Exhibit 10.2
Execution Version
SUPPORT AND LOCK-UP AGREEMENT
This SUPPORT AND LOCK-UP AGREEMENT (this "Agreement") is entered into as
of September 12, 2007, by and among GoAmerica, Inc., a Delaware corporation (the
"Acquirer"), and the stockholders of Hands On Video Relay Services, Inc., a
Delaware corporation ("HOVRS"), identified on the signature pages hereto (each a
"Stockholder," and collectively, the "Stockholders").
RECITALS
A. Reference is hereby made to that certain Agreement and Plan of Merger
dated as of September 12, 2007 (as it may be amended from time to time, the
"Merger Agreement"), by and among Acquirer, HOVRS Acquisition Corporation, a
Delaware corporation and wholly owned subsidiary of Acquirer ("HOVRS Merger
Sub"), and HOVRS, pursuant to which, and subject to the terms and conditions
whereof, (i) HOVRS Merger Sub will merge with and into HOVRS and the separate
corporate existence of HOVRS Merger Sub will cease, (ii) each share of HOVRS
Common Stock will be converted into the right to receive the Common Merger
Consideration, and (iii) each share HOVRS Preferred Stock will be converted into
the right to receive the Preferred Merger Consideration (such transactions are
referred to herein as the "Merger").
B. As a condition to the willingness of Acquirer to enter into the Merger
Agreement, Acquirer has requested that the other parties hereto enter into this
Agreement, and such parties are willing to enter into this Agreement for such
purpose.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises herein contained,
and intending to be legally bound, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used herein without definition shall
have the same meanings as they are given in the Merger Agreement. As used
herein, the term "Shares" shall mean, with respect to each Stockholder, all
shares of HOVRS Common Stock and HOVRS Preferred Stock set forth opposite the
name of such Stockholder on Schedule I hereto, and any other voting securities
of HOVRS, whether issued before or after the date of this Agreement, that such
Stockholder purchases or with respect to which such Stockholder otherwise
acquires record or beneficial ownership after the date of this Agreement.
2. Conduct of Stockholders Pending Closing. Until the time specified in
paragraph 4 below, and except for all agreements and obligations of the
Stockholders hereunder and as contemplated by the Merger Agreement, unless
authorized in advance by the HOVRS Board of Directors and by the Acquirer Board
of Directors, each Stockholder, solely in its capacity as a stockholder of
HOVRS, agrees (a) not to sell or otherwise transfer any of its Shares or any
economic, voting or other direct or indirect interest therein, (b) not to grant
a proxy or enter into any voting agreement concerning any of the Shares, and (c)
at any meeting of the stockholders of HOVRS, to vote (or cause to be voted) the
Shares against (x) any merger agreement or merger,
consolidation, combination, sale of substantial assets, reorganization or
recapitalization of or by HOVRS or any of its subsidiaries (except in connection
with the Merger), or (y) any amendment of HOVRS's certificate of incorporation
or bylaws or other proposal or transaction involving HOVRS or any of its
subsidiaries (except in connection with the Merger), for the purpose of
impeding, frustrating, preventing or nullifying the Merger Agreement, the Merger
or any of the other transactions contemplated by the Merger Agreement.
3. Representations and Warranties. Each of the Stockholders hereby
represents and warrants to HOVRS and Acquirer that: (a) such Stockholder has the
power and authority to enter into and deliver this Agreement and perform its
obligations under this Agreement and, such Stockholder's execution and delivery
of this Agreement and performance of its obligations hereunder have been duly
and validly authorized by any necessary corporate or similar proceedings on the
part of such Stockholder, (b) this Agreement is binding on such Stockholder and
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles relating to
enforceability, (c) the execution and delivery of this Agreement and the
performance by such Stockholder of its obligations hereunder do not require the
authorization, consent, approval, license, exemption or other action by, or
filing with, any third party or governmental authority, do not violate
applicable law or conflict with or result in a breach of any of such
Stockholder's organizational documents or contractual obligations, (d) such
Stockholder owns the Shares that are identified as to such Stockholder on
Schedule I to this Agreement and that such Shares are free and clear of any
liens, claims or encumbrances of any kind apart from such Stockholder's
obligations under this Agreement, and (e) other than the Shares that are
identified as to such Stockholder on Schedule I to this Agreement, such
Stockholder does not own (beneficially or of record) any voting securities of
HOVRS.
4. Termination. The obligations of the Stockholders under this Agreement
shall terminate upon the earliest to occur of any of the following: (i) the
Merger Agreement is amended or modified or provisions waived, without the prior
written consent of the Stockholders, in a manner that is materially adverse to
the Stockholders, it being understood that any amendment, modification,
supplement or waiver that would reduce the amount or form of the Merger
Consideration payable in the Merger or extend the Outside Date shall be deemed
to be materially adverse to the Stockholders, (ii) the Merger Agreement, as it
may be amended or modified from time to time, is terminated in accordance with
its terms, (iii) the consummation of the Merger, or (iv) the written agreement
to terminate such provisions executed by each of the parties.
5. Notice. All notices and other communications hereunder shall be in
writing and shall be deemed duly delivered: (i) upon receipt if delivered
personally; (ii) three business days after being mailed by registered or
certified mail, postage prepaid, return receipt requested; (iii) one business
day after it is sent by commercial overnight courier service; or (iv) upon
transmission if sent via facsimile with confirmation of receipt to the parties
at the following address (or at such other address for a party as shall be
specified upon like notice):
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if to Acquirer to:
GoAmerica, Inc.
433 Hackensack Avenue
Hackensack, NJ 07601
Attention: Daniel R. Luis
Fax: (201) 996-1772
Tel: (201) 996-1717
with a copy to:
Chadbourne & Parke LLP
1200 New Hampshire Avenue, N.W.
Washington, DC 20036
Attention: Dana Frix
Fax: (973) 974-679
Tel: (202) 974-5691
If to any Stockholder,
to the address set forth below such
Stockholder's name on Schedule I hereto.
with a copy to:
Orrick, Herrington & Sutcliffe LLP
405 Howard Street
San Francisco, CA 94105
Attention: Richard Smith
Fax: (415) 773-5759
Tel: (415) 773-5830
6. Entire Agreement. This Agreement supersedes all prior agreements
between the parties with respect to its subject matter and constitutes a
complete and exclusive statement of the terms of the agreement between the
parties with respect to its subject matter.
7. No Other Rights. Nothing in this Agreement shall be considered to give
any person other than the parties any legal or equitable right, claim or remedy
under or in respect of this Agreement or any provision of this Agreement. This
Agreement and all of its provisions are for the sole and exclusive benefit of
the parties and their respective successors and permitted assigns.
8. Equitable Relief. Each of the parties hereto acknowledges that a breach
by it of any provision contained in this Agreement will cause the other parties
to sustain damage for
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which they would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such
breach, the aggrieved party shall be entitled to the remedy of specific
performance of such agreement and injunctive and other equitable relief in
addition to any other remedy to which it may be entitled, at law or in equity.
9. Severability. If any provision of this Agreement is held invalid or
unenforceable by a court of competent jurisdiction, the other provisions of this
Agreement shall remain in full force and effect. Any provision of this Agreement
which is held invalid or unenforceable only in part shall remain in full force
and effect to the extent not held invalid or unenforceable.
10. Headings. All references in this Agreement to "paragraph" or
"paragraphs" refer to the corresponding numbered paragraph or paragraphs of this
Agreement. All words used in this Agreement shall be construed to be of the
appropriate gender or number as the context requires. Unless otherwise expressly
provided, the word "including" does not limit the preceding words or terms.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be considered an original copy of this
Agreement and all of which, when taken together, shall be considered to
constitute one and the same agreement.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to that state's
conflicts of laws principles.
13. Amendments; Waivers. Any amendment or modification of or to any
provision of this Agreement, and any consent to any departure of any party from
the terms of any provision of this Agreement, shall be effective only if it is
made or given in writing and signed by each party. Notwithstanding the foregoing
sentence, any failure of any of the parties to comply with any obligation,
covenant, agreement or condition herein may be waived by any party entitled to
the benefits thereof only by a written instrument signed by such party granting
such waiver, but such waiver or failure to insist upon strict compliance with
such obligation, covenant, agreement or condition shall not operate as a waiver
of, or estoppel with respect to, any subsequent or other failure. The failure of
any party to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of those rights.
14. Successors and Assigns. This Agreement shall apply to, be binding in
all respects upon and inure to the benefit of the parties and their respective
successors and permitted assigns. No party may assign any of its rights under
this Agreement without the prior written consent of each of the other parties.
[Signatures on following pages]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
GOAMERICA, INC.
By: /s/ Daniel R. Luis
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Daniel R. Luis
President and Chief Executive Officer
STOCKHOLDERS:
/s/ Ronald Obray
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Ronald Obray
/s/ Denise Obray
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Denise Obray
/s/ Edmond Routhier
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Edmond Routhier
Caymus Investment Group II, LLC
By: /s/ Edmond Routhier
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Its: Managing Member
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Caymus Obray, LLC
By: /s/ Edmond Routhier
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Its: Managing Member
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[Signature page to Support & Lock-Up Agreement]
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Schedule I
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Name and Address of Stockholder Common Stock Series A Preferred
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Denise Obray 2,464,921
132 Lincoln Way
Auburn, CA 95603
Facsimile: (530) 823-0897
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Ronald Obray 2,288,222
132 Lincoln Way
Auburn, CA 95603
Facsimile: (530) 823-0897
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Edmond Routhier 1,094,455
525 Michael Dr.
Sonoma, CA 95476
Facsimile: (707) 221-1471
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Caymus Investment Group II, LLC 476,700 1,724,138
2800 Leavenworth, Ste. #70
San Francisco, CA 94133
Facsimile:
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Caymus Obray, LLC 540,157
2800 Leavenworth, Ste. #70
San Francisco, CA 94133
Facsimile:
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TOTAL 6,864,455 1,724,138
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