EXHIBIT 10.2
VOTING AGREEMENT
This VOTING AGREEMENT, dated effective as of February 19, 2002, is
entered into by and between EGI-DM Investments, L.L.C., a Delaware limited
liability company (the "Holder"), a shareholder of Davel Communications, Inc., a
Delaware corporation (the "Company" or "Davel"), and PhoneTel Technologies,
Inc., an Ohio corporation ("PhoneTel").
WHEREAS, concurrently with the effectiveness of this Agreement, the
Company, PhoneTel, Davel Financing Company, L.L.C., a Delaware limited liability
company and a wholly owned subsidiary of Davel ("Davel Financing"), DF Merger
Corp., a Delaware corporation and an indirect wholly owned subsidiary of Davel,
and PT Merger Corp., an Ohio corporation and an indirect wholly owned subsidiary
of Davel ("P Sub"), have entered into an Agreement and Plan of Reorganization
and Merger (the "Merger Agreement"), dated the date hereof, pursuant to which
PhoneTel will be merged with and into P Sub with PhoneTel surviving as a wholly
owned subsidiary of Davel (the "PhoneTel Merger") and D Sub will merge with and
into Davel Financing with Davel Financing surviving as a wholly owned subsidiary
of Davel (the "Davel Merger" and, together with the PhoneTel Merger, the
"Mergers").
WHEREAS, the consummation of the Mergers and the other transactions
contemplated by the Merger Agreement (the "Transactions") is subject to certain
conditions, including the approval of the Merger Agreement and the Mergers by
the holders of at least a majority of the outstanding shares of common stock,
par $.01 per share, of Davel ("Davel Common Stock").
WHEREAS, Holder, as controlling person of the entities identified on
Schedule A attached hereto and made a part hereof, is the beneficial owner of
1,474,287 shares of Davel Common Stock (the "Owned Shares") representing
approximately 13.2% of the shares of Davel Common Stock outstanding as of
December 31, 2001. Such 1,474,287 shares of Davel Common Stock, together with
any other shares of capital stock of Davel acquired by Holder after the date
hereof and during the term of this Agreement, are collectively referred to
herein as the "Shares".
WHEREAS, as a condition to the willingness of PhoneTel to enter into
the Merger Agreement, and as an inducement to PhoneTel to do so, Holder has
agreed for the benefit of PhoneTel as set forth in this Agreement.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties hereby agree
as follows:
ARTICLE I
COVENANTS OF HOLDER
Section 1.1 Agreement to Vote. At any meeting of the shareholders of
Davel held prior to the Termination Date (as defined in Section 4.4), however
called, and at every reconvened meeting following any adjournment thereof prior
to the Termination Date, or in connection with any written consent of the
shareholders of the Company executed prior to the Termination Date, Holder shall
vote the Shares in favor of the approval of the Merger Agreement, the
Transactions, any amendment to the Certificate of Incorporation of the Company
proposed by management to increase the authorized common shares in the amount
necessary to consummate the Transactions and any amendment to the Company's 2000
Long-Term Equity Incentive Plan to increase the number of shares of common stock
available to be issued upon exercise of options awarded thereunder as
contemplated by the Merger Agreement. Prior to the Termination Date and subject
to Section 1.3, Holder shall not enter into any agreement or understanding with
any person, directly or indirectly, to vote, grant any proxy or give
instructions with respect to the voting of the Shares in any manner inconsistent
with the preceding sentence.
Section 1.2 Proxies.
(a) Holder hereby revokes any and all previous proxies granted
with respect to matters set forth in Section 1.1 for the Shares.
(b) Prior to the Termination Date, Holder shall not grant any
proxies or powers of attorney with respect to matters set forth in Section 1.1,
deposit any of the Shares into a voting trust or enter into a voting agreement,
with respect to any of the Shares, in each case with respect to such matters.
Section 1.3 Transfer of Shares by Holder. Prior to the Termination
Date, Holder shall not (a) pledge or place any encumbrance on any Shares, other
than pursuant to this Agreement, or (b) transfer, sell, exchange or otherwise
dispose of any Shares, in each case unless the pledgee, encumbrance holder,
transferee, purchaser or acquiror of such Shares enters into a Voting Agreement
with PhoneTel containing substantially the same terms as this Agreement.
