Exhibit 10.7
EXECUTION VERSION
LOCK-UP AND REGISTRATION RIGHTS AGREEMENT
This LOCK-UP AND REGISTRATION RIGHTS AGREEMENT (this "Agreement") is
entered into as of January 10, 2008, by and among GoAmerica, Inc., a Delaware
corporation (the "Company"), and certain former stockholders of Hands On Video
Relay Services, Inc., a Delaware corporation ("HOVRS"), that are now
stockholders of the Company and are identified on the signature pages hereto
(each a "Stockholder," and collectively, the "Stockholders").
RECITALS
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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 merged with and into HOVRS and the separate
corporate existence of HOVRS Merger Sub ceased, (ii) each share of HOVRS Common
Stock converted into the right to receive the Common Merger Consideration, and
(iii) each share of HOVRS Preferred Stock converted into the right to receive
the Preferred Merger Consideration (such transactions are referred to herein as
the "Merger"). Capitalized terms used herein without being defined have the same
meanings that they are given in the Merger Agreement.
B. The Stockholders received cash and the shares of Acquirer Common Stock
as set forth on Schedule A attached hereto (the "Shares") as Common Merger
Consideration and Preferred Merger Consideration, as the case may be, pursuant
to the Merger Agreement.
C. The Company has requested that the Stockholders enter into this
Agreement to provide for a lock-up of the Shares, and such parties are willing
to enter into this Agreement for such purpose and for purposes of obtaining the
registration rights set forth herein.
AGREEMENT
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The parties hereby agree as follows:
1. Lock-Up. Each Stockholder agrees that, following the Effective Time,
such Stockholder shall not, with respect to the Shares received by such
Stockholder pursuant to the Merger,
(A) during the first one-year period immediately following the
Effective Time, sell, transfer or otherwise dispose of any such Shares, and
(B) during the second one-year period following the Effective Time,
sell, transfer or otherwise dispose of Shares within any preceding three (3)
month period representing more than the greater of (i) one percent (1%) of the
number of shares of Acquirer Common Stock then outstanding as shown by the most
recent report or statement published by Acquirer, (ii) the average weekly
reported volume of trading in Acquirer Common Stock reported on
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Nasdaq Capital Market during the four (4) calendar weeks preceding the filing of
Form 144 with the SEC, by the selling Stockholder, as required by Rule 144 of
the Securities Act, or if no such notice is required the date of receipt of the
order to execute the transaction by the broker or the date of execution of the
transaction directly with a market maker, or (iii) the average weekly volume of
trading in Acquirer Common Stock reported pursuant to an effective transaction
reporting plan or an effective national market system plan during the four-week
period specified above.
2. Registration Rights. The Company and the Stockholders covenant and
agree as follows:
2.1 Definitions. For purposes of this Agreement:
(a) "Average Closing Price" shall mean the average closing
price of Acquirer Common Stock as reported on the Nasdaq Capital Market over any
ninety (90) day period.
(b) "Clearlake Holders" shall have the meaning given thereto
in the Investor Rights Agreement.
(c) "Clearlake Registrable Securities" shall have the meaning
given thereto in the Investor Rights Agreement.
(d) "Exchange Act" means the Securities Exchange Act of 1934,
as amended (and any successor thereto), and the rules and regulations
promulgated thereunder;
(e) "Excluded Registration" means a registration statement
relating solely to the sale of securities of participants in a Company stock
plan, a registration relating to a corporate reorganization or transaction under
Rule 145 of the Securities Act, or a registration in which the only common stock
being registered is common stock issuable upon conversion of debt securities
which are also being registered;
(f) "Form S-3" means such form under the Securities Act as in
effect on the date hereof or any successor form under the Securities Act that
permits significant incorporation by reference of the Company's subsequent
public filings under the Exchange Act;
(g) "Holder" means any Stockholder owning Registrable
Securities or any permitted assignee thereof in accordance with Section 2.12 of
this Agreement;
(h) "Investor Rights Agreement" shall mean that certain
Amended and Restated Investor Rights Agreement in substantially the form
attached as Exhibit B-3 to the Amended and Restated Stock Purchase Agreement of
even date herewith, between the Company and the Investors party thereto, as the
same may be amended or modified from time to time so long as such amendment or
modification does not conflict with the terms of this Agreement.
(i) "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with
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the Securities Act, and the declaration or ordering of effectiveness of such
registration statement or document;
(j) "Registrable Securities" means (i) the Shares held by a
Holder and any assignee thereof in accordance with Section 2.12 of this
Agreement, and (ii) any other shares of Acquirer Common Stock issued as (or
issuable upon the conversion or exercise of any warrant, right or other security
which is issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of, the Shares identified in (i);
(k) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of Shares outstanding which are,
and the number of shares of Acquirer Common Stock issuable pursuant to then
exercisable or convertible securities which are, Registrable Securities;
(l) "SEC" means the Securities and Exchange Commission; and
(m) "Securities Act" means the Securities Act of 1933, as
amended (and any successor thereto), and the rules and regulations promulgated
thereunder.
2.2 Request for Registration in Secondary Offering.
(a) Notwithstanding the provisions of Section 1 above, if
after the one (1) year anniversary of the Effective Time the Acquirer Common
Stock has an Average Closing Price of $20.00 per share, and if the Company shall
receive a written request from the Holders of at least twenty-five percent (25%)
of the Registrable Securities then outstanding (the "Initiating Holders") that
the Company file a registration statement under the Securities Act covering the
registration of Registrable Securities, then, subject to the qualifications set
forth herein and to any limitations that the SEC may impose, the Company shall,
within twenty (20) days after receiving such request, give written notice of
such request to all Holders and all Clearlake Holders and shall, subject to the
limitations of subsection 2.2(b), use commercially reasonable efforts to cause
to be registered under the Securities Act all of the Registrable Securities that
each such Holder and all of the Clearlake Registrable Securities that each such
Clearlake Holder has requested to be registered as expeditiously as possible.
(b) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request and the Company
shall include such information in the written notice referred to in subsection
2.2(a). The underwriter will be selected by the Company, which underwriter shall
be reasonably acceptable to a majority in interest of the Holders whose
Registrable Securities are to be included in the underwriting. In such event,
the right of any Holder to include his Registrable Securities in such
registration shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein. The Company
and all Holders proposing to distribute their securities through such
underwriting shall enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for such
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underwriting. Notwithstanding any other provision of this Section 2.2, if the
underwriter advises the Company in good faith that marketing factors require a
limitation of the number of shares to be underwritten, then the Company shall so
advise all Holders of Registrable Securities and all holders of Clearlake
Registrable Securities which would otherwise be underwritten pursuant hereto,
and the number of shares of Registrable Securities and Clearlake Registrable
Securities that may be included in the underwriting shall be allocated among all
participating Clearlake Holders and Holders thereof, including the Initiating
Holders, in proportion (as nearly as practicable) to the amount of Registrable
Securities and Clearlake Registrable Securities of the Company owned by each
participating Holder and Clearlake Holder. In no event shall any Registrable
Securities or Clearlake Registrable Securities be excluded from such
underwriting unless all other securities are first excluded from such offering.
Any Registrable Securities or Clearlake Registrable Securities excluded from or
withdrawn from such underwriting shall be withdrawn from registration.
(c) Notwithstanding the foregoing, if the Company shall
furnish to the Initiating Holders a certificate signed by the President of the
Company stating that in the good faith judgment of the Board of Directors of the
Company it would be seriously detrimental to the Company and its stockholders
for such registration statement to be filed, the Company shall have the right to
defer such filing for a period of not more than sixty (60) days after receipt of
the request of the Initiating Holders; provided, however, that the Company may
not utilize this right or the similar right set forth in Section 2.4(b)(iii)
more than once in any 12-month period, and provided, further, that the Company
shall not register any securities for the account of itself or any other
stockholder during such 60-day period (other than in an Excluded Registration).
2.3 Company Registration.
(a) Notwithstanding the provisions of Section 1 above, if
after the one (1) year anniversary of the Effective Time the Acquirer Common
Stock has an Average Closing Price of $20.00 per share, and if (but without any
obligation to do so) the Company proposes to register (including for this
purpose a registration effected by the Company for stockholders other than the
Holders) any of its stock under the Securities Act in connection with the public
offering of such securities solely for cash (other than an Excluded
Registration), the Company shall, at such time, promptly give each Holder
written notice of such registration. Upon the written request of each Holder
given within twenty (20) days after mailing of such notice by the Company in
accordance with Section 5.5, the Company shall, subject to the provisions of
Section 2.8, use commercially reasonable efforts to cause to be registered under
the Securities Act all of the Registrable Securities that each such Holder has
requested to be registered if any stock of the Company is registered.
(b) The Company shall have the right to terminate or withdraw
any registration initiated by it under this Section 2.3 prior to the
effectiveness of such registration whether or not any Holder has elected to
include securities in such registration. The expenses of such registration shall
be borne by the Company, in accordance with Section 2.7 hereof.
2.4 Form S-3 Registration. Notwithstanding the provisions of Section
1 above, if after the one (1) year anniversary of the Effective Time the
Acquirer Common Stock
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has an Average Closing Price of $20.00 per share, and if the Company shall
receive from any Holder or Holders of not less than 25% of the Registrable
Securities then outstanding a written request or requests that the Company
effect a registration on Form S-3 and any related qualification or compliance
with respect to all or a part of the Registrable Securities owned by such Holder
or Holders, then, subject to the qualifications set forth herein and to any
limitations that the SEC may impose, the Company will:
(a) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders of Registrable
Securities and to all holders of Clearlake Registrable Securities;
(b) use commercially reasonable efforts to effect, as soon as
practicable, such registration and all such qualifications and compliances as
may be so requested and as would permit or facilitate the sale and distribution
of all or such portion of such Holder's or Holders' Registrable Securities as
are specified in such request, together with all or such portion of the
Registrable Securities of any other Holder or Holders and all or such portion of
the Clearlake Registrable Securities of any other Clearlake Holder or Clearlake
Holders joining in such request as are specified in a written request given
within fifteen (15) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section 2.4: (i) if
Form S-3 is not available for such offering by the Holders; (ii) if the Holders,
together with the holders of any other securities of the Company entitled to
inclusion in such registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the public of less than
$5,000,000; (iii) if the Company shall furnish to the Holders and the Clearlake
Holders a certificate signed by the President of the Company stating that in the
good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its stockholders for such registration
statement to be filed, the Company shall have the right to defer such filing for
a period of not more than sixty (60) days after receipt of the request of the
Holder or Holders under this Section 2.4; provided, however, that the Company
shall not utilize this right or the similar right set forth in Section 2.2(c)
more than twice in any twelve (12) month period; (iv) if the Company has, within
the twelve (12) month period preceding the date of such request, already
effected two (2) registration on Form S-3 for the Holders pursuant to this
Section 2.4; (v) in any jurisdiction in which the Company would be required to
qualify to do business or to execute a general consent to service of process in
effecting such registration, qualification or compliance unless the Company is
already qualified to do business or subject to service of process in that
jurisdiction; and (vi) during the period ending one hundred eighty (180) days
after the effective date of a registration statement subject to Section 2.3; and
(c) subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders.
2.5 Obligations of the Company. Whenever required under this Section
2 to effect the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
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(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use all reasonable best efforts
to cause such registration statement to become effective, and, upon the request
of the Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for up to sixty (60) days
and in the case of a registration request pursuant to Section 2.4 one hundred
eighty (180) days, or until the distribution described in such registration
statement is completed, if earlier.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement for up to sixty (60) days and
in the case of a registration request pursuant to Section 2.4 one hundred eighty
(180) days, or until the distribution described in such registration statement
is completed, if earlier.
(c) Promptly notify the Holders of the effectiveness of such
registration statement, and furnish to the Holders such numbers of copies of a
prospectus, including any supplement to the prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(d) Following the effective date of such registration
statement, notify the Holders of any request by the SEC that the Company amend
or supplement such registration statement, or the associated prospectus.
(e) Use all reasonable best efforts to register and qualify
the securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holders, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or jurisdictions
unless the Company is already qualified to do business or subject to service of
process in that jurisdiction.
(f) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder and
other security holder participating in such underwriting shall also enter into
and perform its obligations under such an agreement.
(g) Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, such obligation to continue for sixty (60) days and in the case of a
registration request pursuant to Section 2.4 one hundred eighty (180) days or
until the distribution described in such registration statement is completed, if
earlier.
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(h) Cause all such Registrable Securities registered pursuant
to this Section 2 to be listed on each national securities exchange or trading
system on which similar securities issued by the Company are then listed.
(i) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
(j) Make generally available to its security holders, and to
deliver to each Holder participating in the registration statement, an earnings
statement of the Company that will satisfy the provisions of Section 11(a) of
the Securities Act covering a period of twelve (12) months beginning after the
effective date of such registration statement as soon as reasonably practicable
after the termination of such twelve (12) month period.
2.6 Information From Holders. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Section 2
with respect to the Registrable Securities of any selling Holder that such
Holder shall furnish to the Company such information regarding such Holder, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such Holder's
Registrable Securities. The Company shall have no obligation with respect to any
registration requested pursuant to Section 2.4 of this Agreement if, as a result
of the application of the preceding sentence, the anticipated aggregate offering
price of the Registrable Securities to be included in the registration does not
equal or exceed the anticipated aggregate offering price required to originally
trigger the Company's obligation to initiate such registration as specified in
subsection 2.4(b)(ii), whichever is applicable.
2.7 Expenses of Registration. All expenses other than underwriting
discounts and commissions incurred in connection with registrations, filings or
qualifications pursuant to Sections 2.2, 2.3 and 2.4 including (without
limitation) all registration, filing and qualification fees, printers' and
accounting fees, fees and disbursements of counsel for the Company, and the
reasonable fees and disbursements of one counsel for the selling Holders,
selected by them, shall be borne by the Company.
2.8 Underwriting Requirements. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under Section 2.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by the Company
(or by other persons entitled to select the underwriters), and then only in such
quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities and Clearlake Registrable
Securities, requested by Holders and Clearlake Holders to be included in such
offering exceeds the amount of securities sold other than by the Company that
the underwriters determine in their sole discretion is compatible with the
success of the offering, then the Company shall be required to include in the
offering only that number of such securities, including Registrable Securities
and Clearlake Registrable Securities, which the underwriters determine in their
sole discretion will not jeopardize the success of the offering (the securities
so
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included to be apportioned pro rata among the selling stockholders according to
the total amount of securities entitled to be included therein owned by each
selling stockholder or in such other proportions as shall mutually be agreed to
by such selling stockholders). For purposes of the preceding parenthetical
concerning apportionment, for any selling stockholder which is a holder of
Registrable Securities and which is a venture capital fund, or a partnership or
corporation, the affiliated funds, partners, retired partners and stockholders
of such holder, or the estates and family members of any such partners and
retired partners and any trusts for the benefit of any of the foregoing persons
shall be deemed to be a single "selling stockholder," and any pro-rata reduction
with respect to such "selling stockholder" shall be based upon the aggregate
amount of shares carrying registration rights owned by all entities and
individuals included in such "selling stockholder," as defined in this sentence.
2.9 Delay of Registration. No Holder shall have any right to obtain
or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 2.
2.10 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 2:
(a) The Company will indemnify and hold harmless each Holder,
each person, if any, who controls such Holder, the partners, members, officers
and directors, of each Holder, any underwriter (as defined in the Securities
Act) for such Holder and each person, if any, who controls such Holder or
underwriter within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages, or liabilities (joint or several) to which
they may become subject under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively a "Violation"): (i)
any untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the Securities Act,
the Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law; and the
Company will pay to each such Holder, partner, member, officer, director, agent,
underwriter or controlling person, as incurred, any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this subsection 2.10(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability, or action
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be liable to any
Holder, underwriter or controlling person for any such loss, claim, damage,
liability, or action to the extent that it arises out of or is based upon a
Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
any such Holder, partner, member, officer, director, agent, underwriter or
controlling person.
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(b) Each selling Holder will indemnify and hold harmless the
Company, each of its directors, its officers and each person, if any, who
controls the Company within the meaning of the Securities Act, any underwriter,
any other Holder selling securities in such registration statement and any
controlling person of any such underwriter or other Holder, against any losses,
claims, damages, or liabilities (joint or several) to which any of the foregoing
persons may become subject, under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration; and each such
Holder will pay, as incurred, any legal or other expenses reasonably incurred by
any person intended to be indemnified pursuant to this subsection 2.10(b), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 2.10(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld, and provided, further, that in no event shall any indemnification
obligation by a Holder under this Subsection 2.10(b) exceed the net proceeds
from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 2.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 2.10, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the reasonable fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
2.10, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 2.10.
(d) If the indemnification provided for in this Section 2.10
is determined to be unavailable to an indemnified party with respect to any
loss, liability, claim, damage or expense referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such loss, liability, claim, damage, or expense in such proportion as
is appropriate to reflect the relative fault of the indemnifying party on the
one hand and of the indemnified party on the other in connection with the
statements or omissions that resulted in such loss, liability, claim, damage or
expense as well as any other relevant equitable
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considerations; provided, that in no event shall any contribution by a Holder
under this Subsection 2.10(d) exceed the lesser of (A) the net proceeds from the
offering received by such Holder or (B) the extent to which such Holder is at
fault. The relative fault of the indemnifying party and of the indemnified party
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the indemnifying
party or by the indemnified party and the parties' relative intent, knowledge,
access to information, and opportunity to correct or prevent such statement or
omission.
(e) The obligations of the Company and Holders under this
Section 2.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 2, and otherwise.
2.11 Reports Under the Exchange Act. With a view to making available
to the Holders the benefits of Rule 144 promulgated under the Securities Act and
any other rule or regulation of the SEC that may at any time permit a Holder to
sell securities of the Company to the public without registration or pursuant to
a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times after the effective
date of any public offering of the Company's securities so long as the Company
remains subject to the periodic reporting requirements under Sections 13 or
15(d) of the Exchange Act;
(b) take such action, including the voluntary registration of
its Common Stock under Section 12 of the Exchange Act, as is necessary to enable
the Holders to utilize Form S-3 for the sale of their Registrable Securities,
such action to be taken as soon as practicable after the end of the fiscal year
in which the first registration statement filed by the Company for the offering
of its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(d) furnish to any Holder upon request, so long as the Holder
owns any Registrable Securities, (i) a written statement by the Company that it
has complied with the reporting requirements of SEC Rule 144, the Securities Act
and the Exchange Act, or that it qualifies as a registrant whose securities may
be resold pursuant to Form S-3, (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
2.12 Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Section 2 may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee (i) that is a subsidiary, parent, partner, limited partner, retired
partner, member, retired member or stockholder of a Holder, (ii) that is an
affiliated fund, (iii) who is a Holder's child, stepchild, grandchild, parent,
stepparent,
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grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law, or sister-in-law (such a relation, a Holder's
"Immediate Family Member", which term shall include adoptive relationships), or
(iv) that is a trust for the benefit of an individual Holder or such Holder's
Immediate Family Member, provided the Company is, within a reasonable time after
such transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; and provided, further, that such
assignment shall be effective only if the transferee agrees in writing to be
bound by this Agreement and immediately following such transfer the further
disposition of such securities by the transferee or assignee is restricted under
the Securities Act. For the purposes of determining the number of shares of
Registrable Securities held by a transferee or assignee, the holdings of
transferees and assignees of (x) a partnership who are partners or retired
partners of such partnership or (y) a limited liability company who are members
or retired members of such limited liability company (including Immediate Family
Members of such partners or members who acquire Registrable Securities by gift,
will or intestate succession) shall be aggregated together and with the
partnership or limited liability company; provided that all assignees and
transferees who would not qualify individually for assignment of registration
rights shall have a single attorney-in-fact for the purpose of exercising any
rights, receiving notices or taking any action under Section 2.
2.13 Rule 415 Limitations. Notwithstanding anything in this
Agreement to the contrary, if the SEC refuses to declare a registration
statement filed pursuant to this Agreement effective as a valid secondary
offering under Rule 415 promulgated under the Securities Act due to the number
of Registrable Securities sought to be included in such registration statement
relative to the number of shares of Acquirer Common Stock outstanding or the
number of outstanding shares of Acquirer Common Stock held by non-affiliates or
for any other reason, then, without any liability under this Agreement or any
further obligation to register such excess Registrable Securities, the Company
shall be permitted to reduce the number of Registrable Securities included in
such registration statement to an amount that does not exceed an amount that the
SEC allows for the offering thereunder to qualify as a valid secondary offering
under Rule 415. The Company shall not be liable for damages under this Agreement
as to any Registrable Securities that are not permitted by the SEC to be
included in a registration statement due to SEC guidance relating to Rule 415.
2.14 Clearlake Limitations. Notwithstanding anything in this
Agreement to the contrary, the rights and obligations of the parties hereunder
shall be subject to their respective rights and obligations set forth in the
Investor Rights Agreement. In the event of any conflict between this Agreement
and the Investor Rights Agreement, the Investor Rights Agreement shall be
controlling.
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3. Permitted Transfers. Notwithstanding the provisions of Section 1 or
anything to the contrary herein, any Stockholder may transfer all or part of
such Stockholder's Shares to (i) his ancestors, descendants, siblings, or
spouse, any executor or administrator of his estate, or to a custodian, trustee,
executor, or other fiduciary primarily for the account of the Stockholder or his
ancestors, descendants, siblings, or spouse, (ii) an affiliate (as defined in
Rule 405 of Regulation D under the Securities Act), or (iii) to any other
Stockholder who is a party to this Agreement (collectively, an "Exempted
Transferee"); provided, that this Agreement shall be binding upon each such
Exempted Transferee and, prior to the completion of such transfer, each Exempted
Transferee or his or its legal representative shall have executed documents in
form and substance reasonably satisfactory to the Company, evidenced by their
written acknowledgment of such satisfaction, assuming the obligations of the
Stockholder under this Agreement with respect to the transferred Shares. Such
transferred shares shall remain "Shares" hereunder, and references to a
"Stockholder" hereunder shall be deemed thereafter to apply to and include the
transferor or transferees of any such Shares.
4. Release of Claims. In consideration for the benefits provided hereunder
and under the Merger Agreement, effective as of the consummation of the Merger,
each of the Stockholders do hereby release and forever discharge (the "Release")
HOVRS, the Surviving Corporation and Acquirer and their officers, directors,
employees, affiliates and agents (the "Released Parties") from any and all
manner of action or actions, cause or causes of action, in law or in equity,
suits, contracts, agreements, promises, liability, claims, demands, damages,
attorneys' fees or expense, of any nature whatsoever, known or unknown, fixed or
contingent, arising out of or related to the ownership of securities of HOVRS by
the undersigned holders or by reason of the undersigned holders' status as
holders of the capital stock of HOVRS (other than actions, causes of action, in
law or in equity, suits, contracts, agreements, promises, liability, claims,
demands, damages, attorneys' fees or expenses to the extent they arise pursuant
to or in connection with the Merger, the Merger Agreement and the other Merger
Documents). Stockholder hereby expressly waives any rights or benefits available
under the provisions of Section 1542 of the California Code, which is quoted as
follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HER
SETTLEMENT WITH THE DEBTOR."
Stockholder fully understands the statutory language of said section and
nevertheless elects to and hereby does release each of the Released Parties from
all claims it may have against any of them, whether known or unknown, arising
from the subject matter of the Release, and specifically waives any rights which
it may have under said section. Stockholder fully understands that if the facts
with respect to this Release are found hereafter to be other than or different
from the facts now believed to be true, it expressly accepts and assumes the
risk of such possible difference in fact notwithstanding any such differences.
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5. Miscellaneous.
5.1 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):
If to the Company 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 A 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
5.2. 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.
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5.3. 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.
5.4. 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 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.
5.5 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.
5.6 Headings. All references in this Agreement to "section" or
"sections" 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.
5.7 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.
5.8 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without regard to that
state's conflicts of laws principles.
5.9 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.
5.10 Successors and Assigns. This Agreement shall apply to, be
binding in all
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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 page]
15
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
-------------------------------------
Daniel R. Luis
President and Chief Executive Officer
STOCKHOLDERS:
/s/ Ronald Obray
----------------
Ronald Obray
/s/ Denise Obray
----------------
Denise Obray
/s/ Edmond Routhier
-------------------
Edmond Routhier
CAYMUS INVESTMENT GROUP II, LLC
By: /s/ Edmond Routhier
---------------------
Its: Authorized Signatory
CAYMUS OBRAY, LLC
By: /s/ Edmond Routhier
---------------------
Its: Authorized Signatory
[Signature page to Lock-up and Registration Rights Agreement]
[Also signed by other former stockholders of
Hands On Video Relay Services, Inc.]
16