EXHIBIT 9.5
TELESPECTRUM STOCKHOLDER SUPPORT AGREEMENT
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THIS STOCKHOLDER SUPPORT AGREEMENT, dated as of January 14, 1999 (this
"Agreement") being executed by the undersigned stockholder (the "Stockholder")
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of TeleSpectrum Worldwide Inc., a Delaware corporation ("TeleSpectrum"), for the
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benefit of International Data Response Corporation, a Delaware corporation
("IDRC").
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WHEREAS, TeleSpectrum and IDRC are entering into an Agreement and Plan
of Merger, dated as of January 14, 1999 (the "Merger Agreement"), whereby, upon
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the terms and subject to the conditions set forth in the Merger Agreement, each
issued and outstanding share of the common stock, par value $.001 per share, of
IDRC ("IDRC Common Stock") not owned directly or indirectly by TeleSpectrum or
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IDRC, will be converted into shares of common stock, par value $.01 per share,
of TeleSpectrum ("Telespectrum Common Stock"), and warrants exercisable for
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TeleSpectrum Common Stock ("Warrants"), the outstanding shares of the Series A
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Preferred Stock, par value $.001 per share, of IDRC as of the effective time of
the Merger will be redeemed for cash, and the outstanding options and warrants
of IDRC as of the effective time of the Merger will be converted into options
exercisable for TeleSpectrum Common Stock and Warrants;
WHEREAS, Stockholder owns 6,946,583 shares of TeleSpectrum Common
Stock (such shares of TeleSpectrum Common Stock, together with any other shares
of capital stock TeleSpectrum acquired by such Shareholder after the date hereof
and during the term of this Agreement, being collectively referred to herein as
the "Subject Shares"); and
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WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, IDRC has required that the Stockholder agree, and in order to induce
IDRC to enter into the Merger Agreement the Stockholder has agreed, to enter
into this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements set forth herein, the Stockholder agrees as follows:
1. Capitalized Terms. Capitalized terms used in this Agreement that
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are not defined herein shall have such meanings as set forth in the Merger
Agreement.
2. Covenants of Stockholder. Until the termination of this
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Agreement in accordance with Section 6, Stockholder agrees as follows:
(a) At the TeleSpectrum Stockholders Meeting (or at any adjournment
thereof) or in any other circumstances upon which a vote, consent or other
approval with respect to the Merger or the Merger Agreement is sought, the
Stockholder shall vote (or cause to be voted) the Subject Shares in favor of the
Merger, the adoption of the Merger Agreement and approval of the terms thereof
and each of the other transactions contemplated by the Merger Agreement.
(b) At any meeting of stockholders of TeleSpectrum or at any adjournment
thereof or in any other circumstances upon which the Stockholder's vote, consent
or other approval is sought, the Stockholder shall vote (or cause to be voted)
the Subject Shares against (i) any merger agreement or merger (other than the
Merger Agreement and the Merger), consolidation, combination, sale of
substantial assets, reorganization, recapitalization, dissolution, liquidation
or winding up of or by TeleSpectrum or any subsidiary thereof or any other
Acquisition Proposal or (ii) any amendment of TeleSpectrum's Certificate of
Incorporation or Bylaws or other proposal or transaction involving TeleSpectrum
or any TeleSpectrum Subsidiary, which amendment or other proposal or transaction
would in any manner impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger Agreement
or change in any manner the voting rights of any class of capital stock of
TeleSpectrum. The Stockholder further agrees not to commit or agree to take any
action inconsistent with the foregoing.
(c) Contemporaneously with the execution of this Agreement: (i)
Stockholder shall deliver to IDRC a proxy in the form attached hereto as
Exhibit A, which shall be irrevocable to the fullest extent permitted by
law, with respect to the Subject Shares (the "Proxy"); and (ii) Stockholder
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shall cause to be delivered to IDRC an additional proxy (in the form
attached hereto as Exhibit A) executed on behalf of the record owner of any
issued and outstanding shares of TeleSpectrum Common Stock that are owned
beneficially (but are not owned of record) by Stockholder.
(d) Except for 678,410 of the Subject Shares (the "CRW Warrant
Shares") subject to outstanding warrants granted by the Stockholder, the
Stockholder agrees not to (i) sell, transfer, pledge, assign or otherwise
dispose of (collectively, "Transfer"), or enter into any contract, option
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or other arrangement (including any profit-sharing arrangement) with
respect to the Transfer of the Subject Shares to any person or (ii) enter
into any voting arrangement, whether by proxy, voting agreement, voting
trust or otherwise, in relation to the Subject Shares. The Stockholder
further agrees not to commit or agree to take any of the foregoing actions.
