exv10w17



 


     EXHIBIT 10.17


SEPARATION AND RELEASE AGREEMENT




     This SEPARATION AND RELEASE AGREEMENT (the “Agreement”) is made and
entered into by and between Raindance Communications, Inc. (“Raindance” or “the
Company”) and Paul Berberian (“Mr. Berberian”) (collectively “parties”) as of
the Execution Date of this Agreement defined in Paragraph 26 below.


I. RECITALS




     WHEREAS, both parties desire that Mr. Berberian terminate his employment
with Raindance effective as of the close of business on December 31, 2003; and


     WHEREAS, the parties wish to make the separation amicable but conclusive
on the terms and conditions set forth herein; and


     WHEREAS, Mr. Berberian accepts the benefits of this Separation and Release
Agreement with the acknowledgment that by its terms he has been fully and
satisfactorily compensated; and


     WHEREAS, the parties agree that this Separation and Release Agreement
supercedes, replaces and extinguishes any and all other rights and obligations
between the parties related to Mr. Berberian’s employment at Raindance,
including but not limited to, any rights and obligations contained in the
Personal Services Agreement entered into by Mr. Berberian with the Company on
November 17, 1999, and the Amendment to that Personal Services Agreement dated
June 26, 2002.


II. COVENANTS




     THEREFORE, in consideration of the Recitals set forth above which are
incorporated herein by reference and of the mutual promises and covenants
contained in this Separation and Release Agreement, it is hereby agreed by and
between the parties hereto as follows:


     1. Resignation. Effective as of December 31, 2003 (“Separation Date”),
Mr. Berberian’s employment with Raindance shall cease. Mr. Berberian hereby
acknowledges his termination as Chief Executive Officer. Notwithstanding his
termination as an employee, Mr. Berberian shall continue to serve as a Director
and as Chairman of the Company’s Board of Directors. Upon the request of the
Board, Mr. Berberian agrees to resign as Chairman or as a Director, or both.
Mr. Berberian agrees not to resign voluntarily as Chairman or as a Director
until the Board elects a new permanent Chief Executive Officer.


     2. Compensation. Mr. Berberian will continue to receive his salary,
bonus, and benefits through the Separation Date. Raindance will compensate Mr.
Berberian for all accrued compensation and vacation as of the Separation Date.


     3. Consideration. Although Raindance has no policy or procedure requiring
payment of any severance benefits, Raindance agrees to the following as part of
this Separation and Release Agreement.


          (a) Severance Benefits. Raindance will make severance payments to Mr.
Berberian in the form of continuation of his Base Salary in effect on the
Separation Date for a period of eighteen (18) months commencing on the first
business day following the Separation Date (“Severance Period”). These
payments will be made on Raindance’s ordinary payroll dates, and will be
subject to standard payroll deductions and withholding. Raindance shall also
pay to Mr. Berberian a bonus of $232,500 for 2004. Payment of the bonus shall
be made no earlier than January 1, 2005 and no later than January 31, 2005.
All payments made during the Severance Period are expressly conditioned on Mr.
Berberian’s compliance with his obligations under the Separation and Release
Agreement, including but not limited to, Paragraphs 10, 11 and 15 of the
Separation and Release Agreement.


 







 


          (b) Health Insurance. To the extent permitted by federal COBRA law, Mr.
Berberian will be eligible to continue health insurance benefits for him and
his family and, later, to convert to an individual policy. Raindance will
provide Mr. Berberian a COBRA notification form setting forth his rights and
responsibilities with regard to COBRA coverage. Should Mr. Berberian timely
elect to continue coverage pursuant to COBRA, Raindance agrees to pay COBRA
premiums for him and his family for eighteen (18) months commencing on the
Separation Date in order for Mr. Berberian to maintain health insurance that is
substantially equivalent to his coverage immediately prior to the Separation
Date (“COBRA Reimbursement Period”), or at Mr. Berberian’s election, Raindance
will directly reimburse Mr. Berberian for such premiums. In any event, and
notwithstanding any provision to the contrary in this Paragraph, Raindance
shall have no obligation to make any payments for COBRA premiums paid for
health insurance coverage beyond the expiration of the COBRA Reimbursement
Period. Raindance shall make payments pursuant to this section within 15 days
of Mr. Berberian’s provision of proper documentation of the expense.


          (c) Life Insurance. Upon the Separation Date, Raindance will execute all
documents necessary to transfer any personal life insurance policies to him.
Raindance shall reimburse Mr. Berberian for the cost of such policies on his
life during the Severance Period.


          (d) Stock Options. Mr. Berberian is the holder of options to purchase
842,755 shares of Raindance common stock. The dates of grant and exercise
prices for those options are set forth on Exhibit A to this Agreement. In
consideration for the covenants, promises and agreements contained in this
Separation and Release Agreement including, but not limited to, the covenants
contained in Paragraphs 10 and 11, and in accordance with provisions of his
Personal Services Agreement applicable to a termination of employment by
Raindance without cause or by Mr. Berberian for good reason, all such options
shall become fully exercisable as of the Separation Date and the period for
exercise of such Options shall be extended so that it shall remain exercisable
for three years from the Separation Date.


          (e) Shares. Mr. Berberian (or affiliated entities) are the holders of
2,221,799 shares of Raindance common stock. 200,000 shares are subject to
forfeiture and will be cancelled as of the Separation Date. The remaining
2,021,799 shares will be retained by Mr. Berberian (or affiliated entities).
Following Mr. Berberian’s resignation from the board of directors, Raindance
agrees, subject only to legal restrictions imposed by federal or state
securities laws, to take all actions reasonably required to remove all
restrictions on such shares as soon as such removal is legally permissible in
order to permit Mr. Berberian (or affiliated entities) to sell such shares in
the open market without restriction.


          (f) Business Support. For a period of eight (8) months from the
Separation Date, Raindance shall provide reasonable executive administrative
support and technical IT support for Mr. Berberian. Mr. Berberian agrees that
such executive administrative support is intended to be reducing in scope and
amount during such eight-month period, and he further agrees to use his best
efforts for his personal communications and computer resources to become
independent of the Raindance IT system by April 1, 2004. In addition,
Raindance will agree to support and maintain the Internet address and Microsoft
exchange server Outlook email support of berberian.com during the Severance
Period.


     4. Other Compensation. Except as expressly provided herein, including but
not limited to Mr. Berberian’s receipt of his salary through the Separation
Date, Mr. Berberian acknowledges and agrees that he will not receive (nor is he
entitled to receive) any additional consideration, payments, reimbursements,
stock or benefits of any kind.


     5. Business Expense Reimbursement. Raindance agrees to reimburse Mr.
Berberian for those reasonable business expenses he necessarily incurs in his
capacity as a Raindance employee through the Separation Date consistent with
Raindance’s policies in this regard. Mr. Berberian acknowledges and agrees
that unless expressly referenced herein, Raindance will not reimburse him for
any expenses he incurs after the Separation Date. Mr. Berberian must submit
the necessary documentation establishing the amount, date and reason for
expenses he incurred and for which he seeks reimbursement no later than 30 days
after the Separation Date. The Compensation Committee may review and evaluate
any such expense to determine whether such business expense will be reimbursed.


     6. Non-Interference. Mr. Berberian agrees that he will not discuss any
confidential aspect of Raindance’s business or affairs with any employee,
stockholder, customer, vendor, strategic partner of Raindance or other third
party, except as may be requested by Raindance from time to time, as may be
otherwise agreed to by Raindance, or as he is legally entitled to as a
shareholder of Raindance.


 







 


     7. Non-Disparagement. Each of Raindance and Mr. Berberian agree to not,
at any time, disparage the other party to third parties in any manner likely to
be harmful to the other party’s business or personal reputation, or the
personal or business reputation of Raindance’s directors, shareholders and/or
employees. Notwithstanding the prohibition in the preceding sentence, each
party shall respond accurately and fully to any question, inquiry, or request
for information when required by legal process. Each party acknowledges and
agrees that this paragraph 7 is a material consideration to the other party’s
entering into this Separation and Release Agreement and that breach of this
paragraph 7 constitutes a material breach of the Separation and Release
Agreement.


     8. Cooperation in Pending Work. Prior to the Separation Date and for two
(2) months after selection of a permanent CEO, Mr. Berberian agrees to fully
cooperate with Raindance in all matters relating to the winding up of his
pending work on behalf of Raindance and the orderly transfer of work to his
permanent CEO replacement. In addition, at such time as a new chair is
selected for the Raindance Board of Directors, Berberian also agrees to fully
cooperate in the orderly transfer of work to his Chair replacement. During the
Severance Period, Mr. Berberian shall also cooperate in the resolution of any
dispute, including litigation of any action, involving Raindance that relates
in any way to Mr. Berberian’s activities while employed by Raindance.
Raindance shall pay Mr. Berberian’s reasonable out-of-pocket expenses incurred
in connection with his services in this regard.


     9. Raindance Property. Except as expressly identified herein as items to
be retained by Mr. Berberian (“Retained Property”), Mr. Berberian agrees to
return to Raindance all Raindance documents (and all copies thereof) and any
and all other Raindance property in Mr. Berberian’s possession, custody or
control, including, but not limited to, financial information, customer
information, customer lists, employee lists, Raindance files, notes, cellular
telephones, personal computers, contracts, drawings, records, business plans
and forecasts, financial information, specifications, computer-recorded
information, software, tangible property, credit cards, entry cards,
identification badges and keys, and any materials of any kind which contain or
embody any proprietary or confidential material of Raindance (and all
reproductions thereof) (the “Raindance Property”). For purposes of this
Separation and Release Agreement, the Retained Property is identified as the
following items: the desktop computer (including associated standard packaged
software applications to the extent legally transferable without the payment of
additional fees by Raindance to an individual not associated with Raindance),
laptop computer, monitor, printer, cell phone, PDA, and all personal office
furniture used by Mr. Berberian in his day-to-day services for Raindance. The
Retained Property will also include the berberian.com domain name, which will
be transferred to Mr. Berberian. Mr. Berberian acknowledges and agrees that
Raindance shall have the right and opportunity to sterilize the Retained
Property of any such Raindance Property prior to the Separation Date, and Mr.
Berberian shall cooperate and permit Raindance to accomplish these efforts.
Raindance may cause to be issued to Mr. Berberian an IRS Form 1099 reflecting
the depreciated book value of the Retained Property.


     10. Non-Competition. Mr. Berberian acknowledges and agrees that during
his employment with Raindance, he had access to confidential and proprietary
business and technological information belonging to Raindance. As a condition
to receiving the severance payments contained in this Separation and Release
Agreement, and in order to protect the confidential information and customer
relationships to which Mr. Berberian had access, and to protect the good will
and other business interests of Raindance, Mr. Berberian agrees to the
following provisions:


          (a) Mr. Berberian covenants and agrees with Raindance that for a period of
twenty-four (24) months from the Separation Date, Mr. Berberian will not engage
or participate, directly or indirectly, as principal, agent, employee,
employer, consultant, advisor, sole proprietor, stockholder, partner,
independent contractor, trustee, joint venturer or in any other individual or
representative capacity whatever, in the conduct or management of, or own any
stock or other proprietary interest in, or debt of, any business organization,
person, firm, partnership, association, corporation, enterprise or other entity
that shall be engaged in any business (whether in operation or in the planning,
research or development stage) that is a Competitive Business anywhere in the
Restricted Territory, unless Mr. Berberian shall obtain the prior written
consent of the Board, given in its sole discretion, which consent shall make
express reference to this Separation and Release Agreement. Notwithstanding the
foregoing, Mr. Berberian may make passive investments in any company whose
stock is listed on a national securities exchange or traded in the
over-the-counter market so long as he does not come to own, directly or
indirectly, more than one percent (1%) of the equity securities of such
company. For purposes of this Separation and Release Agreement, a business
shall be considered a “Competitive Business” if it involves or relates to
audio-conferencing, web-conferencing, or video-conferencing services. The term
“Restricted Territory” shall mean each and every county, province, state, city
or other political subdivision of the United States.


 







 


          (b) During the period of twenty-four (24) months from the Separation Date,
Mr. Berberian shall not engage in any of the following conduct:


(i) Hire, attempt to hire or assist any other person or entity
in hiring or attempting to hire any current employee of
Raindance or any person who was a Raindance employee within
the three (3) month period prior to the Separation Date of Mr.
Berberian’s employment; provided, however that this
prohibition on solicitation of Raindance’s employees shall not
apply to the person acting as Mr. Berberian’s current
executive assistant, Kristi Moon, as of the date of
termination of Mr. Berberian’s employment;


(ii) Solicit, divert, or take away, in competition with
Raindance, the business or patronage of any current Raindance
customer. Notwithstanding the foregoing, this restriction
shall not apply to any person or entity who is no longer a
customer at the time of any such solicitation by Mr.
Berberian.


          (c) Mr. Berberian agrees that if he acts in violation of Paragraph 10 or
Paragraph 11 of this Separation and Release Agreement, the number of days that
such violation exists will be added to any period of limitations on the
specific activities.


          (d) The covenants contained in Paragraph 10(a) shall be construed as a
series of separate covenants, one for each county, province, state, city or
other political subdivision of the Restricted Territory. Except for geographic
coverage, each such separate covenant shall be deemed identical in terms to the
covenant contained in Paragraph 10(a). If, in any judicial proceeding, a court
refuses to enforce any of such separate covenants (or any part thereof), then
such unenforceable covenant (or such part) shall be eliminated from this
Separation and Release Agreement to the extent necessary to permit the
remaining separate covenants (or portions thereof) to be enforced. In the event
that the provisions of this Paragraph 10 are deemed to exceed the time,
geographic or scope limitations permitted by applicable law, then such
provisions shall be reformed to the maximum time, geographic or scope
limitations, as the case may be, permitted by applicable laws.


          (e) Without limitation of any of the provisions of this Paragraph 10, any
payments to be made to Mr. Berberian during the Severance Period shall be
deemed to secure his agreements set forth in this Paragraph 10 and such
payments may be terminated by the Raindance if Mr. Berberian fails to observe
the agreements set forth in this Paragraph 10 and fails to cure such failure
within ten (10) days of receipt of written notice of such failure.


          (f) Mr. Berberian (i) acknowledges that his skills and experience are such
that he can anticipate finding employment at a senior level in his profession,
and (ii) represents and agrees that the restrictions imposed by this Paragraph
10 on engaging in competitive business activities are necessary for the
protection of the legitimate interests and competitive position of Raindance
and do not impose undue hardships on him.


     11. Confidentiality.


          (a) Confidential Information. Mr. Berberian acknowledges that he has had
access to certain information related to the business, operations, future plans
and customers of Raindance, the disclosure or use of which could cause
Raindance substantial losses and damages. Accordingly, Mr. Berberian covenants
that he will keep confidential all information and documents furnished to him
by or on behalf of Raindance and not use the same to his advantage, except to
the extent such information or documents are lawfully obtained from other
sources on a non-confidential (as to Raindance) basis or are in public domain
through no fault on his part or is consented to in writing by Raindance.


          (b) Innovations, Patents, and Copyrights. Mr. Berberian agrees to promptly
disclose, in writing, all Innovations to Raindance. Mr. Berberian further
agrees to provide all assistance requested by Raindance, at its expense, in the
preservation of its interests in any Innovations, and hereby assigns and agrees
to assign to Raindance all rights, title and interest in and to all worldwide
patents, patent applications, copyrights, trade secrets and other intellectual
property rights or “Moral Rights” in any Innovation.



 







 


     “Innovations” shall mean all developments, improvements, designs, original
works of authorship, formulas, processes, software programs, databases, and
trade secrets, whether or not patentable, copyrightable or protectable as trade
secrets, that Mr. Berberian by himself or jointly with others, created,
modified, developed, or implemented during the period of Mr. Berberian’s
employment which relate in any way to Raindance’s business. The term
Innovations shall not include Innovations developed entirely on Mr. Berberian’s
own time without using Raindance’s equipment, supplies, facilities or
Confidential Information, and which neither relate to Raindance’s business, nor
result from any work performed by or for Raindance.


     12. Right To Injunctive Relief. Mr. Berberian agrees and acknowledges
that a violation of the covenants contained in Paragraphs 10 and 11 of this
Separation and Release Agreement will cause irreparable damage to Raindance,
and that it is and may be impossible to estimate or determine the damage that
will be suffered by Raindance in the event of a breach by Mr. Berberian of any
such covenant. Therefore, Mr. Berberian further agrees that in the event of any
violation or threatened violation of such covenants, Raindance shall be
entitled as a matter of course to an injunction out of any court of competent
jurisdiction restraining such violation or threatened violation by Mr.
Berberian. Such right to an injunction to be cumulative and in addition to
whatever other remedies Raindance may have.


     13. Denial Of Liability. The parties acknowledge that any payment by
Raindance and any release by Mr. Berberian pursuant to this Separation and
Release Agreement are made in compromise of disputed claims, that in making any
such payment or release, Raindance and Mr. Berberian in no way admit any
liability to each other, and that the parties expressly deny any such
liability.


     14. Non-Disclosure Of Agreement. Mr. Berberian acknowledges that
confidentiality and nondisclosure are material considerations for Raindance
entering into this Separation and Release Agreement. As such, the provisions
of this Separation and Release Agreement shall be held in strictest confidence
and shall not be publicized or disclosed in any manner whatsoever, including
but not limited to, the print or broadcast media, any public network such as
the Internet, any other outbound data program such as computer generated mail,
reports or faxes, or any source likely to result in publication or computerized
access. Notwithstanding the prohibition in the preceding sentence: (a) the
parties may disclose this Separation and Release Agreement in confidence to
their respective attorneys, accountants, auditors, tax preparers, and financial
advisors; (b) Raindance may disclose this Separation and Release Agreement as
necessary to fulfill standard or legally required corporate or public reporting
or disclosure requirements; (c) Raindance may disclose this Separation and
Release Agreement upon request from any government entity; and (d) the parties
may disclose this Separation and Release Agreement insofar as such disclosure
may be necessary to enforce its terms or as otherwise required by law. In the
event that Raindance makes a public disclosure of this document pursuant to the
exceptions set forth above, Mr. Berberian will be released from the obligations
set forth in this paragraph.


     15. Releases.


          (a) Release of Claims by Mr. Berberian. In consideration for the
consideration set forth in this Separation and Release Agreement and the mutual
covenants of Raindance and Mr. Berberian, Mr. Berberian hereby releases,
acquits and forever discharges Raindance, its affiliated corporations and
entities, its and their officers, directors, agents, representatives, servants,
attorneys, employees, shareholders, successors and assigns of and from any and
all claims, liabilities, demands, causes of action, costs, expenses, attorneys’
fees, damages, indemnities and obligations of every kind and nature, in law,
equity, or otherwise, known or unknown, suspected and unsuspected, disclosed
and undisclosed, liquidated or contingent, arising out of or in any way related
to agreements, events, acts or conduct at any time prior to and including the
Execution Date, including but not limited to: any and all such claims and
demands directly or indirectly arising out of or in any way connected with Mr.
Berberian’s employment with Raindance or the conclusion of that employment;
claims or demands related to salary, bonuses, commissions, stock, stock
options, or any ownership interests in Raindance, vacation pay, personal time
off, fringe benefits, expense reimbursements, sabbatical benefits, severance
benefits, or any other form of compensation; claims pursuant to any federal,
any state or any local law, statute, common law or cause of action including,
but not limited to, the federal Civil Rights Act of 1964, as amended;
attorneys’ fees, costs, and other expenses under Title VII of the federal Civil
Rights Act of 1964, or any other statute, agreement or source of law; the
federal Americans with Disabilities Act of 1990; the Family and Medical Leave
Act; Colorado Fair Employment Act; tort law; contract law; wrongful discharge;
discrimination; harassment; fraud; defamation; libel; emotional distress; and
breach of the implied covenant of good faith and fair dealing. Mr. Berberian
agrees that in the event he brings a claim covered by this release in which he
seeks



