8-K

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

December 2, 2008
(Date of earliest event reported)

Double-Take Software, Inc.

(Exact Name of Registrant as Specified in its Charter)

DELAWARE	001-33184	20-0230046
(State or other jurisdiction of Incorporation)	(Commission File Number)	(I.R.S. Employer Identification No.)

257 TURNPIKE ROAD, SUITE 210 SOUTHBOROUGH, MASSACHUSETTS	01772	877-335-5674
(Address of principal executive offices)	(Zip Code)	(Registrant’s telephone number including area code)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

INFORMATION TO BE INCLUDED IN THE REPORT

Section 5 — Corporate Governance and Management

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

(e) On December 2, 2008, Double-Take Software, Inc. (the “Company”) entered into a severance letter agreement (the “Letter Agreement”) with Jo Murciano, our Vice President of International and President of Double-Take EMEA (the “Subsidairy”), a copy of which is attached to this report as Exhibit 10.1 and is incorporated herein by reference. In addition, concurrently with the execution of the Letter Agreement, the Company entered into a non-disclosure confidentiality and intellectual property assignment agreement with Mr. Murciano (the “NDA Agreement”), a copy of which is attached to this report as Exhibit 10.2 and is incorporated herein by reference. The Letter Agreement and NDA Agreement were entered into to provide Mr. Murciano with severance and other arrangements similar to those provided to other executive officers pursuant to agreements entered into in 2007. At the time that other executive officers entered into severance arrangements, Mr. Murciano’s compensation and related arrangements were governed by terms of the agreements entered into in connection with our acquisition of the Subsidiary.

The Letter Agreement continues until March 31, 2009, with automatic renewals for additional one year periods on each anniversary of that date thereafter. The Company may deliver Mr. Murciano written notice of its intent not to renew the Letter Agreement at least thirty days prior to the expiration of the applicable term, provided that such notice may not be delivered by the Company if an agreement for the Company to be acquired is in force.

The payments under the Letter Agreement are subject to Mr. Murciano executing a release of claims in the Company’s favor and compliance with the terms of the NDA Agreement. If Mr. Murciano’s service is terminated without “cause” (as defined below) Mr. Murciano will be entitled to a cash severance payment equal to €150,000. The cash severance payment will be payable in accordance with the Subsidiary’s regular payroll periods. The Letter Agreement supersedes and replaces any prior agreements or understandings between Mr. Murciano and the Company concerning termination of his tenure with the Subsidiary and any arrangements in connection therewith, other than any agreements or arrangements concerning options or other equity compensation separately addressed in an option agreement or similar equity compensation agreements and plans.

Mr. Murciano is subject to customary confidentiality, non-competition, non-solicitation, and intellectual property ownership and assignment covenants as provided in the NDA Agreement. Mr. Murciano is subject to a confidentiality covenant as well as two-year non-competition and non-solicitation covenants and must assign to the Company any intellectual property developed or modified in the course of his service to the Company to the extent the Company does not already own the intellectual property as a work made for hire under applicable copyright law.

For the purpose of the description above, termination for “cause” is defined as: (i) willful disobedience of a material and lawful instruction of the Company in its capacity as sole shareholder of the Subsidiary; (ii) conviction of any misdemeanor involving fraud or embezzlement or similar crime, or any felony; (iii) conduct amounting to fraud, dishonesty, negligence or willful misconduct; (iv) inattention to the executive’s duties; or (v) violation of the NDA Agreement.

The above summary of the Letter Agreement and the NDA Agreement does not purport to be complete and is qualified in its entirety by reference to the Letter Agreement and the NDA Agreement.

Section 9 — Financial Statements and Exhibits

Item 9.01 Financial Statements and Exhibits.

(d)      Exhibits

10.1	Letter Agreement, dated December 2, 2008, between Double-Take Software, Inc. and Jo Murciano
10.2	Non-Disclosure Confidentiality and Intellectual Property Assignment Agreement, dated December 2, 2008, between Double-Take Software, Inc. and Jo Murciano

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	Double-Take Software, Inc.
Date: December 8, 2008	By:	/s/ S. Craig Huke
		S. Craig Huke
		Vice President and Chief Financial Officer

Exhibit Index

Exhibits

10.1	Letter Agreement, dated December 2, 2008, between Double-Take Software, Inc. and Jo Murciano
10.2	Non-Disclosure Confidentiality and Intellectual Property Assignment Agreement, dated December 2, 2008, between Double-Take Software, Inc. and Jo Murciano

