EXHIBIT 10.10
EMPLOYMENT AGREEMENT
THIS AGREEMENT made effective as of the 31st day of December 1999 (the
"Effective Date") by and between GoAmerica, Inc., a Delaware corporation with
its principal place of business at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000 (the "Company"), and Xxxxx Xxxx (the "Employee").
WITNESSETH:
WHEREAS, the Company desires to secure the employment of the Employee in
accordance with the provisions of this Agreement; and
WHEREAS, the Employee desires and is willing to accept employment with the
Company in accordance herewith.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Term. The Company hereby agrees to employ the Employee and the
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Employee hereby agrees to serve the Company pursuant to the terms and conditions
of this Agreement as Vice President, Network Operations and Technology of the
Company, or in a position at least commensurate therewith in all material
respects, for an initial term commencing on the Effective Date hereof and
expiring on the third anniversary thereof (the "initial term"). On the
expiration of the initial term and on each yearly anniversary thereof, the
Agreement shall automatically renew for an additional one-year period (the
"Renewal Term"), unless sooner terminated in accordance with the provisions of
Section 5 or unless either party notifies the other party in writing of its
intentions not to renew this Agreement not less than sixty (60) days prior to
such expiration date or anniversary, as the case may be.
2. Positions and Duties.
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(a) Duties. The Employee's duties hereunder shall be those which shall be
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prescribed from time to time by the Board of Directors in accordance with the
bylaws of the Company and shall include such executive duties, powers and
responsibilities as customarily attend the office of Vice President, Network
Operations of a company comparable to the Company. The Employee will hold, in
addition to the office of Vice President, Network Operation of the Company, such
other executive offices in the Company and its subsidiaries to which he may be
elected, appointed or assigned by the Board of Directors from time to time and
will discharge such executive duties in connection therewith. During the
employment period, the Employee's position (including status, offices and
reporting requirements), authority, duties and responsibilities shall be at
least commensurate in all material respects with the most significant of those
held, exercised and assigned immediately preceding the Effective Date. The
Employee shall devote his full working time, energy and skill (reasonable
absences for vacations and illness excepted), to the business of the Company as
is necessary in order to perform such duties faithfully, competently and
diligently; provided, however, that notwithstanding any provision in this
Agreement to the contrary, the Employee shall not be precluded from devoting
reasonable periods of time required for serving as a member of boards of
companies which have been approved by the Board of Directors or participating in
non-business organizations so long as such memberships or activities do not
interfere with the performance of the Employee's duties hereunder.
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3. Compensation. During the term of this Agreement, the Employee shall
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receive, for all services rendered to the Company hereunder, the following
(hereinafter referred to as "Compensation"):
(a) Base Salary. For the term hereof, the Employee shall be paid an annual
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base salary equal to $125,000. The Employee's annual base salary shall be
payable in equal installments in accordance with the Company's general salary
payment policies but no less frequently than monthly. Such base salary shall be
reviewed, and any increases in the amount thereof shall be determined, by the
Board of Directors or a compensation committee formed by the Board of Directors
(the "Compensation Committee") at the end of each 12-month period of employment
during the term hereof.
(b) Bonuses. The Employee shall be eligible for and may receive bonuses.
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The amount of such bonus shall be a minimum of $25,000. Any additional bonus
shall be solely within the discretion of the Board of Directors or, if formed,
the Compensation Committee thereof.
(c) Incentive Compensation. The Employee shall be eligible for awards from
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the Company's incentive compensation plans, including without limitation any
stock option plans, applicable to high level executive officers of the Company
or to key employees of the Company or its subsidiaries, in accordance with the
terms thereof and on a basis commensurate with his position and
responsibilities.
(d) Benefits. The Employee and his "dependents," as that term may be
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defined under the applicable benefit plan(s) of the Company, shall be included,
to the extent eligible thereunder, in any and all plans, programs and policies
which provide benefits for employees and their dependents. Such plans, programs
and policies may include health care insurance, long-term
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disability plans, life insurance, supplemental disability insurance,
supplemental life insurance, holidays and other similar or comparable benefits
made available to the Company's employees.
