EXHIBIT 10.1
VOTING AGREEMENT
VOTING AGREEMENT, dated June 11, 1998, between David R. Hill, an
individual ("Hill"), and PhoneTel Technologies, Inc., an Ohio corporation
(the "Company").
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company, Davel Communications Group, Inc., an Illinois
corporation ("Old Davel"), Davel Holdings, Inc., a Delaware corporation and
a wholly owned subsidiary of Old Davel ("New Davel"), D Subsidiary, Inc.,
an Illinois corporation and a wholly owned subsidiary of New Davel ("D
Sub"), and PT Merger Corp., an Ohio corporation and a wholly owned
subsidiary of New Davel ("P Sub"), have entered into an Agreement and Plan
of Merger and Reorganization (the "Merger Agreement"), dated the date
hereof, pursuant to which (i) D Sub will be merged with and into Old Davel
with Old Davel surviving as a wholly owned subsidiary of New Davel (the
"Davel Merger") and (ii) P Sub will be merged with and into the Company
with the Company surviving as a wholly owned subsidiary of New Davel (the
"PhoneTel Merger").
WHEREAS, the consummation of the Davel Merger, the PhoneTel Merger and
the other transactions contemplated by the Merger Agreement (the
"Transaction") is subject to certain conditions, including the approval of
the Merger Agreement and the Davel Merger by the holders of at least two-
thirds of the outstanding shares of common stock, no par value, of Old
Davel ("Old Davel Common Stock").
WHEREAS, Hill is the record and beneficial owner of 2,351,533 shares
of Old Davel Common Stock, representing approximately 50.6% of the shares
of Old Davel Common Stock outstanding as of June 1, 1998 (approximately
32.8% of the shares of Old Davel Common Stock outstanding as of such date,
after giving effect to the issuance by Old Davel of the shares of Old Davel
Common Stock to be purchased by Samstock L.L.C. ("Samstock") pursuant to
the Davel Stock Purchase Agreement and the sale by Hill to Samstock of
500,000 shares of Old Davel Common Stock pursuant to the Hill Stock
Purchase Agreement) (such 2,351,533 shares of Old Davel Common Stock
(1,851,533 shares following consummation of the transactions contemplated
by the Hill Stock Purchase Agreement), together with any other shares of
capital stock of Old Davel acquired by Hill after the date hereof and
during the term of this Agreement, being collectively referred to herein
as the "Shares").
WHEREAS, as a condition to the willingness of the Company to enter
into the Merger Agreement, and as an inducement to the Company to do so,
Hill has agreed for the benefit of the Company 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
DEFINITIONS
Section1.1 The terms "Davel Stock Purchase Agreement," "Hill Stock
Purchase Agreement," and "Stock Purchase Agreements" shall have the
meanings set forth in the Voting Agreement, dated the date hereof, between
Samstock and the Company, and the terms "Investment Agreement" and
"Shareholders Agreement" shall have the meanings set forth in the Davel
Stock Purchase Agreement.
ARTICLE II
COVENANTS OF HILL
Section 2.1 Agreement to Vote. At any meeting of the shareholders
of Old Davel held prior to the Termination Date (as defined in Section
5.4), 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 Old Davel executed prior to the
Termination Date, Hill shall vote the Shares (a) in favor of the approval
of the Merger Agreement, the Davel Merger and each of the actions
contemplated by the Merger Agreement to be performed by Old Davel or New
Davel in connection with the Transaction and any actions required in
furtherance thereof; and (b) in favor of the election, at any annual
meeting of stockholders of New Davel, of Mr. Peter Graf as a member of the
Board of Directors of New Davel to serve until the first anniversary of the
Closing Date. Prior to the Termination Date and subject to Section 2.3,
other than the Stock Purchase Agreements, the Investment Agreement, the
Shareholders Agreement and the Hill Voting Agreement (as hereinafter
defined), Hill 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 2.2 Proxies. (a) Hill hereby revokes any and all previous
proxies granted with respect to matters set forth in Section 2.1 for the
Shares.
(b) Prior to the Termination Date, Hill shall not grant any proxies
or powers of attorney with respect to matters set forth in Section 2.1,
deposit any of the Shares into a voting trust or enter into a voting
agreement, other than this Agreement, the Stock Purchase Agreements, the
Investment Agreement, the Shareholders Agreement and the Hill Voting
Agreement (as hereinafter defined), with respect to any of the Shares, in
each case with respect to such matters.
Section 2.3 Transfer of Shares by Hill. Prior to the Termination
Date, except as set forth in the Hill Stock Purchase Agreement, Hill 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 the Company containing substantially the same terms as this
Agreement.
