ESCROW AGREEMENT
This ESCROW AGREEMENT (this "Agreement") dated as of November 13, 2001
is by and among GoAmerica, Inc. ("GoAmerica"), the shareholders of OutBack
Resource Group, Inc. as listed on Schedule A hereto (the "Shareholders") and
American Stock Transfer & Trust Company, as escrow agent (the "Escrow Agent").
W I T N E S S E T H
WHEREAS, this Agreement is made pursuant to the Merger Agreement and
Plan of Reorganization (the "Merger Agreement") dated as of November 9, 2001
by and among GoAmerica, GoAmerica Acquisition III Corp. ("Sub"), OutBack
Resource Group, Inc. ("OutBack") and, as to certain sections, certain of the
Shareholders. Capitalized terms used herein shall have the respective meanings
ascribed to them in the Merger Agreement, unless the context requires otherwise.
WHEREAS, pursuant to the Merger Agreement, (a) Sub will be merged with
and into OutBack, (b) as part of the merger consideration, GoAmerica is issuing
shares of GoAmerica Common Stock (the "Merger Shares") to the shareholders of
OutBack (the "Shareholders"), in conversion of and exchange for the shares of
capital stock of OutBack then held by the shareholders, and (c) the Shareholders
have agreed, by acceptance of their respective portions of the Merger Shares
pursuant to the Merger Agreement, to indemnify the GoAmerica Indemnitees for
Indemnifiable Losses.
WHEREAS, Section 2.3 of the Merger Agreement provides that one or more
certificates representing an aggregate of twenty percent (20%) of the Merger
Shares (the "Escrow Shares"), which Escrow Shares are to be deducted pro rata
from the Merger Shares deliverable to the Shareholders (based upon each
Shareholder's percentage ownership of the aggregate number of Merger Shares),
shall be issued and delivered on behalf of the Shareholders to the Escrow Agent
and shall be placed in an escrow account (the "Escrow Account"), pursuant to
this Agreement, to settle claims for Indemnifiable Losses that may arise
pursuant to the Merger Agreement.
WHEREAS, the parties desire to establish the terms and conditions
pursuant to which the Escrow Shares will be deposited and held in, and delivered
from, the Escrow Account.
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises, representations, warranties, covenants and agreements
contained herein and in the Merger Agreement, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Appointment of Escrow Agent.
GoAmerica and the Shareholders hereby appoint and designate American
Stock Transfer & Trust Company as the Escrow Agent for the purposes herein set
forth and American Stock Transfer & Trust Company hereby accepts such
appointment, all on the terms and subject to the conditions of this Agreement.
2. Acknowledgment of Receipt of the Merger Agreement.
The Escrow Agent hereby acknowledges receipt of a copy of the Merger
Agreement, but, except for reference thereto for definitions incorporated by
reference herein and as provided in Section 5 hereof, the Escrow Agent is not
charged with any duties or responsibilities with respect to the Merger
Agreement.
3. Escrow Shares.
3.1. GoAmerica hereby agrees to provide to the Escrow Agent, within
twenty (20) business days after the date hereof, one or more stock certificates
representing the number of Escrow Shares to be held in escrow by the Escrow
Agent. Each stock certificate so deposited on behalf of the Shareholders shall
be issued in the name of the Escrow Agent, as escrow agent for GoAmerica and the
Shareholders. The Escrow Agent acknowledges and agrees, as transfer agent and
registrar for GoAmerica, to use its best efforts to process such certificates
within the foregoing timeframe. The Escrow Shares, as such term is used herein,
shall include the initial Escrow Shares deposited by GoAmerica and the
"Additional Escrow Account" as that term is defined in Section 3.2.