Section 1.4 Action in Shareholder Capacity Only. Holder makes no
agreement or understanding herein in any capacity other than his capacity as a
beneficial owner of the Shares, and nothing herein, including without limitation
Section 2.4 below, shall limit or affect any actions taken in any other
capacity.
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ARTICLE II
REPRESENTATIONS, WARRANTIES AND ADDITIONAL
COVENANTS OF HOLDER
Holder represents, warrants and covenants to PhoneTel that:
Section 2.1 Ownership. Holder is, as of the date hereof, the beneficial
owner of 1,474,287 shares of Davel Common Stock and has the sole right to vote
such shares, and there are no restrictions on rights of disposition or other
liens pertaining to such shares. Except pursuant to that certain Investment
Agreement, dated April 19, 1999, as amended to date, and that certain
Shareholders Agreement, dated as of December 22, 1998, as amended to date, both
among Davel, Samstock, L.L.C., a Delaware limited liability company, EGI-Davel
Investors, n/k/a EGI-DM Investments, L.L.C., David R. Hill and Davel
Communications Group, Inc., an Illinois corporation, none of the shares
described in the immediately preceding sentence is subject to any voting trust
or other agreement, arrangement or restriction with respect to the voting of
such shares.
Section 2.2 Authority and Non-Contravention. Holder has the right,
power and authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. This Agreement has been duly
executed and delivered by Holder and constitutes a valid and binding obligation
of Holder, enforceable against Holder in accordance with its terms, subject to
general principles of equity and as may be limited by bankruptcy, insolvency,
moratorium, or similar laws affecting creditors' rights generally. Neither the
execution and delivery of this Agreement by Holder nor the consummation by
Holder of the transactions contemplated hereby will (i) materially violate, or
require any consent, approval or notice under, any provision of any judgment,
order, decree, statute, law, rule or regulation applicable to Holder or the
Shares or (ii) constitute a material violation of or default under any contract,
commitment, agreement, understanding, arrangement or other restriction of any
kind to which Holder is a party or by which Holder or his assets are bound.
Section 2.3 Total Shares. Except for shares issuable upon exercise of
Davel Options (as defined in the Merger Agreement), Holder does not have any
option to purchase or right to subscribe for or otherwise acquire any securities
of Davel and, other than with respect to the Owned Shares, has no other interest
in or voting rights with respect to any other securities of Davel.
Section 2.4 Reasonable Efforts. Prior to the Termination Date, Holder
shall use reasonable efforts to cooperate with Davel to consummate the
Transactions.
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ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PHONETEL
PhoneTel represents, warrants and covenants to Holder that:
Section 3.1 Authority and Non-Contravention. PhoneTel has the right,
power and authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. The execution and delivery of this
Agreement by PhoneTel and the consummation of the transactions contemplated by
this Agreement have been duly authorized by all necessary action on the part of
PhoneTel. This Agreement has been duly executed and delivered by PhoneTel and
constitutes a valid and binding obligation of PhoneTel, enforceable against
PhoneTel in accordance with its terms, subject to general principles of equity
and as may be limited by bankruptcy, insolvency, moratorium or similar laws
affecting creditors' rights generally. Neither the execution and delivery of
this Agreement nor the consummation by PhoneTel of the transactions contemplated
hereby will, as of the date hereof, (i) materially violate, or require any
consent, approval or notice under, any provision of any judgment, order, decree,
statute, law, rule or regulation applicable to PhoneTel or (ii) violate or
conflict with the certificate of incorporation or bylaws of PhoneTel or
constitute a material violation of or default under any contract, commitment,
agreement, understanding, arrangement or other restriction of any kind to which
PhoneTel is a party or by which PhoneTel or its assets are bound.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Expenses. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such costs or expenses.
