exv10w08wa



 





Exhibit 10.08A




Option No.: _______




DOUBLE-TAKE SOFTWARE

2006 OMNIBUS INCENTIVE PLAN




INCENTIVE STOCK OPTION AGREEMENT



Double-Take Software, Inc, a Delaware corporation (the “Company”), hereby grants an option to
purchase shares of its common stock, $.001 par value, (the “Stock”) to the optionee named below.
The terms and conditions of the option are set forth in this cover sheet, in the attachment, and in
the Company’s 2006 Omnibus Incentive Plan (the “Plan”).



Grant Date:                                                             , 200___



Name of Optionee:                                                                                                                         
                                        



Optionee’s Employee Identification Number: ___-___-___



Number of Shares Covered by Option:                                         



Option Price per Share: $_____.___(At least 100% of Fair Market Value)



Vesting Start Date:                                         , ___




      By signing this cover sheet, you agree to all of the terms and conditions described in the
attached Agreement and in the Plan, a copy of which is also attached. You acknowledge that you
have carefully reviewed the Plan, and agree that the Plan will control in the event any provision
of this Agreement should appear to be inconsistent.



	 	 	 	 	 
	Optionee:
	 	 	 	 
	 	 	 
	 	 	(Signature)

	 
	 	 	 	 
	Company:
	 	 	 	 
	 	 	 
	 	 	(Signature)

	 
	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





Attachment




      This is not a stock certificate or a negotiable instrument.



 









 





DOUBLE-TAKE SOFTWARE

2006 OMNIBUS INCENTIVE PLAN




INCENTIVE STOCK OPTION AGREEMENT




	 	 	 
	Incentive Stock Option

	 	This option is intended to be an incentive
stock option under Section 422 of the
Internal Revenue Code and will be
interpreted accordingly. If you cease to be
an employee of the Company, its parent or a
subsidiary (“Employee”) but continue to
provide Service, this option will be deemed
a nonstatutory stock option three months
after you cease to be an Employee. In
addition, to the extent that all or part of
this option exceeds the $100,000 rule of
section 422(d) of the Internal Revenue Code,
this option or the lesser excess part will
be deemed to be a nonstatutory stock option.
	 
	 	 
	Vesting

	 	This option is only exercisable before it
expires and then only with respect to the
vested portion of the option. Subject to
the preceding sentence, you may exercise
this option, in whole or in part, to
purchase a whole number of vested shares not
less than 100 shares, unless the number of
shares purchased is the total number
available for purchase under the option, by
following the procedures set forth in the
Plan and below in this Agreement.
	 
	 	 
	 

	 	Your right to purchase shares of Stock under
this option vests [as to                     
(___) of the total number of shares
covered by this option, as shown on the
cover sheet, on the one-year anniversary of
the Vesting Start Date (“Anniversary Date”),
provided you then continue in Service.
Thereafter, for each such vesting date that
you remain in Service, the number of shares
of Stock which you may purchase under this
option shall vest ]at the rate of
                     (___) per month as of the first
day of each month following the month of the
Anniversary Date. The resulting aggregate
number of vested shares will be rounded to
the nearest whole number, and you cannot
vest in more than the number of shares
covered by this option.]
	 
	 	 
	 

	 	No additional shares of Stock will vest
after your Service has terminated for any
reason.
	 
	 	 
	Term

	 	Your option will expire in any event at the
close of business at Company headquarters on
the day before the 10th anniversary of the
Grant Date, as shown on the cover sheet.
Your option will expire earlier if your
Service terminates, as described below.
	 
	 	 
	Regular Termination

	 	If your Service terminates for any reason,
other than death, Disability or Cause, then
your option will expire at the close of
business at Company headquarters on the 90th
day after your






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	 	termination date.
	 
	 	 
	Termination for Cause

	 	If your Service is terminated for Cause,
then you shall immediately forfeit all
rights to your option and the option shall
immediately expire.
	 
	 	 
	Death

	 	If your Service terminates because of your
death, then your option will expire at the
close of business at Company headquarters on
the date twelve (12) months after the date
of death. During that twelve month period,
your estate or heirs may exercise the vested
portion of your option.
	 