Notwithstanding the foregoing, the Stockholder may Transfer (i) all of the
CRW Warrant Shares upon exercise of the associated warrants or (ii) all or
any portion of the Subject Shares held by such Stockholder by way of gift
or for estate planning purposes, provided that any such transfer outlined
in clause (ii) of the preceding sentence shall first be required to execute
a joinder to this Agreement whereby such transferee agrees to be bound by
all of the terms and conditions hereof.
(e) Immediately after the execution of this Agreement (and from
time to time prior to the termination of this Agreement), Stockholder shall
instruct TeleSpectrum to cause each certificate of Stockholder evidencing
any of the Subject Shares to bear a legend in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
EXCHANGED OR OTHERWISE
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TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE
TERMS AND CONDITIONS OF THE STOCKHOLDER SUPPORT AGREEMENT
DATED AS OF JANUARY 14, 1999, AS IT MAY BE AMENDED, A COPY
OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF
THE ISSUER.
3. Representations and Warranties.
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(a) The Stockholder has the requisite power and authority to
execute and deliver this Agreement and the Merger Agreement and to
consummate the transactions contemplated hereby. Each of this Agreement
and the Merger Agreement is enforceable against the Stockholder in
accordance with its terms.
(b) The Stockholder represents and warrants to IDRC that (i) the
Stockholder is the record and beneficial owner of, and has good and
marketable title to, the Subject Shares, (ii) the Stockholder does not own,
of record or beneficially, any issued and outstanding shares of capital
stock of TeleSpectrum other than the Subject Shares, and (iii) the
Stockholder has the sole right to vote, and, except for the CRW Warrant
Shares, the sole power of disposition with respect to, the Subject Shares,
and none of the Subject Shares other than the CRW Warrant Shares is subject
to any voting trust, proxy or other agreement, arrangement or restriction
with respect to the voting or disposition of such Subject Shares, except
for this Agreement.
4. Termination. The obligations of the Stockholder hereunder shall
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terminate upon the earlier of (a) Xxxxxx 0, 0000, (x) the termination of the
Merger Agreement pursuant to Section 6.1 thereof (other than subsection (b)
thereof), (c) any amendment or modification of the Merger Agreement which
increases any of the consideration to be received by any of the stockholders of
IDRC pursuant to or in connection with the Merger Agreement, which amendment or
modification is not approved in writing by the Stockholder, (d) any amendment or
modification of the Merger Agreement which changes the form of the consideration
to be received by the holders of shares of IDRC Common Stock pursuant to or in
connection with the Merger Agreement, which amendment or modification is not
approved in writing by the Stockholder, (e) the withdrawal of the opinion of
X.X. Xxxxxx Securities, Inc. that the consideration to be paid by TeleSpectrum
in connection with the merger is fair, from a financial point of view (the
"Fairness Opinion"), or any amendment or modification of the Fairness Opinion in
any manner which is adverse to TeleSpectrum or its stockholders, or (e) the
Effective Time.
5. Further Assurances. Stockholder will, from time to time at
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IDRC's cost and expense, promptly execute and deliver such additional or further
consents, documents and other instruments as IDRC may reasonably request for the
purpose of effectively carrying out the transactions contemplated by this
Agreement in accordance with the terms and conditions hereof.
6. Successors, Assigns and Transferees Bound. Except as provided
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herein, neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned
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by either of the parties hereto (whether by operation of law or otherwise)
without the prior written consent of the other party. Any successor, assignee or
transferee (including a successor, assignee or transferee as a result of the
death of the Stockholder, such as an executor or heir) shall be bound by the
terms hereof, and the Stockholder shall take any and all actions necessary to
obtain the written confirmation from such successor, assignee or transferee that
it is bound by the terms hereof.
7. Remedies. The Stockholder acknowledges that money damages would
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be both incalculable and an insufficient remedy for any breach of this Agreement
by it, and that any such breach would cause IDRC irreparable harm. Accordingly,
the Stockholder agrees that in the event of any breach or threatened breach of
this Agreement, IDRC, in addition to any other remedies at law or in equity it
may have, shall be entitled, without the requirement of posting a bond or other
security, to equitable relief, including injunctive relief and specific
performance.
8. Severability. The invalidity or unenforceability of any
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provision of this Agreement in any jurisdiction shall not affect the validity or
enforceability of any other provision of this Agreement in such jurisdiction, or
the validity or enforceability of any provision of this Agreement in any other
jurisdiction.
9. Amendment. This Agreement may be amended only by means of a
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written instrument executed and delivered by both the Stockholder and IDRC.
10. Governing Law. This Agreement shall be governed by, and
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construed in accordance 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.
11. Survival. None of the representations, warranties, covenants and
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agreements made by the Stockholder shall survive the termination of this
Agreement.
12. Notices. All notices and other communications hereunder shall be
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in writing and shall be deemed to have been duly given when delivered in person,
by telecopy or by overnight courier service to the respective parties as
follows:
if to IDRC:
International Data Response Corporation
XX Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxxx
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with a copy to:
Xxxxxx Godward LLP
0000 Xxxxxxxxx Xxxxx - Xxxxx 000
Xxx Xxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
If to the Stockholder:
CRW Financial, Inc.
000 Xxxx Xxxxx Xxxxxxxxx
Xxxxx 000
X. Xxxxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxxxxx X. Xxxxxxxx
with a copy to:
Xxxxxx Xxxxxxxx LLP
3000 Two Xxxxx Xxxxxx
Xxxxxxxxxx xxx Xxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq
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13. Counterparts; facsimile. For the convenience of the parties,
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this Agreement may be executed in one or more counterparts, including by
facsimile signature, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
STOCKHOLDER:
CRW FINANCIAL, INC.
By: /S/ XXXXXXXX X. XXXXXXXX
_____________________________________________
Xxxxxxxx X. Xxxxxxxx
Vice President and Chief Financial Officer
Accepted and Agreed to
as of the date noted above:
INTERNATIONAL DATA RESPONSE CORPORATION
By: __________________________
Name:
Title:
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EXHIBIT A
FORM OF IRREVOCABLE PROXY
IRREVOCABLE PROXY
The undersigned stockholder of TeleSpectrum Worldwide Inc., a Delaware
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes Xxxxxx X. Xxxxxxx, Xx., Xxxxxxx X. Xxxxxxxx and
International Data Response Corporation, a Delaware corporation ("IDRC"), and
each of them, the attorneys and proxies of the undersigned with full power of
substitution and resubstitution, to the full extent of the undersigned's rights
with respect to (i) the issued and outstanding shares of capital stock of the
Company owned of record by the undersigned as of the date of this proxy, which
shares are specified on the final page of this proxy and (ii) any and all other
shares of capital stock of the Company which the undersigned may acquire after
the date hereof. (The shares of the capital stock of the Company referred to in
clauses (i) and (ii) of the immediately preceding sentence are collectively
referred to as the "Subject Shares.") Upon the execution hereof, all prior
proxies given by the undersigned with respect to any of the Subject Shares are
hereby revoked, and no subsequent proxies will be given with respect to any of
the Subject Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with a Stockholder Support Agreement, dated as of the date hereof,
between IDRC and the undersigned (the "Stockholder Support Agreement"), and is
granted in consideration of IDRC entering into the Agreement and Plan of Merger,
dated as of the date hereof, among IDRC, the Company and certain stockholders of
IDRC (the "Merger Agreement"). Capitalized terms used but not otherwise defined
in this proxy have the meanings ascribed to such terms in the Merger Agreement.
The attorneys and proxies named above will be empowered, and may exercise
this proxy, to vote the Subject Shares at any time until the earlier to occur of
the valid termination of the Merger Agreement or the Effective Time at any
meeting of the stockholders of the Company, however called, or in any written
action by consent of stockholders of the Company in favor of the Merger, the
execution and delivery by the Company of the Merger Agreement and the adoption
and approval of the terms thereof and in favor of each of the other actions
contemplated by the Merger Agreement and any action required in furtherance
hereof and thereof.
Notwithstanding anything to the contrary set forth in this proxy, the CRW
Warrant Shares (as defined in the Stockholder Support Agreement) shall not be
subject to the terms of this proxy upon the exercise of the warrant associated
with the CRW Warrant Shares.
The undersigned stockholder may vote the Subject Shares on all other
matters which would reasonably be expected to delay or otherwise interfere or
prevent the consummation of the Merger.
This proxy shall be binding upon the heirs, successors and assigns of the
undersigned (including any transferee of any of the Subject Shares).
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Any term or provision of this proxy which is invalid or unenforceable in
any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this proxy or affecting the validity or
enforceability of any of the terms or provisions of this proxy in any other
jurisdiction. If any provision of this proxy is so broad as to be unenforceable,
the provision shall be interpreted to be only so broad as is enforceable.
This proxy shall terminate immediately upon the terminate upon the earlier
of the termination of the Merger Agreement pursuant to Section 6.1 thereof or
the Effective Time.
Dated: January 14, 1999
Name: CRW Financial, Inc.
By: /S/ XXXXXXXX X. XXXXXXXX
______________________________________________
Xxxxxxxx X. Xxxxxxxx
Vice President and Chief Financial Officer
Number of shares of Company Common Stock
owned of record as of the date of this proxy: 6,946,583
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