3.2. Any and all dividends payable in securities or other distributions
of any kind made in respect to the Escrow Shares or other securities held in the
Escrow Account, except cash or taxable in-kind distributions which shall be paid
directly to each respective Shareholder (the "Additional Escrow Account"), shall
be held in the Escrow Account pursuant to this Agreement; provided, however,
that the Shareholders shall have the voting rights with respect to the Escrow
Shares so long as such Escrow Shares are held in escrow. GoAmerica shall take
any and all reasonable and necessary steps to allow the exercise of such voting
rights. While the Escrow Shares remain subject to this Agreement, the
Shareholders shall retain and shall be able to exercise all other incidents of
ownership of the Escrow Shares that are not inconsistent with the terms and
conditions hereof. All Escrow Shares to the extent they constitute securities of
GoAmerica shall appear as issued and outstanding on the balance sheet of
GoAmerica.
3.3. The Shareholders shall be responsible for any tax liability and
tax reporting obligations attributable to (a) the placement of the Escrow Shares
in the Escrow Account and (b) the payment of any dividends, to the extent paid,
or other amounts payable to the Shareholders with respect to the Escrow Shares
and shall provide the Escrow Agent with executed and completed Internal Revenue
Service Forms W-9. The Shareholders shall be treated as the owner of the
property in the Escrow Account for all tax purposes.
3.4. Except as contemplated hereunder, no Escrow Shares or any
beneficial interest therein may be pledged, hypothecated, or permitted to suffer
any lien or encumbrance by the Shareholders, including by operation of law, or
be taken or reached by any legal or equitable process in satisfaction of any
debt or other liability of any Shareholder or OutBack, prior to the date the
Escrow Agent is required to deliver the Escrow Shares to the Shareholders in
accordance with the terms of this Agreement.
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3.5. The parties hereto acknowledge that the portion of the Escrow
Shares owned by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ are subject
to respective Share Restriction Agreements, in substantially the form attached
hereto as Exhibit A, whereby the Company may repurchase such shares upon the
occurrence of certain events. The Escrow Agent agrees that within ten (10) days
of receipt of written notice from the Company that it has exercised its rights
under such Share Restriction Agreements, the Escrow Agent shall release to the
Secretary of the Company that portion of the Escrow Shares set forth in the
notice, for administration in accordance with the terms of the Share Restriction
Agreements and the Joint Escrow Instructions executed in connection therewith.
4. Indemnification Liability of Shareholders.
The Shareholders' obligations regarding liability for indemnification
to the GoAmerica Indemnitees shall be governed by the Merger Agreement. The
terms, conditions, covenants and provisions regarding the indemnification
obligations of the Shareholders set forth in the Merger Agreement are hereby
incorporated in full by reference herein.
5. Distribution Events.
5.1. At any time or times prior to the date that is thirteen (13)
months from the closing date, GoAmerica may make claims against the Escrow
Shares for amounts due for indemnification under the Merger Agreement. If, after
final determination of liability, on a claim (the exact date of such final
determination to be the "Claim Date") in accordance with the procedures set
forth in Section 6.2 of the Merger Agreement, any of the GoAmerica Indemnitees
shall have any claim of indemnification for Indemnifiable Losses pursuant to the
Merger Agreement, GoAmerica shall promptly (a) give formal written notice
thereof to the Shareholder Representative and the Escrow Agent, which notice
shall include the aggregate dollar amount of the Indemnifiable Losses and a
brief description of the facts upon which the claim is based, and (b) provide
the Escrow Agent and the Shareholder Representative with a calculation pursuant
to Section 5.3 hereof. Subject to the following provisions of this Section 5,
the Escrow Agent shall, not less than twenty (20) business days but within
twenty-five (25) business days following delivery of such notice, deliver to
GoAmerica in accordance with Section 5.3 hereof the number of Escrow Shares
having an aggregate cash value (as determined in accordance with Section 5.3
hereof) equal to the amount of such Indemnifiable Losses.
