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Exhibit 7
VOTING AGREEMENT
VOTING AGREEMENT, dated June 11, 1998, between Samstock, L.L.C., a
Delaware limited liability company ("Samstock"), 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, Samstock is a party to (i) a Stock Purchase Agreement by and
between Samstock and Old Davel dated May 14, 1998 (the "Davel Stock Purchase
Agreement"), (ii) a Stock Purchase Agreement by and between Samstock and Xxxxx
X. Xxxx dated May 14, 1998 (the "Hill Stock Purchase Agreement") and (iii) a
Stock Purchase Agreement by and between Samstock and certain directors and
members of management of Old Davel (such agreement, together with the Davel
Stock Purchase Agreement and the Hill Stock Purchase Agreement, the "Stock
Purchase Agreements"). Pursuant to the Stock Purchase Agreements, and upon the
terms and subject to the conditions set forth therein, Samstock has the right
to acquire, in the aggregate, 1,623,900 shares of Old Davel Common Stock,
representing approximately 28.75% of the outstanding shares of Old Davel Common
Stock, based on the number of shares of Old Davel Common Stock outstanding on
June 1, 1998 and after giving effect to the issuance by Old Davel of the shares
of Old Davel Common Stock to be purchased by Samstock pursuant to the Davel
Stock Purchase Agreement (such 1,623,900 shares of Old Davel Common Stock, upon
acquisition thereof by Samstock, the "Purchased Shares" and, together with any
other shares of capital stock of Old Davel acquired by Samstock 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, Samstock
has agreed for the benefit of the Company as set forth in this Agreement.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and
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agreements contained in this Agreement, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 The terms "Investment Agreement" and "Shareholders Agreement"
shall have the meanings set forth in the Davel Stock Purchase Agreement.
ARTICLE II
COVENANTS OF SAMSTOCK
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, Samstock
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 of
Mr. Xxxxx Xxxx 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 and the Shareholders Agreement, 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 2.2 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) 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 Agreements, the Investment Agreement
and the Shareholders Agreement, with respect to any of the Shares, in each case
with respect to such matters.
Section 2.3 Transfer of Shares by Samstock. 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 the Company 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
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voting agreement with the Company containing substantially the same terms as
this Agreement.
Section 2.4 Action in Shareholder Capacity Only. Samstock makes no
agreement or understanding herein in any capacity other than, prior to
consummation of the transactions contemplated by the Stock Purchase Agreements,
as a holder of rights to acquire the Purchased Shares and, following
consummation of such transactions, 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.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND
ADDITIONAL COVENANTS OF SAMSTOCK
Samstock represents, warrants and covenants to the Company that:
Section 3.1 Ownership. As of the date hereof, Samstock has the right,
upon the terms and subject to the conditions set forth in the Stock Purchase
Agreements, to acquire, in the aggregate, 1,623,900 shares of Old Davel Common
Stock. Upon consummation of the transactions contemplated by the Stock
Purchase Agreements, Samstock will be the beneficial and record owner of such
shares and, subject to Section 2.3, Samstock will have the sole right to vote
the Shares and there will be no restrictions on rights of disposition or other
liens pertaining to the Shares, other than as contemplated by the Stock
Purchase Agreements, the Investment Agreement and the Shareholders Agreement.
Samstock has not agreed to subject any Shares to any voting trust or other
agreement, arrangement or restriction with respect to the voting of the Shares
other than pursuant to the Investment Agreement and the Shareholders Agreement.
Section 3.2 Authority and Non-Contravention. Samstock has the right,
power and authority to enter into this Agreement and, subject to the
acquisition by Samstock of the Purchased Shares upon consummation of the
transactions contemplated by the Stock Purchase Agreements, 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, upon acquisition thereof by Samstock, the Purchased 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.
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Section 3.3 Total Shares. As of the date hereof, Samstock does not own,
beneficially (except by virtue of the Stock Purchase Agreements) or of record,
any shares of capital stock of Old Davel. Except as contemplated by the Stock
Purchase Agreements and the Shareholders Agreement, Samstock 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, 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 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 Samstock 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.
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Section 5.2 Further Assurances. From time to time, at the request of the
Company, in the case of Samstock, or at the request of Samstock, 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. Samstock agrees that the Company would
be irreparably damaged if for any reason Samstock fails to perform any of
Samstock'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
Samstock. This provision is without prejudice to any other rights that the
Company may have against Samstock 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. 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 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
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(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.
0000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxx 00000
Attention: General Counsel
Telecopy number: 216.875.4337
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy number: 212.735.2000
If to Samstock, to:
Samstock, L.L.C.
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Mr. F. Xxxxxx Xxxxx
Telecopy number: 312.454.1671
with a copy to:
Xxxxxxxxx & Xxxxxxxxxxx, P.C.
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy number: 312.454.0335
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
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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.
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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:
Name:
Title:
PHONETEL TECHNOLOGIES, INC.
By:
Name:
Title:
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