Exhibit 10.27
Consent, Waiver and Release
Agreement
September 28,
2005
This Consent, Waiver and Release
Agreement (this “ Agreement ”) is made and
entered into as of the 28 th day of September, 2005 among
Artisoft, Inc., a Delaware corporation (the “ Company
”), and each of the undersigned holders (collectively, the
“ Stockholders ”) of shares of the
Company’s common stock, $.01 par value per share (the “
Common Stock ”), and warrants (the “
Warrants ”) to purchase Common Stock who are parties
to any of the Prior Agreements or the 2004 Agreement (as such terms
are defined below) (such Stockholders holding a sufficient number
of shares of Common Stock and interests in the Warrants to take the
actions provided for herein).
WHEREAS, the Company desires to
enter into a purchase agreement substantially in the form attached
hereto as Exhibit A (the “ 2005 Purchase
Agreement ”) with certain investors (the “
Investors ”), including certain Stockholders, relating
to the issuance and sale of Common Stock;
WHEREAS, the Company and the
Stockholders are parties to, as applicable, to (i) that
certain Registration Rights Agreement, dated August 8, 2001
(the “ 2001 Agreement ”), (ii) that certain
Registration Rights Agreement, dated September 27, 2002 (the
“ 2002 Agreement ”), and (iii) that certain
Registration Rights Agreement, dated June 27, 2003, (the
“ 2003 Agreement ,” together with the 2001
Agreement and the 2002 Agreement, the “ Prior
Agreements ”), and (iv), that certain Stock Purchase
Agreement, dated September 28, 2004, pursuant to which certain
of the Stockholders were granted registration rights (the “
2004 Agreement ”);
WHEREAS, the Stockholders desire
that the Company and the Investors enter into the 2005 Purchase
Agreement; and
WHEREAS, the parties hereto desire
to make certain consents and waivers and grant releases in
connection with the 2005 Purchase Agreement.
NOW, THEREFORE, in consideration of
the foregoing and the promises and covenants set forth herein and
for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto
consent and agree as follows:
1. Consent to 2005 Purchase
Agreement . The Stockholders hereby consent to the 2005
Purchase Agreement and the transactions contemplated thereby,
including without limitation, the issuance and sale of the Common
Stock pursuant thereto.
2. Amendment to Certificate of
Incorporation . The Company shall, as soon as practicable,
amend its Certificate of Incorporation (including all applicable
Certificates of Designation) as contemplated in the 2005 Purchase
Agreement and to reflect any additional amendments required by the
transactions contemplated thereby, including increasing the number
of shares of Common Stock authorized but unissued sufficient to
allow reservation of all shares required to be reserved under the
Warrants and the New Warrants (as defined below), and to remove
provisions relating to all classes and series of preferred stock of
the Company, for which no shares remain issued and outstanding. The
Company shall, in accordance with applicable law
and its Certificate of Incorporation and
by-laws, duly call, give notice of, convene and hold its annual
meeting of the Company’s stockholders (the “ Annual
Meeting ”) on or before April 15, 2006, for, among
other purposes, the purpose of considering the approval of the
amendment to the Company’s Certificate of Incorporation
described above. In connection with the definitive proxy statement
for the Annual Meeting, such proxy statement shall include the
unanimous recommendation of the Company’s board of directors
that the Company’s stockholders approve such amendment to the
Company’s Certificate of Incorporation.
3. Waiver of Reservation of
Shares . In consideration for the issuance of warrants (the
“ New Warrants ”), in the form attached hereto
as Exhibit B , each undersigned Stockholder hereby waives
Section 7 of all of the Warrants held by such Stockholder, as
applicable, and agrees that the Company may remove from reservation
the shares of Common Stock issuable upon exercise of the Warrants
for purposes of effecting the transactions contemplated by the 2005
Purchase Agreement; provided , however , that the
Company covenants and agrees that, as soon as practicable following
the amendment to the Company’s Certificate of Incorporation
to increase the number of authorized shares of Common Stock
thereunder, the Company shall again reserve, pursuant to
Section 7 of the Warrants, a sufficient number of shares of
Common Stock as is necessary for full issuance upon exercise of the
Warrants. The New Warrants shall be exercisable for the number of
shares of Common Stock set forth across such Stockholder’s
name on Schedule I .
4. 2004 Agreement - Waiver of
Liquidated Damages; Release .
(a) Waiver of Liquidated
Damages . In consideration for the New Warrants and except to
the extent set forth in Section 4(c) below, the Stockholders
hereby waive any right of any Stockholder to the payment of
liquidated damages, whether accrued or accruing, under
Section 3.10(d) of the 2004 Agreement through the period
ending August 31, 2005. For avoidance of doubt, the
Stockholders do not waive, or release the Company from liability
for, any liquidated damages under Section 3.10(d) of the 2004
Agreement for any period after August 31, 2005 whether under
Section 4(a), 4(b) or otherwise.
(b) Release . Except to the
extent set forth in Section 4(c) below, each Stockholder
hereby releases and forever discharges the Company from all
liquidated damages accrued or accruing for the period through
August 31, 2005 that the undersigned has, under
Section 3.10(d) of the 2004 Agreement, by reason of the
failure of the Company to file and have declared effective by the
Securities and Exchange Commission a registration statement
covering