Section 4.2 Further Assurances. From time to time, at the request of
PhoneTel, in the case of Holder, or at the request of Holder, in the case of
PhoneTel, and without further consideration, each party shall execute and
deliver or cause to be executed and delivered such additional documents and
instruments and take all such further action as may be reasonably necessary or
desirable to consummate the transactions contemplated by this Agreement.
Section 4.3 Specific Performance. Holder agrees that PhoneTel would be
irreparably damaged if for any reason Holder fails to perform any of Holder's
obligations under this Agreement, and that PhoneTel would not have an adequate
remedy at law for money damages in such event. Accordingly, PhoneTel shall be
entitled to seek specific performance and injunctive and other equitable relief
to enforce the performance of this Agreement by Holder. This provision is
without prejudice to any other rights that PhoneTel may have against Holder for
any failure to perform its obligations under this Agreement.
Section 4.4 Amendments, Termination. This Agreement may not be modified
or amended except by an instrument or instruments in writing signed by each
party hereto. The representations, warranties, covenants and agreements of
Holder set forth in Article I, Article II
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and Article III, including the obligation of Holder to vote the Shares in favor
of the Merger Agreement, shall terminate, except with respect to liability for
prior breaches thereof, upon the earliest to occur of (i) termination of the
Merger Agreement in accordance with its terms, (ii) the Closing Date under the
Merger Agreement and (iii) the date, if any, upon which the Company's Board of
Directors withdraws, modifies or changes its recommendation or approval of the
Merger Agreement or the Mergers in a manner adverse to PhoneTel (the
"Termination Date").
Section 4.5 Assignment. Subject to Section 1.3 hereof, neither this
Agreement nor any of the rights, interests or obligations under this Agreement
shall be assigned, in whole or in part, by operation of law or otherwise by any
of the parties without the prior written consent of the other parties. Subject
to the preceding sentence, this Agreement shall be binding upon, and inure to
the benefit of, the parties hereto and their respective successors and assigns.
Section 4.6 Entire Agreement. This Agreement (including the documents
referred to herein) (a) constitutes the entire agreement, and supersedes all
prior agreements and understanding, both oral and written between the parties
with respect to the subject matter of this Agreement and (b) is not intended to
confer upon any person other than the parties hereto any rights or remedies.
Section 4.7 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally, sent by
documented overnight delivery service or telecopied with confirmation of
receipt, to the parties at the addresses specified below (or at such other
address or telecopy or telex number for a party as shall be specified by like
notice):
If to PhoneTel to:
PhoneTel Technologies, Inc.
1001 Lakeside Avenue, 7th Floor
Cleveland, OH 44114
Attention: John D. Chichester
Telecopy number: (216) 875-4337
with a copy to:
Hahn Loeser & Parks LLP
3300 BP Tower
Cleveland, OH 44114-2301
Attention: F. Ronald O'Keefe, Esq.
Telecopy number: (216) 241-2824
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If to Holder, to:
EGI-DM Investments, L.L.C.
C/O Equity Group Investments, L.L.C.
Two North Riverside Plaza
Chicago, IL 60606
Telecopy number: (312) 454-1671
Section 4.8 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
Section 4.9 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement, and,
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties in original or facsimile form.
Section 4.10 Interpretation. The headings contained in this Agreement
are inserted for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
Section 4.11 Severability. Any provision hereof which is invalid or
unenforceable shall be ineffective to the extent of such invalidity or
unenforceability, without affecting in any way the remaining provisions hereof.
Section 4.12 Consent to Jurisdiction. Each party hereto irrevocably
submits to the nonexclusive jurisdiction of (a) the state courts of the State of
Delaware and (b) the United States federal district courts located in the State
of Delaware for the purposes of any suit, action or other proceeding arising out
of this Agreement or any transaction contemplated hereby.
Section 4.13 Attorney's Fees. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements, in addition to any other relief to which such party may be
entitled.
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IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties as of the date first above written.
EGI-DM INVESTMENTS, L.L.C.
By: /s/ Samuel Zell
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Name: Samuel Zell
Title: President
PHONETEL TECHNOLOGIES, INC.
By: /s/ John D. Chichester
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Name: John D. Chichester
Title: Chief Executive Officer
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