(e) Expenses. Subject to and in accordance with the Company's policies and
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procedures, the Employee hereby is authorized to incur, and, upon presentation
of itemized accounts, shall be reimbursed by the Company for, any and all
reasonable and necessary business-related expenses, which expenses are incurred
by the Employee on behalf of the Company or any of its subsidiaries.
4. Absences. The Employee shall be entitled to vacations of no less than
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four (4) weeks, absences because of illness or other incapacity, and such other
absences, whether for holiday, personal time, or for any other purpose, as set
forth in the Company's employment manual or current procedures and policies, as
the case may be, as same may be amended from time-to-time.
5. Termination. In addition to the events of termination and expiration
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of this Agreement provided for in Section 1 hereof, the Employee's employment
hereunder may be terminated only as follows:
(a) Without Cause. The Company may terminate the Employee's employment
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hereunder without cause only upon action by the Board of Directors, and upon no
less than sixty (60) days prior written notice to the Employee. The Employee
may terminate employment hereunder without cause upon no less than sixty (60)
days prior written notice to the Company.
(b) For Cause, by the Company. The Company may terminate the Employee's
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employment hereunder for cause immediately and with prompt notice to the
Employee, which
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cause shall be determined in good faith solely by the Board of Directors.
"Cause" for termination shall include, but is not limited to, the following
conduct of the Employee:
(i) Material breach of any provision of this Agreement by the
Employee, which breach shall not have been cured by the Employee within sixty
(60) days of receipt of written notice of said breach;
(ii) Misconduct as an employee of the Company, including but not
limited to: misappropriating any funds or property of the Company; attempting to
willfully obtain any personal profit from any transaction in which the Employee
has an interest which is adverse to the interests of the Company; or any other
act or omission which substantially impairs the Company's ability to conduct its
ordinary business in its usual manner;
(iii) Unreasonable neglect or refusal to perform the duties assigned
to the Employee under or pursuant to this Agreement;
(iv) Conviction of a felony (including pleading guilty or no contest
to a felony or lesser charge which results from plea bargaining); or
(v) Any other act or omission which subjects the Company or any of
its subsidiaries to substantial public disrespect, scandal or ridicule.
(c) For Good Reason by Employee. The Employee may terminate employment
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hereunder for good reason immediately and with prompt notice to the Company.
"Good reason" for termination by the Employee shall include, but is not limited
to, the following conduct of the Company:
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(i) Material breach of any provision of this Agreement by the
Company, which breach shall not have been cured by the Company within sixty (60)
days of receipt of written notice of said breach;
(ii) Failure to maintain the Employee in a position commensurate
with that referred to in Section 2 of this Agreement;
(iii) The assignment to the Employee of any duties inconsistent with
the Employee's position, authority, duties or responsibilities as contemplated
by Section 2 of this Agreement, or any other action by the Company which results
in a diminution of such position, authority, duties or responsibilities,
excluding for this purpose any isolated action not taken in bad faith and which
is promptly remedied by the Company after receipt of notice thereof given by the
Employee.
(d) Death. The period of active employment of the Employee hereunder shall
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terminate automatically in the event of his death.
(e) Disability. In the event that the Employee shall be unable to perform
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duties hereunder for a period of one hundred eighty (180) consecutive calendar
days or one hundred eighty (180) work days within any 360 consecutive calendar
days, by reason of disability as a result of illness, accident or other physical
or mental incapacity or disability, the Company may, in its discretion, by
giving written notice to the Employee, terminate the Employee's employment
hereunder as long as the Employee is still disabled on the effective date of
such termination.
(f) Mutual Agreement. This Agreement may be terminated at any time by
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mutual agreement of the Employee and the Company.
