exv10w1






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: