EXHIBIT 10.17
**SEPARATION AND RELEASE AGREEMENT**
     This **SEPARATION AND RELEASE AGREEMENT**(the “Agreement”) is made andentered into by and between **Raindance Communications, Inc.**(“Raindance” or “theCompany”) and Paul Berberian (“Mr. Berberian”) (collectively “parties”) as ofthe Execution Date of this Agreement defined in Paragraph 26 below.
**I. RECITALS**
     **WHEREAS**, both parties desire that Mr. Berberian terminate his employmentwith Raindance effective as of the close of business on December 31, 2003; and
     **WHEREAS**, the parties wish to make the separation amicable but conclusiveon the terms and conditions set forth herein; and
     **WHEREAS**, Mr. Berberian accepts the benefits of this Separation and ReleaseAgreement with the acknowledgment that by its terms he has been fully andsatisfactorily compensated; and
     **WHEREAS**, the parties agree that this Separation and Release Agreementsupercedes, replaces and extinguishes any and all other rights and obligationsbetween the parties related to Mr. Berberian’s employment at Raindance,including but not limited to, any rights and obligations contained in thePersonal Services Agreement entered into by Mr. Berberian with the Company onNovember 17, 1999, and the Amendment to that Personal Services Agreement datedJune 26, 2002.
**II. COVENANTS**
     **THEREFORE**, in consideration of the Recitals set forth above which areincorporated herein by reference and of the mutual promises and covenantscontained in this Separation and Release Agreement, it is hereby agreed by andbetween 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 herebyacknowledges his termination as Chief Executive Officer. Notwithstanding histermination as an employee, Mr. Berberian shall continue to serve as a Directorand as Chairman of the Company’s Board of Directors. Upon the request of theBoard, 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 Directoruntil 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 requiringpayment of any severance benefits, Raindance agrees to the following as part ofthis 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 theSeparation Date for a period of eighteen (18) months commencing on the firstbusiness day following the Separation Date (“Severance Period”). Thesepayments will be made on Raindance’s ordinary payroll dates, and will besubject to standard payroll deductions and withholding. Raindance shall alsopay to Mr. Berberian a bonus of $232,500 for 2004. Payment of the bonus shallbe 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 ReleaseAgreement, including but not limited to, Paragraphs 10, 11 and 15 of theSeparation 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 andhis family and, later, to convert to an individual policy. Raindance willprovide Mr. Berberian a COBRA notification form setting forth his rights andresponsibilities with regard to COBRA coverage. Should Mr. Berberian timelyelect to continue coverage pursuant to COBRA, Raindance agrees to pay COBRApremiums for him and his family for eighteen (18) months commencing on theSeparation Date in order for Mr. Berberian to maintain health insurance that issubstantially equivalent to his coverage immediately prior to the SeparationDate (“COBRA Reimbursement Period”), or at Mr. Berberian’s election, Raindancewill directly reimburse Mr. Berberian for such premiums. In any event, andnotwithstanding any provision to the contrary in this Paragraph, Raindanceshall have no obligation to make any payments for COBRA premiums paid forhealth insurance coverage beyond the expiration of the COBRA ReimbursementPeriod. Raindance shall make payments pursuant to this section within 15 daysof Mr. Berberian’s provision of proper documentation of the expense.
          **(c) Life Insurance**. Upon the Separation Date, Raindance will execute alldocuments necessary to transfer any personal life insurance policies to him.Raindance shall reimburse Mr. Berberian for the cost of such policies on hislife during the Severance Period.
          **(d) Stock Options**. Mr. Berberian is the holder of options to purchase842,755 shares of Raindance common stock. The dates of grant and exerciseprices for those options are set forth on Exhibit A to this Agreement. Inconsideration for the covenants, promises and agreements contained in thisSeparation and Release Agreement including, but not limited to, the covenantscontained in Paragraphs 10 and 11, and in accordance with provisions of hisPersonal Services Agreement applicable to a termination of employment byRaindance without cause or by Mr. Berberian for good reason, all such optionsshall become fully exercisable as of the Separation Date and the period forexercise of such Options shall be extended so that it shall remain exercisablefor three years from the Separation Date.
          **(e) Shares**. Mr. Berberian (or affiliated entities) are the holders of2,221,799 shares of Raindance common stock. 200,000 shares are subject toforfeiture and will be cancelled as of the Separation Date. The remaining2,021,799 shares will be retained by Mr. Berberian (or affiliated entities).Following Mr. Berberian’s resignation from the board of directors, Raindanceagrees, subject only to legal restrictions imposed by federal or statesecurities laws, to take all actions reasonably required to remove allrestrictions on such shares as soon as such removal is legally permissible inorder to permit Mr. Berberian (or affiliated entities) to sell such shares inthe open market without restriction.
          **(f) Business Support**. For a period of eight (8) months from theSeparation Date, Raindance shall provide reasonable executive administrativesupport and technical IT support for Mr. Berberian. Mr. Berberian agrees thatsuch executive administrative support is intended to be reducing in scope andamount during such eight-month period, and he further agrees to use his bestefforts for his personal communications and computer resources to becomeindependent of the Raindance IT system by April 1, 2004. In addition,Raindance will agree to support and maintain the Internet address and Microsoftexchange server Outlook email support of berberian.com during the SeverancePeriod.
     **4. Other Compensation**. Except as expressly provided herein, including butnot limited to Mr. Berberian’s receipt of his salary through the SeparationDate, Mr. Berberian acknowledges and agrees that he will not receive (nor is heentitled 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 hiscapacity as a Raindance employee through the Separation Date consistent withRaindance’s policies in this regard. Mr. Berberian acknowledges and agreesthat unless expressly referenced herein, Raindance will not reimburse him forany expenses he incurs after the Separation Date. Mr. Berberian must submitthe necessary documentation establishing the amount, date and reason forexpenses he incurred and for which he seeks reimbursement no later than 30 daysafter the Separation Date. The Compensation Committee may review and evaluateany such expense to determine whether such business expense will be reimbursed.
     **6. Non-Interference**. Mr. Berberian agrees that he will not discuss anyconfidential aspect of Raindance’s business or affairs with any employee,stockholder, customer, vendor, strategic partner of Raindance or other thirdparty, except as may be requested by Raindance from time to time, as may beotherwise agreed to by Raindance, or as he is legally entitled to as ashareholder 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 tobe harmful to the other party’s business or personal reputation, or thepersonal or business reputation of Raindance’s directors, shareholders and/oremployees. Notwithstanding the prohibition in the preceding sentence, eachparty shall respond accurately and fully to any question, inquiry, or requestfor information when required by legal process. Each party acknowledges andagrees that this paragraph 7 is a material consideration to the other party’sentering into this Separation and Release Agreement and that breach of thisparagraph 7 constitutes a material breach of the Separation and ReleaseAgreement.
     **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 fullycooperate with Raindance in all matters relating to the winding up of hispending work on behalf of Raindance and the orderly transfer of work to hispermanent CEO replacement. In addition, at such time as a new chair isselected for the Raindance Board of Directors, Berberian also agrees to fullycooperate in the orderly transfer of work to his Chair replacement. During theSeverance Period, Mr. Berberian shall also cooperate in the resolution of anydispute, including litigation of any action, involving Raindance that relatesin any way to Mr. Berberian’s activities while employed by Raindance.Raindance shall pay Mr. Berberian’s reasonable out-of-pocket expenses incurredin connection with his services in this regard.
     **9. Raindance Property**. Except as expressly identified herein as items tobe retained by Mr. Berberian (“Retained Property”), Mr. Berberian agrees toreturn to Raindance all Raindance documents (and all copies thereof) and anyand all other Raindance property in Mr. Berberian’s possession, custody orcontrol, including, but not limited to, financial information, customerinformation, customer lists, employee lists, Raindance files, notes, cellulartelephones, personal computers, contracts, drawings, records, business plansand forecasts, financial information, specifications, computer-recordedinformation, software, tangible property, credit cards, entry cards,identification badges and keys, and any materials of any kind which contain orembody any proprietary or confidential material of Raindance (and allreproductions thereof) (the “Raindance Property”). For purposes of thisSeparation and Release Agreement, the Retained Property is identified as thefollowing items: the desktop computer (including associated standard packagedsoftware applications to the extent legally transferable without the payment ofadditional fees by Raindance to an individual not associated with Raindance),laptop computer, monitor, printer, cell phone, PDA, and all personal officefurniture used by Mr. Berberian in his day-to-day services for Raindance. TheRetained Property will also include the berberian.com domain name, which willbe transferred to Mr. Berberian. Mr. Berberian acknowledges and agrees thatRaindance shall have the right and opportunity to sterilize the RetainedProperty 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 reflectingthe depreciated book value of the Retained Property.
     **10. Non-Competition**. Mr. Berberian acknowledges and agrees that duringhis employment with Raindance, he had access to confidential and proprietarybusiness and technological information belonging to Raindance. As a conditionto receiving the severance payments contained in this Separation and ReleaseAgreement, and in order to protect the confidential information and customerrelationships to which Mr. Berberian had access, and to protect the good willand other business interests of Raindance, Mr. Berberian agrees to thefollowing provisions:
          **(a)**Mr. Berberian covenants and agrees with Raindance that for a period oftwenty-four (24) months from the Separation Date, Mr. Berberian will not engageor 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 orrepresentative capacity whatever, in the conduct or management of, or own anystock or other proprietary interest in, or debt of, any business organization,person, firm, partnership, association, corporation, enterprise or other entitythat shall be engaged in any business (whether in operation or in the planning,research or development stage) that is a Competitive Business anywhere in theRestricted Territory, unless Mr. Berberian shall obtain the prior writtenconsent of the Board, given in its sole discretion, which consent shall makeexpress reference to this Separation and Release Agreement. Notwithstanding theforegoing, Mr. Berberian may make passive investments in any company whosestock is listed on a national securities exchange or traded in theover-the-counter market so long as he does not come to own, directly orindirectly, more than one percent (1%) of the equity securities of suchcompany. For purposes of this Separation and Release Agreement, a businessshall be considered a “Competitive Business” if it involves or relates toaudio-conferencing, web-conferencing, or video-conferencing services. The term“Restricted Territory” shall mean each and every county, province, state, cityor 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 entityin hiring or attempting to hire any current employee ofRaindance or any person who was a Raindance employee withinthe three (3) month period prior to the Separation Date of Mr.Berberian’s employment; provided, however that thisprohibition on solicitation of Raindance’s employees shall notapply to the person acting as Mr. Berberian’s currentexecutive assistant, Kristi Moon, as of the date oftermination of Mr. Berberian’s employment;
**(ii)**Solicit, divert, or take away, in competition withRaindance, the business or patronage of any current Raindancecustomer. Notwithstanding the foregoing, this restrictionshall not apply to any person or entity who is no longer acustomer at the time of any such solicitation by Mr.Berberian.
          **(c)**Mr. Berberian agrees that if he acts in violation of Paragraph 10 orParagraph 11 of this Separation and Release Agreement, the number of days thatsuch violation exists will be added to any period of limitations on thespecific activities.
          **(d)**The covenants contained in Paragraph 10(a) shall be construed as aseries of separate covenants, one for each county, province, state, city orother political subdivision of the Restricted Territory. Except for geographiccoverage, each such separate covenant shall be deemed identical in terms to thecovenant contained in Paragraph 10(a). If, in any judicial proceeding, a courtrefuses to enforce any of such separate covenants (or any part thereof), thensuch unenforceable covenant (or such part) shall be eliminated from thisSeparation and Release Agreement to the extent necessary to permit theremaining separate covenants (or portions thereof) to be enforced. In the eventthat the provisions of this Paragraph 10 are deemed to exceed the time,geographic or scope limitations permitted by applicable law, then suchprovisions shall be reformed to the maximum time, geographic or scopelimitations, as the case may be, permitted by applicable laws.
