EXHIBIT 99.5
VOTING AGREEMENT
VOTING AGREEMENT, dated June 11, 1998, between ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
("▇▇▇▇▇▇") a Member of the Board of Directors of PhoneTel Technologies,
Inc., an Ohio corporation (the "Company"), and Davel Communications Group,
Inc. ("Old Davel").
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company, 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
PhoneTel ("PhoneTel Common Stock").
WHEREAS, ▇▇▇▇▇▇ is the record and beneficial owner of 147,663 shares
of PhoneTel Common Stock (the "Owned Shares") representing approximately
0.9% of the shares of PhoneTel Common Stock outstanding as of June 1, 1998.
▇▇▇▇▇▇ is also the holder of 25,000 warrants to purchase shares of PhoneTel
Common Stock. Such 147,663 shares of PhoneTel Common Stock, together with
any other shares of capital stock of PhoneTel acquired by ▇▇▇▇▇▇ after the
date hereof and during the term of this Agreement, are collectively
referred to herein as the "Shares".
WHEREAS, as a condition to the willingness of Old Davel to enter into
the Merger Agreement, and as an inducement to Old Davel to do so, ▇▇▇▇▇▇
has agreed for the benefit of Old Davel 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 ▇▇▇▇▇▇
Section 1.1 Agreement to Vote. At any meeting of the shareholders
of PhoneTel 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 Old Davel executed prior to the Termination
Date, ▇▇▇▇▇▇ 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 1.3, ▇▇▇▇▇▇ 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) ▇▇▇▇▇▇ 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, ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇. Prior to the Termination
Date ▇▇▇▇▇▇ 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 Old Davel containing substantially the same
terms as this Agreement.
Section 1.4 Action in Shareholder Capacity Only. ▇▇▇▇▇▇ makes no
agreement or understanding herein in any capacity other than his 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 ▇▇▇▇▇▇
▇▇▇▇▇▇ represents, warrants and covenants to Old Davel that:
Section 2.1 Ownership. ▇▇▇▇▇▇ is, as of the date hereof, the
beneficial and record owner of 147,663 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. ▇▇▇▇▇▇ has the right,
power and authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. This Agreement has been duly
executed and delivered by ▇▇▇▇▇▇ and constitutes a valid and binding
obligation of ▇▇▇▇▇▇, enforceable against ▇▇▇▇▇▇ 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
▇▇▇▇▇▇ nor the consummation by ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇
is a party or by which ▇▇▇▇▇▇ or his assets are bound.
Section 2.3 Total Shares. Except for options to purchase 25,000
shares of PhoneTel Common Stock, ▇▇▇▇▇▇ does not have any option to
purchase or right to subscribe for or otherwise acquire any securities of
PhoneTel and, other than with respect to the Owned Shares, has no other
interest in or voting rights with respect to any other securities of
PhoneTel
Section 2.4 Reasonable Efforts. Prior to the Termination Date,
▇▇▇▇▇▇ 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
PhoneTel 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
OLD DAVEL
Old Davel represents, warrants and covenants to ▇▇▇▇▇▇ that:
Section 3.1 Authority and Non-Contravention. Old Davel 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 Old Davel and the consummation of the
transactions contemplated by this Agreement have been duly authorized by
all necessary action on the part of Old Davel. This Agreement has been
duly executed and delivered by Old Davel and constitutes a valid and
binding obligation of Old Davel, enforceable against Old Davel 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 Old Davel 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 Old Davel or (ii) violate or
conflict with the articles of incorporation or code of regulations of Old
Davel or constitute a material violation of or default under any contract,
commitment, agreement, understanding, arrangement or other restriction of
any kind to which Old Davel is a party or by which Old Davel 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.
Section 4.2 Further Assurances. From time to time, at the request
of Old Davel, in the case of ▇▇▇▇▇▇, or at the request of ▇▇▇▇▇▇, in the
case of Old Davel, 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. ▇▇▇▇▇▇ agrees that Old Davel
would be irreparably damaged if for any reason ▇▇▇▇▇▇ fails to perform any
of ▇▇▇▇▇▇'▇ obligations under this Agreement, and that Old Davel would not
have an adequate remedy at law for money damages in such event.
Accordingly, Old Davel shall be entitled to seek specific performance and
injunctive and other equitable relief to enforce the performance of this
Agreement by ▇▇▇▇▇▇. This provision is without prejudice to any other
rights that Old Davel may have against ▇▇▇▇▇▇ 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. ▇▇▇▇▇▇ 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 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 Old Davel to:
Davel Communications Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy number: 813.626.9610
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: R. ▇▇▇▇▇ ▇▇▇▇
Telecopy number: 312.861.2200
If to ▇▇▇▇▇▇, to:
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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 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 Illinois 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.
___________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇
DAVEL COMMUNICATIONS GROUP, INC.
By:________________________________
Name:
Title: