EXHIBIT 3
VOTING AGREEMENT
THIS AGREEMENT is made as of this 17th day of January,
1996, by and among PHONETEL TECHNOLOGIES, INC. ("PhoneTel")
and the former Shareholders of PUBLIC TELEPHONE CORPORATION
("PTC") who have signed this Agreement and who are identified
on Schedule A attached hereto (the "Shareholders").
RECITALS:
A. PhoneTel is a party to a certain Agreement and Plan
of Merger (the "Merger Agreement") dated as of
October 16, 1995 by and among PhoneTel, PhoneTel
II, Inc. and PTC.
B. As a material inducement for PhoneTel to enter into
the Merger Agreement, the Shareholders have agreed
to be bound by certain restrictions in connection
with (i) the shares of common stock of PhoneTel
(the "Shares") owned by the Shareholders, on the
date hereof, as a result of the conversion of their
shares of PTC into Shares pursuant to the Merger
Agreement, (ii) any Shares released to the
Shareholders pursuant to the Escrow Agreement (the
"Escrow Agreement"), dated as of October 16, 1995,
by and among PhoneTel, PTC and Shambaugh, Kast,
Xxxx & Xxxxxxxx (the "Escrow Agent"), and (iii) any
other Shares issued to any Shareholder in
connection with the Merger Agreement (collectively,
the "Agreement Shares"), which Shares are described
on Schedule A attached hereto.
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual promises
and covenants herein contained, the parties hereto agree as
follows:
1. Covenants With Respect To Voting. During the
period commencing on the date hereof and ending on
the earlier to occur of (i) thirteen (13) months
from the date hereof, or (ii) the approval of the
"Special Proposals" as defined below (the
"Agreement Period"), the Shareholders shall cause
the Agreement Shares owned by them to be voted for
the following actions:
1.1 Voting in favor of the following proposals
(the "Special Proposals") as more specifically
set forth in Schedule B attached hereto:
a. To increase the number of directors of
PhoneTel to eight;
b. To elect (or, if already appointed by the
Board, to ratify the appointment of) four
(4) directors designated jointly by
Xxxxxx Xxxxxxxxx and Xxxx Xxxxxxx;
c. To approve the grant of conversion rights
which would attach immediately to the
shares of 10% Non-Voting Preferred Stock,
without par value, $10 stated value, of
PhoneTel (the "PhoneTel Preferred
Shares") so that each PhoneTel Preferred
Share may be converted into ten (10)
shares of PhoneTel common stock.
1.2 During the Agreement Period, the Shareholders
shall not, directly or indirectly:
a. Call a meeting of shareholders of
PhoneTel; or
b. Vote to remove any director of PhoneTel;
1.3 For thirty (30) days after the approval of the
conversion rights proposal set forth in
Section 1.1(c) hereof, the Shareholders agree
not to take any action which would negate the
effects of the approval of the proposals set
forth in subsections 1.1(a), (b) or (c)
hereof.
2. Representations and Warranties. Each of the
Shareholders hereby represents and warrants to
PhoneTel with respect to the Agreement Shares set
forth next to such Shareholder's name on Schedule A
attached hereto that:
a. Such Shares are owned free and clear of any
encumbrances;
b. Such Shares constitute all of the issued and
outstanding common stock of PhoneTel which he,
she or it owns legally; and
c. Such Shareholder has the authority to restrict
such Shares pursuant to the terms of this
Agreement and that entering into this
Agreement does not violate any other
agreements of such Shareholder.
3. Legend. The Shareholders agree that, during the
Agreement Period, the obligations hereunder shall
attach to the Agreement Shares and that any
transfer of the Agreement Shares shall be subject
to the obligations created hereunder. The
Shareholders agree that, during the Agreement
Period, a legend referencing this Agreement shall
be placed on the certificates representing the
Agreement Shares prior to the transfer of the
Agreement Shares. Said legend shall provide as
follows:
"The shares represented by this
certificate are subject to the provisions
of a certain Voting Agreement dated
January 17, 1996, by and among PhoneTel
Technologies, Inc. and the Shareholders
referred to therein."
The Shareholders undertake and covenant to submit
to PhoneTel's Transfer Agent the certificates
representing the Agreement Shares held by them
prior to transfer for the purpose of placing the
aforementioned legend on each such certificate.
The legend shall be immediately removed upon the
expiration of the Agreement Period.
4. No Adequate Remedy. Since it is recognized by the
Shareholders that irreparable damage without an
adequate judicial remedy at law could result from
any violation of the provisions of this Agreement,
the Shareholders agree that, in addition to any
other remedies available to PhoneTel or its
shareholders, PhoneTel and its shareholders shall
have the remedy of a restraining order, injunction,
or such other equitable relief as may be decreed or
issued by a Court of competent jurisdiction to
enforce the provisions hereof.
5. Miscellaneous.
5.1 Enforceability. If any term, provision,
covenant or restriction of this Agreement or
the application thereof to any person or
circumstance should be held by an
administrative agency or Court of competent
jurisdiction to be invalid, void, or
unenforceable, then the remainder of this
Agreement and the application of such term,
provision, covenant, or restriction to other
persons or circumstances shall not be affected
thereby, but rather shall be enforced to the
greatest extent permitted by law. Further, it
is the intent of the parties to this Agreement
that if any term, provision, covenant, or
restriction of this Agreement should be held
to be invalid, void, or unenforceable as
applied to any person or circumstance, then
such term, provision, covenant, or restriction
shall be modified to the minimum extent
necessary in order to render the same
enforceable, consistent with the expressed
objectives of the parties hereto for entering
into this Agreement.
5.2 Successors and Assigns; Third Party
Beneficiary Rights. This Agreement shall be
binding upon and inure to the benefit of the
parties hereto and their respective
successors, assigns, heirs, legatees, and
other legal representatives. The parties
acknowledge that this Agreement is intended to
and shall be construed to give the holders of
PhoneTel Preferred Shares third party
beneficiary rights including the right, either
individually or collectively, to enforce the
provisions of this Agreement against the
Shareholders.
5.3 Headings. The headings in this Agreement have
been inserted solely for convenience of
reference and do not themselves constitute a
part of this Agreement.
5.4 Entire Understanding. This Agreement and the
documents referred to herein set forth the
entire understanding of the parties relating
to the subject matter of this action and any
other prior or contemporaneous oral or written
agreement respecting its subject matter shall
have no force or effect whatsoever.
5.5 Waiver. No waiver of any breach of any term
hereof shall be effective unless in writing
and signed by the party against whom
enforcement of waiver is sought, and no such
waiver shall be construed as a waiver of any
subsequent breach of that term or of any other
term hereof.
5.6 Amendment. This Agreement may not be amended,
modified, or terminated except by a writing
signed by all of the parties hereto.
5.7 Counterparts. This Agreement may be executed
in any number of counterparts, each of which
shall be deemed to be an original and all of
which together shall be deemed to be one and
the same instrument.
5.8 Governing Law. It is the intention of the
parties hereto that this Agreement shall be
subject to, governed by, and construed and
enforced in accordance with the laws of the
State of Ohio. In the event of a breach by
any party of its obligations hereunder, the
prevailing party in such litigation, as
determined by the court, shall be entitled to
reimbursement of its reasonable attorneys'
fees and costs.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day first written above.
PHONETEL TECHNOLOGIES, INC.
BY: /s/ Xxxxx Xxxx
ITS: Chairman
"SHAREHOLDERS":
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
on behalf of
each of the
Shareholders
SCHEDULE A
Ownership of Shares of PhoneTel Common Stock by the Shareholders1
Maximum Other Shares
Number of Number of Issued (or
Shares Escrow to be
Owned Shares issued)
as of Allocable pursuant to
Jan. 17, to each Merger
Shareholder 1996 Shareholder Agreement
R. Xxxxx Xxxxxxxx 202 30
Xxxxxxx X. Xxxxxx 9,725 1,449
Dr. W. Xxxxx Xxxxxxx, 6,078 905
M.D.2
Real Estate 2,026 302
Development, Ltd.
