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Exhibit 6
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, 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 PhoneTel Merger by the holders of at least a majority of the
outstanding shares of common stock, par $.01 per share, of the Company
("PhoneTel Common Stock").
WHEREAS, Samstock is the record and beneficial owner of 350,000 shares of
PhoneTel Common Stock, representing approximately 2.1% of the shares of
PhoneTel Common Stock outstanding as of June 1, 1998 (such 350,000 shares of
PhoneTel Common Stock, together with any other shares of capital stock of the
Company 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 agreements contained in this Agreement, the parties hereby agree
as follows:
ARTICLE I
COVENANTS OF SAMSTOCK
Section 1.1 Agreement to Vote. At any meeting of the shareholders of the
Company 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, Samstock
shall vote the Shares in favor of the approval of the Merger
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Agreement, the PhoneTel Merger and each of the actions contemplated by the
Merger Agreement to be performed by the Company in connection with the
Transaction and any actions required in furtherance thereof. Prior to the
Termination Date and subject to Section 1.3, 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 1.2 Proxies. (a) Samstock 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, Samstock 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 Samstock. Prior to the Termination
Date, Samstock shall not or (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 voting
agreement with the Company containing substantially the same terms as this
Agreement.
Section 1.4 Action in Shareholder Capacity Only. Samstock makes no
agreement or understanding herein in any capacity other than 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 II
REPRESENTATIONS, WARRANTIES AND
ADDITIONAL COVENANTS OF SAMSTOCK
Samstock represents, warrants and covenants to Old Davel that:
Section 2.1 Ownership. Samstock is, as of the date hereof, the beneficial
and record owner of 350,000 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. Samstock has the right,
power and authority to enter into this Agreement and to consummate the
transactions contemplated by this
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Agreement. 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 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
Samstock is a party or by which Samstock or its assets are bound.
Section 2.3 Total Shares. Samstock 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 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 the Company 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
THE COMPANY
The Company represents, warrants and covenants to Samstock 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 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.
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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.
Section 4.2 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 4.3 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 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) 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
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. 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 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
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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:
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: 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 4.9 Governing Law. This Agreement shall be governed by, and
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 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 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
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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