EXHIBIT 10.5
VOTING AGREEMENT
This VOTING AGREEMENT, executed as of November 1, 2001 and effective as of
February 19, 2002, is entered into by and between AXP Bond Fund, Inc., AXP
Variable Portfolio-Bond Fund, a series of AXP Variable Portfolio Income Series,
Inc., AXP Variable Portfolio-Managed Fund, a series of AXP Variable Portfolio
Managed Series, Inc., Income Portfolio, a series of IDS Life Series Fund, Inc.,
Managed Portfolio, a series of IDS Life Series Fund, Inc., AXP Variable
Portfolio-Extra Income Fund, a series of AXP Variable Portfolio Income Series,
Inc. and High Yield Portfolio, a series of Income Trust, severally and not
jointly (each, a "Holder" or collectively, the "Holders") Shareholders of
PhoneTel Technologies, Inc., an Ohio corporation (the "Company" or "PhoneTel"),
and Davel Communications, Inc. ("Davel").
WHEREAS, concurrently with the effectiveness of this Agreement, the
Company, Davel, and PT Merger Corp., an Ohio corporation and a wholly owned
subsidiary of Davel ("P Sub"), have entered into an Agreement and Plan of
Reorganization and Merger (the "Merger Agreement"), dated the date hereof,
pursuant to which the Company will be merged with and into P Sub with the
Company surviving as a wholly owned subsidiary of Davel (the "Merger").
WHEREAS, the consummation of the 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 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, Holders are the beneficial owners of 3,070,380 shares of PhoneTel
Common Stock (the "Owned Shares") in the aggregate, as they may be owned by each
Holder identified on the signature page hereof, representing approximately
30.13% of the shares of PhoneTel Common Stock outstanding as of August 31, 2001.
Such 3,070,380 shares of PhoneTel Common Stock, together with any other shares
of capital stock of PhoneTel acquired by any Holder 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 Davel to enter into the
Merger Agreement, and as an inducement to Davel to do so, Holders have agreed
for the benefit of 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 HOLDER
Section 1.1 Agreement to Vote. At any meeting of the shareholders of
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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 the Company executed prior to the Termination Date, each Holder
shall vote its Shares in favor of the approval of the Merger Agreement, the
Transaction and any amendment to the Articles of Incorporation of the Company
proposed by management to increase the authorized common shares in the amount
necessary to consummate the Transaction. Prior to the Termination Date and
subject to Section 1.3, each Holder 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.
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(a) Each Holder 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, each Holder 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 Holder. Prior to the Termination Date,
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Holder 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 Davel
containing substantially the same terms as this Agreement.
Section 1.4 Action in Shareholder Capacity Only. Each Holder makes no
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agreement or understanding herein in any capacity other than its capacity as a
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 HOLDER
Each Holder severally and not jointly represents, warrants and covenants to
Davel, in each case with regard to such Holder and no other Holder, that:
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Section 2.1 Ownership. Holder is, as of the date hereof, the
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beneficial owner of the shares of PhoneTel Common Stock set forth opposite its
name on the signature page hereof 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. Holder has the right,
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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 Holder and constitutes a valid and binding obligation
of Holder, enforceable against Holder 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 Holder nor the consummation by
Holder 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 Holder 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 Holder is a party or by which Holder or his assets are bound.
Section 2.3 Total Shares. Holder does not have any option to purchase
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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, Holder
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shall use reasonable efforts to cooperate with PhoneTel to consummate the
Transaction.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF DAVEL
Davel represents, warrants and covenants to Holder that:
Section 3.1 Authority and Non-Contravention. Davel 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 Davel and the consummation of the transactions contemplated by this
Agreement have been duly authorized by all necessary action on the part of
Davel. This Agreement has been duly executed and delivered by Davel and
constitutes a valid and binding obligation of Davel, enforceable against 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 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 Davel or (ii)
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violate or conflict with the certificate of incorporation or bylaws of Davel or
constitute a material violation of or default under any contract, commitment,
agreement, understanding, arrangement or other restriction of any kind to which
Davel is a party or by which Davel or its assets are bound.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Expenses. All costs and expenses incurred in connection with
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the preparation or execution of this Agreement shall be paid by PhoneTel.
