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EXHIBIT 8
VOTING AGREEMENT
VOTING AGREEMENT, dated as of July 5, 1998, between Samstock, L.L.C., a
Delaware limited liability company ("Samstock"), and Peoples Telephone Company,
Inc., a New York corporation ("Peoples").
WHEREAS, Peoples, Davel Communications Group, Inc., an Illinois
corporation ("Parent"), and Davel Holdings, Inc., a Delaware corporation
("Holdings"), have entered into an Agreement and Plan of Merger and
Reorganization dated as of July 5, 1998 (the "Merger Agreement"), pursuant to
which (a) a newly formed company ("Newco") will be organized as a New York
corporation and a direct, wholly owned subsidiary of Parent (or if the
Davel/PhoneTel Merger has, by the time of such formation, been consummated, of
Holdings) and (b) Newco will be merged (the "Peoples Merger") with and into
Peoples pursuant to the Merger Agreement.
WHEREAS, the consummation of the Peoples Merger and the other transactions
contemplated by the Merger Agreement (the "Transaction") will be subject to
certain conditions, including the approval of the Merger Agreement and the
Peoples Merger by the stockholders of Parent (or, if applicable, Holdings), if
required by applicable law or regulation or the rules of the Nasdaq Stock
Market.
WHEREAS, Samstock is the record and beneficial owner of 1,623,900 shares
of Parent Common Stock (which number excludes 350,000 shares of Parent Common
Stock that may be acquired by Samstock pursuant to warrants (the "Warrants")
issued by Parent and Xxxxx X. Xxxx ("Xxxx")), representing approximately 28.1%
of the shares of Parent Common Stock outstanding on the date hereof (such
1,623,900 shares, together with any other shares of capital stock of Parent
acquired by Samstock after the date hereof and during the term of this
Agreement, being collectively referred to herein as the "Shares"). If the
Davel/PhoneTel Merger is consummated, the term "Shares" shall refer to shares
of Holdings Common Stock.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties hereby agree
as follows:
ARTICLE I
DEFINITIONS
Section I.1 Terms used but not defined herein shall have the respective
meanings given to such terms in the Merger Agreement.
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ARTICLE II
COVENANTS OF SAMSTOCK
Section II.1 Agreement to Vote. At any meeting of the shareholders of
Parent held prior to the Termination Date (as defined in Section 5.4 hereof),
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 Parent executed prior to the Termination Date,
Samstock shall vote the Shares in favor of the approval of the Merger Agreement
and each of the actions contemplated by the Merger Agreement to be performed by
Parent in connection with the Transaction and any actions required in
furtherance thereof. After the date hereof and prior to the Termination Date
and subject to Section 2.3 hereof, Samstock 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 II.2 Proxies. (a) Samstock hereby revokes any and all previous
proxies granted with respect to matters set forth in Section 2.1 for the
Shares.
(b) After the date hereof and prior to the Termination Date, Samstock
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
Agreement, dated May 14, 1998, by and between Hill and Samstock, L.L.C., the
Stock Purchase Agreement, dated May 14, 1998, by and between Parent and
Samstock, L.L.C., the Agreement, dated May 14, 1998, between Hill and Samstock,
L.L.C. (the "Hill/Samstock Voting Agreement"), the Investment Agreement, dated
June 29, 1998, by and among Hill, Parent and Samstock, L.L.C. (the "Investment
Agreement"), the Shareholders Agreement, dated as of June 29, 1998, by and
among Hill, Samstock, L.L.C. and, solely for purposes of Sections 2(a), 2(b),
3, 4, 6 and 8 through 19 thereof, Parent (the "Shareholders Agreement"), and
the Pledge Agreement, dated July __, 1998, between Hill and Samstock, L.L.C.,
with respect to any of the Shares, in each case with respect to such matters.
Section II.3 Transfer of Shares by Samstock. After the date hereof and
prior to the Termination Date, Samstock shall not (a) transfer, sell, exchange
or otherwise dispose of any Shares unless such transferee, purchaser or
acquiror enters into a voting agreement with Peoples containing substantially
the same terms as this Agreement or (b) pledge or place any encumbrance on any
Shares, other than pursuant to this Agreement and other than a pledge or
encumbrance of any Shares to any bank or other financial institution in
connection with any bona fide financing transaction by Samstock or any such
transferee, purchaser or acquiror, provided that such bank or financial
institution, as a condition to exercising its rights to seize and vote such
Shares, enters into a voting agreement with Peoples containing substantially
the same terms as this Agreement.
Section II.4 Action in Shareholder Capacity Only. Samstock makes no
agreement or understanding herein in any capacity other than in its 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.
