Consent and Waiver Agreement February 9, 2006
Exhibit 10.35
February 9, 2006
This Consent, Waiver and Release Agreement (this “Agreement”) is made and entered into as of the 9th day of February, 2006 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, $0.01 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).
1. Consent to 2006 Purchase Agreement. The Stockholders hereby consent to the 2006 Purchase Agreement and the transactions contemplated thereby, including without limitation, the issuance and sale of the Series D Preferred Stock and the 2006 Warrants pursuant thereto.
2. Waiver of Provisions of the 2005 Agreement. The Stockholders that are parties to the 2005 Agreement, on behalf of all of the parties to the 2005 Agreement, hereby waive Sections 3.4 [Right of First Refusal] and 4.2 [Issuance of Equity Securities], solely for purposes of effecting the transactions contemplated by the 2006 Purchase Agreement.
3. Waiver of Provisions of the 2004 Agreement. The Stockholders that are parties to the 2004 Agreement, on behalf of all of the parties to the 2004 Agreement, hereby waive Sections 3.4 [Right of First Refusal] and 4.2 [Issuance of Equity Securities], solely for purposes of effecting the transactions contemplated by the 2006 Purchase Agreement.
4. Consent to Amendment of Voting Agreements. Each Stockholder hereby consents to the amendment of each Voting Agreement as provided in each Amendment No. 1 to Voting Agreement of even date herewith, the form of which is attached hereto as Exhibit B.
5. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed via facsimile, which shall be deemed an original.
6. Severability. If any provision of this Agreement shall be declared void or unenforceable by any judicial or administrative authority, the validity or enforceability of any other provision and of the entire Agreement shall not be affected.
7. Enforceability. Upon execution of this Agreement by the undersigned Stockholders, the validity of any waiver, consent or amendment made hereunder shall be unaffected by the failure of any one or more stockholders of the Company to execute this Agreement.
8. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York.
9. Confidentiality. Each of the Stockholders hereby agrees, that except as required by law, to hold in confidence the 2006 Purchase Agreement, this Agreement, all of the terms thereof and all of the transactions contemplated thereby and hereby until such time as the material terms thereof and hereof are publicly disclosed by the Company (which the Company agrees to do in compliance with applicable law).
[Signature pages follow]
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COMPANY: | ||
ARTISOFT, INC. | ||
By: |
/s/ XXX XXXXXXXXX | |
Name: Xxx Xxxxxxxxx | ||
Title: CFO-Interim |
STOCKHOLDERS: | ||
M/C VENTURE PARTNERS V, L.P. | ||
By M/C VP V, LLC, its general partner | ||
By: |
/s/ XXXX X. XXXXXXX | |
Name: |
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Title: |
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M/C VENTURE INVESTORS, LLC | ||
By: |
/s/ XXXX X. XXXXXXX | |
Name: |
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Title: |
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CHESTNUT VENTURE PARTNERS, L.P. | ||
By Chestnut Street Partners, Inc., its general partner | ||
By: |
/s/ XXXX X. XXXXXXX | |
Name: |
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Title: |
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SPECIAL SITUATIONS FUND III, L.P. |
SPECIAL SITUATIONS CAYMAN FUND, L.P. | |||||||
By AWM Investment Company, Inc., its general partner | By AWM Investment Company, Inc., its general partner | |||||||
By: |
/s/ XXXXX X. GREENHOUSE |
By: |
/s/ XXXXX X. GREENHOUSE | |||||
Name: |
Name: |
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Title: |
Title: |
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SPECIAL SITUATIONS PRIVATE EQUITY FUND, L.P. | SPECIAL SITUATIONS TECHNOLOGY | |||||||
By MG Advisers L.L.C., its general partner | By SST Advisers, L.L.C., its general partner | |||||||
By: |
/s/ XXXXX X. GREENHOUSE |
By: |
/s/ XXXXX X. GREENHOUSE | |||||
Name: |
Name: |
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Title: |
Title: |
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SPECIAL SITUATIONS TECHNOLOGY FUND II, L.P. | ||||||||
By SST Advisers, L.L.C., its general partner | ||||||||
By: |
/s/ XXXXX X. GREENHOUSE |
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Name: |
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Title: |
PATHFINDER VENTURES III, L.L.C. | ||
By RRS Investments II, L.L.C., its Manager | ||
By Xxxxxxxxxx Revocable Trust, its Manager | ||
By: |
/s/ R. XXXXX XXXXXXXXXX | |
R. Xxxxx Xxxxxxxxxx, Trustee |
CORAL’S MOMENTUM FUND, LIMITED PARTNERSHIP | ||
By Coral’s Momentum Fund Management Partners, LLC, its General Partner | ||
By: |
/s/ XXXX XXXXXXX | |
Name: |
Xxxx Xxxxxxx | |
Title: |
Managing Director | |
By: |
/s/ XXXX X. XXXXXXXX | |
Name: |
Xxxx X. Xxxxxxxx | |
Title: |
Managing Director |