Exhibit 10.5
VOTING AGREEMENT
VOTING AGREEMENT, dated
as of December 17, 2013 (this "Agreement"), by and among eOn Communications Corporation, a Delaware corporation
(the "Company"), and the Xxx Family Trust (the "Stockholder").
WHEREAS, the Company
and certain investors (each, an "Investor", and collectively, the "Investors") have entered into
a Securities Purchase Agreement, dated as December 17, 2013 (the "Securities Purchase Agreement"), pursuant to
which, among other things, the Company has agreed to issue and sell to the Investors and the Investors have agreed to purchase
(i) shares of Series B Convertible Preferred Stock of the Company, par value $0.001 per share (the "Preferred Shares"),
which are convertible into shares of the common stock of the Company, par value $0.005 per share (the "Common Stock")
and (ii) warrants (the "Warrants"), which are exercisable to purchase shares of Common Stock.
WHEREAS, as of the date
hereof, the Stockholder owns 45,998 shares of Common Stock; and
WHEREAS, as a condition
to the willingness of the Investors to enter into the Securities Purchase Agreement and to consummate the transactions contemplated
thereby (collectively, the "Transaction"), the Investors have required that the Stockholder agree, and in order
to induce the Investors to enter into the Securities Purchase Agreement, the Stockholder has agreed, to enter into this Agreement
with respect to all the Common Stock now owned and which may hereafter be acquired by the Stockholder and any other securities,
if any, which the Stockholder is currently entitled to vote, or after the date hererof, becomes entitled to vote, at any meeting
of stockholders of the Company (the "Other Securities").
NOW, THEREFORE, in consideration
of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
Article
I
VOTING AGREEMENT OF THE STOCKHOLDER
SECTION 1.01. Voting
Agreement. Subject to the last sentence of this Section 1.01, the Stockholder hereby agrees that at any meeting of the stockholders
of the Company, however called, and in any action by written consent of the Company's stockholders, the Stockholder shall vote
the Common Stock and the Other Securities owned by the Stockholder: (a) in favor of the Stockholder Approval (as defined in the
Securities Purchase Agreement) as described in Section 4(s) of the Securities Purchase Agreement; and (b) against any proposal
or any other corporate action or agreement that would result in a breach of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Securities Purchase Agreement or which could result in any of the conditions to
the Company's obligations under the Securities Purchase Agreement not being fulfilled. The Stockholder acknowledges receipt and
review of a copy of the Securities Purchase Agreement and the other Transaction Documents (as defined in the Securities Purchase
Agreement). The obligations of the Stockholder under this Section 1.01 shall terminate immediately following the occurrence of
the Stockholder Approval.
Article
II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby
represents and warrants, severally but not jointly, to each of the Investors as follows:
SECTION 2.01. Authority
Relative to This Agreement. The Stockholder has all necessary legal capacity, power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been
duly executed and delivered by the Stockholder and constitutes a legal, valid and binding obligation of the Stockholder, enforceable
against the Stockholder in accordance with its terms, except (a) as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or similar laws now or hereafter in effect relating to, or affecting
generally the enforcement of creditors' and other obligees' rights, (b) where the remedy of specific performance or other forms
of equitable relief may be subject to certain equitable defenses and principles and to the discretion of the court before which
the proceeding may be brought, and (c) where rights to indemnity and contribution thereunder may be limited by applicable law and
public policy.
SECTION 2.02. No
Conflict. (a) The execution and delivery of this Agreement by the Stockholder does not, and the performance of this Agreement
by the Stockholder shall not, (i) conflict with or violate any federal, state or local law, statute, ordinance, rule, regulation,
order, judgment or decree applicable to the Stockholder or by which the Common Stock or the Other Securities owned by the Stockholder
are bound or affected or (ii) result in any breach of or constitute a default (or an event that with notice or lapse of time or
both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or
result in the creation of a lien or encumbrance on any of the Common Stock or the Other Securities owned by the Stockholder pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation
to which the Stockholder is a party or by which the Stockholder or the Common Stock or Other Securities owned by the Stockholder
are bound.
(b) The
execution and delivery of this Agreement by the Stockholder does not, and the performance of this Agreement by the Stockholder
shall not, require any consent, approval, authorization or permit of, or filing with or notification to, any governmental entity
by the Stockholder.
SECTION 2.03. Title
to the Stock. As of the date hereof, the Stockholder is the owner of the number of shares of Common Stock set forth opposite
its name on Appendix A attached hereto, entitled to vote, without restriction, on all matters brought before holders of
capital stock of the Company, which Common Stock represent on the date hereof the percentage of the outstanding stock and voting
power of the Company set forth on such Appendix. Such Common Stock are all the securities of the Company owned, either of record
or beneficially, by the Stockholder. Such Common Stock are owned free and clear of all security interests, liens, claims, pledges,
options, rights of first refusal, agreements, limitations on the Stockholder's voting rights, charges and other encumbrances of
any nature whatsoever. The Stockholder has not appointed or granted any proxy, which appointment or grant is still effective, with
respect to the Common Stock or Other Securities owned by the Stockholder.
Article
III
COVENANTS
SECTION 3.01. No
Disposition or Encumbrance of Stock. The Stockholder hereby covenants and agrees that, until the Stockholder Approval has been
obtained, except as contemplated by this Agreement, the Stockholder shall not offer or agree to sell, transfer, tender, assign,
hypothecate or otherwise dispose of, grant a proxy or power of attorney with respect to, or create or permit to exist any security
interest, lien, claim, pledge, option, right of first refusal, agreement, limitation on the Stockholder's voting rights, charge
or other encumbrance of any nature whatsoever ("Encumbrance") with respect to the Common Stock or Other Securities,
directly or indirectly, initiate, solicit or encourage any person to take actions which could reasonably be expected to lead to
the occurrence of any of the foregoing; provided, however, that the Stockholder may assign, sell or transfer any
Common Stock or Other Securities provided that any such recipient of the Common Stock or Other Securities has delivered to the
Company and each Investor a written agreement in a form reasonably satisfactory to the Investors that the recipient shall be bound
by, and the Common Stock and/or Other Securities so transferred, assigned or sold shall remain subject to this Agreement.
SECTION 3.02. Company
Cooperation. The Company hereby covenants and agrees that it will not, and the Stockholder irrevocably and unconditionally
acknowledges and agrees that the Company will not (and waives any rights against the Company in relation thereto), recognize any
Encumbrance or agreement on any of the Common Stock or Other Securities subject to this Agreement unless the provisions of Section
3.01 have been complied with. The Company agrees to use its reasonable best efforts to ensure that at any time in which any Stockholder
Approval is required pursuant to Section 4(s) of the Securities Purchase Agreement, it will cause holders of Common Stock or Other
Securities representing the percentage of outstanding capital stock required to vote in favor of the Transaction in order for the
Company to comply with its obligations under Section 4(s) of the Securities Purchase Agreement to become party to and bound by
the terms and conditions of this Agreement and the Common Stock and Other Securities held by such holders to be subject to the
terms and conditions of this Agreement.
Article
IV
MISCELLANEOUS
SECTION 4.01. Further
Assurances. The Stockholder will execute and deliver such further documents and instruments and take all further action as
may be reasonably necessary in order to consummate the transactions contemplated hereby.
SECTION 4.02. Specific
Performance. The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that any Investor (without being joined by any other Investor) shall be entitled
to specific performance of the terms hereof, in addition to any other remedy at law or in equity. Any Investor shall be entitled
to its reasonable attorneys' fees in any action brought to enforce this Agreement in which it is the prevailing party.
SECTION 4.03. Entire
Agreement. This Agreement constitutes the entire agreement among the Company and the Stockholder with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both written and oral, between the Company and the Stockholder
with respect to the subject matter hereof.
SECTION 4.04. Amendment.
The provisions of this Agreement may not be amended or waived, nor may this Agreement be terminated by the Company other than pursuant
to the provisions of Section 4.07.
SECTION 4.05. Severability.
If any provision of this Agreement is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent
jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the
broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect
the validity of the remaining provisions of this Agreement so long as this Agreement as so modified continues to express, without
material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or
unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations
of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will
endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s),
the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).
SECTION 4.06. Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed
by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions
other than the State of New York. The parties hereby agree that all actions or proceedings arising directly or indirectly from
or in connection with this Agreement shall be litigated only in the Supreme Court of the State of New York or the United States
District Court for the Southern District of New York located in New York County, New York. The parties consent to the jurisdiction
and venue of the foregoing courts and consent that any process or notice of motion or other application to any of said courts or
a judge thereof may be served inside or outside the State of New York or the Southern District of New York by registered mail,
return receipt requested, directed to the party being served at its address set forth on the signature ages to this Agreement (and
service so made shall be deemed complete three (3) days after the same has been posted as aforesaid) or by personal service
or in such other manner as may be permissible under the rules of said courts. Each of the Company and the Stockholder irrevocably
waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of
any such suit, action, or proceeding brought in such a court and any claim that suit, action, or proceeding has been brought in
an inconvenient forum. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR
THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
SECTION 4.07. Termination.
This Agreement shall terminate immediately following the occurrence of the Stockholder Approval.
[Signature Page Follows]
IN WITNESS
WHEREOF, the Stockholder and the Company has duly executed this Agreement.
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THE COMPANY:
EON COMMUNICATIONS CORPORATION |
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By: |
/s/ Xxxxxxx Xxxxxx |
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Name: Xxxxxxx Xxxxxx |
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Title: Principal Executive Officer |
Dated: December 17, 2013
Signature Page to Voting Agreement
| STOCKHOLDER: |
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| Xxx Family Trust |
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| /s/ Xxxxx X. Xxx |
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/s/ Chi-Xxxx Xxx |
| Xxxxx X. Xxx, Trustee |
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Chi-Xxxx Xxx, Trustee |
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| Address: |
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Address: |
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| Dated: December 17, 2013 |
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Dated: December 17, 2013 |
Signature Page to Voting Agreement
APPENDIX A
| Stockholder |
Common Stock
Owned |
Percentage of Stock
Outstanding1 |
Voting Percentage
of Stock
Outstanding1 |
| Xxx Family Trust |
45,998 |
1.5% |
1.5% |
(1) The percentage of outstanding shares of Common Stock beneficially
owned by the Xxx Family Trust is calculated based on the 3,030,697 outstanding shares of Common Stock as of December 10, 2013.
