EXHIBIT 99.6
VOTING AGREEMENT
This VOTING AGREEMENT, dated June 11, 1998, between ING (U.S.)
Investment Corporation, a Delaware corporation ("ING"), and Davel
Communications Group, Inc., an Illinois corporation (the "Company").
WHEREAS, concurrently with the execution and delivery of this
Agreement, PhoneTel Technologies, Inc., an Ohio corporation ("PhoneTel"),
the Company, Davel Holdings, Inc., a Delaware corporation and a wholly
owned subsidiary of the Company ("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 the Company with the Company
surviving as a wholly owned subsidiary of New Davel (the "Davel Merger")
and (ii) P Sub will be merged with and into PhoneTel with PhoneTel
surviving as a wholly owned subsidiary of New Davel (the "PhoneTel
Merger").
WHEREAS, the consummation of 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 value $.01 per share, of
PhoneTel ("PhoneTel Common Stock").
WHEREAS, ING is the holder of warrants (the "Warrants") to purchase
shares of Series A Special Convertible Preferred Stock, par value $.20 per
share (the Preferred Stock), of PhoneTel at an exercise price of $.20 per
share of Preferred Stock.
WHEREAS, the Preferred Stock is convertible into an aggregate of
2,041,590 shares of PhoneTel Common Stock (such shares, upon acquisition
thereof by ING, being herein referred to as the "Warrant Shares" and the
Warrant Shares, together with any other shares of capital stock of PhoneTel
acquired by ING after the date hereof and during the term of this Agreement
being collectively herein referred to as the "Shares").
WHEREAS, under the terms of the Warrant Purchase Agreement dated March
15, 1996 (the "Warrant Agreement") between PhoneTel and ING pursuant to
which the Warrants were issued, the Warrants are immediately exercisable
for the Preferred Stock; and, under the terms of the Preferred Stock, as
set forth in the Articles of Incorporation of PhoneTel, upon issuance, the
Preferred Stock will be immediately convertible into the Shares.
WHEREAS, as a condition to the willingness of the Company to enter
into the Merger Agreement, and as an inducement to it to do so, ING has
agreed for the benefit of the Company 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 ING
Section 1.1 Agreement to Exercise Warrants. ING covenants and
agrees with the Company that, prior to the record date for the PhoneTel
Shareholders Meeting (as hereinafter defined), ING will exercise the
Warrants for all of the shares of Preferred Stock issuable upon exercise of
the Warrants and will pay the exercise price payable in respect thereof.
Section 1.2 Agreement to Convert Preferred Stock. ING covenants
and agrees with the Company that, prior to the record date for the PhoneTel
Stockholders Meeting, ING will convert the Preferred Stock into all of the
shares of PhoneTel Common Stock issuable upon conversion of the Preferred
Stock and will continue to hold the Shares through such record date so
that ING is a holder of record of PhoneTel Common Stock entitled to vote
the Shares at the PhoneTel Stockholders meeting.
Section 1.3 Agreement to Vote. At any meeting of the shareholders
of the Company held prior to the Termination Date (as hereinafter defined),
however called ("PhoneTel Shareholders Meeting"), and at every reconvened
meeting following any adjournment or postponement 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, ING
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 1.5, ING 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 1.4 Proxies. (a) ING hereby revokes any and all previous
proxies granted with respect to matters set forth in Section 1.3 for the
Shares.
(b) Prior to the Termination Date, ING shall not grant any proxies or
powers of attorney with respect to matters set forth in Section 1.3,
deposit any of the Shares into a voting trust or enter into a voting
agreement, other than this Agreement, with respect to any of the Shares, in
each case with respect to such matters.
Section 1.5 Transfer of Shares by ING. Prior to the Termination
Date, ING 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 the Company containing substantially the same
terms as this Agreement.
Section 1.6 Action in Shareholder Capacity Only. ING makes no
agreement or understanding herein in any capacity other than its capacity
as a record holder of the Warrants and a beneficial owner of the Warrants,
the Preferred Stock and the Shares, and nothing herein shall limit or
affect any actions taken in any other capacity.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND
ADDITIONAL COVENANTS OF ING
ING represents, warrants and covenants to the Company that:
Section 2.1 Ownership. As of the date hereof, ING has the right,
under the terms of the Warrants and the Preferred Stock, to acquire, in the
aggregate, the 2,041,590 Warrant Shares. Upon exercise of the Warrants and
subsequent conversion of the Preferred Stock, ING will be the beneficial
and record owner of the Warrant Shares and, subject to Section 1.3, ING
will have the sole right to vote the Warrant Shares and there will be no
restrictions on rights of disposition or other liens pertaining to the
Warrant Shares. ING 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.
