EXHIBIT 10.6
VOTING AGREEMENT
This VOTING AGREEMENT, executed as of July 10, 2001 and effective as of
February 19, 2002, is entered into by and between CIBC World Markets Corp. (the
"Holder") a Shareholder of PhoneTel Technologies, Inc., an Ohio corporation (the
"Company"), and Davel Communications, Inc. ("Davel").
WHEREAS, concurrently with the effectiveness of this Agreement, the
Company, Davel, and PT Merger Corp., an Ohio corporation and a 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 the Company will be merged with and into P Sub with the
Company surviving as a wholly owned subsidiary of Davel (the "Merger").
WHEREAS, the consummation of the 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 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, Holder is the beneficial owner of 608,000 shares of PhoneTel
Common Stock (the "Owned Shares") representing approximately 5.97% of the shares
of PhoneTel Common Stock outstanding as of July 1, 2001. Holder is also the
holder of 0 options and 0 warrants to purchase shares of PhoneTel Common Stock.
Such 608,000 shares of PhoneTel Common Stock, together with any other shares of
capital stock of PhoneTel 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 Davel to enter into the
Merger Agreement, and as an inducement to Davel to do so, Holder has agreed for
the benefit of 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 HOLDER
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 the Company executed prior to the Termination Date, Holder shall
vote the Shares in favor of the approval of the Merger Agreement, the 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, 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.
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(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,
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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 Davel
containing substantially the same terms as this Agreement.
Section 1.4 Action in Shareholder Capacity Only. Holder makes no agreement
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or understanding herein in any capacity other than his capacity as a 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 HOLDER
Holder represents, warrants and covenants to Davel that:
Section 2.1 Ownership. Holder is, as of the date hereof, the beneficial
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owner of 608,000 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. Holder 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 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
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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. Holder does not have any option to purchase or
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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, Holder
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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 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 XXXXX
Xxxxx represents, warrants and covenants to Holder that:
Section 3.1 Authority and Non-Contravention. Davel has the right, power
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and authority to enter into this Agreement and to consummate the transactions
contemplated by this Agreement. The execution and delivery of this Agreement by
Davel and the consummation of the transactions contemplated by this Agreement
have been duly authorized by all necessary action on the part of Davel. This
Agreement has been duly executed and delivered by Davel and constitutes a valid
and binding obligation of Davel, enforceable against 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 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 Davel or (ii) violate or conflict with the certificate of
incorporation or bylaws of Davel or constitute a material violation of or
default under any contract, commitment, agreement, understanding, arrangement or
other restriction of any kind to which Davel is a party or by which Davel or its
assets are bound.
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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.
Section 4.2 Further Assurances. From time to time, at the request of
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Davel, in the case of Holder, or at the request of Holder, in the case of 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. Holder agrees that Davel would be
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irreparably damaged if for any reason Holder fails to perform any of Holder's
obligations under this Agreement, and that Davel would not have an adequate
remedy at law for money damages in such event. Accordingly, Davel 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 Davel 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
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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 Merger in a manner adverse to 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. Holder 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
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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 Davel to:
Davel Communications Group, Inc.
00000 Xxxxxxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq
Telecopy number: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: R. Xxxxx Xxxx, Esq.
Telecopy number: (000) 000-0000
If to Holder, to:
CIBC World Markets Corp.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Telecopy number: 000-000-0000
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 are
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inserted for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
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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 submits
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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 Ohio
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' 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.
CIBC WORLD MARKETS CORP.
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Director
DAVEL COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President
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