Exhibit
2.1
WAIVER AND SUPPLEMENTAL
AGREEMENT
This Waiver and Supplemental Agreement is made
as of October 28, 2005, among Hands On Video Relay Services, Inc.,
Hands On Sign Language Services, Inc. (collectively “Hands
On”), Denise and Ronald Obray (collectively, the
“Obrays”) and GoAmerica, Inc.
(“GoAmerica).
The parties hereto agree as follows:
1.0 Background . The parties entered into an Agreement and Plan
of Reorganization, dated as of July 6, 2005 (the “Merger
Agreement”). All capitalized terms used herein and not
otherwise defined have the meanings ascribed to them in the Merger
Agreement. Hands On has requested a waiver from GoAmerica from
certain provisions of the Merger Agreement to allow Hands On to
raise a limited amount of capital from third-party sources through
the issuance of new securities or the sale of securities currently
held by the Obrays (collectively, “Securities
Transactions”).
Both GoAmerica and Hands On are prohibited under
Section 5.2 of the Merger Agreement from:
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taking any
action to solicit, initiate, encourage or support any inquiries
that could lead to business deals with third parties, including
mergers, asset sales, sales of capital stock or similar
transactions; or
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engaging in any
discussions or negotiations or providing any information to any
party regarding any these types of transactions.
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Section 5.1 of the Merger Agreement provides
that neither party may issue any securities without the prior
consent of the other party. Finally, Section 5.3 of the Merger
Agreement provides that the Obrays will not transfer or sell any of
their interests in Hands On.
GoAmerica is willing to grant Hands On and the
Obrays a waiver from these provisions of the Merger Agreement on
the terms described below and Hands and the Obrays are willing to
grant GoAmerica a limited waiver from Section 5.2 on the terms
described below.
2.0 Terms of Waiver .
2.1 GoAmerica agrees that Hands On and the Obrays
shall be permitted to raise up to $2.0 million (or, if GoAmerica
consents, more than $2.0 million) through Securities Transactions
during the period from the date this Waiver and Supplemental
Agreement is signed through December 31, 2005, provided that if
Hands On and the Obrays have a bona fide proposal for a Securities
Transaction by December 31, 2005, the parties will agree to a
reasonable extension of this date (consistent with Merger closing
by the Closing Date) to consummate such Securities
Transaction.
2.2 The Securities Transactions will be subject to
the following conditions:
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Only common
stock, or securities that convert into common stock of Hands On,
and then GoAmerica, automatically upon closing of the Merger
with GoAmerica, will be sold. No debt or other obligations
resulting from the sale of these securities will be outstanding
following closing of the Merger.
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Purchasers of
these securities will be required as a condition to any sale to
agree to vote in favor of the Merger with GoAmerica and to waive
any appraisal rights which they may have so that the Obrays and the
Purchasers will, in the aggregate, at all times hold sufficient
shares of Hands On to ensure that the Merger will be approved by
Hands On shareholders.
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2.3 The funds raised by the Securities Transactions
will be used by Hands On and the Obrays to pay transactions
expenses incurred by Hands On and the Obrays in connection with the
Merger Agreement and the Merger and to pay other liabilities of
Hands On, provided that as long as all outstanding transaction
expenses and past due liabilities of Hands On have been paid, Hands
On shall continue to have the right to make distributions to Target
Shareholders if the provisions of Section 5.1(b) of the Merger
Agreement have been met. The parties acknowledge that Section 6.15
of the Merger Agreement provides that “whether or not the
Merger is consummated, all costs and expenses incurred in
connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such expense.” To
effectuate this provision, to the extent that any transaction
expenses of Hands On and the Obrays remain outstanding as of the
Effective Time of the Merger, by operation of law, GoAmerica shall
assume such transaction expenses on the Closing Date, and the
number of GoAmerica shares to be issued in the Merger will be
reduced by a number of shares equal to (i) the product of
multiplying the amount of such transaction expenses so assumed by
GoAmerica times 2.0, divided by (ii) the Average Closing
Price.
2.4 The Targets’ Working Capital Deficit
described in the Merger Agreement shall be calculated as of the
Closing Date (rather than as of June 30, 2005). Accordingly, all
references in the
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