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ARTICLE III
REPRESENTATIONS, WARRANTIES AND
ADDITIONAL COVENANTS OF SAMSTOCK
Samstock represents, warrants and covenants to Peoples that:
Section III.1 Ownership. Samstock is, as of the date hereof, the
beneficial and record owner of 1,623,900 shares of Parent Common Stock (which
number excludes 350,000 shares of Parent Common Stock that may be acquired by
Samstock pursuant to the Warrants), and has the sole right to vote such shares,
and, except as set forth in (i) the Hill/Samstock Voting Agreement, (ii) the
Voting Agreement dated June 14, 1998 between Samstock and PhoneTel
Technologies, Inc. (collectively, the "Voting Agreements"), (iii) the
Investment Agreement and (iv) the Shareholders Agreement, there are no
restrictions on rights of disposition or other liens pertaining to such shares.
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 Voting Agreements, the Investment Agreement and the
Shareholders Agreement.
Section III.2 Authority and Non-Contravention. Samstock 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 Samstock and the consummation of the transactions
contemplated by this Agreement have been duly authorized by all necessary
action on the part of Samstock. This Agreement has been duly executed and
delivered by Samstock and constitutes a valid and binding obligation of
Samstock, enforceable against Samstock 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 Samstock nor the consummation by
Samstock 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
Samstock or the Shares or (ii) violate or conflict with the limited liability
company agreement of Samstock or constitute a material violation of or default
under any contract, commitment, agreement, understanding, arrangement or other
restriction of any kind to which Samstock is a party or by which Samstock or
its assets are bound.
Section III.3 Total Shares. Except as contemplated by the Shareholders
Agreement, the Investment Agreement and the Warrants, Samstock does not have
any option to purchase or right to subscribe for or otherwise acquire any
securities of Parent and has no other interest in or voting rights with respect
to any other securities of Parent.
Section III.4 Reasonable Efforts. Prior to the Termination Date, Samstock
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 Parent 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
PEOPLES
Peoples represents, warrants and covenants to Samstock that:
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Section IV.1 Authority and Non-Contravention. Peoples 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 Peoples and the consummation of the transactions contemplated
by this Agreement have been duly authorized by all necessary action on the part
of Peoples. This Agreement has been duly executed and delivered by Peoples and
constitutes a valid and binding obligation of Peoples, enforceable against
Peoples 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 Peoples 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 Peoples or (ii) violate or conflict with the
certificate of incorporation or bylaws of Peoples or constitute a material
violation of or default under any contract, commitment, agreement,
understanding, arrangement or other restriction of any kind to which Peoples is
a party or by which Peoples or its assets are bound.
ARTICLE V
MISCELLANEOUS
Section V.1 Expenses. All costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such costs or expenses.
Section V.2 Further Assurances. From time to time, at the request of
Peoples, in the case of Samstock, or at the request of Samstock, in the case of
Peoples, 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 V.3 Specific Performance. Samstock agrees that Peoples would be
irreparably damaged if for any reason Samstock fails to perform any of
Samstock's obligations under this Agreement, and that Peoples would not have an
adequate remedy at law for money damages in such event. Accordingly, Peoples
shall be entitled to seek specific performance and injunctive and other
equitable relief to enforce the performance of this Agreement by Samstock.
This provision is without prejudice to any other rights that Peoples may have
against Samstock for any failure to perform its obligations under this
Agreement.
Section V.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 Peoples's Board of
Directors withdraws, modifies or changes its recommendation or approval of the
Merger Agreement or the Peoples Merger in a manner adverse to Parent (the
"Termination Date").
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Section V.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 V.6 Certain Events. Samstock 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 V.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 V.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 Peoples, to:
Peoples Telephone Company, Inc.
0000 X.X. 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: General Counsel
Telecopy number: (000) 000-0000
with a copy to:
Steel Xxxxxx & Xxxxx LLP
000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxx X. Xxxxxx, P.A.
Facsimile: (000) 000-0000
and
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
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If to Samstock, to:
Samstock, L.L.C.
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Mr. F. Xxxxxx Xxxxx
Telecopy number: (000) 000-0000
with a copy to:
Xxxxxxxxx & Xxxxxxxxxxx, P.C.
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy number: (000) 000-0000
Section V.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 V.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 V.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 V.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 V.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 V.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
* * * * * *
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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.
SAMSTOCK, L.L.C.
By SZ Investments, L.L.C., its sole member
By Xxxx General Partnership, Inc.,
its managing member
By:
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Name:
Title:
PEOPLES TELEPHONE COMPANY, INC.
By:
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Name:
Title:
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