Exhibit 4.2
VOTING AGREEMENT
This Voting Agreement, dated as of
October 18, 2006 (this “ Agreement ”), is
by and among Vertical Communications, Inc., a Delaware corporation
(“ Vertical ”), and the other Persons listed on
the signatures pages hereto (each a “ Stockholder
” and collectively, the “ Stockholders
”).
W
I T N
E S S E T
H
WHEREAS, as of the date hereof, each
Stockholder owns beneficially the number of shares of common stock
of Vodavi Technology, Inc., a Delaware corporation (the “
Company ”) set forth opposite such Stockholder’s
name on Schedule I hereto (all shares so owned and which may
hereafter be acquired by each 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 each 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 seeking approval of the
Company’s stockholders to consummate the transactions
contemplated by the Merger Agreement (the “ Proposal
”); and
WHEREAS, in consideration of
Vertical entering into the Merger Agreement and incurring certain
related fees and expenses relating to the Merger, the Stockholders
have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of
the foregoing and the mutual covenants and agreements herein
contained, and intending to be legally bound hereby, the Company
and the Stockholders hereby agree as follows:
ARTICLE I.
VOTING OF SHARES; AND OTHER
COVENANTS OF THE STOCKHOLDERS
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, each
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, no
Stockholder shall 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 .
Each 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.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF
THE STOCKHOLDERS
Each Stockholder severally hereby
represents and warrants as follows:
SECTION 2.1. Authority . The
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 the Stockholder. This Agreement has
been duly executed and delivered by or on behalf of the Stockholder
and constitutes a legal, valid and binding obligation of the
Stockholder, enforceable against the 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 of the court before which any
proceeding for such remedy may be brought.
SECTION 2.2. Required Filings and
Consents . The execution and delivery of this Agreement by the
Stockholder does not, and the performance of this Agreement by the
Stockholder will not, require any consent, approval, authorization
or permit of, or filing with or notification to, any governmental
or regulatory authority (other than any necessary filing under the
Exchange Act), domestic or foreign, except where the failure to
obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent or delay the
performance by the Stockholder of the Stockholder’s
obligations under this Agreement.
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SECTION 2.3. Ownership of
Shares . The Stockholder is the record and beneficial owner of
the Shares set forth opposite its name on Schedule I hereto.
On the date hereof, such Shares constitute all of the Shares owned
of record or beneficially by such Stockholder.
SECTION 2.4. Each Stockholder
understands a