5.2. If the Shareholder Representative shall, in good faith, notify the
Escrow Agent in writing of any objections or disputes with respect to a claim
for indemnification within twenty (20) business days following delivery of
notice of a claim for indemnity pursuant to Section 5.1 hereof, then the Escrow
Agent shall instead set aside such Escrow Shares (the "Set Aside Amount") until
(a) the Shareholder Representative and GoAmerica have agreed upon the rights of
GoAmerica, any of the GoAmerica Indemnitees seeking indemnification and the
Shareholders with respect thereto and have notified the Escrow Agent of such an
agreement in writing signed by GoAmerica and the Shareholder Representative or
(b) such rights are finally determined pursuant to Section
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14.6 of this Agreement. Any uncontested portion of a claim will be resolved
as set forth in Section 5.1 above. The Escrow Agent may rely on any
arbitration ruling in accordance with Section 14.6 hereof or on the final order
or other final determination of any such court. If any such arbitrator or court
shall determine that any or all of the Escrow Shares are to be delivered to
GoAmerica, the Escrow Agent shall, within fifteen (15) days following receipt of
a copy of such final determination, deliver to GoAmerica the number of Escrow
Shares having a cash value equal (determined as provided in Section 5.3) to the
sum of the amount of the claim for Indemnifiable Losses as to which the
arbitrator or the court has finally determined that any of the GoAmerica
Indemnitees is entitled to indemnity under the Merger Agreement. All other
expenses of such litigation or arbitration, including reasonable attorney's
fees, will be paid by the losing party and the court or the arbitrator will be
authorized to make such determination.
5.3. For purposes of establishing the number of Escrow Shares to be
delivered to GoAmerica or set aside in respect of any Set Aside Amount pursuant
to this Section 5, the cash value of each share of GoAmerica Common Stock shall
be equal to the average closing price per share of GoAmerica's Common Stock as
reported on the Nasdaq National Market (or such other exchange or quotation
system upon which GoAmerica is then traded) during the ten (10) trading days
ending three (3) days prior to the Claim Date.
6. Termination.
This Agreement shall terminate thirteen (13) months from the Closing
Date or, if at such time a contested claim remains unresolved, at such time as
such contested claim has been resolved, unless sooner terminated by the parties
(the "Termination Date"). Notwithstanding anything in this Agreement to the
contrary, GoAmerica shall assert all claims under this Escrow Agreement within
the thirteen (13) month period commencing on the Closing Date. On the
Termination Date or as soon thereafter as is practicable and on receipt of
written notice from the Company, the Escrow Agent shall distribute to the
Shareholders an aggregate amount equal to the Escrow Shares less the sum of any
amount previously paid to GoAmerica from the Escrow Account as indemnification
pursuant to the Merger Agreement. The Escrow Shares shall be distributed to the
Shareholders in the same proportion that the balance of the Merger Shares not
deposited in the Escrow Account is distributed to the Shareholders in the Merger
Agreement, such proportions are set forth next to each Shareholder's name on
Schedule A hereto.
7. Fees and Expenses of Escrow Agent.
7.1. For services rendered, the Escrow Agent shall receive a fee of
$2,500 per annum. The fees of the Escrow Agent shall be borne by GoAmerica.
7.2. The Escrow Agent shall also be entitled to reimbursement from
GoAmerica and the Shareholders for all reasonable out-of-pocket expenses paid or
incurred by it in the administration of its duties hereunder, including, but not
limited to, reasonable attorneys' or agents' fees and disbursements and all
reasonable taxes or other governmental charges. GoAmerica shall pay all of such
expenses, provided that, such
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expenses do not exceed $500 barring any unforeseen circumstances. If for any
reason the deposit of the Escrow Shares is not received by the Escrow Agent
as contemplated in Section 3.1 hereof, GoAmerica shall reimburse the Escrow
Agent for all expenses, including reasonable counsel fees and disbursements,
paid or incurred by it in making preparations for providing the services
contemplated hereby.