EX-10.1

Exhibit 10.1

December 2, 2008

Jo Murciano
c/o Double-Take Software SAS
116-118 Avenue Paul Doumer
92500 Rueil Malmaison
France

Dear Jo,

Once executed by both parties, this letter agreement (this “Letter Agreement”) will constitute an agreement between Double-Take Software, Inc. (the “Company”) and you with respect to certain payments and benefits that may become payable to you in connection with a termination of your tenure as Président of Double Take France SAS, (the “Subsidiary”) the wholly-owned French subsidiary of the Company, without Cause (as defined in Section 1). For purposes of this Letter Agreement, the “Effective Date” shall be the date first set forth above.

1. Certain Definitions

For purposes of this Agreement:

“Cause” means: (i) willful disobedience of a material and lawful instruction of the Company in its capacity as sole shareholder of the Subsidiary; (ii) conviction of any misdemeanor involving fraud or embezzlement or similar crime, or any felony; (iii) conduct amounting to fraud, dishonesty, negligence or willful misconduct; (iv) inattention to your duties; or (v) your violation of the Non-Disclosure Confidentiality Agreement (the “NDA”) between you and the Subsidiary or the Company.

“Termination Date” means the effective date of the termination of your tenure with the Subsidiary.

2. Release

As a condition to, and as consideration for, the receipt of any payments or other benefits under this Letter Agreement, you agree to first execute the Waiver and Release of Claims Agreement annexed hereto as Addendum A (the “Release”) within 45 days of termination of your tenure with the Subsidiary and not to revoke such Release within the time permitted therein for such revocation.

3. Qualifying Termination of tenure with the Subsidiary

If your tenure with the Subsidiary is terminated by the decision of the sole shareholder of the Subsidiary without Cause, you will be entitled to the payments and benefits outlined in Section 4, subject to the terms and conditions outlined in this Letter Agreement.

4. Severance Benefits

If your tenure with the Subsidiary is terminated as described in Section 3, then subject to your satisfaction of the requirements of this Letter Agreement and execution of the Release, you will be entitled to the following severance benefits:

(a) Severance Pay. You will be entitled to receive severance pay in an amount equal to €150,000. Subject to Section 4(b) below, your severance pay will be paid in accordance with the Subsidiary’s regular payroll periods, commencing on the first day of the first payroll period following the date of the termination of your tenure with the Subsidiary.

(b) Earlier Termination of Benefits. Notwithstanding any other provision of this Letter Agreement, the Company’s obligation to pay or provide the severance payments provided under this Section 4 shall terminate as of the date on which the Company determines in good faith that you have violated the NDA or the Release.

5. Miscellaneous

(a) Death or Disability. In the event that you die or become disabled (within the meaning of the Company’s long-term disability plan) prior to the receipt of all payments and benefits that become payable under this Letter Agreement, any unpaid balance will be paid in a lump sum to you or, if applicable, the executor or administrator of your estate or to a properly qualified personal representative.

(b) Withholding. The Company shall be entitled to withhold from amounts to be paid to you under this Letter Agreement any federal, state or local withholding or other taxes which it is from time to time required to withhold.

6. Unenforceability. If any portion of this Letter Agreement is deemed to be void or unenforceable by a court of competent jurisdiction, the remaining portions will remain in full force and effect to the maximum extent allowed by law. The parties intend and desire that each portion of this Letter Agreement be given the maximum possible effect allowed by law.

7. Headings. The heading of the several sections of this Letter Agreement have been prepared for convenience and reference only and shall not control, affect the meaning, or be taken as the interpretation of any provision of this Letter Agreement.

8. Successors; Binding Agreement. This Letter Agreement will inure to the benefit of and be binding upon the parties’ personal or legal representatives, executors, administrators, successors, heirs, distributes, devises and legatees.

9. Applicable Law. This Letter Agreement, and its interpretation and application, will be governed and controlled by the laws of the Commonwealth of Massachusetts, applicable as though to a contract made in Massachusetts by residents of Massachusetts and wholly to be performed in Massachusetts without giving effect to principles of conflicts of law.

10. Amendment. This Letter Agreement may not be changed, modified, or amended, except in a writing signed by both you and the Company.

11. Term. The term of this Agreement shall commence on the Effective Date and, unless sooner terminated as hereinafter set forth, shall end on March 31, 2009 (the “Term”); provided, however, that this Agreement will automatically renew for additional one (1) year periods (each a “Renewal Term”) on each anniversary thereafter, unless the Company delivers to you written notice of intent not to renew at least thirty (30) days prior to the expiration of the Term or any Renewal Term, provided, that, the Company may not deliver such notice while a definitive agreement is in force under which the Company would be acquired.

12. Your signature below means that:

(i)	You have had ample opportunity to discuss the terms and conditions of this Letter Agreement with an attorney and/or financial advisor of your choice and as a result fully understand its terms and conditions; and
(ii)	You accept the terms and conditions set forth in this Letter Agreement; and
(iii)	This Letter Agreement supersedes and replaces any and all agreements or understandings, whether written or oral, that you may have with the Company concerning termination of your tenure with the Subsidiary and any other separation, termination, retirement or compensation arrangement in connection therewith, other than any agreements or arrangements concerning any options or other equity compensation separately addressed in any option agreements or similar equity compensation agreements and plans.

If you find the foregoing acceptable, please sign your name on the signature line provided below. Once this Letter Agreement is executed, please return it directly to my attention. Should you have any questions regarding this Letter Agreement or any of the terms hereof, now or in the future, please contact Dean Goodermote.

Very truly yours, Double-Take Software, Inc.
By:	/s/ Dean Goodermote
	Dean Goodermote, CEO and President

I accept the terms and conditions of this Letter Agreement.

Signed:	/s/ Jo Murciano
Dated: December 2, 2008

ADDENDUM A

WAIVER AND RELEASE OF CLAIMS AGREEMENT

I HAVE BEEN ADVISED TO CONSULT AN ATTORNEY PRIOR TO
SIGNING THIS AGREEMENT.

I UNDERSTAND THAT I HAVE TWENTY-ONE DAYS AFTER RECEIVING
THIS AGREEMENT TO CONSIDER WHETHER TO SIGN IT.

AFTER SIGNING THIS AGREEMENT, I UNDERSTAND THAT I HAVE
ANOTHER SEVEN DAYS IN WHICH TO REVOKE IT, AND IT DOES NOT TAKE EFFECT
UNTIL THOSE SEVEN DAYS HAVE ENDED.

     In consideration of, and subject to, the payments to be made to me by Double-Take Software, Inc. (“Double-Take Software” or the “Company”) or any of its subsidiaries or affiliates, pursuant to the Letter Agreement dated as of December 2, 2008, 2008 between Double-Take Software and me (the “Letter Agreement”), which I acknowledge that I would not otherwise be entitled to receive, I hereby waive any claims I may have for my nomination or reintegration as the Président of the Subsidiary or for employment by the Company or any subsidiary or affiliate thereof after the date hereof, and I further agree to and do release and forever discharge the Company or any subsidiary or affiliate of the Company and their respective past and present officers, directors, shareholders, employees and agents from any and all claims and causes of action, known or unknown, arising out of or relating to my tenure as Président of the Subsidiary or the termination thereof, including, but not limited to, wrongful discharge, breach of contract, tort, fraud, civil rights violations, discrimination, or failure to pay compensation or benefits. Should I decide to file any charge or legal claim against the Company, I agree to waive my right to recover any damages or other relief awarded to me which arises out of any such charge or legal claim made by me against the Company.

     In consideration of, and subject to, the payments to be made to me by Double-Take Software, pursuant to the Letter Agreement, which I acknowledge that I would not otherwise be entitled to receive, I hereby agree not to make statements or representations, or otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly or indirectly, disparage the Company or any of its affiliates or their respective officers, directors, employees, advisors, businesses or reputations.

     Notwithstanding the foregoing or any other provision hereof, nothing in this Waiver and Release of Claims Agreement shall adversely affect (i) my rights under the Letter Agreement; (ii) my rights to vested benefits (other than severance benefits) under any “employee benefit plan” of the Subsidiary, the Company or any subsidiary or affiliate of the Company; (iii) my rights to indemnification under any indemnification agreement, applicable law and the certificates of incorporation and bylaws of the Company and any subsidiary of the Company, and my rights under any director’s and officer’s liability insurance policy covering me; or (iv) my

rights to make truthful statements or disclosures that are required by applicable law, regulation or legal process .

     I acknowledge that I have signed this Waiver and Release of Claims Agreement voluntarily, knowingly, of my own free will and without reservation or duress, and that no promises or representations, written or oral, have been made to me by any person to induce me to do so other than the promise of payment set forth in the first paragraph above and the Company’s acknowledgment of my rights reserved under the preceding paragraph above.

     I acknowledge that I have been given not less than twenty-one (21) days to review and consider this Waiver and Release of Claims Agreement, and that I have had the opportunity to consult with an attorney or other advisor of my choice and have been advised by the Company to do so if I choose. I may revoke this Waiver and Release of Claims Agreement seven days or less after its execution by providing written notice to the [Vice-President of Human Resources] at the Company’s corporate headquarters (or some other designee).

     Finally, I acknowledge that I have carefully read this Waiver and Release of Claims Agreement and understand all of its terms. This is the entire Agreement between the parties and is legally binding and enforceable.

     This Waiver and Release of Claims Agreement shall be governed and interpreted under federal law and the laws of the Commonweath of Massachusetts.

     I knowingly and voluntarily sign this Waiver and Release of Claims Agreement and agree to be bound by its terms.

Date Delivered to	:	DOUBLE-TAKE SOFTWARE, INC.
Date Signed by	:	By:
		Title:
Seven-Day Revocation Period Ends:
Signed:		Date:

EX-10.2

Exhibit 10.2

NON-DISCLOSURE CONFIDENTIALITY AND
INTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT
Double-Take Software, Inc.

Jo Murciano (hereinafter referred to as the “executive”) hereby acknowledges that Double-Take Software Inc. (the “Company”), together with its subsidiaries and their respective predecessors (hereinafter referred to collectively as the “Corporation”), is engaged in the business of developing, selling, distributing, supporting, installing and servicing computer related software. The executive and the Corporation agree that the operation of the business and performance of the work of the Corporation involves special skills, knowledge, trade secrets, special techniques, procedures, and names and addresses of the customers, past and present, of the Corporation. The executive acknowledges that he is serving as an officer of the Company and is the Président of Double-Take Software SAS, a wholly-owned subsidiary of the Company (collectively, the “Service”) with the express understanding that all of the foregoing shall not be divulged or otherwise disclosed to anyone at any time.

It is further understood and agreed to by the executive, that during the time of his tenure of Service, that his time and efforts will be devoted to the Corporation’s business, and that he will not participate in any activity of a similar nature independently or with any other entity, in any capacity, (e.g. sales, consulting, engineering, supervision or hands on activity), without the consent of the Company. All computer program source code and information relating to such source code, trade secrets, books, manuals, bulletins, work papers, files, reports and other related materials accessed by the executive, received by the executive, or disclosed to the executive during the course of his tenure of Service for the Corporation, are the property of the Corporation and must be returned to the Corporation upon request or at the termination of executive’s tenure of Service, along with any reproductions of such documentation.

Executive agrees to hold in confidence and to refrain from using (other than in performing work for or on behalf of the Corporation) or disclosing to any third party, without prior written consent of Corporation, (a) information of the Corporation, its subsidiaries, affiliates or divisions, including information accessed by the executive, received by the executive, or disclosed to the executive during the course of his service to the Corporation, (b) information developed or delivered by executive during the term of executive’s service to the Corporation; and (c) information of third parties (e.g., existing or potential customers, partners,

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vendors, or distributors of the Corporation, its subsidiaries, affiliates or divisions) accessed by the executive, received by the executive, or disclosed to the executive during the course of his service to the Corporation (collectively, “Corporation Confidential Information”). Without limiting the foregoing, all computer program source code and information relating to such source code received, developed or delivered by executive in connection with his service to the Corporation shall be deemed confidential information of the Corporation and belong exclusively to the Corporation.