Section 2.4 Action in Shareholder Capacity Only. Hill makes no
agreement or understanding herein in any capacity other than his capacity
as a record holder and beneficial owner of the Shares, and nothing herein
shall limit or affect any actions taken in any other capacity.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND
ADDITIONAL COVENANTS OF HILL
Hill represents, warrants and covenants to the Company that:
Section 3.1 Ownership. Hill is, as of the date hereof, the
beneficial and record owner of 2,351,533 shares of Old Davel Common Stock
and has the sole right to vote such shares, and, except as set forth in the
Agreement dated May 14, 1997 between Hill and Samstock (the "Hill Voting
Agreement"), there are no restrictions on rights of disposition or other
liens pertaining to such shares other than as contemplated by the Hill
Stock Purchase Agreement and the Shareholders Agreement. None of such
shares is subject to any voting trust or other agreement, arrangement or
restriction with respect to the voting of such shares other than pursuant
to the Hill Stock Purchase Agreement, the Hill Voting Agreement, the
Investment Agreement and the Shareholders Agreement.
Section 3.2 Authority and Non-Contravention. Hill 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 Hill and constitutes a valid and binding
obligation of Hill, enforceable against Hill 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
Hill nor the consummation by Hill 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 Hill 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 Hill
is a party or by which Hill or his assets are bound.
Section 3.3 Total Shares. Except for options to purchase 200,000
shares of Old Davel Common Stock (and except for rights issued pursuant to
the Rights Agreement, dated as of April 22, 1998, between Old Davel and
Chase Mellon Shareholder Services, L.L.C.), Hill does not have any option
to purchase or right to subscribe for or otherwise acquire any securities
of Old Davel and has no other interest in or voting rights with respect to
any other securities of Old Davel.
Section 3.4 Reasonable Efforts. Prior to the Termination Date,
Hill shall use reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, and to assist and cooperate with
Old Davel in doing, all things reasonably necessary, proper or advisable to
consummate and make effective, in the most expeditious manner reasonably
practicable, the Transaction.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE COMPANY
The Company represents, warrants and covenants to Hill that:
Section 4.1 Authority and Non-Contravention. The Company 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 the Company and the consummation of the
transactions contemplated by this Agreement have been duly authorized by
all necessary action on the part of the Company. This Agreement has been
duly executed and delivered by the Company and constitutes a valid and
binding obligation of the Company, enforceable against the Company 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 the Company 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 the Company or (ii) violate
or conflict with the articles of incorporation or code of regulations of
the Company or constitute a material violation of or default under any
contract, commitment, agreement, understanding, arrangement or other
restriction of any kind to which the Company is a party or by which the
Company or its assets are bound.
ARTICLE V
MISCELLANEOUS
Section 5.1 Expenses. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such
costs or expenses.
Section 5.2 Further Assurances. From time to time, at the request
of the Company, in the case of Hill, or at the request of Hill, in the case
of the Company, 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 5.3 Specific Performance. Hill agrees that the Company
would be irreparably damaged if for any reason Hill fails to perform any of
Hill's obligations under this Agreement, and that the Company would not
have an adequate remedy at law for money damages in such event.
Accordingly, the Company shall be entitled to seek specific performance and
injunctive and other equitable relief to enforce the performance of this
Agreement by Hill. This provision is without prejudice to any other rights
that the Company may have against Hill for any failure to perform its
obligations under this Agreement.
Section 5.4 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 set forth in Article II, Article III and Article IV 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 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
PhoneTel Merger in a manner adverse to Old Davel (the "Termination Date");
provided, however, that with respect to clause (b) of Section 2.1,
"Termination Date" shall mean the first anniversary of the Closing Date.
Section 5.5 Assignment. Subject to Section 2.3 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 5.6 Certain Events. Hill agrees that this Agreement and
the obligations hereunder shall attach to the Shares and shall be binding
upon any person to which legal or beneficial ownership of such shares shall
pass, whether by operation of law or otherwise.
Section 5.7 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 5.8 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 the Company, to:
PhoneTel Technologies, Inc.
1001 Lakeside Avenue, 7th Floor
Cleveland, Ohio 44114
Attention: General Counsel
Telecopy number: 216.875.4337
with a copy to:
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
Attention: Stephen M. Banker, Esq.
Telecopy number: 212.735.2000
If to Hill, to:
David R. Hill
601 West Morgan
Jacksonville, Illinois 62650
Telecopy number: 217.243.6016
Section 5.9 Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Illinois
regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof.
Section 5.10 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 5.11 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 5.12 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 5.13 Consent to Jurisdiction. Each party hereto irrevocably
submits to the nonexclusive jurisdiction of (a) the state courts of the
State of Illinois and (b) the United States federal district courts located
in the State of Illinois for the purposes of any suit, action or other
proceeding arising out of this Agreement or any transaction contemplated
hereby.
Section 5.14 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.
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties as of the date first above written.
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David R. Hill
PHONETEL TECHNOLOGIES, INC.
By:_________________________________
Name:
Title: