EXHIBIT 6
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the
"Agreement") made and entered into this 16th day of
October, l995, by and between PhoneTel Technologies, Inc.
("PhoneTel"), an Ohio corporation, and Public Telephone
Corporation ("PTC"), an Indiana corporation.
WHEREAS, PhoneTel, PhoneTel II, Inc. ("Sub"),
an Ohio corporation, a wholly-owned subsidiary of
PhoneTel and PTC are parties to the Agreement and Plan of
Merger of even date herewith (the "Merger Agreement")
pursuant to which PTC will merge with and into Sub (the
"Merger") and the shareholders of PTC will receive shares
of PhoneTel common stock $.0l par value ("PhoneTel Common
Shares").
WHEREAS, the shareholders of PTC have requested
that, in connection with the Merger Agreement, PhoneTel
provide a means of registering PhoneTel Common Shares
under the Securities Act of 1933, as amended (the
"Securities Act"), and PhoneTel is willing to provide
such registration as provided herein;
NOW, THEREFORE, in consideration of the
premises and the agreements herein contained, the parties
hereto agree as follows:
1. Shelf Registration. As promptly as
practicable, PhoneTel shall file and use all reasonable
efforts to cause to be declared effective a "shelf"
registration statement (the "Shelf Registration
Statement") on any appropriate form pursuant to Rule 415
(or similar rule that may be adopted by the Securities
and Exchange Commission (the "SEC") under the Securities
Act for all the PhoneTel Common Shares (i) issued in
connection with the Merger or (ii) issued or distributed
in respect of such PhoneTel Common Shares by way of stock
dividend or stock split or in connection with a
combination of shares, recapitalization, reorganization,
merger, consolidation or otherwise (collectively such
PhoneTel Common Shares shall hereinafter be referred to
as the "Registrable Securities"), which form shall be
available for the sale of the Registrable Securities in
accordance with the intended method or methods of
distribution thereof; provided, however, that PhoneTel's
obligations under this Section 1 shall not commence until
the later of (i) 90 days following the closing of a
public primary equity offering by PhoneTel or (ii) such
later date acceptable to the managing underwriter or
underwriters, if any, of such offering. PhoneTel agrees
to use its best efforts to keep the Shelf Registration
Statement continuously effective and usable for resale of
Registrable Securities, for a period of twenty-four (24)
months from the date on which the SEC declares the Shelf
Registration Statement effective or such shorter period
which will terminate when all the Registrable Securities
covered by the Shelf Registration Statement cease to be
Registrable Securities (such period shall hereinafter be
referred to as the "Effective Period"); provided,
however, that PhoneTel may elect that the Shelf
Registration Statement not be usable during any Blackout
Period (as defined in Section 2 below).
2. Blackout Period. PhoneTel shall be
entitled to elect that the Shelf Registration Statement
not be usable, for a reasonable period of time, but not
in excess of 90 days (a "Blackout Period"), if PhoneTel
determines in good faith that the use of the Shelf
Registration Statement or related prospectus) would
interfere with any pending financing, acquisition,
corporate reorganization or any other corporate
development involving PhoneTel or any of its subsidiaries
or would require premature disclosure thereof and
promptly gives the holders of Registrable Securities
written notice of such determination, containing a
general statement of the reasons for such postponement or
restriction on use and an approximation of the
anticipated delay; provided, however, that the aggregate
number of days included in all Blackout Periods during
any consecutive 12 months during the Effective Period
shall not exceed 180 days.
3. Piggyback Registrations.
(a) Right to Piggyback. Whenever
PhoneTel proposes to register any of its equity
securities under the Securities Act (other than the
first registration after the date hereof) and the
registration form to be used may be used for the
registration of Registrable Securities (a
"Piggyback Registration"), PhoneTel will give
prompt written notice (in any event within five
business days after its receipt of notice of any
exercise of other demand registration rights) to
all holders of Registrable Securities of its
intention to effect such a registration and will,
subject to paragraphs (b), (c) and (d) below,
include in such registration all Registrable
Securities with respect to which PhoneTel has
received written requests for inclusion therein
within 15 days after the receipt of PhoneTel's
notice.
