EXHIBIT 9.4
IDRC STOCKHOLDER SUPPORT AGREEMENT
----------------------------------
THIS STOCKHOLDER SUPPORT AGREEMENT, dated as of ______________ __,
1999 (this "Agreement") is being executed by the undersigned stockholder (the
---------
"Stockholder") of IDRC, a Delaware corporation ("IDRC"), for the benefit of
----------- ----
TeleSpectrum, a Delaware corporation ("TeleSpectrum").
------------
WHEREAS, TeleSpectrum and IDRC are entering into an Agreement and Plan
of Merger, dated as of January __, 1999 (the "Merger Agreement"), whereby, upon
----------------
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
-----------------
IDRC, will be converted into shares of common stock, par value $.01 per share,
of TeleSpectrum ("TeleSpectrum Common Stock"), and warrants exercisable for
-------------------------
TeleSpectrum Common Stock ("Warrants"), the outstanding shares of the Series A
--------
preferred stock, par value $.001 per share, of IDRC ("IDRC Series A Preferred
-----------------------
Stock") 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 _________ shares of IDRC Common Stock (such
shares of IDRC Common Stock, together with any shares of IDRC Common Stock
obtainable upon exercise of Detachable Warrants, any other shares of capital
stock of IDRC acquired by such Stockholder after the date hereof and during the
term of this Agreement, being collectively referred to herein as the "Subject
-------
Shares"); and
------
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, TeleSpectrum has required that the Stockholder agree, and in order to
induce TeleSpectrum 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
-----------------
are not defined herein shall have such meanings as set forth in the Merger
Agreement.
2. Covenants of Stockholder. Until the termination of this
------------------------
Agreement in accordance with Section 6, Stockholder agrees as follows:
(a) At the IDRC Stockholders Meeting (or at any adjournment
thereof) or in any other circumstances upon which a vote, consent
(including the IDRC 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 the approval of the terms thereof and each of the
other transactions contemplated by the Merger Agreement.
(b) At any meeting of stockholders of IDRC 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 IDRC or any subsidiary
thereof or any other Acquisition Proposal or (ii) any amendment of IDRC's
Certificate of Incorporation or Bylaws or other proposal or transaction
involving IDRC or any IDRC 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 IDRC. 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 TeleSpectrum 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 shall cause to be delivered to TeleSpectrum 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 IDRC Common Stock that
are owned beneficially (but are not owned of record) by Stockholder.
(d) The Stockholder agrees not to (i) sell, transfer, pledge,
assign or otherwise dispose of (collectively, "Transfer"), or enter into
--------
any contract, option 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 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
transferee 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) The Stockholder shall not, nor shall the Stockholder permit
any affiliate, director, officer, employee, partner, investment banker,
attorney or other advisor, agent or representative of the Stockholder to,
(i) directly or indirectly solicit, initiate or encourage the submission
of, any Acquisition Proposal or (ii) directly or indirectly participate in
any discussions or negotiations regarding, or furnish to any person any
information with respect to, or take any other action to facilitate any
inquiries or the making of any proposal that constitutes or may reasonably
be expected to lead to, any Acquisition Proposal.
-2-
(f) The Stockholder shall use all 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 TeleSpectrum in doing, all things necessary,
proper or advisable to consummate and make effective, in the most
expeditious manner practicable, the Merger and the other transactions
contemplated by the Merger Agreement.
(g) Immediately after the execution of this Agreement (and from
time to time prior to the termination of this Agreement), Stockholder shall
instruct IDRC 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 TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE
TERMS AND CONDITIONS OF THE STOCKHOLDER SUPPORT AGREEMENT DATED AS OF
JANUARY __, 1999, AS IT MAY BE AMENDED, BETWEEN THE ISSUER AND IDRC, A
COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE
ISSUER.
3. Representations and Warranties.
------------------------------
(a) The Stockholder has the requisite capacity and legal right 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 TeleSpectrum 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 shares of capital stock of IDRC other than
the Subject Shares and shares of IDRC Series A Preferred Stock, and (iii)
the Stockholder has the sole right to vote, and the sole power of
disposition with respect to, the Subject Shares, and none of the Subject
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. Lock-Up. In consideration and as an inducement of TeleSpectrum's
-------
willingness to enter into the Merger Agreement, the Stockholder agrees that,
without the prior written consent of TeleSpectrum (which consent may be withheld
for any reason), the Stockholder will not, directly or indirectly (a) offer,
sell, pledge, contract to sell (including any short sale), grant any option to
purchase or otherwise dispose of any shares of TeleSpectrum Common Stock, the
Warrants or Warrant Shares acquired by such Stockholder in connection with the
Merger or upon the exercise of any options acquired in connection with the
Merger, or
-3-
(b) enter into any Hedging Transaction (as defined below) relating to the
foregoing securities (each of the foregoing classes (a) and (b) are hereinafter
referred to as a "Disposition") for a period of one year after the Effective
-----------
Time (the "Lock-Up Period"). The foregoing restriction is expressly intended to
--------------
preclude the Stockholder from engaging in any Hedging Transaction or other
transaction which is designed to or reasonably expected to lead to or result in
a Disposition by the Stockholder during the Lock-Up Period even if the
securities would be disposed of by someone other than the Stockholder. "Hedging
Transaction" means any short sale (whether or not against the box) or any
purchase, sale or grant of any right (including, without limitation, any put or
call option) with respect to any security (other than a broad-based market
basket or index) that includes, relates to or derives any significant part of
its value from the shares of TeleSpectrum Common Stock; provided that the
exercise of an option or warrant to purchase shares of TeleSpectrum Common Stock
or other securities issued by TeleSpectrum or the conversion of any convertible
securities into shares of TeleSpectrum Common Stock or other securities issued
by TeleSpectrum shall not be a Hedging Transaction. The restrictions on
Disposition of TeleSpectrum Common Stock shall not apply to any TeleSpectrum
Common Stock acquired by the Stockholder in the open market or otherwise than in
connection with the Merger.
Without limiting the restrictions herein, any Disposition by the
Stockholder shall remain at all times subject to applicable securities laws The
Stockholder also agrees that TeleSpectrum may cause its transfer agent to note
stop transfer instructions with respect to shares of TeleSpectrum Common Stock
beneficially owned by the Stockholder on the transfer books and records of
TeleSpectrum.
5. Termination. The obligations of the Stockholder hereunder shall
-----------
terminate upon the earlier of the termination of the Merger Agreement pursuant
to Section 6.1 thereof or the Effective Time; provided, however, that Section 4
-------- -------
shall survive for the Lock-Up Period.
6. Further Assurances. Stockholder will, from time to time,
------------------
promptly execute and deliver, or cause to be executed and delivered, such
additional or further consents, documents and other instruments as TeleSpectrum
may reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement.
-4-
7. Successors, Assigns and Transferees Bound. Except as provided
-----------------------------------------
herein, neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned 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.
8. Remedies. The Stockholder acknowledges that money damages would
--------
be both incalculable and an insufficient remedy for any breach of this Agreement
by it, and that any such breach would cause TeleSpectrum irreparable harm.
Accordingly, the Stockholder agrees that in the event of any breach or
threatened breach of this Agreement, TeleSpectrum, 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.
9. Severability. The invalidity or unenforceability of any
------------
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.
10. Amendment. This Agreement may be amended only by means of a
---------
written instrument executed and delivered by both the Stockholder and
TeleSpectrum.
11. Governing Law. This Agreement shall be governed by, and
-------------
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.
-5-
12. Counterparts. For the convenience of the parties, this Agreement
------------
may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
STOCKHOLDER
By: ______________________________
Name:
Title:
Accepted and Agreed to
as of the date noted above:
TELESPECTRUM WORLDWIDE INC.
By: _____________________
Name:
Title:
-6-
EXHIBIT A
FORM OF IRREVOCABLE PROXY
IRREVOCABLE PROXY
The undersigned stockholder of IDRC, a Delaware corporation (the
"Company"), hereby irrevocably (to the fullest extent permitted by law) appoints
and constitutes Xxxxx Xxxxxx, Xxxxxxx Xxxxxxx and TeleSpectrum, a Delaware
corporation ("TeleSpectrum"), 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 TeleSpectrum and the undersigned (the "Stockholder Support Agreement"),
and is granted in consideration of TeleSpectrum entering into the Agreement and
Plan of Merger, dated as of the date hereof, among TeleSpectrum, the Company and
certain stockholders of the Company (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.
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).
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
-7-
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 upon the termination of the Stockholder Support
Agreement.
Dated: January __, 1999
Name:
Number of shares of Company Common Stock
owned of record as of the date of this proxy:
-8-
