exv10w23



 





Exhibit 10.23




October 31, 2006




S. Craig Huke

16568 Brookhollow Drive

Noblesville, IN 46062




On behalf of Double-Take Software, Inc. (the “Company”), I am pleased to enter into an amended and
restated employment agreement with you that continues your position as Chief Financial Officer,
effective on October 31, 2006. This agreement amends and restates your agreement with the Company
dated May 23, 2003. Following are the terms of this amended and restated employment agreement:



Position:





Chief Financial Officer. Reports to the Chief Executive Officer of the Company (the
“CEO”).



Base Salary:





$200,000 per year, payable every two (2) weeks in the sum of $7,692.31, less any
applicable withholding and taxes. The Base Salary may be increased, but not lowered, by
the Company, and, upon such increase, the increased amount shall thereafter be deemed the
Base Salary.



Stock Options:





At the discretion of the Compensation Committee of the Board of Directors, you may from
time to time be awarded options to purchase shares of the Company’s common stock. In the
event of a change in control as a result of a merger, acquisition, purchase of
substantially all of the Company’s assets or other like transaction, as determined by the
Compensation Committee of the Board of Directors, in which the Company is not the
surviving entity (a “Change in Control”), the unvested portion of all of your outstanding
options to purchase shares of the Company’s common stock shall immediately vest.



 









 





Insurance:





The Company will provide you and your family with major medical insurance.



Bonus:





You are eligible to participate in the executive bonus program established by the Company,
the terms of which shall be determined at the discretion of the Company.



Additional Bonus:





You will be paid a bonus of $25,000 on February 1, 2007, less any applicable withholding
and taxes, provided that you are employed by the Company on such date. In the event of a
Change in Control, the Additional Bonus shall be immediately due and payable.



Severance:





Subject to the approval of the Company’s Board of Directors, in the event your employment
is terminated without Cause in connection with a Change in Control, you will continue to
receive your Base Salary for a period of twelve months from your separation date. No
severance payment will be made in the event your employment is terminated for Cause.




For purposes of this Agreement, “Cause” shall be defined as: (i) willful disobedience of a
material and lawful Instruction of the CEO or the Board of Directors of the Company; (ii)
conviction of any misdemeanor involving fraud or embezzlement or similar crime, or any
felony; (iii) conduct amounting to fraud, dishonesty, negligence, willful misconduct or
recurring insubordination; (iv) inattention to your duties; or (v) excessive absences from
work.



PTO (sick, personal, vacation time off):





Pursuant to the Company’s current policy.



401(k):





Option to participate in the Company’s 401(k) plan based on the plan’s terms.



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Expenses:





Reasonable business-related expenses, including without limitation, cellular phone usage,
home office equipment and supplies and travel-related expenses, will be reimbursed upon
presentation of supporting documentation.



Confidentiality:





You agree to sign the Non-Disclosure Confidentiality Agreement attached hereto.



Relationship:





It is understood and accepted that the employment relationship we have agreed to is an
at-will relationship, and that it may be ended by either party, at any time, and for any
reason. It is also understood that you are free of any obligations, including restrictive
covenants and or non-solicitation agreements, that may affect your ability to carry out
your duties within the Company.



If you should have any questions pertaining to this matter please don’t hesitate to contact me.



I look forward to continuing to work with you.



	 	 	 	 	 
	Sincerely,

	 	 
	 	Agreed:
	 
	 	 	 	 
	/s/ Dean Goodermote

	 	 	 	/s/ S. Craig Huke
	 

	 	 	 	 
	Dean Goodermote

	 	 	 	S. Craig Huke
	Chief Executive Officer
	 	 	 	 






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NON-DISCLOSURE CONFIDENTIALITY AGREEMENT

DOUBLETAKE SOFTWARE, INC.




S. Craig Huke (hereinafter referred to as the “employee”) hereby acknowledges that Double-Take
Software, Inc., et al. (hereinafter referred to as the “Corporation”) is engaged in the business of
developing, selling, distributing, supporting, installing and servicing computer related software.
Both parties agree that the operation of the business and performance of the work of the
Corporation involves special skills, knowledge, trade secrets, special techniques, procedures or
names and addresses of the customers, past and present, of the Corporation. The employee
acknowledges that he is being employed 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 employee, that during the time of his employment by
the Corporation, that his time and efforts will be exclusively devoted to the Corporation’s
business, and that he will not participate in any activity of a similar nature with any other
entity, in any capacity, (e.g. sales, consulting, engineering, supervision or hands on activity).
All computer program source and information relating to such source code, trade secrets, books,
manuals, bulletins, work papers, files, reports and other related materials are the property of the
Corporation and must be returned to the Corporation upon request or at the termination of
employment, along with any reproductions of such documentation.



Employee agrees to hold in confidence and to refrain from using or disclosing to any third party,
without prior written consent of Corporation, (a( any information disclosed in confidence to
employee by the Corporation, and (b( any information developed or delivered by employee during the
term of employee’s employment by the Corporation. All computer program source and information
relating to such source code received, developed or delivered by employee in connection with his
employment shall be deemed confidential information and belonging exclusively to the Corporation
for purposes of this paragraph.



Employee agrees to provide the Corporation with all source code and complete source code
documentation for all computer programs developed or modified by employee in the course of his
employment by the Corporation. Ownership of all goods, code, and materials, etc; delivered by
employee hereunder is hereby assigned irrevocably to the Corporation, including but not limited to
all copyrights, trademarks, trade secrets and patent rights in such goods and materials. Employee
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, for any purpose desired
by the Corporation, and hereby appoints the Corporation employee’s attorney-in-fact with full
powers to execute such document itself in the event employee is unable to provide the Corporation
with such signed documents.



In the event the term of the employee’s employment shall expire or terminate,



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employee agrees not to divulge any of the above information, etc., 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 information gained during his term of employment by
the Corporation. Employee 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’s existing customers or proposed customers
(which were being solicited by the Corporation during the time of his employment) for a period of
two (2) years 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.



The employee 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 their termination of
employment, forfeitures of any and all benefits and bonuses accrued, as well as entitling the
Corporation to any injunctive relief allowed by Law.



This Agreement shall be governed by the Laws of the State of New Jersey and there are no
understandings, agreements, representations, express or implied, not specified herein.



AGREED TO BY:



	 	 	 	 	 
	/s/ S. Craig Huke	 	10/31/06
	 	 	 
	Employee

	 	 	 	(DATE)
	 
	 	 	 	 
	ACCEPTED BY:	 	 
	 
	 	 	 	 
	     /s/ Dean Goodermote	 	 
	 	 	 
	For the Corporation	 	 
	 
	 	 	 	 
	TITLE:

	 	Chief Executive Officer
	 	11/1/06
	 

	 	 
	 	 
	 

	 	 	 	(DATE)






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