Section 2.2 Authority and Non-Contravention. ING has the right,
power and authority to enter into this Agreement and, subject to the
issuance to ING of the Warrant Shares, to consummate the transactions
contemplated by this Agreement. The execution and delivery of this
Agreement by ING and the consummation of the transactions contemplated by
this Agreement have been duly authorized by all necessary action on the
part of ING. This Agreement has been duly executed and delivered by ING
and constitutes a valid and binding obligation of ING, enforceable against
ING 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 ING nor the consummation by ING 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 ING or, upon
issuance thereof to ING, the Shares or (ii) violate or conflict with the
certificate of incorporation or bylaws of ING or constitute a material
violation of or default under any contract, commitment, agreement,
understanding, arrangement or other restriction of any kind to which ING is
a party or by which ING or its assets are bound.
Section 2.3 Total Shares. As of the date hereof, ING does not own,
beneficially (other than through ownership of the Warrants) or of record,
any shares of capital stock of the Company. Other than the Warrants, ING
does not have any option to purchase or right to subscribe for or otherwise
acquire any securities of the Company and has no other interest in or
voting rights with respect to any other securities of the Company.
Section 2.4 Notifications. Prior to the Termination Date, ING will
notify the Company promptly of the number of any shares of capital stock of
PhoneTel acquired by ING after the date hereof.
Section 2.5 Delivery of Affiliate Letter. In the event that
counsel to the Company reasonably determines that ING is an affiliate of
PhoneTel for purposes of Rule 145 under the Securities Act of 1933, as
amended, or for purposes of pooling accounting, ING agrees to execute and
deliver to the Company not later than 30 days prior to the effective time
of the PhoneTel Merger an Affiliate Letter substantially in the form
attached hereto as Exhibit A.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE COMPANY
The Company represents, warrants and covenants to ING that:
Section 3.1 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 certificate of incorporation or by laws 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 IV
MISCELLANEOUS
Section 4.1 Expenses. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such
costs or expenses; provided, however, that the Company shall pay reasonable
fees and expenses of counsel to ING incurred in connection with the
negotiation and execution of this Agreement.
Section 4.2 Further Assurances. From time to time, at the request
of the Company, in the case of ING, or at the request of ING, 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 4.3 Specific Performance. ING agrees that the Company
would be irreparably damaged if for any reason ING fails to perform any of
ING'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
ING. This provision is without prejudice to any other rights that the
Company may have against ING for any failure to perform its obligations
under this Agreement.
Section 4.4 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 I, Article II and Article III shall
terminate, except with respect to liability for prior breaches thereof,
upon the earliest to occur of (i) December 7, 1998, (ii) termination of the
Merger Agreement in accordance with its terms, (iii) the Closing Date and
(iv) the date, if any, upon which PhoneTel'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 the Company (the "Termination
Date").
Section 4.5 Assignment. Subject to Section 1.5 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 4.6 Certain Events. ING agrees that this Agreement and the
obligations hereunder shall attach to the Warrants, Preferred Stock and
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 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 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 the Company, to:
Davel Communications Group, Inc.
1429 Massaro Boulevard
Tampa, Florida 33619
Attention: Theodore C. Rammelkamp, Jr.
Facsimile: (813) 626-9610
with a copy to:
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Attention: R. Scott Falk
Facsimile: (312) 861-2200
If to ING, to:
Internationale Nederlanden
(U.S.) Capital Corporation
135 East 57th Street
New York, NY 10022
Attention: Chief Credit Officer
Facsimile: (212) 750-8935
with a copy to:
King & Spalding
191 Peachtree Street
Atlanta, GA 30300-1763
Attention: William R. Spalding
Facsimile: (404) 572-5100
Section 4.9 Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York
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 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 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
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 to the nonexclusive jurisdiction of (a) the state courts of the
State of New York and (b) the United States federal district courts located
in the State of New York 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
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.
ING, (U.S.) INVESTMENT CORPORATION
By:________________________________
Name:
Title:
DAVEL COMMUNICATIONS GROUP, INC.
By:________________________________
Name:
Title: