;
(ii) during any period of two
consecutive years, individuals who at the beginning of such period
constitute the Board and any new director whose election by the
Board or nomination for election by the Company’s
stockholders was approved by a vote of at least two-thirds of the
directors then in office who either were directors at the beginning
of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a
majority thereof; or
(iii) the stockholders of the
Company approve a merger or consolidation of the Company with any
other corporation, 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) at least 80% 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 an agreement for the sale or
disposition by the Company, in one transaction or a series of
transactions, of all or substantially all of the Company’s
assets.
(b) “ CBCA ”
shall mean the Canada Business Corporations Act, as the same exists
or may hereafter be amended or interpreted; provided, however, that
in the case of any such amendment or interpretation, only to the
extent that such amendment or interpretation permits the Company to
provide broader indemnification rights than were permitted prior
thereto.
(c) “ Expense ”
shall mean attorneys’ fees and all other costs, expenses and
obligations paid or incurred in connection with investigating,
defending, being a witness in or participating in (including on
appeal), or preparing for any of the foregoing, any Proceeding
relating to any Indemnifiable Event.
(d) “ Indemnifiable
Event ” shall mean any event or occurrence that takes
place either prior to or after the execution of this Agreement,
related to the fact that the Indemnitee is or was a director or
officer of the Company, or is or was serving at the request of the
Company as a director, officer, employee, or agent of another
corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit
plans, or by reason of anything done or not done by the Indemnitee
in any such capacity.
(e) “ Proceeding
” shall mean any threatened, pending or completed action,
suit, investigation or proceeding, and any appeal thereof, whether
civil, criminal, administrative or investigative and/or any inquiry
or investigation, whether conducted by the Company or any other
party, that the Indemnitee in good faith believes might lead to the
institution of any such action.
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(f) “ Reviewing Party
” shall mean any appropriate person or body consisting of a
member or members of the Company’s Board or any other person
or body appointed by the Board (including the special independent
counsel referred to in Section 6) who is not a party to the
particular Proceeding with respect to which the Indemnitee is
seeking indemnification.
(g) “ Voting Securities
” shall mean any securities of the Company which vote
generally in the election of directors.
2. Indemnification . In the
event the Indemnitee was or is a party to or is involved (as a
party, witness, or otherwise) in any Proceeding by reason of (or
arising in part out of) an Indemnifiable Event, whether the basis
of the Proceeding is the Indemnitee’s alleged action in an
official capacity as a director or officer or in any other capacity
while serving as a director or officer, the Company shall indemnify
the Indemnitee to the fullest extent permitted by the CBCA against
any and all Expenses, liability, and loss (including judgments,
fines, ERISA excise taxes or penalties, and amounts paid or to be
paid in settlement, and any interest, assessments, or other charges
imposed thereon, and any federal, state, local, or foreign taxes
imposed on any director or officer as a result of the actual or
deemed receipt of any payments under this Agreement) (collectively,
“ Liabilities ”) reasonably incurred or suffered
by such person in connection with such Proceeding. The Company
shall provide indemnification pursuant to this Section 2 as
soon as practicable, but in no event later than 30 days after it
receives written demand from the Indemnitee. Notwithstanding
anything in this Agreement to the contrary and except as provided
in Section 5 below, the Indemnitee shall not be entitled to
indemnification pursuant to this Agreement (i) in connection
with any Proceeding initiated by the Indemnitee against the Company
or any director or officer of the Company unless the Company has
joined in or consented to the initiation of such Proceeding or
(ii) on account of any suit in which judgment is rendered
against the Indemnitee pursuant to Section 16(b) of the
Exchange Act for an accounting of profits made from the purchase or
sale by the Indemnitee of securities of the Company.
3. Advancement of Expenses .
The Company shall advance Expenses to the Indemnitee within 30
business days of such request (an “ Expense Advance
”); provided, however, that if required by applicable
corporate laws such Expenses shall be advanced only upon delivery
to the Company of an undertaking by or on behalf of the Indemnitee
to repay such amount if it is ultimately determined that the
Indemnitee is not entitled to be indemnified by the Company; and
provided further, that the Company shall make such advances only to
the extent permitted by law. Expenses incurred by the Indemnitee
while not acting in his/her capacity as a direc