8. Protection of Escrow Agent.
8.1. The Escrow Agent shall have no duties or responsibilities other
than those expressly set forth herein. The Escrow Agent shall have no duty to
enforce any obligation of any person to make any payment or delivery, or to
direct or cause any payment or delivery to be made, or to enforce any obligation
of any person to perform any other act. The Escrow Agent shall be under no
liability to the other parties hereto or to anyone else by reason of any failure
on the part of any party hereto or any maker, guarantor, endorser or other
signatory of any document or any other person to perform such person's
obligations under any such document. Except for amendments to this Agreement
referred to below, and except for instructions given to the Escrow Agent by
GoAmerica and the Shareholders relating to the Escrow Account under this
Agreement, the Escrow Agent shall not be obligated to recognize any agreement
between any and all of the persons referred to herein, notwithstanding that
references thereto may be made herein and whether or not it has knowledge
thereof.
8.2. The Escrow Agent shall not be liable to GoAmerica or the
Shareholders or to anyone else for any action taken or omitted by it, or any
action suffered by it to be taken or omitted, in good faith and in the exercise
of its own best judgment and shall be liable only in case of its own bad faith
or willful misconduct or gross negligence or intentional failure to comply with
its obligations under this Agreement. The Escrow Agent may rely conclusively and
shall be protected in acting upon any order, notice, demand, certificate,
opinion or advice of counsel (including counsel chosen by the Escrow Agent),
statement, instrument, report or other paper or document (not only as to its due
execution and the validity and effectiveness of its provisions, but also as to
the truth and acceptability of any information therein contained), which is
reasonably believed by the Escrow Agent to be genuine and to be signed or
presented by the proper person or persons. The Escrow Agent shall not be bound
by any notice or demand, or any waiver, modification, termination or rescission
of this Agreement or any of the terms thereof, unless evidenced by a writing
delivered to the Escrow Agent signed by the proper party or parties and, if the
duties or rights of the Escrow Agent are affected, unless it shall give its
prior written consent thereto.
8.3. The Escrow Agent shall not be responsible for the sufficiency or
accuracy of the form of, or the execution, validity, value or genuineness of,
any document or property received, held or delivered by it hereunder, or of any
signature or endorsement thereon, or for any lack of endorsement thereon, or for
any description therein; nor shall the Escrow Agent be responsible or liable to
the other parties hereto or to anyone else in any respect on account of the
identity, authority or rights of the persons executing or delivering or
purporting to execute or deliver any document or property or this Agreement. The
Escrow Agent shall have no responsibility with respect to the use or
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application of any funds or other property paid or delivered by the Escrow Agent
pursuant to the provisions hereof.
8.4 The Escrow Agent shall have the right to assume, in the absence of
written notice to the contrary from the proper person or persons, that a fact or
an event by reason of which an action would or might be taken by the Escrow
Agent does not exist or has not occurred, without incurring liability to the
other parties hereto or to anyone else for any action taken or omitted, or any
action suffered by it to be taken or omitted, in good faith and in the exercise
of its own best judgment, in reliance upon such assumption.
9. Controversies.
If any controversy arises among the parties to this Agreement, or with
any other party, concerning the subject matter of this Agreement, or its terms
or conditions, the Escrow Agent will not be required to determine the
controversy or to take any action regarding it. The Escrow Agent may hold the
Escrow Shares and all documents and funds, and may wait for settlement of any
such controversy by final appropriate arbitration or legal proceedings or other
means, as the Escrow Agent may require in its discretion, notwithstanding any
other provision of this Agreement. In such event, the Escrow Agent will not be
liable for interest or damages. Furthermore, the Escrow Agent may at its option
file an action of interpleader in a court of competent jurisdiction requiring
the parties to answer and litigate their claims and rights among themselves. The
Escrow Agent is authorized to deposit with the clerk of the court all documents
and funds held in the Escrow Account, except all costs, expenses, charges and
reasonable attorney fees incurred by the Escrow Agent due to the interpleader
action, GoAmerica agrees to pay and promptly deposit with the clerk of the
court. Upon initiating such action, the Escrow Agent shall be fully released and
discharged of and from any obligations and liability imposed by the terms of
this Agreement. The release from liability shall survive the termination of this
Agreement.
10. Resignation or Removal of Escrow Agent.
The Escrow Agent may resign at any time upon giving at least thirty
(30) days' written notice to GoAmerica and the Shareholder Representative, and
may be removed at any time by the mutual agreement of GoAmerica and the
Shareholder Representative. Upon resignation or removal, the Escrow Agent shall
turn over the Escrow Account to the duly appointed successor escrow agent (less
any amount due and owning under Section 7 hereof); provided, however, that any
such resignation or removal shall not become effective until the appointment of
a successor escrow agent which shall be accomplished as follows. GoAmerica and
the Shareholder Representative shall use their reasonable best efforts to agree
on a successor escrow agent within thirty (30) days after receiving such notice
of resignation from the Escrow Agent. If GoAmerica and the Shareholder
Representative fail to agree on a successor escrow agent within such time, the
parties shall promptly request a court of competent jurisdiction to appoint such
an agent. If a successor escrow agent is not appointed within thirty (30) days
of the parties request to the court, the Escrow Agent may deposit the Escrow
Account with such court pending appointment. The successor escrow agent shall
execute and deliver to the
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Escrow Agent an instrument accepting such appointment and it shall, without
further acts, be vested with all the estates, properties, rights, powers and
duties of the predecessor escrow agent as if originally named as the escrow
agent. Then, the Escrow Agent shall be discharged from any further duties and
liability under this Agreement accruing after the date the appointment
of such successor escrow agent is accepted by the parties (or made by a court
of competent jurisdiction, as applicable) and becomes effective, and such
discharge of liability will survive the termination of this Agreement.
11. Indemnification of Escrow Agent.
11.1. GoAmerica shall reimburse, indemnify and hold harmless the Escrow
Agent, its employees and agents (referred to in this Section 11 collectively and
individually as the "Escrow Agent"), from and against any and all expenses,
including reasonable counsel fees and disbursements, or loss suffered by the
Escrow Agent in connection with any action, suit or other proceeding involving
any claim, or in connection with any claim or demand, which in any way, directly
or indirectly, arises out of or relates to this Agreement, the services of the
Escrow Agent hereunder, the monies or other property held by it hereunder. The
Escrow Agent shall have a lien for the amount of any such expenses or loss on
the monies and other property held by it hereunder and shall be entitled to
reimburse itself from such monies or property for the amount of any such expense
or loss. Promptly after the receipt by the Escrow Agent of notice of any demand
or claim or the commencement of any action, suit or proceeding, the Escrow Agent
shall, if a claim in respect thereof is to be made against GoAmerica, notify
GoAmerica thereof in writing, but the failure by the Escrow Agent to give such
notice shall not relieve GoAmerica from any liability which they may have to the
Escrow Agent hereunder. Notwithstanding any obligation to make payments and
deliveries hereunder, the Escrow Agent may retain and hold for such time as it
deems necessary such amount of monies or property as it shall, from time to
time, in its sole discretion, deem sufficient to indemnify itself for any such
loss or expense and for any amounts due it under Section 7.
11.2. For purposes of this Section 11, the term "expense or loss" shall
include all amounts paid or payable to satisfy any claim, demand or liability,
or in settlement of any claim, demand, action, suit or proceeding settled with
the express written consent of the Escrow Agent, and all costs and expenses,
including, but not limited to, reasonable counsel fees and disbursements, paid
or incurred in investigating or defending against any such claim, demand,
action, suit or proceeding.
11.3. GoAmerica and the Shareholders may participate at their own
expense in the defense of any claim or action that may be asserted against the
Escrow Agent, and, if GoAmerica or the Shareholder Representative (acting for
the Shareholders) so elects, either may assume the defense of such claim or
action; provided, however, that if there exists a conflict of interest that
would make it inappropriate for the same counsel to represent both GoAmerica or
the Shareholders, as the case may be, and the Escrow Agent, retention of
separate counsel by the Escrow Agent shall be reimbursable as hereinabove
provided; and provided, further, that GoAmerica shall not settle or compromise
any such claim or action without the consent of the Shareholders, which consent
shall not be unreasonably withheld, and the Shareholders shall not settle or
compromise any such claim or action without the consent of GoAmerica, which
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consent shall not be unreasonably withheld. The parties will notify the Escrow
Agent in writing of their intention to participate or assume the defense of any
claim. The right of the Escrow Agent to indemnification hereunder shall survive
its resignation or removal as Escrow Agent and shall survive the termination of
this Agreement by lapse of time or otherwise.