Section 4.2 Further Assurances. From time to time, at the request of
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Davel, in the case of each Holder, or at the request of such Holder, in the case
of 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. Each Holder agrees that Davel would be
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irreparably damaged if for any reason any Holder fails to perform any of
Holder's obligations under this Agreement, and that Davel would not have an
adequate remedy at law for money damages in such event. Accordingly, Davel shall
be entitled to seek specific performance and injunctive and other equitable
relief to enforce the performance of this Agreement by such Holder. This
provision is without prejudice to any other rights that Davel may have against
such Holder for any failure to perform its obligations under this Agreement.
Section 4.4 Amendments, Termination. This Agreement may not be modified or
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amended except by an instrument or instruments in writing signed by each party
hereto. The representations, warranties, covenants and agreements of each Holder
set forth in Article I, Article II and Article III, including the obligation of
such Holder to vote the Shares in favor of the Merger Agreement, shall
terminate, except with respect to liability for prior breaches thereof, upon the
earliest to occur of (i) termination of the Merger Agreement, (ii) the Closing
Date under the Merger Agreement 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 Merger in a manner adverse to Davel
(the "Termination Date").
Section 4.5 Assignment. Subject to Section 1.3 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.
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Section 4.6 Certain Events. Each Holder agrees that this Agreement and the
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obligations hereunder shall attach to its 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 Davel to:
Davel Communications Group, Inc.
10120 Windhorst Road
Tampa, Florida 33619
Attention: Bruce W. Renard, Esq.
Telecopy number: (813) 740-9406
with a copy to:
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Attention: R. Scott Falk, Esq.
Telecopy number: (312) 861-2200
If to Holder, to:
American Express Financial Corp.
25614 AXP Financial Center
Minneapolis, Minnesota 55474
Attention: Peg Sibbet
Telecopy number: 612-317-3734
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 Delaware 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
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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
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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 submits
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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
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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.
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties as of the date first above written.
Owned Shares
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386,000 AXP BOND FUND, INC.
By: /s/ Timothy J. Masek
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Name: Timothy J. Masek
Title: Assistant Vice President, AXP
Bond Fund, Inc.
596,400 AXP VARIABLE PORTFOLIO-BOND
FUND, A SERIES OF AXP VARIABLE
PORTFOLIO INCOME SERIES, INC.
By: /s/ Timothy J. Masek
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Name: Timothy J. Masek
Title: Assistant Vice President, AXP
Variable Portfolio Income Series,
Inc.
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210,600 AXP VARIABLE PORTFOLIO-
MANAGED FUND, A SERIES OF AXP
VARIABLE PORTFOLIO MANAGED SERIES, INC.
By: /s/ Timothy J. Masek
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Name: Timothy J. Masek
Title: Assistant Vice President, AXP
Variable Portfolio Managed Series,
Inc.
8,800 INCOME PORTFOLIO, A SERIES OF IDS
LIFE SERIES FUND, INC.
By: /s/ Frederick C. Quirsfeld
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Name: Frederick C. Quirsfeld
Title: Vice President, IDS Life Series
Fund, Inc.
70,200 MANAGED PORTFOLIO, A SERIES OF
IDS LIFE SERIES FUND, INC.
By: /s/ Frederick C. Quirsfeld
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Name: Frederick C. Quirsfeld
Title: Vice President, IDS Life Series
Fund, Inc.
149,580 AXP VARIABLE PORTFOLIO-EXTRA
INCOME FUND, A SERIES OF AXP
VARIABLE PORTFOLIO INCOME
SERIES, INC.
By: /s/ Timothy J. Masek
--------------------------------------
Name: Timothy J. Masek
Title: Assistant Vice President, AXP
Variable Portfolio Income Series,
Inc.
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1,648,800 HIGH YIELD PORTFOLIO, A SERIES OF
INCOME TRUST
By: /s/ Timothy J. Masek
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Name: Timothy J. Masek
Title: Assistant Vice President, Income
Trust
DAVEL COMMUNICATIONS, INC.
By: /s/ Bruce W. Renard
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Name: Bruce W. Renard
Title: President
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