          **(e)**Without limitation of any of the provisions of this Paragraph 10, anypayments to be made to Mr. Berberian during the Severance Period shall bedeemed to secure his agreements set forth in this Paragraph 10 and suchpayments may be terminated by the Raindance if Mr. Berberian fails to observethe agreements set forth in this Paragraph 10 and fails to cure such failurewithin ten (10) days of receipt of written notice of such failure.
          **(f)**Mr. Berberian (i) acknowledges that his skills and experience are suchthat he can anticipate finding employment at a senior level in his profession,and (ii) represents and agrees that the restrictions imposed by this Paragraph10 on engaging in competitive business activities are necessary for theprotection of the legitimate interests and competitive position of Raindanceand do not impose undue hardships on him.
     **11. Confidentiality**.
          **(a) Confidential Information**. Mr. Berberian acknowledges that he has hadaccess to certain information related to the business, operations, future plansand customers of Raindance, the disclosure or use of which could causeRaindance substantial losses and damages. Accordingly, Mr. Berberian covenantsthat he will keep confidential all information and documents furnished to himby or on behalf of Raindance and not use the same to his advantage, except tothe extent such information or documents are lawfully obtained from othersources on a non-confidential (as to Raindance) basis or are in public domainthrough no fault on his part or is consented to in writing by Raindance.
          **(b) Innovations, Patents, and Copyrights**. Mr. Berberian agrees to promptlydisclose, in writing, all Innovations to Raindance. Mr. Berberian furtheragrees to provide all assistance requested by Raindance, at its expense, in thepreservation of its interests in any Innovations, and hereby assigns and agreesto assign to Raindance all rights, title and interest in and to all worldwidepatents, patent applications, copyrights, trade secrets and other intellectualproperty rights or “Moral Rights” in any Innovation.
 

 

     “Innovations” shall mean all developments, improvements, designs, originalworks of authorship, formulas, processes, software programs, databases, andtrade secrets, whether or not patentable, copyrightable or protectable as tradesecrets, that Mr. Berberian by himself or jointly with others, created,modified, developed, or implemented during the period of Mr. Berberian’semployment which relate in any way to Raindance’s business. The termInnovations shall not include Innovations developed entirely on Mr. Berberian’sown time without using Raindance’s equipment, supplies, facilities orConfidential Information, and which neither relate to Raindance’s business, norresult from any work performed by or for Raindance.
     **12. Right To Injunctive Relief**. Mr. Berberian agrees and acknowledgesthat a violation of the covenants contained in Paragraphs 10 and 11 of thisSeparation and Release Agreement will cause irreparable damage to Raindance,and that it is and may be impossible to estimate or determine the damage thatwill be suffered by Raindance in the event of a breach by Mr. Berberian of anysuch covenant. Therefore, Mr. Berberian further agrees that in the event of anyviolation or threatened violation of such covenants, Raindance shall beentitled as a matter of course to an injunction out of any court of competentjurisdiction restraining such violation or threatened violation by Mr.Berberian. Such right to an injunction to be cumulative and in addition towhatever other remedies Raindance may have.
     **13. Denial Of Liability**. The parties acknowledge that any payment byRaindance and any release by Mr. Berberian pursuant to this Separation andRelease Agreement are made in compromise of disputed claims, that in making anysuch payment or release, Raindance and Mr. Berberian in no way admit anyliability to each other, and that the parties expressly deny any suchliability.
     **14. Non-Disclosure Of Agreement**. Mr. Berberian acknowledges thatconfidentiality and nondisclosure are material considerations for Raindanceentering into this Separation and Release Agreement. As such, the provisionsof this Separation and Release Agreement shall be held in strictest confidenceand shall not be publicized or disclosed in any manner whatsoever, includingbut not limited to, the print or broadcast media, any public network such asthe Internet, any other outbound data program such as computer generated mail,reports or faxes, or any source likely to result in publication or computerizedaccess. Notwithstanding the prohibition in the preceding sentence: (a) theparties may disclose this Separation and Release Agreement in confidence totheir respective attorneys, accountants, auditors, tax preparers, and financialadvisors; (b) Raindance may disclose this Separation and Release Agreement asnecessary to fulfill standard or legally required corporate or public reportingor disclosure requirements; (c) Raindance may disclose this Separation andRelease Agreement upon request from any government entity; and (d) the partiesmay disclose this Separation and Release Agreement insofar as such disclosuremay be necessary to enforce its terms or as otherwise required by law. In theevent that Raindance makes a public disclosure of this document pursuant to theexceptions set forth above, Mr. Berberian will be released from the obligationsset forth in this paragraph.
     **15. Releases**.
          **(a) Release of Claims by Mr. Berberian**. In consideration for theconsideration set forth in this Separation and Release Agreement and the mutualcovenants of Raindance and Mr. Berberian, Mr. Berberian hereby releases,acquits and forever discharges Raindance, its affiliated corporations andentities, its and their officers, directors, agents, representatives, servants,attorneys, employees, shareholders, successors and assigns of and from any andall 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, disclosedand undisclosed, liquidated or contingent, arising out of or in any way relatedto agreements, events, acts or conduct at any time prior to and including theExecution Date, including but not limited to: any and all such claims anddemands 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, stockoptions, or any ownership interests in Raindance, vacation pay, personal timeoff, fringe benefits, expense reimbursements, sabbatical benefits, severancebenefits, 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 CivilRights Act of 1964, or any other statute, agreement or source of law; thefederal Americans with Disabilities Act of 1990; the Family and Medical LeaveAct; Colorado Fair Employment Act; tort law; contract law; wrongful discharge;discrimination; harassment; fraud; defamation; libel; emotional distress; andbreach of the implied covenant of good faith and fair dealing. Mr. Berberianagrees that in the event he brings a claim covered by this release in which heseeks
 

 

 damages against Raindance or in the event he seeks to recover againstRaindance in any claim brought by a governmental agency on his behalf, thisSeparation and Release Agreement shall serve as a complete defense to suchclaims. Notwithstanding the foregoing, nothing in this paragraph shall releasethe Company’s obligation to indemnify Mr. Berberian in accordance with theindemnification obligations set forth in the Company’s Certificate ofIncorporation, Bylaws, the Indemnity Agreement between the Company and Mr.Berberian and under any applicable law. Notwithstanding anything to thecontrary herein, this release shall not extend to liabilities or claimsresulting from criminal conduct as determined by a criminal court of law.
          **(b) Release of Claims by Raindance**. In consideration for theconsideration set forth in this Separation and Release Agreement and the mutualcovenants of Raindance and Mr. Berberian, Raindance hereby releases, acquitsand 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 andall 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 orindirectly arising out of or in any way connected with Mr. Berberian’semployment with Raindance or the conclusion of that employment; claims ordemands related to pursuant to any federal, any state or any local law,statute, common law or cause of action or any other statute, agreement orsource of law; tort law; contract law; discrimination; harassment; fraud;defamation; libel; emotional distress; and breach of the implied covenant ofgood faith and fair dealing (collectively each of these shall be referred to as“Claims” or “Liabilities”). Raindance agrees that in the event it brings aclaim covered by this release in which it seeks damages against Raindance or inthe event it seeks to recover against Raindance in any claim brought by agovernmental agency on his behalf, this Separation and Release Agreement shallserve as a complete defense to such claims. Notwithstanding anything to thecontrary herein, this release shall not extend to Liabilities or Claims thatwere unknown to Raindance or could not reasonably have been known to Raindanceor Claims and Liabilities resulting from criminal conduct as determined by acriminal court of law.
     **16. Tax Consequences**. Mr. Berberian agrees to indemnify Raindance andhold Raindance harmless from any and all claims or penalties asserted againstRaindance for any failure to pay taxes due on any consideration provided byRaindance pursuant to this Separation and Release Agreement. Mr. Berberianexpressly acknowledges that Raindance has not made, nor herein makes, anyrepresentation about the tax consequences of any consideration provided byRaindance to Mr. Berberian pursuant to this Separation and Release Agreement.