 







 



 damages against Raindance or in the event he seeks to recover against
Raindance in any claim brought by a governmental agency on his behalf, this
Separation and Release Agreement shall serve as a complete defense to such
claims. Notwithstanding the foregoing, nothing in this paragraph shall release
the Company’s obligation to indemnify Mr. Berberian in accordance with the
indemnification obligations set forth in the Company’s Certificate of
Incorporation, Bylaws, the Indemnity Agreement between the Company and Mr.
Berberian and under any applicable law. Notwithstanding anything to the
contrary herein, this release shall not extend to liabilities or claims
resulting from criminal conduct as determined by a criminal court of law.


          (b) Release of Claims by Raindance. In consideration for the
consideration set forth in this Separation and Release Agreement and the mutual
covenants of Raindance and Mr. Berberian, Raindance hereby releases, acquits
and forever discharges Mr. Berberian, his affiliated corporations and entities,
its and their officers, directors, agents, representatives, servants,
attorneys, employees, shareholders, successors and assigns of and from any and
all claims, liabilities, demands, causes of action, costs, expenses, attorneys’
fees, damages, indemnities and obligations of every kind and nature, in law,
equity, or otherwise, that Raindance knows or reasonably could have known,
liquidated or contingent, arising out of or in any way related to agreements,
events, acts or conduct at any time prior to and including the Execution Date,
including but not limited to: any and all such claims and demands directly or
indirectly arising out of or in any way connected with Mr. Berberian’s
employment with Raindance or the conclusion of that employment; claims or
demands related to pursuant to any federal, any state or any local law,
statute, common law or cause of action or any other statute, agreement or
source of law; tort law; contract law; discrimination; harassment; fraud;
defamation; libel; emotional distress; and breach of the implied covenant of
good faith and fair dealing (collectively each of these shall be referred to as
“Claims” or “Liabilities”). Raindance agrees that in the event it brings a
claim covered by this release in which it seeks damages against Raindance or in
the event it seeks to recover against Raindance in any claim brought by a
governmental agency on his behalf, this Separation and Release Agreement shall
serve as a complete defense to such claims. Notwithstanding anything to the
contrary herein, this release shall not extend to Liabilities or Claims that
were unknown to Raindance or could not reasonably have been known to Raindance
or Claims and Liabilities resulting from criminal conduct as determined by a
criminal court of law.


     16. Tax Consequences. Mr. Berberian agrees to indemnify Raindance and
hold Raindance harmless from any and all claims or penalties asserted against
Raindance for any failure to pay taxes due on any consideration provided by
Raindance pursuant to this Separation and Release Agreement. Mr. Berberian
expressly acknowledges that Raindance has not made, nor herein makes, any
representation about the tax consequences of any consideration provided by
Raindance to Mr. Berberian pursuant to this Separation and Release Agreement.


     17. No Third-Party Rights. The parties agree that by making this
Separation and Release Agreement they do not intend to confer any benefits,
privileges, or rights to others. The Separation and Release Agreement is
strictly between the parties hereto, subject to the terms of paragraph 21
below, and it shall not be construed to vest in any other the status of
third-party beneficiary.