Executive agrees to provide the Corporation with all source code and complete source code documentation for all computer programs developed or modified by executive in the course of his service to the Corporation. Ownership of all right, title and interest in all intellectual property and proprietary information and materials, including without limitation, goods, code, materials, inventions, ideas, trade secrets, know-how, designs, models, databases, topography, mask works, processes, methods, technical information, data, specifications, drawings, works of authorship, manuals, brochures, models, algorithms, standards, diagrams, schematics and the like, created by executive during the time of his service to the Corporation and delivered by executive to the Corporation during the time of his service to the Corporation (collectively “Corporation Property”) is solely owned by the Corporation as a work made for hire under applicable copyright law. To the extent that any portion of the Corporation Property is not deemed a work made for hire and therefore solely owned by the Corporation, all right, title and interest in such Corporation Property is hereby assigned irrevocably to the Corporation, or where such an assignment is not possible under applicable law, a waiver of such right, title and interest is hereby made, including but not limited with respect to all copyrights, trademarks, trade secrets, patent and moral rights in such Corporation Property. Executive agrees to execute and return to the Corporation all documents required by the Corporation from time to time to evidence, document or, if necessary, to perfect such ownership or waiver, for any purpose desired by the Corporation, and hereby appoints the Corporation officers attorney-in-fact with full powers to execute such document itself in the event executive is unable to timely provide the Corporation with such signed documents. Executive agrees that it shall not make any use of any of the Corporation Property, during or after his tenure of Service, except in performing work for or on behalf of Corporation. Executive agrees to not assert, or cause to be asserted, any moral rights in the Corporation Property that the executive owns or controls against the Corporation, its current or future affiliates, customers, partners or sublicensees. For the purposes of this

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agreement, the term “moral rights” means the right of the author of a work to control the publication, attribution, modification, and integrity of such work, as well as any similar rights however referred to.

Executive shall not knowingly use, in any manner, any intellectual property or confidential information of a third party in performing work for or on behalf of the Corporation. Further, executive shall not use, in any manner, any intellectual property or confidential information belonging to executive in performing work for or on behalf of the Corporation (“Preexisting Property”); provided, however, should executive (1) have previously used any Preexisting Property in performing work for or on behalf of the Corporation and provided the Corporation with prior written notice of the planned use, or (2) desire to use any Preexisting Property in performing work for or on behalf of the Corporation and provides prior written notice to the Corporation of such planned use, he hereby grants to the Corporation Companies a royalty free, irrevocable, worldwide license (with rights to sublicense through multiple tiers of sublicenses) to make use of and commercialize (including, without limitation, the rights to make, use, reproduce, distribute, create derivative works, and publicly display) any such Preexisting Property.

In the event the term of the executive’s tenure of Service shall expire or terminate, executive agrees to return to Corporation all Corporation Property and Corporation Confidential Information, in any form or format along with all whole or partial copies, and agrees that any electronic files or copies including Corporation Property and Corporation Confidential Information shall be deleted or otherwise purged so they are no longer accessible. Executive further agrees not to use or divulge any of the Corporation Property or Corporation Confidential Information, or to engage or participate, directly or indirectly, for himself or on behalf of or for the benefit of a third party, firm or corporation in developing products based on the Corporation Confidential Information or Corporation Property. Executive also agrees he will not participate, directly or indirectly, for himself or on behalf of or for the benefit of a third party, firm or corporation in soliciting competing products, services and/or solutions to the Corporation Companies’ existing customers or proposed customers (which were being solicited by the Corporation during the tenure of his Service) for a period of two (2) years after expiration or termination of his tenure of Service and will not encourage, induce or attempt to induce any employee of the Corporation to leave the employ of the Corporation for a period of two (2) years after expiration or termination of his tenure of Service.

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The executive agrees that these terms are so vitally important to the operation of the business of the Corporation, that any violation of the above conditions will result in the termination of his tenure of Service, forfeitures of any and all benefits and bonuses accrued, as well as entitling the Corporation to any injunctive relief allowed by Law. The executive further agrees that the compensation and benefits he has previously received for his Service and the compensation and benefits (including the Corporation’s severance policies, as the same may be amended from time to time) that he will continue to receive in connection with his tenure of Service is sufficient consideration for the terms of this agreement, including, without limitation, the confidentiality, intellectual property assignment, non-compete and non-solicitation provisions contained herein.

The Laws of the Commonwealth of Massachusetts, applicable as though to a contract made in Massachusetts by residents of Massachusetts and wholly to be performed in Massachusetts without giving effect to principles of conflicts of law, shall govern this Agreement and there are no understandings, agreements, and representations, express or implied, not specified herein.

AGREED TO BY:
/s/ Jo Murciano	December 2, 2008
Executive	(DATE)
ACCEPTED BY:
/s/ Dean Goodermote
For the Corporation
NAME: Dean Goodermote	December 2, 2008
TITLE: CEO and President	(DATE)

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