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 ”).
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:
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.
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
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or delay the
performance by the Stockholder of the Stockholder’s
obligations under this Agreement.
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.
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