12. Authority of GoAmerica.
GoAmerica shall be entitled to assert claims for indemnity on behalf of
any of the GoAmerica Indemnitees, and all of the GoAmerica Indemnitees shall be
bound by GoAmerica's actions and decisions hereunder.
13. Authority of Shareholder Representative.
The Shareholder Representative represents and warrants to GoAmerica and
the Escrow Agent that the Shareholders, by virtue of the Shareholders'
acceptance of their respective portion of the Merger Shares, have consented to:
(a) be bound by the terms of this Escrow Agreement; (b) be a party hereto with
the same force and effect as if they were signatories hereto, including without
limitation, the appointment of the Shareholder Representative as their
representative for purposes of this Escrow Agreement and as attorney-in-fact and
agent for and on behalf of each such Shareholder; and (c) the taking by the
Shareholder Representative of any and all actions and the making of any
decisions required or permitted to be taken or made by the Shareholder
Representative under this Escrow Agreement and the Merger Agreement.
14. Miscellaneous.
14.1. Amendments and Waivers. This Agreement, or any provision of this
Agreement, may be amended or waived from time to time only upon the mutual
written agreement of GoAmerica, the Shareholders (by and through the Shareholder
Representative) and the Escrow Agent. No delay or omission by any party to
exercise any right or power hereunder shall impair such right or power or be
construed to be a waiver thereof. A waiver by any of the parties hereto of any
of the covenants to be performed by the other or any breach thereof shall not be
construed to be a waiver of any subsequent breach or of any other covenant
contained in this Agreement.
14.2. Notices. Notices and other communications by a party under this
Agreement shall be in writing and hand-delivered, deposited with an overnight
carrier for next- or second-day delivery, sent by certified mail or transmitted
by facsimile (with receipt confirmed), addressed to the parties as follows (or
to such other addresses as any party may designate from time to time in
writing):
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(a) if to GoAmerica or Sub, to:
GoAmerica, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇ and ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Shareholders, to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Shareholder Representative
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Strategic Law Partners, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to the Escrow Agent, to:
American Stock Transfer & Trust Company
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
and shall be deemed given when received.
14.3. Successors; Third Parties; Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors and assigns. This Agreement is not intended to confer upon any person
other than the parties hereto any rights or remedies hereunder, except as
otherwise expressly provided herein.
14.4. Entire Agreement. This Agreement, the Merger Agreement (and any
agreements referenced therein) constitute the entire agreement among GoAmerica,
the
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Shareholders and the Escrow Agent with respect to the subject matter hereof, and
supersedes any and all prior agreements, understandings, promises or
representations made by such persons concerning the subject matter of this
Agreement.
14.5. Applicable Law. The validity, performance and construction of
this Agreement shall be governed by and construed in accordance with the laws of
the State of New York.
14.6. Consent to Jurisdiction; Arbitration.
(a) Each of the parties hereby consents and agrees to submit
himself or itself to the non-exclusive jurisdiction of the courts of the State
of New York and of the United States of America located in the State of New
York, County of New York.
(b) The parties acknowledge and agree that GoAmerica would be
materially prejudiced by the failure of the parties to resolve any objections or
disputes as contemplated by Section 5.2 and Article 6 hereof. The parties
therefore agree to resolve any such disputes or objections in accordance with
the arbitration provisions set forth below and to take any and all actions
necessary to resolve such disputes or objections as expeditiously as possible.