	 	 
	 

	 	In addition, if you die during the 90-day
period described in connection with a
regular termination (i.e., a termination of
your Service not on account of your death,
Disability or Cause), and a vested portion
of your option has not yet been exercised,
then your option will instead expire on the
date twelve (12) months after your
termination date. In such a case, during
the period following your death up to the
date twelve (12) months after your
termination date, your estate or heirs may
exercise the vested portion of your option.
	 
	 	 
	Disability

	 	If your Service terminates because of your
Disability, then your option will expire at
the close of business at Company
headquarters on the date twelve (12) months
after your termination date.
	 
	 	 
	Leaves of Absence

	 	For purposes of this option, your Service
does not terminate when you go on a bona
fide employee leave of absence that was
approved by the Company in writing, if the
terms of the leave provide for continued
Service crediting, or when continued Service
crediting is required by applicable law.
However, your Service will be treated as
terminating 90 days after you went on
employee leave, unless your right to return
to active work is guaranteed by law or by a
contract. Your Service terminates in any
event when the approved leave ends unless
you immediately return to active employee
work.
	 
	 	 
	 

	 	The Company determines, in its sole
discretion, which leaves count for this
purpose, and when your Service terminates
for all purposes under the Plan.
	 
	 	 
	Notice of Exercise

	 	When you wish to exercise this option, you
must notify the Company by filing the proper
“Notice of Exercise” form at the address
given on the form. Your notice must specify
how many shares you wish to purchase (in a
parcel of at least 100 shares generally).
Your notice must also specify how your
shares of Stock should be registered (in
your name only or in your and your spouse’s
names as joint tenants with right of
survivorship). The notice will be effective
when it is received by the Company.






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	 	If someone else wants to exercise this
option after your death, that person must
prove to the Company’s satisfaction that he
or she is entitled to do so.
	 
	 	 
	Form of Payment

	 	When you submit your notice of exercise, you
must include payment of the option price for
the shares you are purchasing. Payment may
be made in one (or a combination) of the
following forms:
	 
	 	 
	 

	 	Ÿ     Cash, your personal check, a cashier’s check,
a money order or another cash equivalent acceptable to the Company.
	 
	 	 
	 

	 	Ÿ     Shares of Stock which are surrendered to the Company. The
value of the shares, determined as of the effective date of the
option exercise, will be applied to the option price.
	 
	 	 
	 

	 	Ÿ     By delivery (on a form prescribed by the Company) of an irrevocable direction to
a licensed securities broker acceptable to the Company to sell Stock and to deliver all
or part of the sale proceeds to the Company in payment of the aggregate option price and
any withholding taxes (if approved in advance by the Compensation Committee of the
Board if you are either an executive officer or a director of the Company).
	 
	 	 
	Withholding Taxes

	 	You will not be allowed to exercise this
option unless you make acceptable
arrangements to pay any withholding or other
taxes that may be due as a result of the
option exercise or sale of Stock acquired
under this option. In the event that the
Company determines that any federal, state,
local or foreign tax or withholding payment
is required relating to the exercise or sale
of shares arising from this grant, the
Company shall have the right to require such
payments from you, or withhold such amounts
from other payments due to you from the
Company or any Affiliate.
	 
	 	 
	Transfer of Option

	 	During your lifetime, only you (or, in the
event of your legal incapacity or
incompetency, your guardian or legal
representative) may exercise the option.
You cannot transfer or assign this option.
For instance, you may not sell this option
or use it as security for a loan. If you
attempt to do any of these things, this
option will immediately become invalid. You
may, however, dispose of this option in your
will or it may be transferred upon your
death by the laws of descent and
distribution.
	 
	 	 
	 

	 	Regardless of any marital property
settlement agreement, the Company is not
obligated to honor a notice of exercise from
your spouse, nor is the Company obligated to
recognize your spouse’s






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	 	interest in your option in any other way.
	 
	 	 
	Retention Rights

	 	Neither your option nor this Agreement give
you the right to be retained by the Company
(or any parent, Subsidiaries or Affiliates)
in any capacity. The Company (and any
parent, Subsidiaries or Affiliates) reserve
the right to terminate your Service at any
time and for any reason.
	 
	 	 
	Shareholder Rights

	 	You, or your estate or heirs, have no rights
as a shareholder of the Company until a
certificate for your option’s shares has
been issued (or an appropriate book entry
has been made). No adjustments are made for
dividends or other rights if the applicable
record date occurs before your stock
certificate is issued (or an appropriate
book entry has been made), except as
described in the Plan.
	 
	 	 
	Forfeiture of Rights

	 	If you should take actions in competition
with the Company, the Company shall have the
right to cause a forfeiture of your rights,
including, but not limited to, the right to
cause: (i) a forfeiture of any outstanding
option, and (ii) with respect to the period
commencing twelve (12) months prior to your
termination of Service with the Company and
ending twelve (12) months following such
termination of Service (A) a forfeiture of
any gain recognized by you upon the exercise
of an option or (B) a forfeiture of any
Stock acquired by you upon the exercise of
an option (but the Company will pay you the
option price without interest). Unless
otherwise specified in an employment or
other agreement between the Company and you,
you take actions in competition with the
Company if you directly or indirectly, own,
manage, operate, join or control, or
participate in the ownership, management,
operation or control of, or are a
proprietor, director, officer, stockholder,
member, partner or an employee or agent of,
or a consultant to any business, firm,
corporation, partnership or other entity
which competes with any business in which
the Company or any of its Affiliates is
engaged during your employment or other
relationship with the Company or its
Affiliates or at the time of your
termination of Service. Under the prior
sentence, ownership of less than 1% of the
securities of a public company shall not be
treated as an action in competition with the
Company.
	 
	 	 
	Adjustments

	 	In the event of a stock split, a stock
dividend or a similar change in the Stock,
the number of shares covered by this option
and the option price per share shall be
adjusted (and rounded down to the nearest
whole number) if required pursuant to the
Plan. Your option shall be subject to the
terms of the agreement of merger,
liquidation or reorganization in the event
the Company is subject to






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	 	such corporate activity.
	 
	 	 
	Applicable Law

	 	This Agreement will be interpreted and
enforced under the laws of the State of
Delaware, other than any conflicts or choice
of law rule or principle that might
otherwise refer construction or
interpretation of this Agreement to the
substantive law of another jurisdiction.
	 
	 	 
	The Plan

	 	The text of the Plan is incorporated in this
Agreement by reference. Certain capitalized
terms used in this Agreement are defined in
the Plan, and have the meaning set forth in
the Plan.
	 
	 	 
	 

	 	This Agreement and the Plan constitute the
entire understanding between you and the
Company regarding this option. Any prior
agreements, commitments or negotiations
concerning this option are superseded.
	 
	 	 
	Data Privacy

	 	In order to administer the Plan, the Company
may process personal data about you. Such
data includes but is not limited to the
information provided in this Agreement and
any changes thereto, other appropriate
personal and financial data about you such
as home address and business addresses and
other contact information, payroll
information and any other information that
might be deemed appropriate by the Company
to facilitate the administration of the
Plan.
	 
	 	 
	 

	 	By accepting this option, you give explicit
consent to the Company to process any such
personal data. You also give explicit
consent to the Company to transfer any such
personal data outside the country in which
you work or are employed, including, with
respect to non-U.S. resident Optionees, to
the United States, to transferees who shall
include the Company and other persons who
are designated by the Company to administer
the Plan.
	 
	 	 
	Consent to Electronic Delivery

	 	The Company may choose to deliver certain
statutory materials relating to the Plan in
electronic form. By accepting this option
grant you agree that the Company may deliver
the Plan prospectus and the Company’s annual
report to you in an electronic format. If
at any time you would prefer to receive
paper copies of these documents, as you are
entitled to, the Company would be pleased to
provide copies. Please contact ___at
___to request paper copies of these
documents.
	 
	 	 
	Certain Dispositions

	 	If you sell or otherwise dispose of Stock
acquired pursuant to the exercise of this
option sooner than the one year anniversary
of the date you acquired the Stock, then you
agree to notify the Company in writing of
the date of sale or disposition, the number
of share of Stock sold or disposed of and
the sale price per share within 30






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	 	days of such sale or disposition.






      By signing the cover sheet of this Agreement, you agree to all of the terms and conditions described above and in the Plan.




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