exv10w2






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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