(b) Priority on Primary
Registrations. If a Piggyback Registration is an
underwritten primary registration on behalf of
PhoneTel (whether or not also on behalf of holders
of PhoneTel's securities), and the managing
underwriters advise PhoneTel in writing that in
their opinion the number of securities requested to
be included in such registration exceeds the number
which can be sold in such offering, PhoneTel will
include in such registration (i) first, the
securities PhoneTel proposes to sell, (ii) second,
the Registrable Securities requested to be included
in such registration, pro rata among the holders of
such Registrable Securities on the basis of the
number of shares then owned by such holders, and
(iii) third, other securities requested to be
included in such registration.
(c) Priority on Secondary
Registrations. If a Piggyback Registration is an
underwritten secondary registration on behalf of
holders of PhoneTel's securities, and the managing
underwriters advise PhoneTel in writing that in
their opinion the number of securities requested to
be included in such registration exceeds the number
which can be sold in such offering, PhoneTel will
include in such registration (i) first, the
securities requested to be included therein by the
holders demanding such registration, (ii) second,
the Registrable Securities requested to be included
in such registration, pro rata among such holders
on the basis of the number of shares then owned by
each such holder and (iii) third, other securities
requested to be included in such registration.
(d) Nothing in this Section 3 will
prohibit PhoneTel from determining, at any time,
not to file a registration statement or, if filed,
to withdraw such registration or terminate the
registration related thereto.
4. Selection of Underwriters. If any offering
pursuant to a Registration Statement is an underwritten
offering, PhoneTel will select a managing underwriter or
underwriters to administer the offering.
5. Registration Expenses. PhoneTel will pay
all of its expenses in connection with the registration
of Registrable Securities (including registration and
filing fees, printing costs, listing fees and the fees
and expenses of its counsel), and each holder shall pay
all underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of
such holder's Registrable Securities pursuant to any
registration statement filed pursuant to paragraph (a) or
(b) above (a "Registration Statement").
6. Indemnification; Contribution.
(a) Indemnification by PhoneTel.
PhoneTel agrees to indemnify each holder of
Registrable Securities, the underwriters thereof,
their respective officers and directors and each
Person who controls any of the foregoing (within the
meaning of the Securities Act), and any agent or
investment adviser thereof against all losses,
claims, damages, liabilities and expenses (including
reasonable attorneys' fees and expenses of
investigation) incurred by such party pursuant to
any actual or threatened action, suit, proceeding or
investigation arising out of or based upon (i) any
untrue or alleged untrue statement of material fact
contained in the Registration Statement, any
prospectus or preliminary prospectus, or any
amendment or supplement to any of the foregoing or
(ii) any omission or alleged omission to state
therein a material fact required to be stated
therein or necessary to make the statements therein
(in the case of a prospectus or a preliminary
prospectus, in light of the circumstances then
existing) not misleading, except in each case
insofar as the same arise out of or are based upon,
any such untrue statement or omission made in
reliance on and in conformity with information with
respect to such indemnified party furnished in
writing to PhoneTel by such indemnified party or its
counsel expressly for use therein. Notwithstanding
the foregoing provisions of this paragraph (a),
PhoneTel will not be liable to any holder of
Registrable Securities, any Person who participates
as an underwriter in the offering or sale of
Registrable Securities or any other Person, if any,
who controls such holder or underwriter (within the
meaning of the Securities Act), under the indemnity
agreement in this paragraph (a) for any such loss,
claim, damage, liability (or action or proceeding in
respect thereof) or expense that arises out of such
holder's or other Person's failure to send or give a
copy of the final prospectus to the Person asserting
an untrue statement or alleged untrue statement or
omission or alleged omission at or prior to the
written confirmation of the sale of the Registrable
Securities to such Person if such statement or
omission was corrected in such final prospectus and
PhoneTel has previously furnished copies thereof to
such holder.