Xxxxxxx X. Xxxxx 1,013 151
Xxxx X. Xxxxx 1,013 151
Xxxxxxxxx X. Xxxxxxx 2,431 362
Xxxxxx X. Xxxxxxx, Xx. 13,979 2,083
Xxxxxx Xxxxx 4,052 603
Xxxxxxx X. Xxxxxx & J. 11,143 1,660
Xxxxxx Xxxxxx as joint
tenants
Xxxxxx Xxxxxxxxx 14,182 2,113
Xx. Xxxx X. Xxxxxxx, M.D. 10,130 1,509
Xxxxx X. Xxxxxx 23,096 3,442 34,1663
Xxxxxx Xxxxx Xxxxxx 202 30
Xxxxxx X. Xxxxxx, Xx. 15,803 2,355
Xxxxxx X. Xxxxxx 37,279 5,555 45,8333
Xxxxxx Motors, Inc. 5,065 754
Xxxxxx X. Xxxxxx 9,117 1,358
Xx. Xxxxxx X. Xxxxx, M.D. 11,143 1,660
Xxxxxxx X. Xxxxxxx, Xx. 5,672 845
Xxxxx X. Xxxxxxxxxxx 1,823 271
Xxxxxx X. Xxxxxxxxxxx 2,026 302
Xxxx X. Xxxxxxxxxxx 6,078 905
SKBW Partnership 2,431 362
Total 195,709 29,157 79,999
1. In December, 1995 PhoneTel effectuated a 1 for 6 reverse
stock split. These amounts reflect the reverse stock
split.
2. 4,052 of Xx. Xxxxxxx' Shares are held in trust. Voting
and disposition decisions concerning the trust Shares
are shared with the trustee, Xxxxxx X. Xxxxxxx. For
purposes of this Agreement, both Xxxxxx Xxxxxxx and Xx.
Xxxxxxx are Shareholders.
3. These Shares which are payable to Xxxxx X. Xxxxxx and
Xxxxxx X. Xxxxxx on April 16, 1996, arise out of Non-
Competition Agreements, dated as of October 16, 1995,
between such persons and PhoneTel.
SCHEDULE B
PROPOSED RESOLUTIONS OF THE
SHAREHOLDERS OF PHONETEL TECHNOLOGIES, INC.
RESOLVED, that the first sentence of the second
paragraph of Article III, Section 1. of the Corporation's
Code of Regulations be deleted in its entirety and the
following inserted in lieu thereof:
"The number of directors shall be not
less than four (4) persons nor more than
_____________ (_____) persons."
RESOLVED FURTHER, that the number of Directors shall be
increased to eight (8) and the following persons are elected
as Directors, each to serve until the next annual meeting of
Shareholders and until such Directors' successors shall be
elected and qualified:
__________________________
__________________________
__________________________
__________________________
__________________________
__________________________
__________________________
__________________________
RESOLVED FURTHER, that subparagraph (j) of the
Corporation's Articles of Incorporation is hereby amended by
the addition of the following as paragraph 8:
7. CONVERSION RIGHTS. Any holder of 10% Non-Voting
Preferred Stock may, at any time, convert all, but
not less than all, of his, her or its shares of 10%
Non-Voting Preferred Stock into fully paid and non-
assessable shares of Common Stock such that each
Share of 10% Non-Voting Preferred Stock is
convertible into ten (10) shares of Common Stock.
In order to exercise the conversion privilege, the
holder of 10% Non-Voting Preferred Stock to be
converted shall surrender certificates for such
stock, duly endorsed or assigned to the Company or
in blank, accompanied by written notice to the
Company that the holder elects to convert such
stock (the "Conversion Notice"). As soon as
practicable but not later than twenty (20) business
days after the Company's receipt of the Conversion
Notice, the Company shall cause to be issued to the
holder certificates for such Common Stock. Such
Common Stock shall carry with it the same
registration rights as were granted in connection
with the merger of World Communications, Inc. with
and into PhoneTel, II, Inc.
