Exhibit 4.1
VOTING AGREEMENT
This Voting Agreement, dated as of
October 18, 2006 (this “ Agreement ”), is
by and among Vertical Communications, Inc., a Delaware corporation
(“ Vertical ”), Vodavi Technology, Inc., a
Delaware corporation (the “Company”), and LG-Nortel Co.
Ltd (“ Stockholder ”).
W
I T N
E S S E T
H
WHEREAS, as of the date hereof,
Stockholder owns beneficially the number of shares of common stock
of the Company set forth opposite Stockholder’s name on
Schedule I hereto (all shares so owned and which may
hereafter be acquired by 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 with respect to Stockholder as the “ Stockholder
Shares ”); and
WHEREAS, contemporaneously with the
execution and delivery of this Agreement, the Company is entering
into an Agreement and Plan of Merger, dated as of the date hereof
(as such agreement may hereafter be amended from time to time, the
“ Merger Agreement ”), along with Vertical, and
Vertical Acquisition Sub Inc., a Delaware corporation and a wholly
owned subsidiary of Vertical (“ Sub ”), which
provides for, upon the terms and subject to the conditions set
forth therein, the merger of Sub with and into the Company (the
“ Merger ”); and
WHEREAS, pursuant to the Merger
Agreement, the Company has agreed to call a special meeting of its
stockholders for the purpose of (the “ Proposal
”); and
WHEREAS, in consideration of
Vertical entering into the Merger Agreement and incurring certain
related fees and expenses relating to the Merger, Stockholder has
agreed to enter into this Agreement; and
WHEREAS, Vodavi is a party to this
Agreement for the purpose of facilitating certain continuing
relationships between Stockholder and Vertical following the
Effective Time.
NOW, THEREFORE, in consideration of
the foregoing and the mutual covenants and agreements herein
contained, and intending to be legally bound hereby, the Company,
Vertical and Stockholder hereby agree as follows:
ARTICLE I.
VOTING OF SHARES; AND OTHER
COVENANTS OF STOCKHOLDER AND VERTICAL
SECTION 1.1. Voting of Shares
. From the date hereof until termination of this Agreement pursuant
to Section 3.2 hereof (the “ Term ”), at
any meeting of the stockholders of the Company called to vote on
the Proposal or at any adjournment or postponement thereof, and in
any action by consent of the stockholders of the Company with
respect to which approval of the Proposal is sought, Stockholder
shall (A) appear at such meeting or otherwise cause its
Stockholder Shares to be counted as present thereat for purposes of
establishing a quorum and
(B) vote (or cause to be voted) its Stockholder
Shares in favor of the Proposal and such other matters as may be
necessary or advisable to consummate the transactions contemplated
by the Merger Agreement.
SECTION 1.2. No Inconsistent
Arrangements . Except as contemplated by this Agreement,
Stockholder shall not during the Term (i) grant any proxy,
power-of-attorney or other authorization in or with respect to its
Stockholder Shares which is inconsistent with the terms hereof,
(ii) deposit its Stockholder Shares into a voting trust or
enter into a voting agreement or arrangement with respect to its
Stockholder Shares, (iii) sell, transfer, pledge or encumber,
assign or otherwise dispose of or enforce or permit the execution
of the provisions of any redemption, share purchase or sale,
recapitalization or other agreement with the Company or enter into
any contract, option or other arrangement or understanding with
respect to the offer for sale, sale, transfer, pledge, encumbrance,
assignment or other disposition of any of the Stockholder Shares
except to a person who agrees in writing to be bound by the terms
and conditions of this Agreement as a Stockholder or (iv) take
any other action that would in any way restrict, limit or interfere
with the performance of its obligations hereunder or the
transactions contemplated hereby or by the Merger
Agreement.
SECTION 1.3. Disclosure .
Stockholder hereby authorizes Vertical and/or the Company to
publish and disclose in any filing with the SEC, including any
proxy statement relating to the approval of the Merger Agreement by
the Company’s stockholders (including all exhibits and
schedules filed with the SEC), its identity and ownership of its
Stockholder Shares and the nature of its commitments, arrangements
and understandings under this Agreement.
SECTION 1.4. Continuing Business
Relationships . In consideration of Stockholder’s
compliance with its obligations contained in Section 1.1,
Vertical agrees that during the Term and continuing for a two-year
period following the Term: (a) Vertical shall continue to
support Stockholder’s product line consistent with the
historic relationship between the Company and Stockholder; and
(b) Vertical will distribute, on a non-exclusive basis,
certain LG-Nortel products in fulfilling purchase orders for Nortel
and supporting the LG-Nortel products sold by Nortel in North
America on mutually acceptable terms; and (c) for the purpose
of facilitating the transition following the Effective Time, prior
to the Effective Time, Vertical shall enter into arrangements
whereby Vodavi’s current chief executive officer and chief
financial officer agree to cooperate with transitional services
related to Stockholder’s relationship with the Company for a
term of no less than nine months from the Effective
Time.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF
STOCKHOLDER
Stockholder hereby represents and
warrants as follows:
SECTION 2.1. Authority .
Stockholder has all requisite power and authority to execute,
deliver and perform this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary action on the part of Stockholder. This Agreement has
been duly executed and delivered by or on behalf of
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Stockholder and constitutes a legal, valid and
binding obligation of Stockholder, enforceable against 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