(b) Indemnification by Holders of
Registrable Securities. In connection with the
Registration Statement, each holder will furnish to
PhoneTel in writing such information, including with
respect to the name, address and the amount of
Registrable Securities held by such holder, as
PhoneTel reasonably requests for use in such
Registration Statement or the related prospectus and
agrees to indemnify and hold harmless PhoneTel, all
other prospective holders or any underwriter, as the
case may be, and any of their respective affiliates,
directors, officers and controlling Persons (within
the meaning of the Securities Act) against any
losses, claims, damages, liabilities and expenses
resulting from any untrue or alleged untrue
statement of a material fact or any omission or
alleged omission of a material fact required to be
stated in such Registration Statement or prospectus
or any amendment or supplement to either of them or
necessary to make the statements therein (in the
case of a prospectus, in the light of the
circumstances then existing) not misleading, but
only to the extent that any such untrue statement or
omission is made in reliance on and in conformity
with information with respect to such holder
furnished in writing to PhoneTel by such holder or
its counsel specifically for inclusion therein.
(c) Conduct of Indemnification
Proceedings. Any Person entitled to indemnification
hereunder agrees to give prompt written notice to
the indemnifying party after the receipt by such
indemnified party of any written notice of the
commencement of any action, suit, proceeding or
investigation or threat thereof made in writing for
which such indemnified party may claim
indemnification or contribution pursuant to this
Agreement (provided that failure to give such
notification shall not affect the obligations of the
indemnifying person pursuant to this Section 6
except to the extent the indemnifying party shall
have been actually prejudiced as a result of such
failure). In case any such action shall be brought
against any indemnified party and it shall notify
the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to
participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party
(who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party
to such indemnified party of its election so to
assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party under
these indemnification provisions for any legal
expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified
party, in connection with the defense thereof other
than reasonable costs of investigation, unless in
the reasonable judgment of any indemnified party a
conflict of interest is likely to exist between such
indemnified party and any other of such indemnified
parties with respect to such claim, in which event
the indemnifying party shall be obligated to pay the
reasonable fees and expenses of such additional
counsel or counsels. The indemnifying party will
not be subject to any liability for any settlement
made without its consent (which will not be
unreasonably withheld).
(d) Contribution. If the indemnification
from the indemnifying party provided for in this
Section 6 is unavailable to the indemnified party
hereunder in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then
the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities
and expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party
and indemnified party in connection with the actions
which resulted in such losses, claims, damages,
liabilities and expenses, as well as any other
relevant equitable considerations. The relative
fault of such indemnifying party and indemnified
party shall be determined by reference to, among
other things, whether any action in question,
including any untrue or alleged untrue statement of
a material fact or omission or alleged omission to
state a material fact, has been made by, or relates
to information supplied by, such indemnifying party
or indemnified party, and the parties' relative
intent, knowledge, access to information and
opportunity to correct or prevent such action. The
amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include,
subject to the limitations set forth in paragraph
(c) above, any legal and other fees and expenses
reasonably incurred by such indemnified party in
connection with any investigation or proceeding.
The parties hereto agree that it would not
be just and equitable if contribution pursuant to
this Section 6 were determined by pro rata
allocation or by any other method of allocation
which does not take account of the equitable
considerations referred to in the immediately
preceding paragraph. Notwithstanding the provisions
of this Section 6, no underwriter shall be required
to contribute any amount in excess of the amount by
which the total price at which the Registrable
Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount
of any damages which such underwriter has otherwise
been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged
omission, and no holder of Registrable Securities
shall be required to contribute any amount in excess
of the amount by which the total price at which the
Registrable Securities of such holder were offered
to the public (net of all underwriting discounts and
commissions) exceeds the amount of any damages which
such holder has otherwise been required to pay by
reason of such untrue statement or omission. No
Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution
from any Person who was not guilty of such
fraudulent misrepresentation.
If indemnification is available under this
Section 6, the indemnifying parties shall indemnify
each indemnified party to the full extent provided
in Section 6(a) or (b), as the case may be, without
regard to the relative fault of said indemnifying
parties or indemnified party or any other equitable
consideration provided for in this paragraph (d).
