EXHIBIT 4.9
VOTING AGREEMENT
VOTING AGREEMENT, dated as of December ___, 2003 (the
"Agreement"), between GoAmerica, Inc., a Delaware corporation (the "Company"),
and [ ] (the "Stockholder").
W I T N E S S E T H
WHEREAS, contemporaneously with the execution and delivery of
this Agreement, the Company and the Investors (as defined therein) are entering
into a Purchase Agreement, dated as of the date hereof (as such agreement may
hereafter be amended from time to time, the "Purchase Agreement"), which
provides for, among other things, upon the terms and subject to the conditions
set forth therein, the sale of $14,500,000 of shares of common stock of the
Company, $0.01 par value (the "Common Stock"); and
WHEREAS, pursuant to the terms of the Purchase Agreement, the
Company has agreed to call a special meeting of its stockholders (the
"Meeting"); and
WHEREAS, as of the date hereof, the Stockholder owns
beneficially the number of shares of Common Stock set forth opposite the
Stockholder's name on Schedule I hereto (all such shares so owned and which may
hereafter be acquired by such Stockholder prior to the termination of this
Agreement, whether upon the exercise of options, conversion of convertible
securities, exercise of warrants or by means of purchase, dividend, distribution
or otherwise, being referred to herein as the "Shares"); and
WHEREAS, the Stockholder desires, in accordance with the terms
hereof, to vote in favor of the proposals to be set forth in the Company's proxy
statement to be filed by the Company in connection with the Purchase Agreement
and the transactions contemplated thereby (the "Proposals"); and
WHEREAS, as a condition to the Investors' willingness to enter
into the Purchase Agreement, the Investors have requested that the Stockholder
enter into this Agreement; and
WHEREAS, in order to induce the Investors to enter into the
Purchase Agreement, the Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements herein contained, and intending to be legally
bound hereby, the Company and the Stockholder hereby agree as follows:
ARTICLE I.
TRANSFER AND VOTING OF SHARES; AND
OTHER COVENANTS OF THE STOCKHOLDER
SECTION 1.1. Voting of Shares. From the date hereof until
termination of this Agreement pursuant to Section 4.2 hereof (the "Term"), at
the Meeting or at any meeting of the stockholders of the Company, however called
and at any adjournment or postponement thereof, and in any action by consent of
the stockholders of the Company in which there shall be a vote on the Proposals,
the Stockholder shall (A) appear at such meeting or otherwise cause his Shares
to be counted as present thereat for purposes of establishing a quorum and (B)
vote (or cause to be voted) his Shares in favor of (i) the Proposals and (ii)
such other matters as may be necessary or advisable to consummate the
transactions contemplated by the Purchase Agreement.
SECTION 1.2. No Inconsistent Arrangements. Except as
contemplated by this Agreement, the Stockholder shall not during the Term (i)
transfer, or consent to any transfer of, any or all of the Stockholder's Shares
or any interest therein, or create or permit to exist any lien or other
encumbrance on such Shares, (ii) enter into any contract, option or other
agreement or understanding with respect to any transfer of any or all of such
Shares or any interest therein, (iii) grant any proxy, power-of-attorney or
other authorization in or with respect to such Shares, (iv) deposit such Shares
into a voting trust or enter into a voting agreement or arrangement with respect
to such Shares, or (v) take any other action that would in any way restrict,
limit or interfere with the performance of his obligations hereunder or the
transactions contemplated hereby or by the Purchase Agreement; provided,
however, the Stockholder shall be permitted to transfer any or all of such
Shares to his Affiliates (as defined in the Purchase Agreement), provided that
such Affiliates agreed to be bound by the terms of this Agreement and that the
Stockholder shall be jointly and severally liable for any breach of the terms of
this Agreement by such Affiliate.
SECTION 1.3. Proxy; Reliance. The Stockholder hereby revokes
any and all prior proxies or powers of attorney in respect of any of the
Stockholder's Shares and constitutes and appoints the Company, or any nominee of
the Company, with full power of substitution and resubstitution, at any time
during the Term, as his true and lawful attorney and proxy (his "Proxy"), for
and in his name, place and stead, to vote each of such Shares as his Proxy in
favor of the matters set forth in Section 1.1, at every annual, special,
adjourned or postponed meeting of the stockholders of the Company, including the
right to sign his name (as stockholder) to any consent, certificate or other
document relating to the Company that the General Corporation Law of the State
of Delaware (the "DGCL") may permit or require as provided in Section 1.1. The
Stockholder hereby affirms that such Proxy is coupled with an interest and is
executed and intended to be irrevocable in accordance with the provisions of
Section 212(e) of the DGCL.
THE FOREGOING PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE
DURING THE TERM AND COUPLED WITH AN INTEREST THROUGHOUT THE TERM.
SECTION 1.4. Stop Transfer. The Stockholder shall not request
that the Company register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of the Stockholder's
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Shares, unless such transfer is made in compliance with this Agreement.
SECTION 1.5. Additional Shares. The Stockholder hereby agrees,
while this Agreement is in effect, to promptly notify the Company of the number
of any new Shares acquired (whether upon the exercise of options, conversion of
convertible securities, exercise of warrants or by means of purchase, dividend,
distribution or otherwise) by such Stockholder, if any, after the date hereof.
SECTION 1.6. Disclosure. The Stockholder hereby authorizes the
Company to publish and disclose in its proxy statement (including all other
documents and schedules filed with the Securities and Exchange Commission), his
identity and ownership of the Shares and the nature of his commitments,
arrangements and understandings under this Agreement.
SECTION 1.7. Fiduciary Duties. The Stockholder is signing this
Agreement solely in such Stockholder's capacity as an owner of his respective
Shares, and nothing herein shall prohibit, prevent or preclude such Stockholder
from taking or not taking any action in his capacity as an officer or director
of the Company.
SECTION 1.8. Exemptions. The parties hereto acknowledge and
agree that: (i) to the extent the Stockholder has executed and is participating
in a Rule 10b5-1 Sales Plan (the "Plan") as of the date hereof, the Stockholder
may sell and transfer his Shares pursuant to the terms of the Plan as such terms
existed as of the date hereof; and (ii) only after the record date set for the
Meeting, the Stockholder may transfer his Shares pursuant to a bona fide
charitable arrangement in such a manner as the Stockholder deems appropriate in
his sole discretion.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to the Company
as follows:
SECTION 2.1. Due Authorization, etc. The Stockholder has the
legal capacity and all requisite power and authority to execute, deliver and
perform this Agreement, to appoint the Company as his Proxy and to consummate
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by or on behalf of the Stockholder and constitutes a legal, valid and
binding obligation of the Stockholder, enforceable against the Stockholder in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, moratorium or other similar laws and except that the availability of
equitable remedies, including specific performance, is subject to the discretion
of the court before which any proceeding for such remedy may be brought.
SECTION 2.2. Required Filings and Consents. The execution and
delivery of this Agreement by the Stockholder does not, and the performance of
this Agreement by the Stockholder will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental
or regulatory authority (other than any necessary filing under the Securities
Exchange Act of 1934, as amended), domestic or foreign, except where the failure
to obtain such consents, approvals, authorizations or permits, or to make such
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filings or notifications, would not prevent or delay the performance by the
Stockholder of the Stockholder's obligations under this Agreement.
SECTION 2.3. Ownership of Shares. The Stockholder is the
record and beneficial owner of the Shares set forth opposite his name on
Schedule I hereto and has good and marketable title to such Shares, free and
clear of any claims, liens, encumbrances and security interests whatsoever. On
the date hereof, such Shares constitute all of the Shares owned of record or
beneficially by such Stockholder. The Stockholder has sole voting power, without
restrictions, with respect to all of the Shares.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY
The Company hereby represents and warrants to the Stockholder
as follows:
SECTION 3.1. Due Organization, Authorization, etc. The Company
is duly organized, validly existing and in good standing under the laws of the
State of Delaware. The Company has all requisite corporate power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby by the Company have been
duly authorized by all necessary corporate action on the part of the Company.
This Agreement has been duly executed and delivered by the Company and
constitutes a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, moratorium or other similar laws and except
that the availability of equitable remedies, including specific performance, is
subject to the discretion of the court before which any proceeding for such
remedy may be brought.
ARTICLE IV.
MISCELLANEOUS
SECTION 4.1. Definitions. Terms used but not otherwise defined
in this Agreement have the meanings ascribed to such terms in the Purchase
Agreement.