Notwithstanding anything to the contrary contained in this Agreement, any
dispute, controversy or claim arising out of or relating to this Agreement, or
the provisions of the Merger Agreement related hereto, or the breach,
termination or validity thereof ("Dispute") shall be finally settled by
arbitration, to be held in New York, New York in accordance with the CPR
Institute For Dispute Resolution ("CPR") Non-Administered Arbitration Rules then
in effect ("Rules"), except as modified herein. Within five (5) days after
receipt by a party of a notice of dispute, GoAmerica, on the one hand, and the
Shareholder Representative, on the other, shall each appoint one arbitrator; the
two arbitrators so appointed shall select the third arbitrator who shall be a
disinterested person of recognized competence in the matter at issue who shall
act as the presiding arbitrator for the dispute in question. If either party
fails to name an initial arbitrator, or if appointed arbitrators have failed to
appoint the third arbitrator as provided in the Rules, then CPR shall appoint
that arbitrator within five (5) days of the request of either GoAmerica or the
Shareholder Representative. Consistent with the expedited nature of arbitration,
the number of depositions, if any, conducted by each of claimant(s),
collectively, and by respondent(s), collectively, pursuant to Rule 11 of the
Rules shall be limited to three (3) and any discovery permitted by the tribunal
shall be completed within ten (10) days of the date of the appointment of the
third arbitrator. Any award rendered in such arbitration shall be final and
binding upon the parties, and judgment may be entered thereon in any court of
competent jurisdiction. Upon the rendering of any such award on or prior to the
Termination Date, the Escrow Agent shall release the appropriate portion of the
Escrow Account in accordance with Article 6 hereof. The parties agree to submit
to the non-exclusive jurisdiction of the courts of the State of New York and of
the United States of America located in the State of New York, county of New
York, for any action to enforce any award hereunder. The demand for arbitration
shall be delivered in accordance with Section 14.2. The fees of the arbitrators
shall be paid by the losing party and the arbitrators will be authorized to make
such determination binding on the parties and specifically enforceable.
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14.7. Validity. The invalidity or unenforceability of any provisions of
this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, each of which shall remain in full force and
effect.
14.8. Captions; Construction. Titles or captions of Sections contained
in this Agreement are inserted only as a matter of convenience and for
reference, and in no way define, limit, extend or describe the scope of this
Agreement or the intent of any provision of this Agreement. The words "herein"
and "hereof" and other words of similar import refer to this Agreement as a
whole and not to any particular part of this Agreement. The word "including" as
used herein shall not be construed so as to exclude any other thing not referred
to or described. All references herein to Sections shall be deemed references to
sections of this Agreement, except as otherwise provided.
14.9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
14.10. Binding Effect. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto and their respective successors,
assigns, heirs and legal representatives. Except as otherwise set forth herein,
nothing in this Agreement, express or implied, is intended to or shall confer
upon any other person any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement.
14.11. Further Assurances. From time to time on and after the date
hereof, GoAmerica and the Shareholders shall deliver or cause to be delivered to
the Escrow Agent such further documents and instruments and shall do and cause
to be done such further acts as the Escrow Agent shall reasonably request (it
being understood that the Escrow Agent shall have no obligation to make any such
request) to carry out more effectively the provisions and purposes of this
Agreement, to evidence compliance herewith or to assure itself that it is
protected in acting hereunder.
[Signature page follows]
-11-
IN WITNESS WHEREOF, this Agreement has been duly executed as of and on
the date first above written.
GOAMERICA, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
THE SHAREHOLDERS
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Shareholder Representative
AMERICAN STOCK TRANSFER & TRUST COMPANY,
as Escrow Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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SCHEDULE A
SCHEDULE OF SHAREHOLDERS
Name Percentage of Number of Shares to be
---- Total Escrow Deposited in Escrow
Shares ----------------------
-------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 41.45% 11,192
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 23.03% 6,218
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 13.82% 3,731
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 9.21% 2,487
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ .69% 186
▇▇▇▇▇▇▇ ▇▇▇▇▇ 1.61% 435
The ▇▇▇ Living Trust
Dated March 25, 1994 4.61% 1,243
▇▇▇ ▇▇▇▇▇▇▇▇ 3.22% 870
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 2.36% 638