EXHIBIT 10.2
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
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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
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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
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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
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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,
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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.
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Section 1.6 Action in Shareholder Capacity Only. ING makes no agreement
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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
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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
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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,
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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
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the Company promptly of the number of any shares of capital stock of PhoneTel
acquired by ING after the date hereof.
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Section 2.5 Delivery of Affiliate Letter. In the event that counsel to
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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,
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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
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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
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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
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irreparably damaged if for any reason ING fails to perform any of ING's
obligations under this Agreement, and
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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
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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) 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
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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. ING agrees that this Agreement and the
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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
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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
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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 the Company, to:
Davel Communications Group, Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxxx, Xx.
Facsimile: (000) 000-0000
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with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: R. Xxxxx Xxxx
Facsimile: (000) 000-0000
If to ING, to:
Internationale Nederlanden
(U.S.) Capital Corporation
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Credit Officer
Facsimile: (000) 000-0000
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile: (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 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
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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
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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
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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
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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.
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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.
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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.
ING, (U.S.) INVESTMENT CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title:
DAVEL COMMUNICATIONS GROUP, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxxxx, Xx.
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Name: Xxxxxxxx X. Xxxxxxxxxx, Xx.
Title: Senior Vice President
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