     18. Voluntary And Knowingly. Mr. Berberian acknowledges that in executing
this Separation and Release Agreement, he has reviewed it and understands its
terms and had an opportunity and was advised to seek guidance from counsel of
his own choosing, and was fully advised of his rights under law, and acted
knowingly and voluntarily.


     19. Duty To Effectuate. The parties agree to perform any lawful
additional acts, including the execution of additional agreements, as are
reasonably necessary to effectuate the purpose of this Separation and Release
Agreement.


     20. Entire Agreement. This Separation and Release Agreement constitutes
the complete, final, and exclusive embodiment of the entire agreement between
Mr. Berberian and Raindance with regard to the subject matter hereof. This
Separation and Release Agreement is entered into without reliance on any
promise or representation, written or oral, other than those expressly
contained herein. It may not be modified except in a writing that refers to
this Separation and Release Agreement signed by Mr. Berberian and a duly
authorized officer of Raindance.


     21. Successors And Assigns. This Separation and Release Agreement shall
bind the heirs, personal representatives, successors, assigns, executors and
administrators of each party, and inure to the benefit of each party, its



 







 



 heirs, successors and assigns. In furtherance and not limitation of the
foregoing, any payments or consideration due Mr. Berberian under the terms of
this agreement shall inure to the benefit of his surviving spouse.


     22. Applicable Law. This Separation and Release Agreement was entered
into in the State of Colorado, and the parties agree and intend that it be
construed and enforced in accordance with the laws of the State of Colorado.


     23. Forum. Any controversy arising out of or relating to this Separation
and Release Agreement or the breach thereof, or any claim or action to enforce
this Separation and Release Agreement or portion thereof, or any controversy or
claim requiring interpretation of this Separation and Release Agreement must be
brought in a forum located within the State of Colorado. No such action may be
brought in any forum outside the State of Colorado. Any action brought in
contravention of this Paragraph 23 by one party is subject to dismissal at any
time and at any stage of the proceedings by the other, and no action taken by
the other in defending, counterclaiming or appealing shall be construed as a
waiver of this right to immediate dismissal. A party bringing an action in
contravention of this Paragraph 23 shall be liable to the other party for the
costs, expenses and attorneys’ fees incurred in successfully dismissing the
action or successfully transferring the action to a forum located within the
State of Colorado.


     24. Severable. If any provision of this Separation and Release Agreement
is determined to be invalid, void or unenforceable, in whole or in part, this
determination will not affect any other provision of this Separation and
Release Agreement, and the provision in question shall be modified so as to be
rendered enforceable.


     25. Enforce According To Terms. The parties intend this Separation and
Release Agreement to be enforced according to their terms.


     26. Execution Date. This Separation and Release Agreement is effective on
the later of the dates that each party signed this Separation and Release
Agreement (“Execution Date”).


     27. Section Headings. The section and paragraph headings contained in
this Separation and Release Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Separation and
Release Agreement.


     28. Attorneys’ Fees. If any legal proceeding relating to any of this
Agreement is brought against any party to this Agreement, the prevailing party
shall be entitled to recover reasonable attorneys’ fees, costs and
disbursements (in addition to any other relief to which the prevailing party
may be entitled). Raindance agrees to reimburse Mr. Berberian for his
reasonable attorneys’ fees and costs incurred in connection with the
negotiation and drafting of this Agreement.


     IN WITNESS WHEREOF, the parties have duly authorized and caused this
Separation and Release Agreement to be executed as follows:



	 	 	 	 	 
	PAUL BERBERIAN, an individual	 	RAINDANCE COMMUNICATIONS, INC.
	 	 	 	 	 
	 	 	 	 	 
	/s/ Paul Berberian	 	
By: /s/ Nicholas J. Cuccaro	 	 
	
	 	

	 	 
	Paul Berberian	 	
Its: Chief Financial Officer	 	 
	 	 	

	 	 
	Date: October 14, 2003	 	Date: October 14, 2003