SECTION 4.2. Termination. This Agreement shall terminate and
be of no further force and effect (i) by the written mutual consent of the
parties hereto, (ii) automatically and without any required action of the
parties hereto immediately upon consummation of the Closing (as set forth in the
Purchase Agreement), or (iii) automatically and without any required action of
the parties hereto upon termination of the Purchase Agreement in accordance with
its terms. No such termination of this Agreement shall relieve any party hereto
from any liability for any breach of this Agreement prior to termination.
SECTION 4.3. Further Assurance. From time to time, at another
party's request and without consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
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necessary to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
SECTION 4.4. No Waiver. The failure of any party hereto to
exercise any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon compliance by
any other party hereto with its obligations hereunder, or any custom or practice
of the parties at variance with the terms hereof shall not constitute a waiver
by such party of its right to exercise any such or other right, power or remedy
or to demand such compliance.
SECTION 4.5. Specific Performance. The Stockholder
acknowledges that if the Stockholder fails to perform any of its obligations
under this Agreement, immediate and irreparable harm or injury would be caused
to the Company for which money damages would not be an adequate remedy. In such
event, the Stockholder agrees that the Company shall have the right, in addition
to any other rights it may have, to specific performance of this Agreement.
Accordingly, should the Company institute an action or proceeding seeking
specific enforcement of the provisions hereof, the Stockholder hereby waives the
claim or defense that the Company has an adequate remedy at law and hereby
agrees not to assert in any such action or proceeding the claim or defense that
such a remedy at law exists.
SECTION 4.6. Notice. All notices and other communications
given or made pursuant hereto shall be in writing and shall be deemed to have
been duly given or made (i) as of the date delivered or sent by facsimile if
delivered personally or by facsimile, (ii) one business day after being sent for
next business day delivery, fees prepaid, via a reputable nationwide delivery
courier service and (iii) on the third business day after deposit in the U.S.
mail, if mailed by registered or certified mail (postage prepaid, return receipt
requested), in each case to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice, except that
notices of changes of address shall be effective upon receipt):
(a) If to the Company:
GoAmerica, Inc.
433 Hackensack Avenue
3rd Floor
Hackensack, NJ 07601
Attn: President
Fax: (201) 996-1772
(b) If to the Stockholder, at the address set forth below the
Stockholder's name on Schedule I hereto.
SECTION 4.7. Expenses. All fees, costs and expenses incurred
in connection with this Agreement and the transactions contemplated hereby shall
be paid by the Company, including, without limitation, the fees, costs and
expenses incurred by the Stockholder.
SECTION 4.8. Headings. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
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SECTION 4.9. Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the maximum
extent possible.
SECTION 4.10. Entire Agreement; No Third-Party Beneficiaries.
This Agreement constitutes the entire agreement and supersedes any and all other
prior agreements and undertakings, both written and oral, among the parties, or
any of them, with respect to the subject matter hereof, and this Agreement is
not intended to confer upon any other person any rights or remedies hereunder.
SECTION 4.11. Assignment. Neither this Agreement nor any of
the rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise.
SECTION 4.12. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Delaware
applicable to contracts executed in and to be performed entirely within that
State.
SECTION 4.13. Amendment. This Agreement may not be amended
except by an instrument in writing signed on behalf of the Company and the
Stockholder and approved in writing by the Required Investors (as defined in the
Purchase Agreement).
SECTION 4.14. Waiver. Any party hereto may (a) extend the time
for the performance of any of the obligations or other acts of the other parties
hereto, (b) waive any inaccuracies in the representations and warranties of the
other parties hereto contained herein or in any document delivered pursuant
hereto and (c) waive compliance by the other parties hereto with any of their
agreements or conditions contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only as against such party
and only if set forth in an instrument in writing signed by such party. The
failure of any party hereto to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of those rights.
SECTION 4.15. Descriptive Headings; Interpretation. The
descriptive headings herein are inserted for convenience of reference only and
are not intended to be part of or to affect the meaning or interpretation of
this Agreement.
SECTION 4.16. Counterparts. This Agreement may be executed
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which shall constitute one and the
same agreement.
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IN WITNESS WHEREOF, the Company and the Stockholder have
caused this Agreement to be executed as of the date first written above.
GOAMERICA, INC.
By:
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Name:
Title:
STOCKHOLDER:
Name:
SCHEDULE I
Number of Shares
Name and Address of Stockholder Beneficially Owned