EXHIBIT 10.4
VOTING AGREEMENT
VOTING AGREEMENT, dated June 11, 1998, between Mr. Xxxxx Xxxx ("Xxxx") a
Member of the Board of Directors of PhoneTel Technologies, Inc., an Ohio
corporation (the "Company"), and Davel Communications Group, Inc. ("Old Davel").
WHEREAS, concurrently with the execution and delivery of this Agreement,
the Company, 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 PhoneTel Merger by the holders of at least a majority of the outstanding
shares of common stock, par $.01 per share, of PhoneTel ("PhoneTel Common
Stock").
WHEREAS, Xxxx is the record and beneficial owner of 1,053,724 shares of
PhoneTel Common Stock (the "Owned Shares") representing approximately 6.3% of
the shares of PhoneTel Common Stock outstanding as of June 1, 1998. Xxxx is
also the holder of 450,000 options and 75,064 warrants to purchase shares of
PhoneTel Common Stock. Such 1,053,724 shares of PhoneTel Common Stock, together
with any other shares of capital stock of PhoneTel acquired by Xxxx 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 Old Davel to enter into the
Merger Agreement, and as an inducement to Old Davel to do so, Xxxx has agreed
for the benefit of Old Davel 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 XXXX
Section 1.1 Agreement to Vote. At any meeting of the shareholders of
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PhoneTel 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 Old Davel executed prior to the Termination Date, Xxxx shall
vote the Shares in favor of the approval of the Merger Agreement, the PhoneTel
Merger and each of the actions contemplated by the Merger Agreement to be
performed by PhoneTel in connection with the Transaction and any actions
required in furtherance thereof. Prior to the Termination Date and subject to
Section 1.3, Xxxx 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) Xxxx hereby revokes any and all previous proxies
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granted with respect to matters set forth in Section 1.1 for the Shares.
(b) Prior to the Termination Date, Xxxx 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 Xxxx. Prior to the Termination Date
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Xxxx 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 Old
Davel containing substantially the same terms as this Agreement.
Section 1.4 Action in Shareholder Capacity Only. Xxxx makes no agreement
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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 II
REPRESENTATIONS, WARRANTIES AND
ADDITIONAL COVENANTS OF XXXX
Xxxx represents, warrants and covenants to Old Davel that:
Section 2.1 Ownership. Xxxx is, as of the date hereof, the beneficial and
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record owner of 1,053,724 shares of PhoneTel 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. None of such shares 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. Xxxx has the right, power
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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 Xxxx and constitutes a valid and binding obligation of Xxxx,
enforceable against Xxxx 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 Xxxx nor the consummation by Xxxx 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 Xxxx or the Shares or (ii)
constitute a material violation
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of or default under any contract, commitment, agreement, understanding,
arrangement or other restriction of any kind to which Xxxx is a party or by
which Xxxx or his assets are bound.
Section 2.3 Total Shares. Except for options to purchase 450,000 shares
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of PhoneTel Common Stock and warrants to purchase 75,064 shares of PhoneTel
Common Stock, Xxxx does not have any option to purchase or right to subscribe
for or otherwise acquire any securities of PhoneTel and, other than with respect
to the Owned Shares, has no other interest in or voting rights with respect to
any other securities of PhoneTel.
Section 2.4 Reasonable Efforts. Prior to the Termination Date, Xxxx shall
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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 PhoneTel in doing, all things
reasonably necessary, proper or advisable to consummate and make effective, in
the most expeditious manner reasonably practicable, the Transaction.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF
OLD DAVEL
Old Davel represents, warrants and covenants to Xxxx that:
Section 3.1 Authority and Non-Contravention. Old Davel has the right,
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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 Old Davel and the consummation of the transactions contemplated by
this Agreement have been duly authorized by all necessary action on the part of
Old Davel. This Agreement has been duly executed and delivered by Old Davel and
constitutes a valid and binding obligation of Old Davel, enforceable against Old
Davel 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 Old Davel 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 Old Davel or (ii) violate or conflict with
the articles of incorporation or code of regulations of Old Davel or constitute
a material violation of or default under any contract, commitment, agreement,
understanding, arrangement or other restriction of any kind to which Old Davel
is a party or by which Old Davel or its assets are bound.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Expenses. All costs and expenses incurred in connection with
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this Agreement shall be paid by the party incurring such costs or expenses.
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Section 4.2 Further Assurances. From time to time, at the request of Old
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Davel, in the case of Xxxx, or at the request of Xxxx, in the case of Old Davel,
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. Xxxx agrees that Old Davel would be
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irreparably damaged if for any reason Xxxx fails to perform any of Xxxx'x
obligations under this Agreement, and that Old Davel would not have an adequate
remedy at law for money damages in such event. Accordingly, Old Davel shall be
entitled to seek specific performance and injunctive and other equitable relief
to enforce the performance of this Agreement by Xxxx. This provision is without
prejudice to any other rights that Old Davel may have against Xxxx for any
failure to perform its obligations under this Agreement.
Section 4.4 Amendments, Termination. This Agreement may not be modified
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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 I, Article II and Article III 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").
Section 4.5 Assignment. Subject to Section 1.3 hereof, neither this
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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 Certain Events. Xxxx agrees that this Agreement and the
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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 4.7 Entire Agreement. This Agreement (including the documents
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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 4.8 Notices. All notices and other communications hereunder shall
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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 Old Davel to:
Davel Communications Group, Inc.
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0000 Xxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: General Counsel
Telecopy number: 813.626.9610
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: R. Xxxxx Xxxx
Telecopy number: 312.861.2200
If to Xxxx, to:
Xxxxx Xxxx
Xxxxxx Xxxx & Co.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy number: 212.687.7486
Section 4.9 Governing Law. This Agreement shall be governed by, and
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construed in accordance with, the laws of the State of Ohio regardless of the
laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
Section 4.10 Counterparts. This Agreement may be executed in two or more
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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 4.11 Interpretation. The headings contained in this Agreement
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are inserted for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
Section 4.12 Severability. Any provision hereof which is invalid or
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unenforceable shall be ineffective to the extent of such invalidity or
unenforceability, without affecting in any way the remaining provisions hereof.
Section 4.13 Consent to Jurisdiction. Each party hereto irrevocably
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submits to the nonexclusive jurisdiction of (a) the state courts of the State of
Ohio 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 4.14 Attorney's Fees. If any action at law or in equity is
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necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys'
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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.
/s/ Xxxxx Xxxx
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Xxxxx Xxxx
DAVEL COMMUNICATIONS GROUP, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxxxx, Xx.
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Name: Xxxxxxxx X. Xxxxxxxxxx, Xx.
Title: Senior Vice President
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