May 2, 2005
CONFIDENTIAL
Mr. Ronald E. Obray
Chief Executive Officer
Hands On Video Relay Services, Inc.
Hands On Sign Language Services, Inc.
595 Menlo Drive
Rocklin, CA 95765-3708
Dear Mr. Obray:
This letter agreement sets forth the terms upon which GoAmerica, Inc., a
Delaware corporation ("GoAmerica"), agrees to enter into discussions regarding a
potential business combination with Hands On Video Relay Services, Inc., a
Delaware corporation, and Hands On Sign Language Services, Inc., a California
corporation (individually and together, the "Companies") (the "Transaction"),
and certain related matters.
In consideration of the substantial amount of resources GoAmerica will
expend in evaluating and negotiating the terms of the Transaction, for providing
a bridge line of credit to Companies (the "Bridge Line") pursuant to a bridge
line credit agreement (the "Bridge Line Agreement") executed by the parties on
the same date as this letter agreement, and of the mutual covenants set forth
below, GoAmerica and Companies and Ronald and Denise Obray agree as follows:
1. Other Negotiations. Between the date hereof and 11:59 p.m. (California
time) on June 15, 2005, or such earlier time and date as GoAmerica and Companies
mutually agree to discontinue discussions of the Transaction, or such earlier
date if this letter agreement is terminated because GoAmerica denies a Request
for Loan or fails to make an Advance to Companies under Section 2.1 of the
Bridge Line Agreement or later date as mutually agreed in writing by the parties
(the "Expiration Date"), neither Companies nor its officers, directors or agents
(including, without limitation, Ronald and Denise Obray) will take any action to
solicit, initiate, make, entertain, encourage or seek the submission of, or
facilitate inquiries regarding, or enter into any agreement pursuant to, any
inquiry, proposal or offer from any corporation, partnership, person or other
entity or group (other than discussions with GoAmerica) regarding any
acquisition of Companies, any merger or consolidation with or involving
Companies or any acquisition of any material portion of the stock or assets of
Companies, any other business combination with Companies or any financing of
Companies (any such acquisition, merger, consolidation, business combination or
financing, a "Sale Transaction"). Companies and Ronald and Denise Obray agree
that any such negotiations or activities in progress as of the date hereof will
be terminated or suspended during such period. Companies will promptly, and in
any event within 24 hours, notify GoAmerica regarding any contact by any third
party regarding any offer, proposal or inquiry regarding any. In no event will
Companies or Ronald and Denise Obray accept or enter into an agreement
concerning any such Sale Transaction prior to the Expiration Date.
2. Governing Law. This letter agreement shall be governed by the laws of
the State of Delaware applicable to contracts wholly executed and performed
therein. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR IN CONNECTION WITH
THIS LETTER AGREEMENT.
3. General. The parties shall have no obligation to consummate the
Transaction, unless and until a definitive agreement is reached, and in such
case shall be subject in all respects to the satisfaction of the conditions
contained therein, and neither party hereto shall have any liability to the
other under this letter agreement if the parties fail for any reason to execute
such a definitive agreement.
4. Waiver. The failure or delay by GoAmerica to assert any of its rights
under this letter agreement shall not constitute a waiver of such rights nor
shall any single or partial exercise by GoAmerica of any of its rights under
this letter agreement preclude any other or further exercise of such rights or
any other rights under this letter agreement.
5. Notice. All notices, requests, claims, demands, waivers and other
communications under this letter agreement shall be in writing and shall be
deemed given upon (a) personal delivery, (b) transmitter's confirmation of a
receipt of a facsimile transmission, (c) confirmed delivery by standard
overnight carrier or when mailed in the United States by certified or registered
mail, postage prepaid, addressed to the parties at the following addresses:
If to GoAmerica:
GoAmerica, Inc.
433 Hackensack Avenue
Hackensack, NJ 07601
Facsimile No: (201) 527-1084
Attention: Dan Luis
with a copy to:
Lowenstein Sandler PC
65 Livingston Avenue
Roseland, NJ 07068
Facsimile No. 973-597-2351
Attention: Peter H. Ehrenberg, Esq.
If to Companies:
Hands On Video Relay Services, Inc.
Hands On Sign Language Services, Inc.
595 Menlo Drive
Rocklin, CA 95765-3708
Facsimile No: (888) 900-9477
Attention: Ron Obray
with a copy to:
DLA Piper Rudnick Gray Cary US LLP
400 Capitol Mall, Suite 2400
Sacramento, CA 95814
Facsimile No.: (916) 930-3201
Attention: Scott W. Pink
6. Remedies. As it may be difficult to measure the damages which would
result to GoAmerica from a breach by Companies, or any of its officers,
directors or agents (including, without limitation, Ronald Obray and Denise
Obray) of any of the undertakings, warranties and representations contained in
this letter agreement, GoAmerica may seek to have such undertakings, warranties
and representations specifically enforced by a court of competent jurisdiction.
Companies are aware that irreparable injury or damage may result to GoAmerica in
the event of a breach by Companies, or any of its officers, directors or agents,
of the terms and provisions of this letter agreement. Therefore, Companies agree
that GoAmerica may seek an injunction restraining Companies and its officers,
directors and agents from engaging in any activity constituting such breach.
7. No Public Announcement; No Disclosure. The parties shall make no public
announcement concerning this letter, their discussions or any other memoranda,
letters or agreements between the parties relating to the Transaction, except
that any of the parties may at any time make disclosure if it is advised by its
legal counsel that such disclosure is required under applicable law or
regulatory authority. Except as permitted by the preceding sentence, under no
circumstances will party (or any of its officers, directors or agents) discuss
or disclose the existence or terms of this letter (or that the parties are
holding discussions) with or to any third party other than such legal,
accounting and financial advisors of such party who have a need to know such
information solely for purposes of assisting that party in regard to the
Transaction.
Please contact Dan Luis (201) 996-7403 if you have any questions regarding
the content of this letter agreement. Otherwise, please indicate the concurrence
of the Companies and Ronald and Denise Obray with this letter agreement by
executing two copies of it in the space provided below and returning one such
copy to me at your earliest convenience. I look forward to the successful
completion of the discussions contemplated by this letter agreement.
Very truly yours,
GOAMERICA, INC.
By:
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Daniel R. Luis
Chief Executive Officer
AGREED TO AND ACCEPTED:
HANDS ON VIDEO RELAY SERVICES, INC. RONALD OBRAY
By:
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Title:
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HANDS ON SIGN LANGUAGE SERVICES, INC. DENISE OBRAY
By:
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Title:
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