     **17. No Third-Party Rights**. The parties agree that by making thisSeparation and Release Agreement they do not intend to confer any benefits,privileges, or rights to others. The Separation and Release Agreement isstrictly between the parties hereto, subject to the terms of paragraph 21below, and it shall not be construed to vest in any other the status ofthird-party beneficiary.
     **18. Voluntary And Knowingly**. Mr. Berberian acknowledges that in executingthis Separation and Release Agreement, he has reviewed it and understands itsterms and had an opportunity and was advised to seek guidance from counsel ofhis own choosing, and was fully advised of his rights under law, and actedknowingly and voluntarily.
     **19. Duty To Effectuate**. The parties agree to perform any lawfuladditional acts, including the execution of additional agreements, as arereasonably necessary to effectuate the purpose of this Separation and ReleaseAgreement.
     **20. Entire Agreement**. This Separation and Release Agreement constitutesthe complete, final, and exclusive embodiment of the entire agreement betweenMr. Berberian and Raindance with regard to the subject matter hereof. ThisSeparation and Release Agreement is entered into without reliance on anypromise or representation, written or oral, other than those expresslycontained herein. It may not be modified except in a writing that refers tothis Separation and Release Agreement signed by Mr. Berberian and a dulyauthorized officer of Raindance.
     **21. Successors And Assigns**. This Separation and Release Agreement shallbind the heirs, personal representatives, successors, assigns, executors andadministrators of each party, and inure to the benefit of each party, its
 

 

 heirs, successors and assigns. In furtherance and not limitation of theforegoing, any payments or consideration due Mr. Berberian under the terms ofthis agreement shall inure to the benefit of his surviving spouse.
     **22. Applicable Law**. This Separation and Release Agreement was enteredinto in the State of Colorado, and the parties agree and intend that it beconstrued and enforced in accordance with the laws of the State of Colorado.
     **23. Forum**. Any controversy arising out of or relating to this Separationand Release Agreement or the breach thereof, or any claim or action to enforcethis Separation and Release Agreement or portion thereof, or any controversy orclaim requiring interpretation of this Separation and Release Agreement must bebrought in a forum located within the State of Colorado. No such action may bebrought in any forum outside the State of Colorado. Any action brought incontravention of this Paragraph 23 by one party is subject to dismissal at anytime and at any stage of the proceedings by the other, and no action taken bythe other in defending, counterclaiming or appealing shall be construed as awaiver of this right to immediate dismissal. A party bringing an action incontravention of this Paragraph 23 shall be liable to the other party for thecosts, expenses and attorneys’ fees incurred in successfully dismissing theaction or successfully transferring the action to a forum located within theState of Colorado.
     **24. Severable**. If any provision of this Separation and Release Agreementis determined to be invalid, void or unenforceable, in whole or in part, thisdetermination will not affect any other provision of this Separation andRelease Agreement, and the provision in question shall be modified so as to berendered enforceable.
     **25. Enforce According To Terms**. The parties intend this Separation andRelease Agreement to be enforced according to their terms.
     **26. Execution Date**. This Separation and Release Agreement is effective onthe later of the dates that each party signed this Separation and ReleaseAgreement (“Execution Date”).
     **27. Section Headings**. The section and paragraph headings contained inthis Separation and Release Agreement are for reference purposes only and shallnot affect in any way the meaning or interpretation of this Separation andRelease Agreement.
     **28. Attorneys’ Fees**. If any legal proceeding relating to any of thisAgreement is brought against any party to this Agreement, the prevailing partyshall be entitled to recover reasonable attorneys’ fees, costs anddisbursements (in addition to any other relief to which the prevailing partymay be entitled). Raindance agrees to reimburse Mr. Berberian for hisreasonable attorneys’ fees and costs incurred in connection with thenegotiation and drafting of this Agreement.
     **IN WITNESS WHEREOF**, the parties have duly authorized and caused thisSeparation 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