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6. Compensation in the Event of Termination. In the event that the
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Employee's employment pursuant to this Agreement terminates prior to the end of
the term of this Agreement for a reason provided in Section 5 hereof, the
Company shall pay the Employee compensation as set forth below:
(a) By Employee for Good Reason; By Company Without Cause. In the event
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that the Employee's employment hereunder is terminated by the Employee for good
reason pursuant to Section 5(c) hereof; or by the Company without cause pursuant
to Section 5(a) hereof, then:
(i) the Company shall continue to pay to the Employee his annual base
salary and all other compensation and benefits provided for in Section 3 hereof
in the same manner as before termination for a period of time ending six (6)
months from the date of such termination provided, however, that in the event
that such termination shall occur less than six (6) months from the date of
termination of this Agreement, such base salary, compensation and benefits
payable to Employee shall be equal to the base salary, compensation and benefits
then owed to Employee for the remainder of the term of this Agreement. The
Employee shall not be required to mitigate the amount of any payment provided
for in this Section 6(a) by seeking employment or otherwise, nor shall any
amounts received from employment or otherwise by the Employee offset in any
manner the obligations of the Company hereunder; and
(ii) the payments, rights and entitlements described in Sections
6(a)(i) hereof, if any, shall only be made if the Employee shall first have
executed and delivered to the
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Company a release with respect to his employment hereunder and the termination
of such employment.
(b) By Company Upon Termination of Agreement Due to Employee's Death or
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Disability. In the event of the Employee's death or if the Company shall
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terminate the Employee's employment hereunder for disability pursuant to Section
5(e) hereof then:
(i) the Company shall continue to pay the base salary payable
hereunder at the then current rate for one (1) year after the termination of
employment to the Employee or his personal representative, as applicable;
(ii) in the event of a termination pursuant to Section 5(e) hereof,
if eligible, Employee shall be entitled to benefits under any salaried long-term
disability plan of the Company covering the Employee then in effect; and
(iii) all other compensation and benefits provided for in Section 3
of this Agreement shall cease upon such termination.
(c) By Company For Cause or By Employee Without Good Reason. In the event
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that: (i) the Company shall terminate the Employee's employment hereunder for
cause pursuant to Section 5(b) hereof; or (ii) the Employee shall terminate
employment hereunder without "good reason" as defined in Section 5(c) hereof,
then the Employee's rights hereunder shall cease as of the effective date of the
termination, including, without limitation, the right to receive the Base Salary
and all other compensation or benefits provided for in this Agreement, except
that the Company shall pay the Employee salary and other Compensation which may
have been earned and is due and payable but which has not been paid as of the
date of termination.
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7. Effect of Termination. In the event of expiration or early termination
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of this Agreement as provided herein, neither the Company nor the Employee shall
have any remaining duties or obligations hereunder except that:
(a) The Company shall:
(i) Pay the Employee's accrued salary and any other accrued
benefits under Section 3 hereof;
(ii) Reimburse the Employee for expenses already incurred in
accordance with Section 3(e) hereof;
(iii) To the extent required by law, pay or otherwise provide for any
benefits, payments or continuation or conversion rights in accordance with the
provisions of any benefit plan of which the Employee or any of his dependents is
or was a participant; and
(iv) Pay the Employee or his beneficiaries any compensation due
pursuant to Section 6 hereof; and
(b) The Employee shall remain bound by the terms of Section 8 hereof and
Exhibit A attached hereto.
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8. Restrictive Covenant. (a) The Employee acknowledges and agrees that
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he has access to secret and confidential information of the Company and its
subsidiaries and that the following restrictive covenant is necessary to protect
the interests and continued success of the Company. Except as otherwise
expressly consented to in writing by the Company, until the termination of the
Employee's employment (for any reason and whether such employment was under this
Agreement or otherwise) and thereafter for twelve (12) months (the "Restricted
Period"), the Employee shall not, directly or indirectly, acting as an employee,
owner,
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shareholder, partner, joint venturer, officer, director, agent, salesperson,
consultant, advisor, investor or principal of any corporation or other business
entity:
(i) engage, in any state or territory of the United States of
America or other country where the Company is actively doing business
(determined as of the date the Employee's employment with the Company
terminates), in direct or indirect competition with the business conducted by
the Company or activities which the Company plans to conduct within one year of
termination (determined as of the date the Employee's employment with the
Company terminates);
(ii) request or otherwise attempt to induce or influence, directly
or indirectly, any present customer or supplier, or prospective customer or
supplier, of the Company, or other persons sharing a business relationship with
the Company, to cancel, limit or postpone their business with the Company, or
otherwise take action which might be to the material disadvantage of the
Company; or
(iii) hire or solicit for employment, directly or indirectly, or
induce or actively attempt to influence, any Employee of the Company or any
Affiliate, as such term is defined in the Securities Act of 1933, as amended, to
terminate his or her employment or discontinue such person's consultant,
contractor or other business association with the Company.