7. Participation in Underwritten
Registrations. No holder of Registrable Securities may
participate in any underwritten offering hereunder unless
such holder (i) agrees to sell such holder's securities
on the basis provided in any underwriting arrangements
approved by PhoneTel in its reasonable discretion and
(ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other
documents reasonably required under the terms of such
underwriting arrangements.
8. Rule 144. For a period of three years
following the date hereof (or such shorter period as may
permit the sale of Registrable Securities under Rule 144
under the Securities Act without regard to the
requirement of "current public information"), PhoneTel
covenants that it will file the reports required to be
filed by it under the Securities Act and the Securities
Exchange Act of 1934, as amended, and the rules and
regulations adopted by the SEC thereunder (or, if
PhoneTel is not required to file such reports, it will,
upon the request of any holder of Registrable Securities,
make publicly available other information so long as
necessary to permit sales under Rule 144 under the
Securities Act), and it will take such further action as
any holder of Registrable Securities may reasonably
request, all to the extent required from time to time to
enable such holder to sell Registrable Securities without
registration under the Securities Act within the
limitation of the exemptions provided by (i) Rule 144
under the Securities Act, as such Rule may be amended
from time to time, or (ii) any similar rule or regulation
hereafter adopted by the SEC. Upon the request of any
holder of Registrable Securities, PhoneTel will deliver
to such holder a written statement as to whether it has
complied with such requirements.
9. Remedies. Each holder of Registrable
Securities in addition to being entitled to exercise all
rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights
under this Agreement.
10. Parties in Interest; No Third Party
Beneficiaries.
(a) This Agreement shall be binding upon,
inure to the benefit of, and be enforceable by, the
parties hereto and their respective successors and
permitted assigns. This Agreement and the rights and
obligations of PTC, PhoneTel and the shareholders of PTC
hereunder may not be assigned by any of the parties
hereto without the prior written consent of the other
parties.
(b) This Agreement is not intended, nor shall
it be construed, to confer any rights or remedies under
or by reason of this Agreement upon any person except the
parties hereto, the shareholders of PTC and their heirs,
successors and permitted assigns.
11. Entire Agreement. This Agreement embodies
the entire agreement and understanding of the parties
hereto in respect of the subject matter hereof. This
Agreement supersedes all prior agreements, arrangements
and understandings of the parties with respect to such
subject matter.
12. Counterparts. This Agreement may be
executed in any number of counterparts, each of which
shall be deemed an original but all of which together
shall constitute one and the same instrument.
13. Headings. The section headings contained
in this Agreement arte for convenience only and shall not
control or affect in any way the meaning or
interpretation of the provisions of this Agreement.
14. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of
the State of Missouri without giving effect to the
conflicts of law principles of such jurisdiction.
15. Notices. All notices, requests, claims,
demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given at
the time of delivery if personally delivered or
telecopied (with confirmation of receipt), the next day,
if delivered by nationally-recognized overnight express
service, or five (5) days, if sent by registered or
certified mail (postage prepaid, return receipt
requested) to the parties at the following addresses:
(a) If to PhoneTel to:
PhoneTel Technologies, Inc.
000 Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
Attn: Xxxxxx Xxxx
with copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
Attn: N.J. Terris, Esq.
(b) If to PTC:
Xxxxxx X. Xxxxxx
0000 Xxxxxxxxx Xxxxx Xxxxx
Xxxx Xxxxx, XX 00000
(000) 000-0000
with copy to:
Shambaugh, Kast, Xxxx & Xxxxxxxx
600 Standard Federal Plaza
P. O. Xxx 00000
Xxxx Xxxxx, XX 00000-0000
(000) 000-0000
Attention: Xxxxxx X. Xxxx
or to such other address as the person to whom notice is
to be given may have previously furnished to the other in
writing in the manner set forth above, provided that
notice of a change of address shall be deemed given only
upon receipt.
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement, on the day and year first above
written.
PUBLIC TELEPHONE CORPORATION
By:
Xxxxxx X. Xxxxxx, President
PHONETEL TECHNOLOGIES, INC.
By:
Name:
Title:
