EXHIBIT 10.04
AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into on the 8th day of
February, 2001, by and between ARTISOFT, INC., a Delaware corporation (the
"Company"), and Xxxxxx Xxxxxx (the "Executive").
The Company considers it essential to the best interests of its
stockholders to take reasonable steps to retain key management personnel.
Further, the Board of Directors of the Company (the "Board") recognizes that the
concerns which might arise among management during a period of financial
uncertainty regarding the Company could result in the distraction or departure
of management personnel to the detriment of the Company and its stockholders.
The Board has determined, therefore, that appropriate steps should be taken
to reinforce and encourage the continued attention and dedication of the key
management of the Company to their assigned duties without distraction in the
face of difficult circumstances, and potential concern that less severance
benefits might be paid (in the case of involuntary termination) to those
employees whose loyalty and dedication caused there to remain in the employment
of the Company despite these difficult circumstances.
In order to induce you to remain in the employ of the Company, the Company
has determined to enter into this Agreement which addresses the terms and
conditions of severance benefits in the event of an involuntary termination of
employment with the Company other than in connection with a Change in Control of
the Company.
ARTICLE I
DEFINITIONS
For purposes of this Agreement, in addition to other defined terms
contained in this Agreement, the following capitalized words shall have the
meanings set forth below:
1.1 "CAUSE" shall mean a termination of the Executive's employment during
the Term which is a result of (i) the Executive's felony conviction, (ii) the
Executive's willful and detrimental disclosure to third parties of material
trade secrets or other material confidential information related to the business
of the Company and its subsidiaries or (iii) the Executive's willful and
continued failure substantially to perform the Executive's duties with the
Company (other than any such failure resulting from the Executive's incapacity
due to physical or mental illness) after a written demand for substantial
performance is delivered to the Executive by the Board, which demand
specifically identifies the manner in which the Board believes that the
Executive has not substantially performed the Executive's duties, and which
performance is not substantially corrected by the Executive within ten (10) days
of receipt of such demand. For purposes of the previous sentence, no act or
failure to act on the Executive's part shall be deemed "willful" unless done, or
omitted to be done, by the Executive not in good faith and without reasonable
belief that the Executive's action or omission was in the best interest of the
Company.
1.2 "INVOLUNTARY TERMINATION" shall mean the Executive's termination of
employment by the Company and its subsidiaries during the Term other than for
Cause or Disability.
1.3 "CHANGE IN CONTROL" shall mean a Change in Control of the Company as
defined in the Change of Control Agreement between the Company and the Executive
dated August 25, 1998.
1.4 The "TERM" of this Agreement shall commence on the date hereof and
shall continue until the Third anniversary of the date hereof.
ARTICLE II
INVOLUNTARY TERMINATION DURING THE TERM
2.1 In the event of the Executive's Involuntary Termination during the
Term, the Company shall pay the Executive his base salary, as and whets the same
would have been paid, for a period of nine (9) months following the termination
date or until the Executive obtains employment, whichever first shall occur (the
"Salary Continuation Period") / or the Company shall pay the Executive a
"lump-sum" severance payment in the amount equal to six (6) months of current
annual base salary, before appropriate withholding, upon execution of the
Release attached hereto as Appendix "A" by the Executive.
2.2 In addition, Executive's health and dental coverage will be extended
through the Salary Continuation Period at the Company's expense.
2.3 Executive agrees that during the Salary Continuation Period he shall be
reasonably available, from time to time, for consultation as may be requested by
the Company upon reasonable notice.
2.4 Executive agrees to promptly notify the Company when Executive' s new
employment has commenced.
2.5 The severance benefits set forth above shall be provided subject to the
execution by Executive of the Release attached hereto as Exhibit A.
ARTICLE III
MISCELLANEOUS
3.1 NOTICE. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified or registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth below, or to such other
addresses as either party may have furnished to the other in writing in
accordance herewith, except that notice of a change of address shall be
effective only upon actual receipt:
To the Company: Artisoft, Inc.
0 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Chairman of the Board
To the Executive: Xxxxxx Xxxxxx
3.2 AMENDMENTS, WAIVERS ETC. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing. No wavier by either party hereto at any time of any breach
by the other party hereto of, or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provision or conditions at the same or at any prior or
subsequent time. No agreements or representation, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement and this Agreement
shall supersede all prior agreements, negotiations, correspondence, undertakings
and communications of the parties, oral or written, with respect to the subject
matter hereof; PROVIDED, HOWEVER, that, except as expressly set forth herein,
this Agreement shall not supersede the terms of Equity Awards previously granted
to the Executive.
3.3 VALIDITY. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
3.4 COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but of all of which together
will constitute one and the same instrument.
3.5. NO CONTRACT OF EMPLOYMENT. Nothing in this Agreement shall be
construed as giving the Executive any right to be retained in the employ of the
Company.
3.6 WITHHOLDING. Amounts paid to the Executive hereunder shall be subject
to all applicable federal, state and local withholding taxes.
3.7 HEADING. The heading contained in this Agreement are intended solely
for convenience of reference and shall not affect the rights of the parties to
this Agreement.
3.8 GOVERNING LAW. The validity, interpretation, construction, and
performance of this Agreement shall be governed by the laws of the State of
Arizona applicable to contracts entered into and to be performed wholly in such
State.
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first indicated above.
ARTISOFT, INC.
By /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
Chairman of the Board
/s/ Xxxxxx X. Xxxxxx
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Xxxxx Xxxxxx
Executive