(b) If the Employee violates any of the restrictions contained in Section
8(a) above, the Restrictive Period shall be increased by the period of time from
the commencement of any such violation until the time such violation shall be
cured by the Employee to the satisfaction of the Company, and the Company may
withhold any and all payments, except salary, otherwise due and owing to the
Employee under this Agreement.
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(c) In the event that either the geographical area or the Restrictive
Period set forth in Section 8(a) of this Agreement is deemed to be unreasonably
restrictive in any court proceeding, the court may reduce such geographical area
and Restrictive Period to the extent which it deems reasonable under the
circumstances.
(d) Nothing in this Section 8, whether express or implied, shall prevent
the Employee from being a holder of securities of a company whose securities are
registered under Section 12 of the Securities Exchange Act of 1934, as amended,
or any privately held company; provided, however, that during the term of this
Agreement, and with respect to any company which may be deemed to directly or
indirectly compete with the business conducted by the Company or with the
activities which the Company plans to conduct, the Employee holds of record and
beneficially less than one percent (1%) of the votes eligible to be cast
generally by holders of securities of such company for the election of
directors.
(e) The Employee, as a condition of his continued employment, acknowledges
and agrees that he has reviewed and will continue to be bound by all of the
provisions set forth in Exhibit A attached hereto, which is incorporated herein
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by reference and made a part hereof as though fully set forth herein, during the
term of this Agreement, and any time hereafter.
(f) Employee acknowledges and agrees that in the event of a breach or
threatened breach of the provisions of this Section 8 by Employee the Company
may suffer irreparable harm and therefore, the Company shall be entitled, to the
extent permissible by law, immediately to cease to pay or provide the Employee
any compensation being, or to be, paid or provided to him pursuant to Sections 3
or 6 of this Agreement, and also to obtain immediate injunctive relief
restraining the Employee from conduct in breach or threatened breach of the
covenants contained
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in this Section 8. Nothing herein shall be construed as prohibiting the Company
from pursuing any other remedies available to it for such breach or threatened
breach, including the recovery of damages from the Employee.
9. Directors and Officers Liability Insurance. During the term of this
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Agreement, the Company shall maintain standard directors and officers liability
insurance in a face amount of no less than $10,000,000.
10. Resolution of Differences Over Breaches of Agreement. Except as
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otherwise provided herein, any controversy or claim arising out of, or relating
to, this Agreement, or the breach hereof, or otherwise arising out of or
relating to the Employee's employment, compensation and benefits with the
Company or the termination thereof, shall be reviewed in the first instance in
accordance with the Company's internal review procedures, if any, with recourse
thereafter--for temporary or preliminary injunctive relief only as to the
provisions of Section 8--to the courts having jurisdiction thereof. If any
relief other than injunctive relief is sought, then to arbitration in the State
of New Jersey administered by the American Arbitration Association, under its
National Rules for the Resolution of Employment Disputes and judgment upon the
award rendered by the Arbitrator(s) may be entered in any court having
jurisdiction thereof. Any claim or controversy not submitted to arbitration in
accordance with this Section 9 shall be waived and, thereafter, no arbitration
panel or tribunal or court shall have the power to rule or make any award on any
such claim or controversy.
11. No Conflicts. The Employee has represented and hereby represents to
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the Company that the execution, delivery and performance by the Employee of this
Agreement do not conflict with or result in a violation or breach of, or
constitute (with or without notice or
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lapse of time or both) a default under any contract, agreement or understanding,
whether oral or written, to which the Employee is a party or of which the
Employee is or should be aware and the there are no restrictions, covenants,
agreements or limitations on his right or ability to enter into and perform the
terms of this Agreement, and agrees to save the Company harmless from any
liability, cost or expense, including attorney's fees, based upon or arising out
of any such restrictions, covenants, agreements, or limitations that may be
found to exist.
12. Waiver. The waiver by a party hereto of any breach by the other party
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hereto of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach by a party hereto.
13. Assignment. This Agreement shall be binding upon and inure to the
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benefit of the successors and assigns of the Company, and the Company shall be
obligated to require any successor to expressly assume its obligations
hereunder. This Agreement shall inure to the benefit of and be enforceable by
the Employee or his legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. The Employee may not
assign any of his duties, responsibilities, obligations or positions hereunder
to any person and any such purported assignment by him shall be void and of no
force and effect.
14. Notices. Any notices required or permitted to be given under this
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Agreement shall be sufficient if in writing, and if personally delivered or when
sent by first class certified or registered mail, postage prepaid, return
receipt requested--in the case of the Employee, to his residence address as set
forth below, and in the case of the Company, to the address of its principal
place of business as set forth below, in care of the Board of Directors--or to
such other
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person or at such other address with respect to each party as such party shall
notify the other in writing.
15. Construction of Agreement.
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(a) Governing Law. This Agreement shall be governed by and its provisions
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construed and enforced in accordance with the internal laws of the State of New
Jersey without reference to its principles regarding conflicts of law.
(b) Severability. In the event that any one or more of the provisions of
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this Agreement shall be held to be invalid, illegal or unenforceable, the
validity, legality or enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
(c) Headings. The descriptive headings of the several paragraphs of this
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Agreement are inserted for convenience of reference only and shall not
constitute a part of this Agreement.
16. Entire Agreement. This Agreement and Exhibit A hereto contains the
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entire agreement of the parties concerning the Employee's employment and all
promises, representations, understandings, arrangements and prior agreements on
such subject are merged herein and superseded hereby. The provisions of this
Agreement may not be amended, modified, repealed, waived, extended or discharged
except by an agreement in writing signed by the party against whom enforcement
of any amendment, modification, repeal, waiver, extension or discharge is
sought. No person acting other than pursuant to a resolution of the Board of
Directors shall have authority on behalf of the Company to agree to amend,
modify, repeal, waive, extend or discharge any provision of this Agreement or
anything in reference thereto or to exercise any of the Company's rights to
terminate or to fail to extend this Agreement.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
and attested by its duly authorized officers, and the Employee has set his hand,
all as of the day and year first above written.
ATTEST: GoAmerica, Inc.
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxx Xxxxxxxxx
________________________________ By: _____________________________
Xxxxxxx X. Xxxxxx, Secretary Xxxxx Xxxxxxxxx, President
Address:______________________________
______________________________
______________________________
WITNESS: EMPLOYEE
/s/ Xxxxx X. Xxxxxx /s/ Xxxxx Xxxx
____________________________ ________________________________
Xxxxx Xxxx
Address:______________________________
______________________________
______________________________
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EXHIBIT A
GoAmerica, Inc.
EMPLOYEE'S
INVENTION ASSIGNMENT AND CONFIDENTIALITY
AGREEMENT
In consideration of my employment or continued employment by GoAmerica,
Inc., a Delaware corporation or any subsidiary or parent corporation thereof
(the "Company"), I hereby represent and agree as follows:
1. I understand that the Company is engaged in the business of providing
wireless internet service and related services and that I may have access to or
acquire information with respect to Confidential Information (as defined below),
including processes and methods, development tools, scientific, technical and/or
business innovations.
2. Disclosure of Innovations. I agree to disclose in writing to the
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Company all inventions, improvements and other innovations of any kind that I
may make, conceive, develop or reduce to practice, alone or jointly with others,
during the term of my employment with the Company, whether or not they are
related to my work for the Company and whether or not they are eligible for
patent, copyright, trademark, trade secret or other legal protection
("Innovations"). Examples of Innovations shall include, but are not limited to,
discoveries, research, inventions, formulas, techniques, processes, tools, know-
how, marketing plans, new product plans, production processes, advertising,
packaging and marketing techniques and improvements to computer hardware or
software.
3. Assignment of Ownership of Innovations. I agree that all Innovations
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will be the sole and exclusive property of the Company and I hereby assign all
of my rights, title or interest in the Innovations and in all related patents,
copyrights, trademarks, trade secrets, rights of priority and other proprietary
rights to the Company. At the Company's request and expense, during and after
the period of my employment with the Company, I will assist and cooperate with
the Company in all respects and will execute documents, and, subject to my
reasonable availability, give testimony and take further acts requested by the
Company to obtain, maintain, perfect and enforce for the Company patent,
copyright, trademark, trade secret and other legal protection for the
Innovations. I hereby appoint the President and Chief Executive Officer of the
Company as my attorney-in-fact to execute documents on my behalf for this
purpose.
4. Protection of Confidential Information of the Company. I understand
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that my work as an employee of the Company creates a relationship of trust and
confidence between myself and the Company. During and after the period of my
employment with the Company, I will not use or disclose or allow anyone else to
use or disclose any "Confidential Information" (as defined below) relating to
the Company, its products, suppliers or customers except as may be necessary in
the performance of my work for the Company or as may be authorized in advance by
appropriate officers of the Company. "Confidential Information" shall include
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innovations,
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methodologies, processes, tools, business strategies, financial information,
forecasts, personnel information, customer lists, trade secrets and any other
non-public technical or business information, whether in writing or given to me
orally, which I know or have reason to know the Company would like to treat as
confidential for any purpose, such as maintaining a competitive advantage or
avoiding undesirable publicity. I will keep Confidential Information secret and
will not allow any unauthorized use of the same, whether or not any document
containing it is marked as confidential. These restrictions, however, will not
apply to Confidential Information that has become known to the public generally
through no fault or breach of mine or that the Company regularly gives to third
parties without restriction on use or disclosure. Upon termination of my work
with the Company, I will promptly deliver to the Company all documents and
materials of any nature pertaining to my work with the Company and I will not
take with me any documents or materials or copies thereof containing any
Confidential Information.
5. Other Agreements. I represent that my performance of all the terms of
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this Agreement and my duties as an employee of the Company will not breach any
invention assignment agreement, confidential information agreement, non-
competition agreement or other agreement with any former employer or other
party. I represent that I have not and will not bring with me to the Company or
use in the performance of my duties for the Company any documents or materials
of a former employer that are not generally available to the public.
6. Disclosure of this Agreement. I hereby authorize the Company to notify
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others, including but not limited to customers of the Company and any of my
future employers, of the terms of this Agreement and my responsibilities
hereunder.
7. Injunctive Relief. I understand that in the event of a breach or
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threatened breach of this Agreement by me the Company may suffer irreparable
harm and monetary damages alone would not adequately compensate the Company.
The Company will therefore be entitled to injunctive relief to enforce this
Agreement.
8. Enforcement and Severability. I acknowledge that each of the
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provisions in this Agreement are separate and independent covenants. I agree
that if any court shall determine that any provision of this Agreement is
unenforceable with respect to its term or scope such provision shall nonetheless
be enforceable by any such court upon such modified term or scope as may be
determined by such court to be reasonable and enforceable. The remainder of
this Agreement shall not be affected by the unenforceability or court ordered
modification of a specific provision.
9. Governing Law. I agree that this Agreement shall be governed by and
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construed in accordance with the laws of the State of New Jersey.
10. Superseding Agreement. I understand and agree that this Agreement, as
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Exhibit A to my Employment Agreement with the Company, contains the entire
agreement of the parties with respect to the subject matter hereof and
supersedes all previous agreements and understandings between the parties with
respect to its subject matter.
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11. Acknowledgments. I acknowledge that I have read this agreement, was
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given the opportunity to ask questions and sufficient time to consult an
attorney and I have either consulted an attorney or affirmatively decided not to
consult an attorney. I understand that this agreement is a part of and does not
alter the terms of my Employment Agreement with the Company. I also understand
that my obligations under this Agreement survive the termination of my
employment with the Company.
*.*.*.*.*.*.*.*.*.*
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written below.
Date: 12/31/99 /s/ Xxxxx Xxxx
________________________ ______________________________
Xxxxx Xxxx
Address: ______________________
______________________
______________________
______________________
GoAmerica, Inc.
Date: 12/31/99
________________________ By: /s/ Xxxxx Xxxxxxxxx
______________________________
Name: Xxxxx Xxxxxxxxx
Title: President
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